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TORTS WINTER SUPER CAN

STRICT LIABILITY
Origin and Scope

TEST FOR STRICT LIABLITY


1) Bring mischievous object onto land (further extended to non-natural use of land) Rickards
2) It escapes
3) Causes damage
*The idea that emerges from most of these cases is that strict liability arises primarily when there is an increase in danger.
Ie. Storage of water, chemicals, biological agents, explosives, and any other industrial agents that could, if they escape or
become dangerous when amassed in a group, cause harm.
Exceptions: No liability ensues if:
1) Natural use of land
2) Act of God (Rickards)
3) Malicious act of a third person (Rickards)
4) Approved by city (Note 1, St. Johns Metro)
5) No escape (ie. strict liability does not extent to personal injury) Read
NOTE: Aldrdige v. Van Patter racer drives through fence at track judge said doctrine of strict liability extends to personal
damages sustained by anyone to whom the probability of such damage would be naturally foreseen. THIS WATERS DOWN
STRICT LIABILITY IN CANADA

Rylands v. Fletcher (Rylands dug a well on his land, leaked onto Fletchers property and caused damage): Blackburn: strict
liability ensues if: 1) Bring mischievous object onto your land. (This is likened to the concept of a non-natural use Rickards) 2)
It escapes 3) Causes damage. Cairns: Natural vs. Non Natural use of land 1) If it was a natural use of land, then no liability
would result (ie. rain water gets into the reservoir that flooded the mines). 2) But there is liability for a non natural use of land for
the purpose of introducing something into the close which was not in or upon it
Richards v. Lothian(Ds bathroom pipe was plugged with debris by a third party, leaked and caused damage to Ps property)
Addition to #1 of the Rylands v. Fletcher test: No liability if the act is an ordinary use of the land (must be a special use of the
land). Other Exceptions: No liability if it is an Act of God, and no liability if it is due to the malicious act of third person.
Read v. Lyons & Co. (Explosion injuring employee whose job it was to inspect explosives): If there is no escape, then there is no
strict liability. Furthermore, strict liability does not extent to personal injury see Note 7 in CANS: Aldridge v. Van Patter
Defences to Strict Liability

1. Consent of the Plaintiff (Complete Defence)


When consent is expressly given, no liability
Circumstances under which consent can be implied: when non-negligently produced damage occurred for the benefit of the
plaintiff. Acquiescence + knowledge is also a factor.
Where there is no benefit, the court is less likely to imply consent.
Even where there is some benefit, there is liability if the plaintiff does not consent to installation
2. Default to the Plaintiff (Not a complete defence statute applies contributory negligence act)
Akin to contributory negligence. Either negligence or intentional tort that causes or contributes to the damage
3. Act of God (Complete Defence)
Extraordinary, unforeseeable phenomena - no human foresight can provide against and which human prudence is not bound to
recognize the possibility
4. Deliberate Act of a Third Person (Complete Defence)
3rd partys deliberate act of volition exempts defendant from strict liability
Where conduct of a third party is foreseeable or if it could have been prevented, strict liability WILL ensue.

5. Legislative Authority (Complete Defence)


Where an activity is authorized by legislation, no strict liability is imposed unless the defendant is found to have been negligent.

Products Liability
In US product liability is a strictly liability tort.
In Canada Take different approach. Donahue and Stevenson is an example of that. Dealt with by tort of negligence.
Judges in Canada are still a bit uneasy:
- will read in warranty
- say there is a higher standard of care required from manufacturers
- sometimes reverse the burden of proof to some degree after harm has been found to be caused

Greenman: (Power tool had piece of wood come out of it and hit P in face) US CASE - Purpose of the law is to ensure that
costs of injuries resulting from defective products are borne by the manufacturer. A representation was implied that it would
safely do the jobs for which it was built, regardless of any warranty. The remedies of injured consumers ought not to be made to
depend upon the intricacies of the law of sales.
Vicarious Liability
Employers are vicariously liable for: (Bazley)
* See full Test in CANS ( )
(1) Employee acts authorized by the employer
(2) Unauthorized acts so connected with authorized acts that they may be regarded as modes of doing an authorized act
(a) Look to precedents for unambiguous answer; (b) Consider policy rationales for strict liability
When the above test is inconclusive
(3) Question of employer liability should be openly confronted rather than using scope of employment or mode of conduct
Fundamental question is whether the wrongful act is sufficiently related to the conduct authorized by the employer to justify the
imposition of vicarious liability.
Was there a significant connection between the creation or enhancement of a risk and the wrong that accrues therefrom, even
if unrelated to the employers desires. (This is the crux of the test). Where the risk is so closely associated with the wrong, the
entity that engages in the enterprise should internalize the full cost of its operation.
Factors in determining sufficiency of connection between employers creation/enhancement of risk & the wrong: (Bazley)
(1) The opportunity that the enterprise afforded the employee to abuse his power
(2) The extent to which the wrongful act may have furthered the employers aims
(3) The extent to which the act was related to friction, confrontation or intimacy inherent to the employers enterprise
(4) The extent of power conferred on the employee in relation to the victim
(5) The vulnerability of potential victims to the wrongful exercise of the employees power (does not itself provide enough for the
think (Jacobi)
(6) The level of control held by the agency over the agent (Blackwater)
(7) The hiring procedures used (Blackwater)
Policy considerations to take into account in dealing with vicarious liability matters: (Bazley)
(1) Provision of a just and practical remedy for the harm (effective compensation)
(2) Deterrence of future harm by fixing the employer with the responsibility of the employees wrongful acts (better supervision
and organization)
Distinguish between employee and contractor: Employer not responsible for contractor. See Sagaz below

