FACTS: Dimwit farmer builds haystack beside neighbours house. Burns down, along with house. Vaughn v.

Menlove (1837) RATIO: Hold defendants to reasonable standard, even if they aren't smart. Objective standard. FACTS: properly built water pipe bursts because of cold winter. Destroys homes Blyth v. Birmingham (1856) Reasonable Person Standard RATIO: Not forseeable, not within reasonable standard of care. Can't hold to standard higher than reasonable person.

FACTS: see 1. Duty of Care Dobson v. Dobson RATIO: Reasonable pregnant woman standard suggested. Rejected. Policy reasons

Intrusion into woman's autonomy, privacy, integrity

FACTS: school taxi, door not locked, kid falls out, injured. Ware's Taxi v. Gilliham (1949) RATIO: BREACH! Commercial enterprises held to higher standard FREQUENCY IMPUGNED CONDUCT ECONOMIC BENEFIT ONLY IN AB and ON FACTS: Jogger goes bananas, jumps on car, driver gets scared, hits another car, passengers hurt. IF YES, FOLLOW THAT TRAIL IF NO, GO TO QUESTION 2 Is there evidence of expectations, representations, reliance, property, or statutory proximity? COOPER ADJUSTMENT: Is it fair policy to find this relationship proximate? Like love and marriage, can't have this without the proximity Proximity of relationship 2. Is there a prima facie duty of care? STAGE 1 Forseeability of harm IF ACT, KEEP ON TRUCKING IF OMISSION, SEE CATEGORIES OF LIABLE OMISSIONS (main tort mindmap) 3. Was it an act or an omission?
Lord Atkins. This case is first intro to ANN'S TEST (see alternate)

1. Does the relationship fall into already established category? Mental Disabilities 2A. STANDARD OF CARE Fiala v. Cechmanek (2001)

RATIO: Focus on FAULT. Must satisfy 2 part TEST. Incapacitation must be immediate and unsuspected.

1. Does the person have the capacity to understand their duty? 2. Does the person have the capacity to discharge their duty?

IF YES, GO ON IF NO, YOU'RE OUT OF LUCK BUDDY.

CRAZY policy considerations (pun intended) ELUCIDATE MORE

FACTS: Child injured working machinery on farm. Contributory negligence? RATIO: Held to reasonable child standard (2 part TEST) unless engaged in adult activity

The Young FACTS: Snail found in drink, caused injury. RATIO: One should always keep one's neighbour in mind when acting. Neighbours = people in general prox. Donaghue v. Stevenson (1932) Exceptions/Considerations

Heisler v. Moke (1972)

1. Guideline - is child >7? 2. Held to standard of child with like age, intelligence, experience

Would there be undue pressure on legal system? Are there remedies available? Would it unleash the beast of unlimited liability for some unlimited class of persons? Constitutional considerations Government actors Type of harm (emotional, economic, etc.) Administrative factors OTHER FACTORS TO THINK ON: Damage amount based on future predictions of loss STAGE 2 (POLICY)

FACTS: claim against mortgage registrar. Broker not properly registered, defrauded investors RATIO: Changed ANN'S TEST to put policy considerations in proximity relationship FACTS: 5 year old girl hit by truck when getting ice cream RELATIONS: retailer/customer; mother/child; owner/driver RATIO: Business have duty to operate non-negligently. Community custom to let kids run. Omission not excuse here. Cooper v. Hobart (2001)

Neighbour Principle Challand v. Bell (1959)

FACTS: Broken arm is treated, but gets worse, requires amputation by specialist RATIO: 'rural general practitioner' standard. No breach, did the best he could, expert body credibility. FACTS: lawyer didn't obtain surveys, or warn clients about obtaining surveys. Purchased land boundaries were wack. Brenner v. Gregory (1973) RATIO: Held to reasonable solicitor standard. Not his job to survey, plaintiff knew survey was needed

STRONG POLICY CONSIDERATIONS

Strike a balance between public interest and autonomy of profession Professional Negligence Arnold v. Teno (1978)

