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Law 406A Section 1 Torts

I.

Introduction

The focus of tort law is to bring compensation to the sufferer of injury or


damage as a result of a wrongdoing
- Brought at the initiative of the sufferer
- Use of the civil burden of proof Balance of probabilities
Tort Process
1) Identify the tort that has been committed
2) Defendant must be worth suing
a. Insured defendants
b. Self-insured defendants
c. Defendants with means
3) Determine personal or vicarious liability
4) Determination of appropriateness of punitive damages (additional
damages awarded in order to punish the defendant if the conduct is
deemed to be particularly vicious, premeditated, high-handed, or
disgraceful)
Objectives of Tort Law
1. The Moralist View
o Demands personal accountability for wrongdoings, and
reparations for harm
o Protects individual liberty by defining our rights against wrongful
interference of our person, property, and other recognized
interests
o Corrects injustices between citizens, assumes people will take
responsibilities for wrongdoings
o In and of itself it is justifiable, integral on its own because of its
corrective function
2. The Instrumentalist View
Tort law is designed to achieve a number of functions
i. Compensation restore the plaintiff to the position they would
have been in if the tort had not been committed , provide
compensation for losses caused by conduct that falls below
societal standards
ii. Punishment expresses societal disapproval of conduct through
the award of damages
iii. Deterrence Influence conduct to ensure a safer society
a) Specific against the individual defendant and his/her future
behaviour

b) General general threat of tort liability encourages citizens to


adopt safe practices
c) Market encourages companies to reduce liability costs by
making a safer product, consumers choose low liability/low cost
products
iv. Psychological Dimensions civilized, non-violent way to allow
victims retribution and satisfy a need for vengeance
v. Education generally and specifically educates citizens of the
importance of compliance with reasonable standards of conduct
vi. Ombudsperson Role tort law has the ability of challenging the
wrongful and harmful behaviour of the powerful individuals and
institutions in Canada
Evaniuk v 79846 Manitoba Inc. (Man QB, 1990)
Plaintiff:
- Evaniuk, patron of a bar who was forcibly ejected by the doormen
resulting in injuries. Seeking special, general, and exemplary damages
Defendant:
- Owner of Pandora Inn, employer of the two doormen
Facts:
- Plaintiff was injured in the process of being forcibly evicted from a bar
by two doormen.
- She suffered injuries to feet and legs, left wrist, elbow, and aggravated
a previous back injury.
- The injuries were caused by the two doormen and were documented
by a medical professional.
- The two doormen were employed by the defendant.
- The altercation was started by a dispute between the plaintiff and a
waitress concerning her behaviour with the plaintiffs brother.
- The plaintiff and the doormen both have conflicting versions of the
events. Alcohol was involved in the altercation.
- Dignitary losses were also suffered by the plaintiff as a result of the
embarrassment of being thrown out and having a quarter tossed on
her while she lay injured in the street.
- Damage to reputation.
- Seek compensation for any out of pocket expenses, loss of income
opportunities based on injuries.
Judicial decision on the facts
- Judge accepted the plaintiffs version of the story over the doormans
- Story was corroborated by other witnesses
- The doorman gave information that was found to be objectively
incorrect, raising credibility issues of their testimony
- The defendants own witness, Laurie, corroborated the story of the
plaintiff
Issue:

Does ejecting a patron from an establishment, although not specifically


authorized by the employer, constitute vicarious liability as per the
closely connected test? YES
Ratio:
- A master in a master/servant relationship can be found
vicariously liable for acts which he did not authorize, but were
so closely connected to acts that he had authorize, that it
could be regarded as modes of doing them. They met the
closely connected test AKA authorization test
Notes:
- The employer was found liable on the tort of battery, although it is not
mentioned in the case. Battery is an intentional tort that works on the
premise that our bodies are our own, and someone who touches you
has committed a tort. The plaintiff did not consent to the contact. Was
not negligent action.
- Vicariously liability is technically a no fault tort
- Authorized test comes from Lockhart v. Canadian Pacific Railway
Company, [1942] 3 W.W.R. 149
Introduction to Negligence
Negligence certain conduct that falls below the standard required by
society
Tort of Negligence
1.
2.
3.
4.
5.

Defendants conduct was negligent


Plaintiff suffered some damages
The damages suffered caused by the negligent conduct of D
There is a duty recognized by law to avoid this damage
Defendants conducts is a proximate cause of the loss/ damages
are not too remote

Core Elements of Negligence


-

What is required by the law of tort in order to have a negligence claim


We know that accidents happen, they are not negligence necessarily
Core Elements of Negligence
1) A negligent act
2) A causal link between the negligent act and the damage
3) Damage to the plaintiff

What is a negligent act?

Not every act that causes damage is negligent


Acts may become negligent if they fail to meet a reasonable standard
of care
A reasonable standard of care is one which does not create
unreasonable risk
Examine the conduct to see what was done to determine negligence
Look at past conduct, past accidents, internal regulations, codes of
conducts, cost of reducing the risk, foreseeability of the risk, any
knowledge of the risk, how great is the risk, what would the extent of
the harm be, risk of harm against the cost of avoidance, cost benefit
analysis, any additional parties to blame (deep pockets)

The plaintiff must show that


1) Defendant was negligent (breached the standard of care/duty of care)
(NEGLIGENCE)
2) Plaintiff suffered damage (harm, injury)
3) Defendants negligence caused Ps damage (Causation)
4) D owed P a DUTY OF CARE (it exists!)
5) Ps damage was not too remote (Proximity)
Fault Based Framework
- Tort law is based on the fault principle of individual responsibility
- Insurance plays a major role
- Tort in reality is a loss spreading device, which has led to an expansion
of the boundaries of tort law and the size of compensation awards
- The law has to recognize an action as something wrong
- The origins of tort law are in the philosophical notion of individual
responsibility pure fault based system
- Now, almost everybody is insured for most things that we do
- Still some accountability and some remnants of the pure fault based
system
- The defendant is still named, even though insurance might pay the
damages
- More about spreading losses than individual accountability
- Vicarious liability is fault, one step removed
- Insurance has allowed the expansion of tort law liability
Other Requirements of negligence or controls on liability
- Not every negligent act that causes damage will result in liability
- Liability may be limited depending on
1) The defendants activities
a. Court will look at the activity of the defendant (is it positive or
negative?)
b. Can play a significant role in the standard of care analysis

c. Even if everything else has been established, the behaviour of


the defendants activity can limit liability
2) The type of loss suffered
a. Very important in the analysis
b. Pure economic, psychological, physical, dignity
c. Affects foreseeability, likelihood, problems of proof, long term
damages
d. Where do we draw the line? Helps the court decide
3) The range of potential plaintiffs
What controls exist to limit the reach of tort law?
- Duty of care The defendant must owe a duty to the plaintiff to be
careful. If no duty is owed, the defendant is not liable for the damages
caused
o Finding on whether there is a duty depends on type of harm,
foreseeability etc.
o Tool for the court to use
o Control that limits the reach of the law and helps the court
decide where to draw the line
o How many people will be able to come forward with a claim?
o Limit duty to a class of person, type of harm, prior relationships,
etc.
- Remoteness of Harm the harm suffered cannot be beyond reasonable
contemplation if it is, it is too remote for tort liability
o Breaking the chain of causation, by an intervening cause
o Unforeseeable, a reasonable person would not have anticipated
it
o Tool of limiting liability
o Can look at similar cases to determine where the line is
Six Elements of Negligence Required for Success
1) Defendants conduct must be negligent, below the standard of care
2) Plaintiff must suffer damage (harm/injury)
3) Defendants negligence must have caused the plaintiffs damage
(Causation)
4) Defendant must owe the plaintiff a duty of care
5) Plaintiffs damage was not too remote
6) Plaintiffs conduct
Short
1)
2)
3)
4)
5)

Hand
NEGLIGENCE
HARM
CAUSATION
DUTY OF CARE
PROXIMITY

6) PS CONDUCT
Standard of Care
-

Concerned with the question of whether the defendant departed from


the standard of care that a reasonable person would have exercised in
the circumstances
The fault must be proved by objective standards
The standard for all actors is not the same: children/mentally
ill/physically disabled -> we cannot expect the same compliance
whereas for professionals we expect more than the standard of
reasonableness

Bolton v Stone (House of Lords UK, 1951)