Bazley ( ): (D hired a pedophile who sexually assaulted a kid in one of Ps foster homes) where the wrongful act of the
employee (sexual wrongdoing) is so closely connected with authorized acts (i.e. tucking-in/bathing) of his employment
such that the employment can be said to have provided the means to carry out the unlawful act, the employer may be
held liable - the enterprise and employment must not only provide the locale or the bare opportunity for the employee
to commit his or her wrong, it must materially enhance the risk, in the sense of significantly contributing to it, before it
is fair to hold the employer vicariously liable (not-for-profit orgs are not immune) NO use of the but-for test

Jacobi ( ): (Program director of D co. sexually assaulted 2 children) Employers are to be held liable where the strong
connection between the employment & the assault was enhanced by a combination of job-created power and intimacy non-profit enterprises lack an efficient mechanism to enterprise the costs associated w/ other business (economic
interest = corresponding liability) sexual abuse was only possible when the employee subverted the public nature of
employment activities the opportunity afforded to the employee to abuse the power he had was minimal too remote
Blackwater ( ): (aboriginal children taken to schools & assaulted) Vicarious liability may be imposed where there is a
significant connection between the conduct authorized by the employer or controlling agent and the wrong between
the hiring procedures, oversight & CONTROL both the church an Canada were found vicariously liable - Having
created or enhanced the risk or the wrongful conduct (by isolating the vulnerable children), it is appropriate that the
employer or operator of the enterprise be held responsible, even though the wrongful act may be contrary to its desires.
Sagaz( ): (Ds agent pays off CT to become their supplier) Employee is different than independent contractor.
Employer has less control over contractors and therefore should not be liable. Control is not the only factor to
distinguish between the two. One should also consider:
oHas the person been engaged to perform services as a person in business on his own account or not?
oDoes the worker provide his or her own equipment?
oDid the worker hire his or her own helpers?
oHow much financial risk did the worker take?
oWhat degree of responsibility for investment and mgmt is held by the worker?
oWhat is the workers opportunity for profit in the performance of his/her tasks.

INTENTIONAL TORTS
INTENTIONAL INTERFERENCE WITH THE PERSON ( )
Intention ( )
For the purpose of intentional torts, intention means the intention to bring about the act (motive is irrelevant)
The purpose of this type of tort is to protect the bodily integrity of individuals
There is no need to prove a loss or damage just harmful or offensive to a reasonable person; it is sufficient for P to
demonstrate that he was directly affected by Ds act, and the onus will then shift to D to show that he was not negligent or
intentional (Goshen)
You can be said to have intended the consequences of your act if:
(a) You actually intend the consequences, or (need not appreciate the acts are wrong: Gerigs)
(b) The consequences were certain or substantially certain to occur/result NOT limited to desired consequences.
It is enough that you have knowledge (knew with substantial certainty) of the potential consequence of your action. (Garratt)
**Non-voluntary actions cannot be intentional (Smith)
**Young child cannot act intentionally or voluntarily (policy concerns) (Tillander)
**Person with mental illness that is incapable of appreciating nature and quality of acts cannot form intention (Lawson)
**Mistake is no defence (Basley)
Where there is an intentional tort, P may also be able to sue in negligence (as probability decreases negligence):

In negligence, P has a burden to prove all the elements of negligence

For intentional torts, all that P has to prove is that he was affected by Ds act then the burden shifts
Intent may be transferred where:

The intent to hit one person results in hitting another person (Carnes)

The intention to commit one tort results in the commission of another tort (i.e. assault trying to scare battery).

Cook v. Lewis ( ): once P proves injury, burden shifts to D to prove he was not at fault.
Goshen ( ): (referee pushed down P while being escorted out the ring) For D to be found liable for an intentional tort,
it must be shown that he intended to bring about the act (and not the harm to P) once P proves injury, onus falls on D
to prove his act was both unintentional & w/o neg. (here, D was entitled to protect his face as he was leaving the ring,
and his act of bumping into P was unintentional; but even if he did intentionally push P, it could be argued that he was
doing so in aid and in consort with the police officers in achieving a common goal of getting him out of the ring safely)