Supervision/Prevention Assumed to be skilled, therefore held to standard of those skills

Hill v. H/W PSB

RATIO: held to standard of reasonable POLICE OFFICER

FACTS: Kids break out of custody and damage yachts RELATIONS: Third Party; supervisor/prisoner RATIO: Denning walks through dumb logic to extend liability. Davies analogizes to other supervisory categories. Liable. FACTS: Driving on BC highway, struck by boulder. Child killed. RELATIONSHIP: government/citizen Is the defendant of the government? RATIO: JUST TEST; SEE alternate FACTS: Jane Doe raped in apartment. Police knew rapist was targetting women there. Didn't warn her. RATIO: Special relationship because of small specific class of people. Policy reasons for not informing, but not in good faith. Liable Jane Doe v. Toronto (1989) 2B. IMPUGNED CONDUCT Just v. BC (1989) Ware's Taxi v. Gilliham Home Office v. Dorset Yacht (1969)

What is the impugned conduct that is under question? Lack of supervision, lack of safety Reasonable Taxi company standard CONDUCT THEN BECOMES FOCUS OF UNREASONABLE RISK FORMULA FACTS: Barge owner not watching, barge floats away US v. Carroll Towing (1947) Government Liability RATIO: Basis for the formula. If P+G > BURD then BREACH

NO

FACTS:Ball flies out of old cricket ground, hits lady in the head Bolton v. Stone (1951) RATIO: Continuum of foreseeability. Degree of foreseeability important for probability of harm. NOTE: court ignores gravity of harm, old white dudes love cricket.

Apply normal Ann's Test YES

Jane Doe v. Toronto 2 FACTS: Invited on to yacht, two men fall overboard, die of cold induced heart fail STAGE 1 of ANN'S RATIO: Owner invited them onto boat, therefore created risk, therefore duty. Also, duty to rescuer. Horsley v. Maclaren (1969)

FANTASTIC POSSIBILITIES VS. REASONABLE PROBABILITIES

FACTS: 5-Oh shoots at car, hits suspect, car loses control, kills two pedestrians. Police liable? RATIO: Social Utility introduced. No BREACH. Importance of what police was doing had high social utility. For the greater good. Have to consider the IMPUGNED conduct, not the general behaviour. How dangerous is the criminal? FACTS: See 1. Duty of Care Crocker v. Sundance RATIO: Resort fails reasonable standard. Low cost to precautions, no social utility, high probability of grave harm

Proximity of Relationship Forseeability of Harm Policy considerations of proximity STAGE 2 of ANN'S Defendant participated in creation of risk Gratuitous reliance (absence of contract) YES Contractual obligation Relation of economic benefit to defendant STOP. NO Relationship of supervisor and control Statutory affirmation of duty

FACTS: Man hits pole, tries fixing, stops, next driver killed RATIO: Creating/exacerbating risk in failure to act is duty FACTS: Woman collapses in store, employees move her and leave her, she dies RATIO:Gratuitous reliance = positive duty to act FACTS: Man gets drunk at resort, goes tubing, crashes RATIO: economic benefit, reliance, supervisor, invitor/invitee - so many reasons for duty FACTS: pregnant woman negligently crashes car, fetal son injured RATIO: Based on policy and equity, women have no duty of care to fetus EXCEPTION to maternal liability. If insured, and crashes, can be liable to fetus for amount of insurance policy Dobson v. Dobson (1999) Custom Pre-Natal Injury Ter Neuzen v. Korn (1995) Maternal Tort Liability Act (2005) Crocker v. Sundance (1988) Oke v. Weide (1963) Failure to Act Priestman v. Colangelo (1959)

Zelenko v. Gimbel (1935) SCNY

Is there statutory immunity?