- What is an unreasonable risk?
- Foreseeable risk?
- Court of Appeal and House of Lords debated about where on the scale
fantastic probability lays on a continuum of risk
-----------------------------------------------------------------------------------------------------------------------
Fantastic Possibility
Probability

<-> Possibility
(51%

+)
-

Decision that this case is very borderline


We require people to act before the risk becomes certain too risky of
behaviour
Any change in facts can change the risk on the continuum that is being
taken by the defendant
Take Away: The notion of reasonable/unreasonable risk is a malleable
concept
Take Away: Cost of avoidance and utility of the conduct gives us a
cost benefit analysis that can be very useful

1) Risk of injury
2) Extent of injury
Balancing act between these four
Vs.
points
3) Cost of avoiding risk
4) Utility of conduct

Facts:
Bolton (owner of cricket club, app/def), during a match, a batter hit a ball
over a fence 7ft high and 17 ft above cricket patch, and hit Stone (pl/res.)
who was on adjoining highway. Distance to the fence from the batter was 78
yards, and to where the plaintiff was hit, 100 yards. Ground had been used
for 90 years and no one had been injured before in that way, although on
about six occasions over a period of 30 years a ball had been hit into the
highway.
Issue: The courts language: What is the standard of care a person who
promotes on his land operations which may cause damage to persons on an
adjoining highway (promotes a certain level of generality to allow for future
applications)
Reasoning:
- The act of a ball hitting the highway was foreseeable as it had happened
several times in the last couple of years, but the chance of it happening
was small
- HL looks at several options of the extent of the duty: not to carry out any
activity that he knows or ought to know could cause damage, no matter
how unlikely it is to happen? Or, only bound to take into account the
possibility of such damage if damage is likely or probable?
People must guard against reasonable probabilities, but they are not
bound to guard against fantastic possibilities (Fardon v. HarcourtRivington)
- The difference is the degree of risk
- Modern life, it is too hard for even the most careful person to avoid
creating some risks
- Test: Whether the risk of damage to a person on the road was so small
that a reasonable person in the position of the appellants, considering the
matter from the point of view of safety, would have thought it right to
refrain from taking steps to prevent the danger.
- The degree of risk is on the REAL side, but there was a low level of
Foreseeability. HL warns this might be decided differently if the risk
wasnt extremely small.
Ratio: The standard of care is met if the risk is so small (reasonable
probability) from the point of safety, that a reasonable person would have
been right to refrain from taking steps to prevent it. (ie. meets the test)
Wagon Mound (No. 2) Overseas Tankship (UK) Ltd. V. the Miller S.S.
Co. PTY Ltd., [1966]
Before Bolton

Events were seen as unreal because event was so farfetched that no


reasonable person would have paid any attention to it, there is no
reason to prevent the risk
- AND Events where there was a real and substantial risk or chance that
something like the event might occur, you had to prevent the risk
Bolton
- A mere possibility was not good enough to find liability, had to be
something greater
- Bolton allowed that the risk was so small in the circumstances a
reasonable man would have been justified in disregarding it and taking
no steps to eliminate it
Wagon Mound
- Manipulated the probability/possibility test
- It is not required that the risk be probable, we can find it to be possible
and still find it to be sufficiently unreasonable, so that precautions
should have been taken
- The court wants to apply a possibility test, but Bolton rejected a
possibility test in favor of a probability test
- The court decided that it does not follow, that no matter what the
circumstances, it is justifiable to neglect a risk of such a small
magnitude
- Reasonable person would only neglect the risk IF he had some valid
reason for doing so
- Weigh the risk against the difficulty/cost against eliminating it
- In the case of it being an unlawful activity! introduces a new
element Bolton would have been decided differently
- In Wagon Mound there was a regulation AGAINST the disposal of oil
onto the water in the harbour
- It was an offense to do so, and it caused considerable financial loss
- The court adjusted the test, drilled into the facts, and admitted the risk
was small but nonetheless it became a real risk when we take into
account the illegality of the behaviour, cost of behaviour, cost of
avoidance in totality, fell below the reasonable standard of care and
fell within what was foreseeable
- Example of a court using their judicial toolbox
- Certain characteristics in the facts can pull the risk along the
continuum of risk, EITHER direction
- Balance the factors and look at the context of the case!
- TAKE AWAY: The test for standard of care can be for
probability, OR possibility, OR somewhere in between factors
involved can change where it lies on the continuum of risk
The Reasonable Person

Vaughan v. Menlove, Common Pleas, (1837)


Facts:
M (def) owned property adjacent to V. M built a haystack near the boundary
of property. Over a course of 5 weeks, M was warned repeatedly to remove
pile, which he didnt do. At one point he stated, I will chance it. Stack
subsequently caught fire, and destroyed Ms barn and stables and Vs two
cottages.
Issue:
When applying gross negligence, can an individuals judgement/intelligence
and actions be taken into account? NO, rely on man of ordinary
prudence test
Reasoning:
- Negligence is not based on the variability of each individuals judgment
of the situation, but rather is based on what a man of ordinary
prudence would have done with the caution offered
- Objective test not subjective (which would be so vague as to not
create a rule at all), excludes all other psychological and physical traits
that make each person different
- Standard of care is important of this case
The Reasonable Person Test
Objective Standard
Man of ordinary prudence and intelligence
-

The chimney wasnt a sufficient remedy to ameliorate the risk


He did take some precautions, but according to the reasonable person
test it wasnt enough
Raises the standard of care for society must be careful to find where
that objective person operates
Can put a significant impairment on liberty
The trade-off is that society must be able to expect a certain level of
behaviour in order to protect ourselves

Osborn p. 27-40, The Standard of Care: the Reasonably Careful


Person
Osborne: the reasons for keeping the standard of the reasonably careful
person:
1. An objective standard presents fewer problems in respect to proof of
negligence. (Vs. a subjective test) Administrative convenience and
expedience are served by an objective standard.

2. Good policy to have a uniform standard of safety and security in


society (citizens can anticipate and expect the standard)
3. More efficiently promotes the compensatory functions of negligence
law. Most people in negligence cases are not conscious risk takers but
failed a standard somehow so if we are to take a subject perspective
far fewer people are compensated.
4. The objective standard of the reasonably careful person in the
circumstances has provided judges with an abstract and malleable
concept that can be applied to all activities, in all circumstances, at
any time.
Factors that a reasonable person should consider in assessing
unreasonable risks:
1. Foreseeable risk an essential component!
2. The likelihood of risk: chance of event happening and the
consequences; leading case is Bolton
3. Gravity of consequences; 4
See Paris v Stepney Borough Council: the plaintiff had sight in one
eye and was removing bolts from a motor when a splinter flew in to
his good eye. The House of Lords held that a reasonable employee
would have taken greater care for an employee who had already
lost his sight one in one eye.
See Bolton the severity was small and no risk of serious injury of
death
4. Ease and cost of prevention; remedial measures
The magnitude of risk (= likelihood of risk x gravity of the
consequences) must be balanced by a consideration of the cost of
the measures needed to reduce or neutralize the risj
See Wares Taxi Ltd v Giliham the cost to childproof locks was low.
The SUPREME COURT evaluated the sufficiency of the defendants
care in the light of the available preventative measures that were
inexpensive, feasible, and would not interfere unduly with the
transportation of children from and to school.
See Bolton the only way to remove the risk of personal injury to
those outside the cricket ground was to stop playing cricket in that
location. Significant economic and social cost
5. Utility of the defendants conduct
Relevant in cases that usually involve governmental services where
the inevitable price of direct and necessary benefits to the public is
an increased risk of injury to innocent persons
Consider the danger created, the nature and purpose of the
conduct, the urgency of the situation, any alternative means of
achieving the purpose and the surrounding circumstances or time
and place

Utility consideration take into account societys current degree of


acceptable risk: foreseeable risk tolerated because it is integeral to
the kind of society we have
In Bolton & Stone, big factor usefulness of cricket
See Hammond v Wabna volunteer firefighters; court looked at the
difficulty of their task, the utility of their conduct and the interest of
the community
6. Accepted practice (customs)
Custom indicates a course of conduct that has been found in the
past to be acceptable and affordable
Proof of compliance with approved custom provides some evidence
in duty of care
A deviation from customary standards is NOT conclusive but it is
likely to be given significant weight
7. Statutes
8. Other Factors:
Emergency situation Emergencies tend to breed excitement,
confusion, and anxiety that may rob the defendant of his usual
power to exercise prudent judgment and due care
Post-accident precautions safety measures may be adopted
post-accident; the plaintiff may seek to use post-accident
precaution as indicative of negligence: double-edge sword, then
why implement if it incriminates?
Judicial policy In respect to some activities the SCC has imposed
high standards of care (airlines, bus companies, dangerous activities
that may be a fire hazard) and in others a more relaxed approach
(contact sports, physicians)
Policy for a tough consideration: loss distribution and
deterrence
Policy for a lenient approach: sensitivity to professional
approach
Dont use the other factors brought up by Osborn that we are not
doing in the class!
Blyth v Birmingham Water Works Co., Court of Exchequer, (1856)
-