Garratt ( ): (a 6 year old pulled a chair from under P) The mere absence of any intention to injure P or to play a prank,
or to commit an assault or battery on P would not absolve D from liability if he in fact had the knowledge (knew with
substantial certainty) that P would probably attempt to sit down where the chair had been.
Carnes ( ): (D wanted to strike A, but missed & unintentionally struck B) If one person intentionally strikes at, throws
at, or shoots at another, & unintentionally strikes a 3rd person, he is not excused on the ground that it was a mere
accident, but his actions will constitute battery (Ds intention was to strike an unlawful blow, to injure some person by
his act, and it was not essential that the injury be to the one intended) intent to hit someone is transferred to intention
to strike the wife.
Basley ( ): (D, mowing his lawn, accidentally crossed onto Ps lawn) Mistake as a defense does not work in intentional
torts (Ds act was voluntary and he intended the result of his act, and his intentions and knowledge were not material)
Smith ( ): (D was carried on to Ps land by force of others) The trespass was of the party who carried upon the land
and not the trespass of D non-voluntary actions cannot be intentional (i.e. sleepwalking)
Tillander ( ): (3 year old dragged a baby over 100 feet) A child of a tender age (ex. under 7) cannot be liable in
negligence for intentional torts because he does not have the mental capacity to act willfully or intentionally not a
voluntary act lacked mental ability to appreciate or know the real nature of the act
Lawson ( ) (non-psychiatric patient attacked by a psychiatric patient) Where a person, by reason of mental illness, is
incapable of appreciating the nature or quality of his act, such person has committed no tort since the intention, which
is an essential element of the cause of action, is missing (Assault = Voluntary act + Intention) voluntary act is the mind
prompting & directing the act which is complained of - had to argue no tort due to exclusion clause.

Assault ( )
DID P HAVE A SUBJECTIVE REASONABLE APPREHENSION OF HARMFUL OR OFFENSIVE CONTACT? (I. Des
S.)

The fact that D lacks actual ability to cause the harm is irrelevant

Actual fear on the part of P is not required; what is needed is merely an apprehension of the harm (victims perception)

To be an assault, there must be means available to carry out the threat (Stephens)

Means now discredited (i.e. unloaded gun) perception of means is all that matters (i.e. do you think the gun is
loaded?)
WAS THE HARM IMMINENT?

The apprehended contact must be imminent (i.e. cant be a threat of action at some future time). (Tuberville)
If so, can strike back (Bruce)

De S. & Wife ( ): (D struck at P with a hatchet but did not hit her)There is no need to cause harm to commit assault; all
that is needed is that there be a reasonable apprehension of immediate harm
Stephens ( ): (D advanced towards P, fist clenched, but was stopped before he could strike at P) If the D was
advancing with intent to harm, and if he would have done so if he had not been stopped, then that amounts to an assault
in law (assault since D was advancing with intent to hit chairperson before stopped)
Tuberville ( ): (D put his hand on his sword and threatened P if it were not assize time I would not take such language
from you) If one strikes another in discourse, it is no assault, because there is no intention to assault. If one who
intends to assault strikes at another and misses him this is an assault. And if a person holds up his hand against another
in a threatening manner and says nothing, it is an assault (If you say, I would hurt you were it not for X, there is no
threat because of the presence of X being a barrier to action).
Bruce ( ): (P was cut off by D, stopped his car and gestured at D with a clenched fist; a fight broke out and P was
injured self defense?) For assault, it is enough that P, on a reasonable ground, believes that he is in fact in danger of
violence; if A shakes his fist at B, B can strike back if he, on reasonable ground, believes he was in imminent danger +
barring ones way on the road can constitute assault

Battery ( )
Battery: the direct, intentional infliction of harmful or offensive contact with another person (trespass to a person)
(1) DID D INTEND THE HARMFUL OR OFFENSIVE CONTACT TO OCCUR?

D must have intended the harmful or offensive contact to occur. However, he need not have intended to actually harm or
injure the P (Bettel)

(2) WAS THERE ACTUAL HARMFUL OR OFFENSIVE CONTACT WITH ANOTHER PERSON?

Any touching of another person, however slight, may amount to battery (Cole)

The contact does not have to be harmful; it must merely be offensive to or unwanted by P(ex. spitting)

Whether or not D intended for the contact to be offensive is irrelevant (Bettel)

A certain amount of unwanted contact is considered by the courts to be inevitable in everyday life if 2 or more meet in a
narrow passage, & without any violence or design of harm, the one touches the other gently, it will be no battery (Cole)

The contact may constitute battery even if the purpose was to benefit P (ex. surgery or blood transfusion, if performed
without consent)

The contact may constitute battery even if the victim was unaware of the contact at the time it was made (i.e. sexual
touching of an anaesthetized person)

The contact need not be with Ps body; it may be with something P is carrying or wearing
Defenses to Battery: (onus of proof on D to show no fault [Goshen], or not intentional or negligent [Cook; Tillander])

Consent sports/horseplay based on expectations of the parties

Self-defense

Defense of property

Necessity

Legal authority
Sexual Wrongdoing: unwanted sexual contact clearly constitutes battery and may also constitute other torts such as assault and
intentional affliction of emotional distress STDs: but for the lack of knowledge would the person have consented?

Cole ( ): 1) battery requires, at a minimum, the least touching of another person2) If 2 or more meet in a narrow
passage, and without any violence or design of harm, the one touches the other gently, it will be no battery
3) If either uses violence against the other, to force his way in a rude inordinate manner, it will be a battery; or any
struggle about the passage to that degree as may do hurt, will be a battery
Bettel ( ): (store owner picked up and shook P and accidentally head butted him) foreseeability has no place in the
realm of intentional torts; logical test: whether D is guilty of deliberate, intentional and unlawful violence or threat of
violence if physical contact was intended, the magnitude of consequences is irrelevant damages for intentional
torts should not be limited by foreseeability if more harm befalls victim than intented, tortfeasor responsible for all.
The logical test is whether the Def was guilty of deliberate, intentional, and unlawful violence or threats of violence.
Norberg ( ): female patient successfully sued her Dr for a sexual battery - The Dr had agreed to prescribe a drug to his
addicted patient in exchange for sexual activities - where 2 parties are in a position of inequality and where the
dominant party exploits that position, consent is not a valid defence.