2C. UNREASONABLE RISK Waldick v. Malcolm (1991)

FACTS: Didn't salt driveway, somebody slipped. They claimed not community custom to salt driveway. RATIO: Breach. Custom must be reasonable, expert must verify. Also, custom can be persuasive both ways. FACTS: woman contracts HIV after art. insem. in 80's RATIO: Can't use hindsight. Matter of technical/scientific/medical relevance. Not unreasonable unless fraught with risk FACTS: Grain elevator had bugs. Statute said it shouldn't 1. Show ACTUAL breach PERSUASIVE CONSIDERATIONS Canada v. Saskatoon Wheat Pool (1983) RATIO: Ownus upon plaintiff to prove. TEST for stat breach 2. Show breach CAUSED damage 3. Accident must be what statute seeks to prevent 4. Plaintiff must be class of person statute is to protect

KEEP GOING Will common law afford immunity? FACTS: Guest at social host party leaves drunk, drives, crashes and injures third party RATIO: No duty of care. No control/supervision, no creation/exacerbation of risk, no commercial enterprise FACTS: Aboriginal man falsely accused, held, charged, convicted of robbery. Police skewed investigation even in face of contrary evidence RATIO: Duty owed to suspects/people in custody by police. Held to reasonable police standard. Very clear proximity. Hill v. H/W PSB (2007) Childs v. Desormeaux (2006) Social Host

OPERATIONAL = DUTY POLICY = NO DUTY

unless decision of descretion

Negligence in Statutes Investigation

FACT: Sheep in pens on ship drowned Gorris v. Scott (1874) RATIO: NO BREACH. statute was meant to prevent disease spread, not drowning FACTS: Motorcycle gets caught in railway tracks Ryan v. Victoria (1999) RATIO: Compliance with statute is evidence, but not determinative, of NO BREACH. Must satisfy statutory and common law duties

Uphold statutes because: respect legis., no civil penalties on statutes FACTS: D tells woman her husband hurt in accident, she freaks for weeks. SUBJECTIVE INTENT NOT REQUIRED: objective intent can be determined through conduct, even if extent of harm not intended RATIO: D wilfully caused P pain. Outrageous action by D, reasonable response by P. FACTS: RCMP officer harassed, investigated, made to feel unwelcome 1. Outrageous, flagrant, or extreme conduct 2. Conduct calculated to produce mental suffering 3. Conduct produced mental suffering provable without expert witness RATIO: LIABLE. Single event or recurring, one person or multiple, doesn't matter. TEST ESTABLISHED Wilkinson v. Downton (1897) Cause-In-Fact Kauffman v. TTC (1959) Intentional Infliction of Mental Suffering RATIO: No BREACH, handrails not sufficient to prevent harm FACTS: Youth scuffling on subway escalator, bump woman who was injured. Claims TTC should have had better handrails BUT/FOR TEST: If harm would NOT have occurred BUT FOR defendants actions, then it is A cause (not THE cause) IF BUT/FOR not proven, must find alternate test Onus on plaintiff (balance of probabilities) Clark v. Canada (1994) FACTS: Cataract surgery, damage to eye, questionable as to whether surgery caused it WHERE knowledge is complex/in hands of D, plaintiff need only show cause was more likely than not. ONUS on D to show evidence to the contrary NOT A SHIFT OF BURDEN!! That would get ugly.

FACTS: Store owner shakes P, causes broken nose. But didn't intend that. RATIO: LIABLE. Need only intend the contact, not the harm. Forseeability irrelevant, D responsible for all consequences FACTS: P raises fist, D does too and hits P. Claims self defence RATIO: Court agrees with D. Proportional, necessary response FACTS: Doctor gets sex from patient for pills. Claims consent. RATIO: Not true consent, due to power differential. Therefore battery. Consent negated if: Bruce v. Dyer (1966) Assault - No physical contact, imminent threat of harm. Intentionally arouses reasonable apprehension of battery Norberg v. Wynrib (1992) Bettel v. Yim (1978) Battery - Intentional harmful contact. Defences are self-defence and consent.