Facts: Defendant installed a fire-plug (hydrant) according to the best


known system. Severe frost 25 years after installation caused damage
to the plug and resulting in the plaintiffs premises being flooded. The
plug had worked satisfactorily for the 25 years leading up to the
incidence.
Issue: Were the defendants negligent in their installation of the fireplug in that they failed to meet a reasonable person standard? NO

Reasoning: The defendant did not fail to do what a reasonable person


would do in the circumstances acted with reference to the average
circumstances of temperature in ordinary years. Negligence is the
omission to do something which a reasonable man, guided upon those
considerations which ordinarily regulate the conduct of human affairs,
would do, or doing something which a prudent and reasonable man
would not do. A reasonable man would have acted in reference to the
average circumstances of the temperature in ordinary years. A
reasonable man could not have provided for such an extreme frost.
Ratio: Negligence is the omission to do something which a
reasonable man, guided upon those considerations which ordinarily
regulate the conduct of human affairs, would do, or doing something
which a prudent and reasonable man would not do
Who is the reasonable person?
The reasonable Person: (Arland and Arland v. Taylor)
- A reasonable person is a mythical creature of the law whose conduct
is the standard by which the courts measure the conduct of all other
persons and find it to be proper or improper in particular circumstances
as they may exist from time to time. He is not an extraordinary or
unusual creature; he is not superhuman; he is not required to display
the highest skill of which anyone is capable; he is not a genius who can
perform uncommon feats, nor is he possessed of unusual powers of
foresight. He is a person of normal intelligence who makes prudence a
guide to his conduct. He does nothing that a prudent man would not do
and does not omit to do anything a prudent man would do. He acts in
accord with general and approved practice. His conduct is guided by
considerations which ordinarily regulate the conduct of human affairs.
His conduct is the standard adopted in the community by persons of
ordinary intelligence and prudence.

Paris vs Stepney The one eyed welder


-

One eyed worker, not provided with eye protection


Splinter in his good eye blinded him for life
May not reach the threshold of unreasonable conduct to not provide
goggles to two eyed employees
The fact that he was one eyed amplifies the seriousness of harm
Made it unreasonable not to lower the risk of blindness in both eyes
Importance of facts in relation to the seriousness of harm

Cost
-

of Avoidance Wares Taxi Case


Young girl plays with the lock on the door
Warned by the driver to stop
Child falls out of the taxi
Cost of avoidance installation of child proof locks
Warning wasnt good enough, should have installed the lock
Failure to do so created an unreasonable risk

Utility of the Conduct - Priestman v Colangelo and Smythson


- Social contract to have a functioning society, individuals sometimes
have to bear the brunt of things for the greater good of society
- Police chase case controversial
- High speed police chase, officer shoots at the driver
- Speeding through urban neighbourhoods
- Attempts to shoot the tire, hand is bumped and shoots the boy in the
back of the head
- Car is out of control, hits two women at the bus stop and kills them
- Police were not liable, public interest outweighed the conduct
- They did meet a reasonable standard of care
- Changed the procedures for police car chases
Volunteer Fire Departments
- Not held liable, they did their best
- Dont want to hold volunteers personally liable
- Sends the wrong message to future volunteers
- Utility of conduct really important that we have volunteer fire fighters
TAKE AWAY: TREMENDOUS IMPORTANT OF FACTS IN CASES, LEARN TO
DISCERN THE IMPORTANT FACTS FROM THE STORY THAT ARE GOING TO
HAVE A LEGAL IMPACT ON THE CASE MATERIAL FACTS
Interaction between Custom and Standard of Care
Waldick v. Malcolm (1991, SCC)
Facts:
Waldick (res/pl) fell on icy parking lot of Ms (app/def) rented farmhouse. M
failed to salt or sand the area. M argued it was custom in the area not to salt
or sand parking areas.
Issue:
Did the defendant meet the standard of reasonable care, under the
Occupiers Liability Act, by following a local custom in that caused harm to
the plaintiff? NO

Reasoning:
- Found no evidence of any custom; but, even if there had been the
court is not of the view that such a custom would necessarily be
decisive against a determination of negligence in the case. (They site
Linden)
- it matters little that ones neighbors also act unreasonable.
Ratio: the existence of customary practices does not oust the duty of care if
those practices are unreasonable.
Only in the rare cases will courts take custom into account; just because you
comply with custom its not decisive that you followed the standard of care.
Note on Custom
-

P argues breach (Brown) pg 189


D argues compliance (Waldick) pg 186
Proof of custom rests on party asserting custom (Waldick) the onus
of proof of custom rests with those that argue it
Party asserting custom will tend to define it narrowly (in terms of
numbers and scope of geographic area in which its found. Example,
Waldick tries to assert the custom in their small part of Ontario);
party denying it will want to define it more broadly
Custom may tip judicial scales where (a) issue of risk evenly
balanced, and/or (b) court unfamiliar with particular risk
Custom a powerful idea: recognized by people, followed, accessible

4. Statutory Standards; Osborne (p. 169-174)


R v. Saskatchewan
Gorris v. Scott
Ryan v. Victoria (City)
Rise of Statutory Standards:
- Accident prevention is a legitimate and important aspiration of
negligence law
- Rise of personal accident losses has led to a greater emphasis on
personal safety and the need for effective accident prevention
mechanisms
- The erratic and indirect deterrent influence of tort law has led to
increase in legislative regulations
- Most legislation are silent on subject of civil liability caused by
statutory breach (some outright dont allow civil action for a breach)
Different approaches to Breaches of Statutory Duty:

1. Tort of Statutory Duty = England a breach of a statutory duty is a new


tort category
- The intent of the legislation is taken as underlying reason for this
approach
2. Evidence of Negligence = Canada under Saskatchewan Wheat Pool
Breach of statutory duty as evidence to persuade a court that they fell
below standard of care.
Statute may afford a specific and useful standard of conduct and the
breach may provide evidence of negligence but it is necessary to
consider all the relevant factors to establish failure of duty of care
This approach does allow the court to take into account the nature of
the statue and the interest it is designed to protect, and to give special
emphasis to the evidence of breach of the statute
Compliance with the statute is not a complete defence either and the
weight to be given to statute over common law depends on the case
before the court
- E.g. in Ryan v Victoria the court took that the common law
standard of care; the legislation gave significant discretion to the
width of the gap and the case did not fall comfortably within the
scope as the regulation was for railway crossings
- More weight is given to it where the legislation prescribes
specific statutory standard of conduct and the case falls
comfortably within the scope of the legislation; less weight is
given where the legislation is broad and does not fall comfortably
within the scope of the legislation
Why

did Canada reject tort of statutory duty? P.192 (from SWP case)
Breaching a statutory duty is independent of fault
In shifting a loss in negligence, need to have fault.
In tort law, it is against principles to hold someone responsible where
there is no fault
Should only be a shift of losses if there is fault.