Intentional Infliction of Mental Suffering ( )


Intentional Infliction of Mental Suffering: outrageous or extreme conduct coupled with actual or constructive intent to cause a
severe impact on the plaintiffs psychological well being (malicious) recognized psychiatric illness or physical harm
(CANNOT sue if plaintiff had a predisposition or susceptibility to shock must sue in negligence)
This is a better area to succeed in, as opposed to mental infliction of nervous shock

Wilkinson ( ): (D, as a practical joke, told P that her husband was seriously injured; P suffered emotional distress)
Whether D intends the result or not, he is still liable because he knew or believed that his act would create a reaction - it
is no answer to say that more harm was done than was anticipated, nor was the harm too remote intention to produce
worse effects is imputed to D maliciousness is not required, just goes to damages; Key: intention & deliberateness

DEFENSES TO INTENTIONAL TORTS ( )


Consent ( )
Consent: Where P consents to the commission of an act that would otherwise constitute a tort, D is not liable
* not the same as volenti where P voluntarily assumes risk here the P agrees to actual conduct
Elements of the defense:

(1) EXPRESS OR IMPLIED CONSENT (orally or in writing) (OBrien)


(2) CONSENT GIVEN FREELY (without: duress, fraud, deceit or given by someone who is incapable of consenting
by reason of age or influence of drugs) (Norberg)
Two-step process in determining whether or not there has been legally effective consent to a sexual assault: (Norberg)
1)
2)

Proof of an inequality: between the parties which will ordinarily occur within the context of a special power dependency
relationship: An unequal distribution of power is frequently part of the Dr-patient relationship trust? Fid. obligations?
Proof of exploitation: A consideration of the type of relationship (huge) at issue may provide a strong indication of
exploitation. Community standards of conduct may also be of some assistance

The doctrine of informed consent: no medical procedure may be undertaken without the patients consent, obtained after the
patient has been provided with sufficient information to evacuate the risks and benefits of the proposed treatment and other
available options (Malette)
Emergency situations are an exception to the general rule requiring a patients prior consent 3 requirements (Mallette):
(1) The patient must be unconscious or without capacity to make a decision, while no one legally authorized to act as agent for
the patient is available
(2) Time must be of the essence imperative to operate in order to preserve the health of the patient - delay would subject the
patient to serious bodily injury (i.e. Marshalls testicle)
(3) Under the circumstances, a reasonable person would consent probability

OBrien ( ): (vaccination had left no mark and doctor vaccinated the immigrant on ship) If Ps behaviour is such as to
indicate implied consent on her part, D is justified in his act, whatever her unexpressed feelings may have been. In
determining whether she consented, D is guided only by her overt acts and the manifestations of her feelings; the duty,
however, remains on D to show that P did consent unexpressed feelings dont matter ***NOT GOOD LAW***
Norberg ( ): (doctor gave patient pills in return for sexual services) Where there is substantial inequity of power (due
to age, gender, relative bargaining power, other factors) and that power was abused, there was an element of
exploitation and consent could be vitiated people who go to doctors are vulnerable exploitation in that a
reasonable Dr would have tried to help cure her addiction example of duress vitiating consent consent must be
made by free will which requires the absence of any feeling of constraint sexual battery
Malette ( ): (Jehovahs witness had a card on her that stated she refused any form of blood transfusion; the doctor gave
her a transfusion anyways) where there is no express consent, a doctor cannot make a decision for a patient when she is
unconscious and there is some clear indication (an opportunity to know) that she does not wish to receive the treatment
card constitutes valid restriction on consent that cannot be disregarded even in emergency situations unqualified
rejection of blood no more free to disregard advance instructions than instructions given at time of emergency. See
above test for emergency situations
Marshall ( ): (while P was unconscious, the doctor realized that he had to have a testacle removed; an unanticipated
emergency situation) where there is a sense of urgency, the Dr is entitled to use his discretion if consent cannot be
received consent cannot be implied by silence or compliance but can be implied from preceding conversation or
antecedent circumstances
Reibl ( ): (pension) consent is not vitiated by a lack of disclosure or uninformed consent (battery action failed) - unless
there has been a misrepresentation or fraud to secure consent to treatment, a failure to disclose the attendant risks
should go to negligence rather than battery - Actions of battery with respect to surgery or other medical treatment
should be confined to cases in which no consent at all was given or has been performed beyond that to which there was
consent (emergency situations aside).