General Onus of Proof

Snell v. Farrell (1990) RATIO: LIABLE. Shift in tactical burden not satisfied

SINGLE CAUSE

FACTS: Three hunters, two shot one of them in the face at the same time. Can't determine which buckshot was from who Two Defendants, One Cause SHIFT: If two defendants, can't show probabilities. Therefore onus shifts to defendants to prove the other is liable party. If can't be proven, both liable. If contributory neg, onus on plaintiff

Cook v. Lewis (1951) RATIO: BOTH liable. Shift in burden.

1. under the influence or addiction 2. obtained through violence or threat 3. Obtained through inequality

FACTS: Pregnant women took bad generic drug. Sued pharmas in class action 1. Must prove product caused harm RATIO: Multiple companies found liable. Ordered to pay damages according to market share. MARKET SHARE LIAB. Sindell v. Abbot Labs (Cal SC) 2. Product must be fungible (generic) 3. Plaintiff must join action against market share 4. Onus on defendants to prove not them 5. IF LIABLE, pay market share damages

Market Share & Simple Probability

FACTS: P driving too fast, hits part of D's renovations that was left negligently STALEMATE RULE: No apportionment. Both negligent, so no damages RATIO: Both negligent, so no damages. Regardless of degree of fault. Butterfield v. Forrester (1809) ALWAYS TRY BUT/FOR TEST FIRST FACTS: Back injury from multiple accidents and doctor's advice Davies v. Mann (1842)

NOTE: NOT PRECEDENT IN CANADA. REQUIRES STRONG POLICY ARGUMENTS.

FACTS: P's donkey wandering on road, D hit it with car. But had time to avoid LAST CLEAR CHANCE RULE: Last person who has clear chance to avoid harm is responsible. RATIO: Although P negligent, D could have avoided, therefore responsible s. 1 - basic rules of apportionment, degrees of fault s. 2 - defines contributory negligence in particular s. 3 - if contr. negl. court will award based on degrees of fault s. 4 - if court can't find one party more at fault, it will hold all equally at fault s. 5 - if other party not named was involved, defendant can add them FACTS: P on motorcycle crashes into D's truck backing up incorrectly END OF LAST CLEAR CHANCE RULE IN ALBERTA RATIO: Judge cannot find one more at fault, apportions 50/50 fault FACTS: Driver, father, and son in car crash, kid not wearing belt, thrown and injured SEATBELT RULE: Not wearing your seatbelt will cost you apportionment in a case. RATIO: Father and Driver both contributory negligent. Both had separate duties toward son/passenger Galaske v. O'Donnell (1994) FACTS: Employees loading ship, plank falls in hole, ignites benzene vapour, ship sinks From Directness In Re Polemis (1921) RATIO: LIABLE. Althought fire not foreseeable, defendant responsible for all direct consequences. Wickberg v. Patterson (1997) Negligence Act (1990) Apportionment MULTIPLE CAUSES

In order to use MAT CONTR, must be impossible to use BUT/FOR due to factors outside of P's control Athey v. Leonati (1996) RATIO: Hard to determine what was the most responsible cause. MATERIAL CONTRIBUTION TEST Have to show multiple defendants could have exposed to unreasonable risk of injury If defendant shown to have materially contributed, THEN jointly/severally liable Must be outside de minimus range Damages according to degree of liability

FACTS: Hot water hose vapourizes gas, ignites, causes explosion. P badly burned Resurfice Corp. v. Hanke (2007) RATIO: Re-affirms importance of BUT/FOR, and use of MATERIAL CONTRIBUTION

The Negligence Act

STATUTE makes it easier for courts to apportion damages

Explicit (waiver, stated) Implied (actions)

VOLENTI - agreement or bargain between D and P to waive liability (factual and legal risks)

FACTS: Police sets up roadblock, gets hit before he can get out RATIO: D LIABLE. Police following employers orders. Discharging public duty. Consented to physical risk, but not legal risk Hambley v. Shepley (1967) OF PLAINTIFF Palsgraf v. Long Island Ry. Co. (1928)