Saskatchewan Wheat Pool very very very very important case


Facts: Saskatchewan Wheat Pool, respondent, despite completing various
tests, delivered infested grain out of a terminal elevator (To the ship
Frankcliffe Hall) to the Canadian Wheat Board contrary to section 86 (c) of
the Canada Grain Act.
Cause of Action: Canada sued on statutory breach NOT alleging negligence
Issue: Did the respondent breach statutory duty causing injury to appellant;
does the appellant have a cause of action against the respondent? NO, there
is no tort of breach of statutory duty

As well, there is no evidence of negligence. The Pool made regular checks


and demonstrated that it operates its terminal up to the accepted standards
of the trade. They did everything that a reasonable person would do even
though there was a breach of statutory compliance.
Reasoning:
- The US view: if you dont comply with statute, you are automatically
negligent (not that there is simply evidence of negligence)
o Breach of statutory duty there is negligence: a reasonable
would not break the law then if they do then its negligence
o Breach of the statutory duty is the presumption of the breach of
standard of care and now the onus shifts on Saskatchewan
Wheat Board to come up with defence
o Breach constitutes negligence per se
- The UK view: tort of statutory breach where you need not establish
fault absolute liability for breach of statute (Board contends the Pool
is liable, even in the absence of fault, for breaching statute)
o This would result in a new tort of breach of statue;
- Court also rejects the view that there is some new tort duty thats
recognized in the existing area of Tort law
- There has been also prima facie approach as well taken by Canadian
courts before and this is also rejected
- They mention that there may be good reason to use breach of statue
as evidence of negligence over recognizing a new tort of statutory
breach
o Avoids the fictitious hunt for legislative intent to create a civil
cause of action
o It avoids the inflexible application of the legislatures criminal
standard of conduct to a civil case
o Such a liability would tend to produce liability without fault; a nofault tort
o Holmes: let loss lie where it falls a principle! Unless you can
find fault
o As well, (Osborn) the courts are reluctant to award monitory
damages for pure economic loss in negligence tort (policy
reasons- its all fair in competitive market)
o Practical difficulties: increase case load
o Remedy may be very out of proportion to what theyve done here
- The Canadian view: middle of the American and English view
failure to comply with statute is merely evidence of negligence and is
not determinative of negligence (complying with statute does not
necessarily mean you are not negligent and non-complying with
statute does not necessarily mean you are negligent)

o The Board has not proved statutory negligence (they only


pleaded breach of statute)
o The evidence, however, shows that the Pool has demonstrated
that it operated its terminal up to the accepted standards of the
trade it made regular checks so it was not negligent
P. 194: look at the four rules; Statutory breach is under the law of
negligence

Ratio: cannot assume that a breach of a statutory duty automatically shows


breach of the standard duty of care required under negligence; although,
breach of standard of duty may be used as evidence of negligence.
Notes:
- The plaintiff relied on the English Statutory theory & the main
American POV which the court rejects
- Compliance or non-compliance with statue what is the effect? It does
not mean that you are negligent for sure
- Disproportionate compared to the amount of infestation they were
responsible for
- The case is not decided on negligence; the case is based on a civil case
of statutory breach and the remedy for that breach
- Note the style of cause: the Wheat board is the agency of the crown
- Note: there was a breach of public law of 86(c) where there are fines
paid to the government; however, government wants to have a civil
action for the breach of statue as a civil remedy; thus, the breach gives
rise to a new tort/recognize the tort of breach of statue (as UK does)
- The rule we derive out of this case is based on the obiter
Canadian View
- The statute imposes penalties for breaches in the Canada Grain Act
- The breach alone does not give rise to an independent tort for
damages
- No negligence was proven in this case with respect to the care that
was taken in the handling of the wheat shipment
- The effect of the breach is that it can be evidence of negligence
- Here there was no evidence of negligence sufficient to prove a breach
of the standard of care
- The breach is important but wont decide the matter can go into the
larger bucket of negligence and can be evidence of negligence

- Can speak loudly of negligence or can whisper


of negligence
Gorris v. Scott (Exchequer, 1874 UK Case)

Facts: Scott (ship owner/def) had contracted with Gorris (pl) to bring sheep
over. The sheep washed overboard and were lost. Plaintiffs sustained
damage caused because of the failure of the defendant to deliver the sheep.
Scott contravened order from Contagious Diseases Act that required all
animals to be kept in pens. Purpose of this part of the Act in question was to
prevent overcrowding in relation to preventing diseases from spreading.
Issue: Does the loss caused by the statutory breach allow the plaintiff to
maintain an action? NO
Reasoning:
- Court looks at the purpose of the Act and the order under it; it was to
prevent spread of disease.
- If the act safeguard against the very occurrence of what happened, the
plaintiff would succeed, but when something that hadnt been
contemplated by the Act occurs but could have possibly been
prevented by following the order, plaintiff loses.
- Court says only those consequences the statute was designed to
prevent can be claimed in tort
- Here there was no indication in the statute either direct or indirect, that
protects against the loss suffered by the plaintiffs
Examining the Statute
- For its purpose, intent, statutory provisions for civil actions
are critical
- Ultimately the liability depends on fault and the application of
negligence principles
- Very important to examine the nature of the statute and the interest it
is designed to protect
Ratio: Loss and Breach must coincide to what the Act was trying to protect
against. Need to know the intent, also make sure that the claimant is
someone the statute was designed to protect.
Ryan v Victoria and Railways (SCC, 1999)
Facts: Ryan (app/res/pl) injured when thrown from his motorcycle while
attempting to cross railway tracks. Ryan sued both the railway and the City.
Under a long-standing common law rule, the standard of care owed by
railways to the public was normally limited to following the requirements of
statutory obligations excluding them from ordinary obligation of prudence of
other members of the society.
Issue:
- Did the Railways meet the standard of care in that it complied with
statute? NO (The Railways did comply with statute but such

compliance failed to satisfy the requirement of objective


reasonableness)
How should statutory compliance affect liability in tort?

Reasoning:
- Compliance with statutory standards should not be viewed as
excusing a railways obligation to take whatever precautions are
reasonably required in the circumstances (p.200)
- The fact that a statute prescribes or prohibits certain activities may
constitute evidence of reasonable conduct in a given situation, but it
does not extinguish the underlying obligation of reasonableness
- A party acting under statutory authority must still take such
precautions as are reasonable within the range of that authority to
minimize the risks which may result from its actions
Ratio:
- Compliance with statute does not supersede the compliance of
common law standard of care
- Mere compliance with statute does not, in and of itself, preclude a
finding of civil liability; it evidence of some negligence
- Creating a danger like that it is highly foreseeable that somebody will
be hurt if they are riding a bike on the road
- Was there an objectively unreasonable risk of harm?
- Ordinary reasonable person decides by assessing the following:
o Likelihood of harm plus gravity of the harm vs cost of avoidance
o Plus custom, industry practice, statutory standards
- Statutory standards BECOME A PART OF THE ANALYSIS, not the final
measure
- The weight to be accorded to statutory compliance in
assessing reasonableness depends on the nature of the
statute and the circumstances:
o If the statue is general/permits discretion: in exceptional or
situations not within the statue mere compliance will not exhaust
the standard of care
o If the legislative is specific standards v. general: where a statute
is specific, it is more likely to be found that compliance with a
statute constitutes reasonable care
o Discretion in the manner of performance: the more discretion in
how to perform, the less weight goes to compliance with statute
Role
-

of legislative standards
Relevant but not determinative
Statutes do not extinguish obligation of reasonable care
Defendants cannot avoid reasonable care obligation by merely showing
evidence of compliance

Just as a breach can be evidence of negligence, so can compliance be


evidence of non-negligence
The nature of the statute and the circumstances of the case are critical
o The history of the economic considerations for the building of the
railways, had more relaxed standards to encourage growth

Notes:
- The court set a higher standard (the common law standard) than the
statute. The statute is in effect setting the minimum legal standard.
However the court standard can sometimes be lower, higher or at the
same level at the statutory standard.
Review
- Brown v Rolls Royce - An employer hires a workman and the custom in
the industry is to provide a cream to prevent dermatitis. They do not
provide the cream and the workman suffers from dermatitis. The
workmans doctor says the cream does not help. Is the not providing of
the cream a breach of standard of care? Note 6. P. 189
o Waldick v Malcolm breach of custom is a breach of standard of
care but in context. In this case the custom went above and beyond
the call of duty. Evidence of none compliance with custom is not
conclusive of negligence
- As car crashes into B; As brakes defective in violation of an Act; what is
the relevance of the statutory breach to whether or not the defendant
breached the standard of care? Three scenarios: most-least breach of
standard of care
o What if defendant did not know his brakes were defective
o He checked his brakes bi-annually as recommended
o He has his brakes repaired the day before by a reliable mechanic
- According to the highway act a pedestrian must wear white and walk
against the traffic the pedestrian has not done so and breached the
standard of care? See Note 6
o Breached the statue and its relevance to breach of standard of care
o Breach of statue is evidence based on Sask Wheat board but can
never be outweighed by other factors
- Hatch v Ford Motor P. 197 Note 2: the statue says you cannot have a
pointy ornament on your car. There is an ornament on a car and a boy
runs into it and injures himself.
o What is the purpose of the statue? To prevent injury caused by
moving cars
o In this case someone ran into the car and this weighs against a
breach of statue (Gorris & Ryan)
- Note 4: 198; There was a fence to protect against the machine; there was
a particle that came flying off and his a woman in the eye. Was the breach
of statue a breach of standard of care?

o The statue says: protect against the machine coming into touch
with the machine
o Purpose of the statue: it was to prevent a kind of accident to a
certain class of people
Kelly v Henry Mush Co. Elevator case: statue = There was a statue that
require a guard around an elevator shaft. The purpose of it was to protect
employees. If no guardrail and someone was a tourist and fell was there a
breach of the statue?
o The statue was not designed to protect anyone, only the employees
o The statue was breach cause of no guardrail but is it evidence
breach of standard of care? Normally it is evidence but the better
evidence would be if it applied to the class of people the statue was
designed to protect
o Not only must the accident be of a type that the statue was meant
to prevent, but the claimant must be someone whom the statue was
designed to protect.
P. 199 Taxi cab driver; SCC the cost of prevention very low then likely
breached the standard of care. What about high costs?