Self Defense ( )
Self Defense: A person may, without liability, harm another person in order to protect himself from an actual or threatened attack;
a person may also do so where he honestly believes that an attack is imminent
Self Defense requires: (Cockroft)
(1) Balance: respond to force w/ a proportionate/balanced response (thin skull doesnt matter - shouldnt threaten people)
(2) Immediacy: Immediate need to respond to the threat
Provocation: not a defence, but a mitigating factor for quantum of damages (i.e. Bruce v. Dyer)
Defense of 3rd persons: a person is entitled to protect their family members (as long as the conditions are met balance and
immediacy) assault is not on D but D is allowed to weigh in (do pets fit under this?) applies even if mistaken about peril

Cockroft ( ): (P moving fingers towards Ds eyes, & D bit Ps finger off) Self defense requires BALANCE (have to
respond to force with a balanced response) and IMMEDIACY (immediate need to respond to a threat) blow v. sword

Defense of Property ( )
Defence of property: A person is permitted to use reasonable force to defend his or her property from wrongful interference.
Defence is most commonly raised where a property owner takes steps to physically eject a trespasser.
Cant injure/shoot someone who is fleeing they are no longer a threat & you are acting in the role of a police officer
Elements of the Defence
1) AMOUNT OF FORCE

The force used must be only sufficient to expel the trespasser and must not cause unnecessary injury

If the trespasser initially entered the land lawfully, and his or presence is peaceful, force cannot be used to eject the
trespasser until he has first been asked to leave (given reasonable time to leave) and has not done so (Green v. Goddard)

The rules are different if the trespasser used force to enter the property or has come there to commit a crime. In that case,
there is no need ask the trespasser to leave before force can be used to eject him (Green v. Goddard)
2) REASONABLE STEPS TO KEEP OFF TRESPASSERS

A property owner can take reasonable steps to keep trespassers off his property, but cannot deliberately harm trespassers in
trying to keep them off (consider the Occupiers Liability Act)

A property owner may not set a deadly trap such as a spring gun (Bird v. Holbrook) case suggests if given reasonable
warning, that would be sufficient.

Must be designed to keep trespassers out, not to catch them when they enter.

Green v. Goddard ( ): If an individual enters another's property without the use of force, the property owner must ask
the trespasser to depart before the owner can lay hands on the trespasser to turn him out; otherwise, the owner has
committed an assault and battery. On the other hand, if an individual uses force to enter another's property, as in
burglary, it is lawful for the owner to oppose the trespasser with force; no request for the trespasser to leave is
necessary.
Bird ( ): (spring gun in garden w/o warning; shot a trespasser) A property owner cannot take law into his own hands
(vigilantilism) and he must respect the humanity of trespassers - a property owner owes a duty to warn even trespassers
of serious dangers on his property (P overreacted to the defence of property should have at least posted a warning - Use
of force was not reasonable in these circs) no warning cant do indirectly what you cant do directly

Necessity ( )
Necessity: it is a defence to do something which is necessary to obtain some goal which is of greater value than the values
underpinning the intentional interference - raised where D committed a tort to prevent or remedy a situation of immediate danger.
Elements of the Defence
1) INNOCENT PLAINTIFF

P is usually totally innocent; has done nothing intentional, provocative, or negligent. P has usually not participated in
creation of danger

Different from self-defence or defence of 3rd parties because the person whose interest is harmed is not an alleged
wrongdoer, but someone who is innocent of responsibility in creating the dangerous situation
2) IMMINENT PERIL

Defence would only excuse personal injury to the innocent P where the threatening harm is great and the injury to the
innocent person is slight

D is asking to be excused for his own intentional behaviour


3) DAMAGES

Even where the defence is successfully raised, it is not certain that D will be totally relieved of all responsibility to pay
damages to P. It may be that there will be a finding that D was justified, because of necessity, in committing the tort, but P
may still be entitled to damages
Types of Necessity:
1)

Public Necessity: where D is arguing interference with persons private rights for the public good; community interest
greatest good for greatest number. Ex: police who pushes someone to chase after a criminal (Dwyer v. Staunton)

2)

Private necessity: In the case of great and imminent danger, in order to preserve life, the law will permit encroachment on
private property. But must be limited somehow. Mere hunger and want is not defendable, as it leads to chaos.

Dwyer ( ): (path opened through the snow through Ps property, and since there was no other way through, D drove
through the path) Regard for the public welfare is the highest law - if a highway is out of repair and impassible, a
passenger may lawfully go over the adjoining (private) land, since it is for the public good that there should be, at all
times, free passage along thoroughfares for subjects of the realm - taking due care to do no unnecessary damage;
interference with private property is justified by the immediate urgency with a due regard for public safety and
convenience. Private property rights are to be respected but rights of public are higher rights (public necessity)
Vincent ( ): (D tied his boat to Ps dock during storm and the ship damaged the dock) Where D prudently and
advisedly avails itself of Ps property for the purpose of preserving its own property, P is entitled to compensation for
the property damages done (private necessity no strong policy consideration) dissent said no since no trespass. If
it was necessary, there would be no damages but here it wasnt.
Mouse ( ): (D threw Ps property overboard the ship during storm to lighten the weight so that the ship would not sink)
In case of great and imminent danger, in order to preserve life, the law will permit encroachment on private property
Southwark ( ): (London squatters) if homelessness were permitted as a defence to trespass, no ones house would be
safe policy decision due to fear of slippery slope for other wrongdoings (i.e. theft of food)