FACTS: Package falls off train, fireworks in package go off, knock over weigh scale that hits woman standing further down the platform RATIO: NOT LIABLE. Duty only extends to those within the RANGE OF APPREHENSION (zone of danger) Plaintiff must be FORESEEABLE as an individual. (dissent said as a class of ppl)

FACTS: Two guys, mindblowing adventure, car ends up in ditch RATIO: driver (not the owner) is LIABLE under implied consent. Only because jury already found that, SCC would not turn it over FACTS: see 1. Duty of Care RATIO: LIABLE. Signed waiver not good enough here. Sundance did not explain the waiver, and Crocker was drunk Crocker v. Sundance (1988) Dube v. Labar (1986)

Voluntary Assumption of Risk Complete Defences Wagon Mound 1 (1961) FACTS: Ship crew let furnace oil leak into water. Nearby welders working, oil caught fire, damaged wharf and ships RATIO: NOT LIABLE. Overturns directness rule. Man must be liable for the probable consequences of his actions. FACTS: Man working with molten metal, it splashes on his lip, activates tumour, he dies of cancer three years later Smith v. Leech Brain (1962) Hall v. Hebert (1993) Illegality To Foreseeability FACTS: Workers leave manhole open, kids walk past, ending up igniting lanterns, cause large explosion, kids hurt OF DAMAGE Hughes v. Lord Advocate (1963) RATIO: LIABLE. As long as type of damage is forseeable, mechanism by which is occurred need not be Precise concatenation of events leading up to harm need NOT BE FORESEEABLE RATIO: Company LIABLE. TYPE of harm must be forseeable, if not the extent THIN SKULL RULES survives. As long as original injury is forseeable, extent of that injury need not be. Would reasonable person foresee the TYPE of damage that actually occurred?

COMMON EXTREME UNDERTAKING RULE

FACTS: 2 drunks rolled car off cliff. Illegality was attempting to drive VERY HARD TO FIND THIS AS A COMPLETE DEFENCE. MORE OFTEN A CONTRIBUTORY NEGLIGENCE RATIO: People committing crime should not profit off their crime. Can still get compensatory damages though.

FACTS: Plaintiff is ship owner this time. No contributory negligence, furnace oil burning is admitted foreseeable Wagon Mound 2 (1966) RATIO: LIABLE. Defendant responsible for ALL POSSIBLE consequences, not just the probable. As long as real risk and not far-fetched

USED ONLY IN CASES OF ILLEGAL OR NO SOCIAL UTILITY ACTIONS

FACTS: Man sees dead fly in his water, becomes obsessed for health of family. Diagnosed with major depressive disorder Mustapha v. Culligan of Canada Ltd. (2008) RATIO: SCC says no liability. Damage is too remote. Psychiatric harm only foreseeable if person of ORDINARY FORTITUDE would have sustained the injuries

1. Must be recognized psych injury Umbrella term for psych injuries. Fine line drawn for policy reasons. Criteria to satisfy 2. Temporal proximity between accident and harm 3. Spatial proximity between accident and harm 4. Proximity of relationship must be clear 5. Injury must be due to shock/fright/horror/terror, grief insufficient

FACTS: Woman suffers nervous shock seeing husband injured on snowmobile Marshall v. Lionell Enterprises (1972) Nervous Shock RATIO: Awarded damages. Specific Nervous Shock is foreseeable in this case

FACTS: Son dies on railroad, mother hears via radio, visits 8 days later Rhodes v. CNR (1990) RATIO: No damages. No SPATIAL and TEMPORAL proximity FACTS: Riot on TV, people die, relatives claim nervous shock Alcock v. Chief Constable So. Yorkshire (1991) RATIO: No damages. Specific instance of relatives death not seen or heard on TV QUESTION OF WHETHER SEEING HARM ON TV IS SUFFICIENT FOR NERVOUS SHOCK IS LEFT OPEN

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