Special standards of care


- Courts say special standards of care in certain situations can be higher
or lower than those of reasonable persons
- The standard can be lower in the case of children, the mentally
disabled and the physically disabled
- Standards of the reasonable person can be raised in the case of
professionals and specialists
Raising or Lowering the Standard of Care
A. The Young: Heisler v. Moke
a. Canadian courts have adopted a mixed objective/subject test of
liability
b. Children of tenders years (below 5) have little capacity to
appreciate danger and little chance they will be held negligent
c. Older child undertaking an an activity normally carried on by
adults will likely to be held to the adult standard of care
d. Parents are not vicariously liable but may be liable for loss
caused by a failure to take reasonable care to supervise and
control their minor children
B. Mental and Physical Disability: Fiala v. Cechmanek
a. In Fiala the court chracterzied tort law as a system of corrective
justice that should not be distorted by a robust pursuit of
compensatory goals; the defendant was robbed of his capacity to
understand or appreciate his duty of care by sudden onset of a
serious mental illness and he could not be found negligent

b. Lowered standard of care only applies to major physical


disabilities; there are obligations to take precautions to prevent
foreseeable injuries to the disabled
C. Professional Negligence (special skills & knowledges): Challand,
Brenner
a. The person who represents themselves as having speciall skill
and knowledge that allow them to perform tasks that are beyond
the capacity of the ordinary person
b. Standard of care is that of the reasonably prudent and
competent member of that particular profession to which the
defendant belongs
c. Little support for locality arguments rural and urban are treated
equally as the reliance is on care, skill, and knowledge to be the
same
D. Emergency: (Emergency Medical Act)
5. a) The Young
A. The Young - Two Part test set out for the young McEllistrum v.
Etches, SCC:
1)
Whether the child has the capacity to perceive risk?
a. Factors you consider: age, intelligent, experience, general
knowledge, alertness
b. If not, the child is immune, if the child does have a capacity then,
2)
Did a child do something that a child of like-age, intelligent and
experience would do?
a. Age, intelligence, experience
3)
Exception to the test:
**No minimum legal age for liability in Tort. (This is a question for the
particular judge in the particular case)
Heisler v Moke
Facts: 9-year-old child was warned about jumping, and he was pressing
down with his leg on the clutch of a tractor while holding onto the steering
wheel to brace himself. Injury resulted
Issue:
Was the child capable of negligence?
- Was there any negligence on the part of the infant child causing injury?
NO (The child, considering his age, intelligence, and experience could
not have possibly foresee the consequences)
Two tests must be met when the defendant is a child

1) Is the child capable of being negligent at law, or , is the child able to


assume responsibility for his or her actions? Age is an important
factor
2) Whether the child was negligent and to what degree
a. What would a reasonable child of that age, intelligence, and
experience be reasonably expected to do
b. This portion of the test is somewhat more objective but has
subjective elements
c. NOT negligent could not have been expected to realize or
foresee the consequences of his act
Child was intelligent, experienced, clear, had no problems of
understanding or remembering, able to articulate the issue
Not likely to burden a child with a settlement

Reasoning:
- Test for an adult is based on a reasonable person
- In Canada, the test is: the child of like age, intelligence and experience
for children with capacity to perceive risk (McEllistrum v. Etches, SCC);
- This child was intelligent, alert, 9 years old, remembered events clearly
over 3 years before (was capable of negligence), BUT, he could not
possibly be expected to realize or foresee the consequences of his act
Ratio:

Two part test: the test for negligence on the part of the child is
the modified subjective test if over the age of 7 (no min age
though, still a question for the judge); to look at what a child of like
age, intelligence, and experience would do.
(1) Determine if the child is capable to perceived risk? Consider
the particular child (age, intelligent, experience, general
knowledge, alertness)
(2) Determine what a child of like age, intelligence, and
experience would do? If the child would not do it, then
responsible for standard of care

Children engaged in adult activities are held to


an adult standard of care: reasonable man

Comments:
- Child will not be held up to the adult standard of care. Below age of 57 (tender years) they are not held liable/are incapable of negligent;
not about the number you do have to look at the particular case
- If a child is involved in adult activities (heightened risk) there is an
exception you treat them as an adult
o Examples such as operating a car, airplane, or powerboat
because an approaching motorist cant tell whether the operator
is a child and cant protect themselves against youthful

imprudence even if warned (Dellwo v. Pearson, p.208 US


case and affirmed by the Ontario case, Note 9)
o Test: if the act is considered an adult activity (where there is a
heightened amount of risk)
Notes:
- Should we use a similar test for the elderly? Maybe you have
diminished capacity; the above case does muddy the lines
- Are parents liable? They are not vicariously liable
Technically they are never vicariously liable (there are some
instance that may loosely be vicariously negligent see the
below statutes)

But can be liable of negligence for failing to


supervise a child that caused harm (where a
case the reasonable person would have kept
tabs on the child and would they have done that
it would have prevented the harms; the
elements of negligence met)

Manitoba, BC, Ontario, Quebec (under the civil) Parental


Responsibility Act, for making the parents vicariously responsible
for some acts of their children
- Since there is a defence of reasonable supervision it is
not strict liability
BC damages of $3 mill against parents under their School Act,
there is a cap under the parental responsibility Act of $10,000;
the court said there is liability but the damages are for the
legislature to decide and consider factors
In Calgary: the School Act Alberta if property of the school is
destroyed or damaged, the student and the parents are jointly
and separately responsible to the board
Compare this case to Menlov where he did not have the full capacity to
act as the reasonable person.
On one view you would say it is consistent with Menlov: not just
about the capacity there is a hard-line of a certain age where
even if you do not have a capacity we expect you to have the
capacity
- We need predictive certainty
It is inconsistent: Menlov is a child and he never attained
adulthood; you should not be liable if youre not at fault and if
you are not able to perceive harm or fault then creates a tension

Mental Disability

The law makes exceptions to the standard of care of individuals who are
mentally incapable of acting with reasonable care
- Exceptions to liability arise in 2 situations
o Where the defendants actions are involuntary, to be liable the
defendant must have volition
Ex. Seizures, sleepwalking, movements during sleep,
allergic reactions
If a person is not directing their body in a way that they
hurt someone, can they be found liable?
o Where the mental disability prevents the defendant from
complying with an objectively reasonable standard of care
1) Volition
a. The requirement of volition the defendant must have willed
his/her body to act
b. Examples convulsions, contraction of muscles from an outside
source, movements during sleep or unconsciousness
c. Heart attack while driving and killing a pedestrian or another
driver. No volition = no negligence
d. If it is something that happens repeatedly, the person may be
expected to feel it coming on
2) Volition but mental incapacity
a. Does the defendant have the capacity to understand and
appreciate the duty of care owed at the time?
i. Test is: Can the defendant prove, on a balance of
probabilities that his/her mental condition prevented from
him/her from foreseeing the injury that could result
ii. Does the inadequacy result from a serious mental illness?
Arguments for excusing liability for the mentally disabled

Tort law is based on the fault principle


Finding liability without fault creates strict liability
Tort law should be supplemented by other programs where there is no
fault
Children are treated differently based on the fault principle so should
the mentally ill
Science has improved so mental illness is more readily identified than
in the past
Imposing liability on the mentally will not improve care sue the
caregivers
Lowering the standard for the mentally ill recognizes the legitimacy of
mental disorders will lead to better understandings

Arguments against excusing liability for the mentally disabled

Tort law should compensate the injured


When 2 parties are innocent, the one that caused the harm should be
liable for the damage caused
Practical difficulties of assessing mental illness
Caregivers will be more careful
Special tests for mentally ill waters down the objective standard