Occupiers Liability ( )
Occupiers Liability Act:
Duty of Care to visitors (5): An occupier of a premises owes a duty to every visitor on the premises to take such care as in all
circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for
which the visitor is invited or permitted by the occupier to be there or is permitted by law to be there.
Applies to (6):
1) Condition of premises
2) Activities on premises
3) Conduct of third parties on premises
Risks willingly accepted (7): Occupier not under obligation to discharge the common duty of care to a visitor in respect of risks
willingly accepted by the visitor.
Effect of Warning (9): Warning does not absolve occupier form liability unless in all circumstances the warning is enough to
keep the visitor reasonably safe.
Trespassers (12): Occupier does not owe a duty to trespasser, although occupier will be liable to trespasser for damages for death
or injury that results from occupiers willful or reckless conduct.
Child tresspassers (13): Where an occupier knows or has reason to know
a) that a child trespasser is on the occupiers premises and
b) the condition of, or activities on, the premises create a danger of death or serious bodily harm to that child,
the occupier owes a duty to that child to take such care as in all the circumstances of the case is reasonable to see that the child
will be reasonably safe from that danger.
In determining whether the duty will be discharged, look at: age, ability to appreciate danger, and burden on occupier of
eliminating danger should all be considered in determining the duty of care.
Occupier has reason to know that a child trespasser is on the occupiers premises if the occupier has knowledge of facts from
which a reasonable person would infer that a child is present or that the presence of a child is so probably that the occupier should
conduct himself or herself on the assumption that the child is present.

Government Liability ( )
Proceedings Against the Crown Act: Crown will be responsible in tort for acts committed by its officers or agents, for any
breach of those duties that a person owes to that persons servants or agents by reason of being their employer, its occupation
possession or control of property, and under any statute or under any regulation or bylaw made or passed under the authority of
any statute.

First thing to look to when suing the Minister: the statute empowering the Minister to take the action in question
(consider the extent and scope of authority granted) & Proceedings Against the Crown Act s. 5(1) makes liability
Test: (Just)
IS THERE A DUTY OF CARE OWED? (framework in CANS:)
(a) Foreseeability & proximity enough to warrant imposition of duty?; (b) Is there a Statutory duty?
IS THERE A REASON WHY THE DUTY SHOULD NOT APPLY?
(1) Policy Considerations see below
(2) Statutory Exemptions
IS THE DECISION A POLICY DECISION OR AN OPERATIONAL DECISION?
Policy: (decision on what to do) usually dictated by financial, economic, social, & political factors & staff/personnel (Brown)
constraints (ex. decision made by people at the top of the chain of command, using discretionary powers)
Operational: (actually doing the thing in question) concerned with the practical implementation of the formulated policies. Is it
a product of an administrative decision? If so, operational.
Criteria to consider: (i) Level of decision making; (ii) Nature of decision and type of activity, not the actors

(iii) Level of discretion the more discretion, more policy


STANDARD OF CARE:
That of an ordinary, reasonable & prudent person in circumstances include budgetary constraints &
availability of qualified personnel & equipment.
Where the decision is a policy decision, the Minister/Crown satisfies the standard so long as: (Comeau)
(1) Discretion is based on relevant considerations (within the governments authority)
(2) It is not arbitrary
(3) It is exercised in good faith
Policy decisions will fail if discrimination was a factor in the policys reasoning - look at it from a constitutional point of view
(Jane Doe)
The normal principles of tort law apply where the decision is an operational one

Just ( ): (boulder fell on car; provincial authority negligent in highway maintenance?) The Crown can be liable for its
operational decisions but is normally exempt with regards to policy decisions + when dealing with a policy decision,
apply the Comeau test decision to inspect was a policy decision but, manner and quality of an inspection system is
an operational aspect of government activity.
Jane Doe ( ): (the police failed to warn P about threats from a rapist despite knowledge) the decision by police not to
warn (because it may lead to panic & greater harm) breached the statutory duty to protect the public/prevent crimes (&
hence warn against a particular threat to a specific group) victim penetrates policy shield s. 7 & 15(1) violations
so long as the stereotypical view was a factor in the policys reasoning it was discriminatory

Economic Loss ( )
Pure Economic loss: loss suffered by an individual that is not accompanied by physical injury or property damage
Negligent Statements ( )
Negligent statements: statements (oral/written) made that were reasonably relied upon but negligently made so as to cause harm
ANNS # (1) DOES A DUTY OF CARE EXIST ON THE PART OF D? (If not in pre-existing category XX)
Proximity exists on a given set of facts if the defendant may be said to be under an obligation to be mindful of the plaintiffs
legitimate interests in conducting his or her affairs (Hercules).
Cognos: 5 Requirements for establishing a duty of care in negligent statement cases:
(1) A special relationship between the representor and the representee (higher standard than the Anns test)
(2) Representation must be untrue, inaccurate or misleading