Fiala v. Cechmanek (2001) (AB CA, 2001)


Facts: During his morning jog, the defendant has a bipolar episode and
believed that he was God and needed to save the world. He jumped in the
sunroof of Cechmaneks car and began to choke him. Cechmanek drove
forward into Fialas car and injured them in the collision.
Issue: Was MacDonald capable of understanding the consequences of his
action? Does his episode of mental illness relieve him of negligence?
Use the two part test. Should the defendant, MacDonald, be required to
comply with the reasonable person standard? Was the defendant incapable
of avoiding the accident? Was there any fault in this case? Did the defendant
have the capacity to conform to the objective standard of care?
If you suddenly become inflicted with a mental disability, does this relieve
one of duty of care normally owed? YES
Analysis: MacDonald was afflicted suddenly, without warning, and with a
condition that left him no meaningful control of his behavior and an
inability to appreciate the duty of care owed to Cechmanek
and others. His mental illness was manifestly incapacitating. MacDonald was
unaware of his mental illness until after the accident, there is no way he
could have foreseen the onset of his manic episode or taken preventative
measures to avoid its result. He was unable to appreciate his duty of care
owed to the Fialas and Cechmanek, unable to foresee the consequences of
his actions (duty test).
Decision: Satisfied the onus that both tests are met and he is relieved of
tort liability

Ratio: To be relieved of a duty of care in the case of mental illness, it must


be serious mental illness, and it must be sudden and unforeseeable. If this is
met, then the defendant had no capacity or no control
1) INCAPACITY OR 2) INVOLUNTARY (OR is important)
Notes:
- Negligence through intellectual deficiency/stupidity (imposed by
nature): Vaughan v Menlove: not a defense
- Roberts v Ramsbottom: defendant who had a stroke and drove his car
into people 20 min later and was held liable the court will only accept
a total lack of control, his position is the same as the driver who is old
or infirm
o The court goes the different way in a situation of a partial
consensus versus Fiala where there was a manic episode
o What distinguishes the case? In Ramsbottom he put himself
voluntarily in the situation and he did not have a lack of
meaningful control; there was warning and it was 20 minutes
laps so if you put yourself meaningfully in that state then you are
not relieved
o Whats the relevance that he was driving a car? An adult activity
and it seems the courts have been more reluctance to reduce the
standard of care when there is risky activity involved. Fiala P. 52,
he was not driving the vehicle at the time
- Slattery v Haley: the defendant suffered a stroke while driving and
killed a boy on the sidewalk. The judge said no liability, the act must
be shown to have been the conscious act of the defendants violation
- Wenden v Trika: a mentally disabled person was driving and injured
someone; the judge rejected the view that the defendants mental
disability should be taken into account; the defendant at the time of
the accident was being treated for his psychosis but still the judge held
him to be subjected to the standard of reasonable person
- What if a person was drunk or under the influence of drugs
involuntarily and without his or her knowledge?
- Menlov told by god to pile the stack of hay by god, all of a sudden
and with no prior mental illness. What can you conclude?
o Was it suddenly?
o Without warning
o Afflicted with a mental illness
o Involuntary or incapacity?
Involuntariness: As a result of mental illness .as he had
no meaningful control over his actions overtime (this is
how involuntariness is defined); the definition in Fiala is
vague, so what are some examples of involuntariness?
Seizure, sleepwalking, unconscious, tourettes, diabetic

shock, hypnosis, are all clear cases of involuntary case


where there is partial consciousness e.g. when you
voluntarily put yourself into the situation, manic episode,
partial unconsciousness
Incapacity? Children of tender years, mental
illness/disability (Butley Case syphilis of the brain), drugs,
delusions/hallucination, and infirmity. It seems that
incapacity must be related to being afflicted with mental
Physical Disabilities Test:
Reducing the standard of care in some circumstances, still have
reasonable standard to accord with the physical disability aspect of the
person.
Cant set a standard that would be impossible or a person to meet
A person with a hearing disability is not required to hear, a physically
disabled person need not be nimble, nor is a person who is blind
obliged to see, although they are expected to avoid getting themselves
into positions of danger
If the person knows they have a disability that might injure someone,
then they must take reasonable steps to ensure that this does not
happen.
illness

Last years midterm: Syd is at a Halloween Party in the Province of


Newalta, Canada, where he drinks four beers in an hour and then drives in
his car to the next gig. But unknown to Syd, someone had spiked his beers
with Cozmoz, a drug which causes manic episodes if mixed with alcohol.
While driving on Beerfoot Trail, Syd has a manic episode. Believing he is
flying an alien space-ship, Syd tries to land it in the median ditch. As he
crosses the lanes to get there, he collides with a vehicle carefully driven by
Jerome. Jerome, who is seriously injured, sues Syd in negligence. Is Syd
negligent?
- One way to argue: he is driving a card, adult activity, etc.
- What if its a bicycle? The number of beers make it unclear as to
if he was drunk or not
- There may be two sources of negligence: even if he is relieved of
liability and negligence may be due to consuming beers
Cosmos + drugs causing the mental episode
Analogous to Fiala, same issue
- If Sid has incapacity, what can we say if he drank too much? 12
beers in an hour, has a temporary manic episode. Would
voluntarily put himself in the situation therefore, no excuse.

Physical Disability

When a person is injured by a physically disabled person, the court will


look at whether or not the person is capable of fulfilling a standard of
care
When you injure a disabled person, the court looks at whether or not
disabled people are foreseeable
o If you are a worker and a man hole cover is left off, only left
visible warning signs and a blind person walks into the hole
Must acknowledge that physically disabled people exist! Must take
precautions!
Abstract concept that protects the disabled in society
Gives the disabled the freedom to go out and live a normal life,
because the message to the rest of society is that we have to take care
of those who are disabled
You have to design the way you act with the realization that not
everybody is able bodied
Can be a case of contributory negligence if they give no warning about
their disability i.e. a blind person without a cane or Seeing Eye dog
will just look like anyone else. But still need to give special caution

Experts/Professional Negligence
Challand v Bell
Facts:
What are the facts relevant to assessing if objective reasonable care was
provided?
- The Plaintiff had a compound fracture that created an open wound
- The open wound is where the gangrene was able to enter the wound
- The accident occurred on a farm where Gas Gangrene is rampant,
farmers generally have the gangrene bacteria on their skin and
clothing
- Gangrene set in and the arm had to be amputated
- This happened in a rural area standard of care in a rural vs urban
practice
- The doctor looked at the wound and decided it was sufficiently clean
- Gangrene thrive on dead tissue/flesh and when there is very little
oxygen
- The doctor put a cast on the fracture, which limited the amount of
oxygen that could reach the would
- The accident occurred at 9:30am, treated at 11:30am
- On Day 2, the doctor realized that the circulation to the wound was
impaired, loosened the cast but left it on
- First sign of trouble

Day 3, further signs of trouble spasms in the arm, sends the patient
to a specialist in Edmonton
The specialist diagnoses the gas gangrene infection and his arm is
immediately amputated
The doctor was a local, general practitioner

Issue: Was the defendant negligent in that he breached the standard of care
in treating the defendant? NO (His treatment was correct and it did not differ
from that which even a specialist would have given)
Standard of care applied visual inspection of the wound, x-ray of the
wound, judged it was clean, wrapped the wound, gauzed it, put it in a cast,
checked swelling
Plaintiffs argument should have cleaned out the wound by debriding,
failed to monitor the circulation of the plaintiffs arm, failed to remove the
cast when circulation problems became evident, defendant ought to have
known the risks
Court Standards of Care Owed by Doctors
- Highest level of skill is not required
- No guarantee of a cure
- Errors in judgment are within a reasonable standard of care being
exercised
- Level of skill, knowledge and judgment of the average of the group to
which the defendant belongs
o In judging the average, regard must be had to the special group
to which he belongs
o Locality rule difference between a rural general practitioner to
an urban specialist, has not been overturned but probably a bad
idea
- Some treatment may differ from others in the standard of care used in
light of their own experience, the circumstances, and the individual
being treated
- Distinguish between an error in judgment and acts of carelessness or
unskillfulness
- If the decision was the result of exercising that average standard, there
is no liability for an error in judgment

- Test for standard of care in medicine, from Wilson v.


Swanson (SCC, 1956):
1. Surgeon undertakes that he possesses the skill, knowledge and
judgment of the average (of his group)

2. In judging that average, regard must be had to the special group to


which he belongs. (Locality rule: Different from a rural GP to an urban
specialist, this has not been overturned but it seems like a bad idea)
3. If the decision was the result of exercising that average standard, there
is no liability for an error in judgment.
where the experts disagree but some of them support the
treatment given, then surely the treatment given by the general
practitioner should not be criticized, and one must always keep
in mind the importance of viewing the treatment and seeing
maters through the eyes of the attending physician
There are some groups of people that the courts seem to defer to,
doctors are one of them
o Reluctance to condemn another professional
o Utility of conduct?
What is not done is equally as important as to what is done
o

Notes:
- Ter Neuzen v Korn (SCC 1995): defendant contacted HIV. The doctor
had acted in accordance with the usual medical practice of the time.
The judge ruled: doctors have a duty to conduct their practice in
accordance with the conduct of a prudent and diligent doctor in the
same circumstances. As for the weight of customary practice: the
courts do not ordinarily have the expertise to tell professionals that
they are not behaving appropriately in their field. In a sense, the
medical profession as a whole is assumed to have adopted procedures
which are in the best interest of the patients and are not inherently
negligent BUT if standard practice fails to adopt obvious and
reasonable precautions which are readily apparent to the ordinary
finder of fact, then it is no excuse for a practitioner to claim that he or
she was merely conforming to such a negligent common practice"
o Porf likes this test better!
- Whitehouse v Jordan (HL 1981) an error of judgment is not
necessarily negligent if it is one made by a reasonable competent
professional acting in ordinary care
- What about inexperienced doctors? They are held to the same degree
of skill expected from an experienced one
- What about interns? Aldana v March (BCSC 1999), the standard of care
required of an intern is that of a reasonably competent intern, not a
practicing physician or specialist
- Is there a difference between a city and a rural doctor? McCormich v
Martcotte (SCR 1972) the court said that the reasonable degree of
learning and skill ordinary possessed by practitioners in similar
circumstances in similar cases, but consider:
o Transportation and communication today

o How far the rural community is


o Expectation that the doctors keep up with new development in
rural or city areas
o Should we abandon the locality rule?
Other health officials are held to their own group standard. E.g.
midwife is judged against the standard of other midwives, etc.
Professionals: whether or not you have specialized skills or knowledge;
focus on these elements

Emergency Medical Aid Act


- Difference of standard of care for the average person aiding in an
emergency than a medical professional in the same situation
- Gross negligence will be met at different levels depending on the
persons knowledge and training
- Speaks to negligence, lowers the standard of care
- Public policy of encouraging rescue in emergencies because you wont
be held liable for being negligent
- Cannot be held liable until you meet a standard of gross negligence
- Operation of the legislation is to forgive a higher standard of care, but
recognizes that within that lower level there is still two levels of care at
that level
Brenner v. Gregory (ON High Court, 1973)
Brenner v. Gregory (ON High Court, 1973)
Facts: B (pl) hired G (def/lawyer) to search the title and to close the
transaction of a purchase of 4 town lots. Brenner had inspected these
properties several times, never requested Gregory to do a survey. Vendor
warned B before closing that one of the buildings on the land encroached on
the street, but only a survey could prove if this was correct, and none was
done. B sued G for not doing the survey.
Issue: Would a reasonably competent and diligent solicitor have completed
a survey? NO
Reasoning:
- Expert a reasonably competent and diligent solicitor in that area
acting for a purchaser would not be expected either to secure a survey
or to advise his client to do so and his failure to do so would not
amount to negligent
- There was no loss suffered because of this error either (need
damages in negligence)

It is not enough to prove that the solicitor has made an error of


judgment or shown ignorance of some particular part of the law, but it
must be shown that the error or ignorance was such that an ordinary
competent solicitor would not have made or shown it
Ratio:
The duty owed by a solicitor is to act in accordance with the general
and approved practice unless such practice is inconsistent with
prudent precautions against a known risk, as where particular
instructions are given which the solicitor fails to carry out
While dont need to know all of the law do need to know what we dont
know
Notes:
- Prof: this case is not the best case, just know the standards
are for a lawyer (reasonable lawyer may do a survey)
- Should the courts recognize de facto specialization of lawyers? Should
there be a higher standard of QC or specialized lawyers like there is for
doctors?
- It is not easy to prove negligence against a barrister in conduct of a
trial. Wechsel v Stuts (ONT 1980) the court said an error of barrister
need not be egregious. But must only be unreasonable, that is.
Showing an absence of reasonable care, skill and knowledge
- Judges are immune from tort of liability; and so are quasi-judicial
officers like the law society
- EXCEPTIONG CASES: Potential liability of professionals can extend to a
third party detrimentally affected by the negligent work and give rise
to action. E.g. negligence to beneficiaries of a will.
- The field of professional liability is huge: recall volunteer firefighters in
Hammon v Wabana & the police officer in a car chase in Burbank v
Bolton
- It is not enough to prove that the solicitor has made an error of
judgment or shown ignorance of some particular part of the law, but it
must be shown that the error or ignorance was such that an ordinary
competent solicitor would not have made or shown it.
- Lawyers are not expected to know everything you have to know what
you dont know If you dont know an area of law, you will be found to
have breached your standard of care if you dont seek senior advice
-

See notes 1, 2, 4, 5, 7
1) A solicitor is not required to know all the law applicable to the
performance of a particular legal service, in the sense that he must
carry it around with him as part of his working knowledge of the
fundamental rules or principles of law applicable to the particular
work he has undertaken to enable him to perceive the need to
ascertain the law on relevant points.

6) Judges are immune from tort liability for their mistakes makes
good public policy; crown prosecutors are also quasi immune
police are NOT
7) One can easily see how the potential liability of professionals
would expand if third parties detrimentally affected by the negligent
work of professionals were given a cause of action i.e. a will who
negligently prepares a will with errors, can sue for what was in the
will, what they would have got if he had not been negligent
8) Pritchard commission Lawyers and dentists have experienced
sharp increases in the frequency of claims
-

This case is vague and open ended difficult to ascertain our standard
of care from this case subject to a judgment call made by the lawyer,
and what another lawyer would have done
Lawyer negligence is often missing a limitation period cant argue an
error of judgment
o Land transactions where a title isnt properly searched and liens
are on the property
o Will isnt properly witnessed or dates
Not necessarily errors in judgment, just errors in statute or
procedure

Emergency Medical Aid Act


- Statutory standard of care to encourage rescuers to voluntarily assist
in emergencies
- Statute applies to accidents, illness, unconsciousness
- Statute separates two groups: Applies to health professionals and
ordinary citizens
- Lowers the standard of care to gross negligence
- Rescuers are protected up to gross negligence
- Gross negligence would be higher for professionals
- Tiered standard of care
Emergency Medical Aid Act
2 If, in respect of a person who is ill, injured or unconscious as the result of an accident or
other emergency,
(a) a physician, registered health discipline member, or registered nurse
voluntarily and without expectation of compensation or reward renders emergency
medical services or first aid assistance and the services or assistance are not
rendered at a hospital or other place having adequate medical facilities and
equipment, or
(b) a person other than a person mentioned in clause (a) voluntarily renders
emergency first aid assistance and that assistance is rendered at the immediate

scene of the accident or emergency,


the physician, registered health discipline member, registered nurse or other person is not
liable for damages for injuries to or the death of that person alleged to have been caused by
an act or omission on his or her part in rendering the medical services or first aid assistance,
unless it is established that the injuries or death were caused by gross negligence on his or
her part.