(3) Representor must have acted negligently in making the representation: made the statement in a careless manner
(4) Representee must have relied, in a reasonable manner, on the negligent misrepresentation (causation: objective test)
(5) The reliance must have been detrimental to the representee, resulting in damages
Hercules: was there reliance? Factors to consider for reliance: (also goes to whether reliance was reasonable)
(1) Expertise and knowledge of the representor
(2) Seriousness of the occasion
(3) An initial request for information
(4) Pecuniary interest (financial benefit by P for providing information)
(5) Nature of the interest (unresolved forecasts? Speculative statements?)
(6) Disclaimers
Hercules: 2 Requirements for establishing a duty of care after establishing reliance:
(1) Reliance foreseeable: D ought to reasonably foresee that P will rely on his representation
(2) Reliance reasonable: Reliance by P would, in the particular circumstances, be reasonable
ANNS # (2) DO POLICY CONSIDERATIONS NEGATE THE DUTY OF CARE?
The main factor to consider is INDETERMINACY: possibility that D may be exposed to liability in an indeterminate amount
for an indeterminate time to an indeterminate class
Hercules: Factors to consider:
(1) Does D know the identity of either P or the class of Ps who would rely on the statement? He must or policy would negate.
(2) Does the reliance losses claimed stem from the particular transaction (stated use) in respect to which the statement was made?
It must, or policy would negate.
STANDARD OF CARE:
The representor is to exercise reasonable care (such care as may be expected of a reasonably prudent person in the representors
situation) as the circumstances require to ensure the representations made are accurate and not misleading (Cognos).
CAUSATION:
Representee must have relied on the negligent statements to his detriment the statements must have materially contributed to
the loss suffered by P disclaim is no bar to recovery.
Feldtheusens 5 CATEGORIES OF PURE ECONOMIC LOSS CLAIMS: (Hedley Byrne)
(1) Negligent misstatement: Through the use of words or communication on paper, etc. or even silence/omission (not enough
information) can cause economic loss - Statement can be a fact or opinion (if it suggests an underlying fact) - context, given the
maker (Professional, blowhard at party?) Hedley Byrne
(2) Negligent performance of a service: Negligent performance causes economic loss - Need a duty - Can be negligence, but
there must be a duty to find liability - Package delivery case didnt know the 3 rd party or the contents of the package - Need to
be able to foresee the possible losses - Fletcher: combo of (1) & (2) there was a duty found - If someone claims to have a
certain skill but fails to perform it in a competent manner - Doing something a reasonable professional wouldnt have done OR
omitted to do something a reasonable professional would have done - Ex: medical malpractice, lawyers, building inspectors
(3) Defective products or structures: Manufacturers, builders, etc. - Winnipeg Condominium.
(4) Relational losses: Person suffering economic loss one step removed from person suffering personal or property damage Instances in which there is a claim for purely economic loss by plaintiff but its based on damages (physical or proprietary) done
to another person - This category of loss has the potential to be absolutely huge, so law is most restrictive with this category
(5) Public authority liability: Dovetails in with government liability.

Hedley Byrne ( ): (bank made a qualified statement that E was creditworthy) immaterial that you dont know the pl
all that is required is foreseeability an innocent but negligent misrepresentation by itself does not give rise to a cause
of action (something more is required) the speaker has to have undertaken some responsibility (expressly or by
implication) and where a statement is qualified with adequate words such as in confidence and without
responsibility, then the person to whom the statement is made bears the risk that it is not true or negligently made
now a possibility for a duty to arise for negligent words in the absence of contract & fiduciary relations
Cognos ( ): (P accepted a job offer based on negligent statements made by the employer about the prospects for the
businesss success) pre-contractual misrepresentation - Special relationship duty of care: foreseeability of damage by P
relying on the information provided by him to make a decision, proximity of relationship, reasonable to impose a duty

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Hercules ( ): (shareholders relied on audits for personal investment purposes - neg but no fraud) due to the possibility
that D may be exposed to liability in an indeterminate amount for an indeterminate time to an indeterminate class,
policy considerations are an important part of the analysis in neg. statement cases - only liable when damages result
while the information is used for the specific purpose for which it was solicited and the identity of the plaintiff is
known. (audits not prepared for investing).
BC Checo ( ): (K to erect transmission lines and clearing of eight of way was inadequate) It is possible that a tort
action and a breach of K action can co-exist: the mere fact that the parties have dealt with the matter expressly in their
K does not mean that they intended to exclude the right to sue in tort but otherwise sue where the duty is higher if
more stringent obligations in contract then sue under contract low obligations in contract (exclusions) sue under tort
exclusion clause in a contract does not bar pls action in tort

Negligent Performance of Services ( )


Negligent Performance of Services: where a party claims to have a certain skill but fails to perform it in a competent manner

B.D.C. ( ): (due to the negligence of a courier company, certain documents did not reach their destination on time and
P suffered a loss) Where D has no actual knowledge of the person or class of person whose interests depended on Ds
acts or where there was no reliance by P on D, and D did not assume risk of loss (for late delivery of any contents of
envelope), there was no proximity and hence no duty owed by D to P.

Economic Loss Caused by Defective Products and Structures

Winnipeg Condominiums ( ): (contractor built a defective structure and new purchaser sued for money spent fixing
the problem) new category of economic loss: shoddy construction - Where a contractor (or any other person) is
negligent in planning or constructing a building and where that building is found to contain defects resulting from that
negligence which pose a real and substantial danger to the occupants of the building, both injuries caused to
occupants as a result of the defect and the cost of repairing and putting the building into a non-dangerous state by the
owner are recoverable in tort (reasonable to foresee danger to occupants & potential occupants duty on
contractors/architects class: limited to occupants; amount: limited to putting into non-dangerous state; time: proof
hard over time [wear/tear]) Courts have not yet said there would be liability if the defect is non-dangerous so only
use this if it is dangerous.

Relational Losses ( )
Relational Losses: instances where there is a claim for a purely economic loss by P based on damages (physical or proprietary)
done to another person potential for this category to be huge, so the law is extremely restrictive
Contractual relational economic loss:
A) Property damage: D damaged property of 3rd person with whom P has a contractual relationship, P cant perform contract,
loses economic benefit. (CNR, Bow Valley)
B) Personal injury: Per quod servitium amisit usually injury to an employee and a claim for loss of services brought forward by
employer (DAmato) applied La Forest and found no liability too much indeterminacy (ripple effect)
Apply La-Forest exclusionary test here.
Non-Contractual relational economic loss:
A) Property damage: Same as above, yet no contract but still affected Ps business interests. Proximity usually depends on
contract (ie in class Star Village Town case if no contract, no proximity)
B) Personal injury: Per quod consortium amisit: ONLY kind of loss recoverable is that which is suffered by family member. See
act below.
Apply Anns Test here
The principle for recovery for economic loss is the Anns test:
IS THERE A PRIMA FACIE DUTY OF CARE
When is there a duty of care for relational economic loss? (Exam: use both CNR approaches)
McLachlin (C.N.R.): Relational economic loss is recoverable where, in addition to negligence and foreseeable loss, there is
sufficient proximity between the negligent act and the loss the factor of proximity will sufficiently limit recovery of pure
economic loss to avoid indeterminacy Where the plaintiffs operations are so closely allied to the operations of the party

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suffering physical damage and to its property that it can be considered a joint venturer with the owner of the property, the plaintiff
can recover its economic loss even though the plaintiff has suffered no physical damage to its own property. This is essentially
the ANNS TEST
**Use UNLESS it is a contractual relationship
La Forest (C.N.R.): unlike McLachlin, he starts with exclusionary rule then adds policy exceptions - No duty could arise in
respect to economic loss claims unless the case fell within one of the following categories (not closed):
(1) Cases where the claimant has a possessory and proprietary interest in the damaged property
(2) General average cases (if youre shipping something on a ship and there are high seas, and they have to expend some
supplies, can pass on to passengers. Money they provide to ship is a general average contribution)
(3) Cases where the relationship between the claimant and the property owner constituted a joint venture
**ONLY use this for relational contractual relationships of pure economic loss
Difference: Insurance, loss spreading in tort, and if CN cant sue, CN should manage its risk through contract, and undermines
idea that if people do something wrong to someone else that they should be compensated for it.
Iacobucci (BVHB): the categories of contractual relational economic loss are not closed and whether or not a new category
ought to be created is to be determined on a case-by-case basis (using la forests test would undermine that principle)
ARE THERE POLICY CONSIDERATIONS WHICH NEGATE THE DUTY OF CARE?
Policy reasons for reluctance to allow recovery for pure economic loss: (DAmato)
(1) Economic interests have been seen as less worthy of protection than bodily security and property
(2) Risk of liability in an indeterminate amount for an indeterminate time to an indeterminate class
(3) It may be more efficient to place the burden of economic loss on the victim
(4) The restrictive approach discourages a multiplicity of lawsuits, in favor of channeling claims into one action

C.N.R. ( ): (boat struck & damaged railway bridge owned by the government but used by P) McLachlin: (liberal
approach) pure economic loss is recoverable where, in addition to neg. & foreseeable loss, there is sufficient proximity
(physical propinquity & causation) between the neg. act & the loss (here, Ps work was closely allied to the operations
of the government such that it could be considered a joint venture) VS. La Forest: (conservative approach) no duty of
care can arise in respect to pure economic loss unless the case fell with in the narrow exception categories where
identifiable policy factors strongly supported recovery bar works as incentive to minimize costs & carry insurance,
save judicial resources, increase certainty this case left the law in an unsatisfactory state: two visions presented (here
it was found that D was already liable to the owner of the damaged property, and to the extent that deterrence was
sought to curtail reckless conduct, it already existed, and recovery for a pure economic loss was unnecessary)
DAmato ( ): (P injured and could not do his old job, and his employer suffered losses) Indeterminacy is a crucial
component of the 2nd branch of the Anns test because an injury to one party will obviously have a ripple effect, causing
economic loss in various forms to a large number of people and there is hence a serious risk of claims by multinumbered plaintiffs applied LaForests exclusionary rule & McLachlins rule to get same result no liability
Bow Valley ( ): (D built a rig; the heating system caught fire and was out of commission; owners sued for economic
loss) where a case does not fall within a recognized category for recovery of relational economic loss, the court can use
the Anns test to decide whether the situation was one where the right of recovery was to be recognized (policy
considerations play a major role). Says LA FOREST test is the best way to go. So first step is exclusionary rule, fit
into any categories, and if not, then use Machlaghlins Anns test to see if you can create a new category.
Martel ( ): (lease negotiations/bidding) NO new category to be created for negotiations indeterminacy try to use
negligent misrepresentation. Sums everything up. Says for contractual, use La Forest. Anns test to be used to add any
more categories to Pure Economic Loss or exceptions to the La Forest test (so ultimately, if La Forest doesnt work, see
if there is another policy exception that can be made under Anns test)

FATAL ACCIDENTS ACT


Way to get compensated for NON contractual relational pure economic loss:
When the death of a person has been caused by a wrongful act, neglect or default that would, if death had not ensued, have
entitled the injured party to maintain an action and recover damages, in each case the person who would have been liable if death
had not ensued is liable to an action for damages notwithstanding the death of the party injured.
Spouse, adult interdependent partner, parent, child, brother, sister are entitled to damages.
Executor can bring action as well.

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