The Act lowers the standard of care in certain situations


(a) Doctor, nurse, etc or (b) someone else
o Will not be responsible as long as you arent grossly negligent
and help voluntarily and without compensation
o Can be negligent, just not grossly negligent
Allows for good Samaritan type acts

Damage
-

Proof of damage or loss is required for a tort of negligence to succeed


Distinguish damage from damages which is the amount of
compensation awarded
There are pecuniary and non-pecuniary damage. Examples: medical
expenses, property damage, loss of income, pain and suffering, loss of
enjoyment of life, pure economic loss, psychological damage
o Loss of potential earnings and future care are the biggest heads
of care
Pecuniary (measurable in the market place)
Non-pecuniary (immeasurable, intangible)
Punitive (punishment) designed to punish, controversial because tort
law is not designed to punish, but there are some torts that are so
egregious or deliberate or careless that the judges want to have
something to send a stronger message about that behaviour then
punitive damages are available for the judges to award defamation
cases,
Then you can distinguish general and specific damages

There are three categories of compensatable harm/damage:


1. Harm to a person: injury to person or death (exp. battery,
negligence); sub-categories:
a. Physical injury (Challand v Bell)
i. E.g. having your teeth knocked out is not a pure
economical loss, it was as result of physical injury
b. Psychological injury (Will be discussed under remoteness: the
court says that it must be a recognized psychological illness,
simply being upset does not cut it)

2. Harm to property (exp. trespass to property); multiple types of


property. See property class.
a. Real property
b. Personal property
c. Chattels
3. Pure economic loss:
a. Generally it is not counted a kind of harm that is
compensatable except for a few exceptional circumstances
(will go over it in class)
b. E.g. of a pure economic loss: pizza store A causes bankruptcy
in competition with pizza shop B; no physical or psychological
or property damages. Through competition there is a pure
economic loss and does not counted as compensatable
Limitation Periods
- Time starts to run from the moment the injury is discovered the
discoverability rule
- Basic limitation periods; in medical cases 1 year
- Other cases 2 years
- Test is when the plaintiff knew or ought to have known about the injury
- Legislated exceptions: Ontario example
- Child abuse victims time does not start to run until the victim
becomes aware of the connection between the harm suffered and the
conduct of the victim
- There is a presumption that the victim will not know until in therapy
- Once the statement of claim has been registered, the clock stops
- It can often take time to see what the injury is going to be long term,
good practice to wait and see the extent of the damage
- Requires a search of the applicable statutes to find out what the
limitation period is
- The legal developments that have happened in the past few years
have been in the area of charter litigation
- Limitation periods are subject to the Charter of rights and freedoms
- Unconstitutional to put a limitation period on people who are unaware
of legal actions available to them or unable to seek legal counsel
because of their circumstances
o Understanding of the harm that has been done to them (therapy)
o Or they are able to go see a lawyer (domestic abuse, may not be
able to get out of the house nature of violence and control
dictates their ability to seek third party assistance)
- Exceptions to limitation periods: where the victim is a minor, time does
not run
- Where the victim is physically or mentally impaired, time does not run

If victims harm is caused by sexual assault, and the victim is a


dependent of the defendant or in an intimate relationship, time does
not run
Minors action taken by an adult on their behalf public trustee or
family member

Causation
-

What plaintiffs must prove


The plaintiff must prove that the defendants wrongful act caused the
plaintiffs loss

- BASIC Test: the but for test

But for the defendants negligence, would the


plaintiff have suffered the loss?
-

If the answer is no, then the defendant has caused the loss
If the answer is yes then the defendants negligence is NOT a cause
in fact of the plaintiffs loss
Has to be a link between the damage and the breach of standard of
care
The but for test deals with causation in fact: whether or not Action A in
fact cased B
There are two exceptions to the but for test
o If the but for test is unworkable, the courts have recognized that
causation is established where the defendants negligence
materially contributed to the occurrence of the injury
In Snell this circumstance reversed the tactical
burden/burden of proof
Causation need not be proved with scientific
precision
Cook: reverses the onus
Walker: greater risk
Fairchild: greater risk
Resurface: court refined the material contribution test
o Modified objective test (Reibel)

Application of the but for test


1) What is the harm? What is the damage to the plaintiff?
2) What are the specific acts by the defendant that the plaintiff is alleging
caused the harm?
3) What is the standard of reasonable care?
4) Would the plaintiffs harm have occurred had the defendant been
acting with reasonable care?
Osborne (p. 53-60)

Causality is concerned with the factual issue of sufficiency of the


connection between the defendants wrongful act and the plaintiffs
loss
There may be a number of causes, tortious and non-tortious, as long as
the defendants act is a cause of the plaintiffs damages, the defendant
is full liable
The material contribution test applies to situations where both
defendants actions are regarded as a cause-in-fact because it
materially contributed to the loss
McGhee: expert scientific and medical evidence could not determine
causation and the House of Lords rules that the material increase in
the risk may be equated with a material contribution to the disease;
went further and said the proof by plaintiff that the defendant was
negligent, couples with proof that the plaintiffs losses were within the
scope of the risk created by the defendants negligence, was sufficient
to reverse the burden of proof of causation
In Snell the act of the surgeon has increased the risk of damage to the
optic nerve and the loss of sight was within the scope of that risk, but
the court emphasized that causation can be applied in a flexible,
pragmatic way; and where the facts lie particularly within the
knowledge of the defendant, little affirmative evidence to of causation
is required of the plaintiff and, in the absence of evidence to the
contrary, it is fair to make an inference of causation
In Walker Estate the court appeared to favour a more expansive role
of the material contribution test where the but-for test was unworkable
and the contribution was material if it was not trivial
Resurfice the court said that material contribution test is applicable
only in exceptional circumstances where 1) it is impossible (such as
limits of scientific knowledge) for the plaintiff to prove that the
defendants negligence caused the plaintiffs loss on the but-for test 2)
the harm suffered by the plaintiff is within the scope of the risk created
by the defendants negligent conduct in these circumstances liability
may be imposed because to deny it would be to offend basic notions of
fairness and justice
o This test was the applied in Fairchild

Burden of proof
- Plaintiff has the burden of proving a hypothetical
- i.e. what would have happened had the defendant exercised
reasonable care?
- Circumstances of the case assist the plaintiff
- There can be more than one cause
- Have to look at all of the circumstances surrounding the damage to
help establish the hypothetical
- In most situations, there is more than one cause

Multiple reasons usually come together resulting in harm occurring


makes the challenge more difficult

Pure speculation or cause in fact?


- Throwing firecrackers and throwing bottles:
- Marek v Southern Enterprises and East Texas Theatres v Rutledge
cases demonstrate the difficulty in proving hypothetical causes See p.
52 Osborne
- Had the theatre done something differently, would the plaintiffs harm
have occurred?
- Alleging that the theatre is negligent for failing to do something, but
for that failure he would not have suffered ear damage
- But for the defendants failure to turn on the lights, the plaintiff would
not have suffered damage to his hearing
- Rutledge the plaintiff was hit on the head by a bottle, female was
leaving the movie theatre bottle thrown from a balcony by an
unidentified person. During the course of the movie, the crowd had
been rowdy, plaintiff is arguing that but for the failure of the theatre to
do something to prevent the rowdiness, she would not have suffered
the injury to her head by the flying bottle
- Court has to decide on a balance of probabilities has the but for
test been proven?
- Court disagreed that causation had been made out
o Court of Appeal said that it had not been established
o He wouldnt have been ejected even if the theatre had stepped
in
- Does the failure to take care link up with the injury?
- Causation is difficult!
Kauffman v T.T.C. (S.C.C., 1960)
Facts: K was injured while ascending an escalator. Two scuffling youths fell
on a man ahead of her, who fell on her.
Issue: Would the act of TTC in putting in better handrails or an attendant
have avoided the accident (did the failure of TTC to do this cause the
accident)? NO
Claim: but for the lack of the handrail or attendants the harm would not
have occurred
Reasoning:
- No evidence that a lack of handrails was a contributing cause of Ks
accident.

In this case, the but for test was not met evidence did not show
that she or the man above her had used the handrails at all
No evidence that in the circumstances the plaintiff would not have
fallen if her hands had been grasping a rubber oval hand rail
It is a fundamental principle that the causal relation between the
alleged negligence and the injury must be made out by the evidence
and not left to the conjecture (guess) of the jury. Appeal dismissed.

Ratio: Must be evidence to prove the causal relation cant just be


speculation
Notes:
- Note 1: Davidson v Connaught Laboratories (Ont. HC) the
pharmaceutical company was sued for failing to adequately warn doctors
the harm from a medication; the council for the pharmaceutical company
says the doctors would have done it anyway so there is no but for
causation. They were relieved of liability because there was no evidence
that the failure to warn the doctors was a cause of the plaintiffs
damage, and hence there could be no liability.
o Parallel to the Walker Estate; if you cant use the but for test to
see if Walker is able to give the blood then why not apply it to
the doctors
o Prof used this in last years exam
- Note 2: the lack of evidence; in Horsely v MacLaren (SCR) a number of
people attempted to save the person who fell overboard, the court found
that the negligent rescue did not cause the death, the person would
have died anyways; on the balance of probabilities it was not shown
but for he died because of improper rescue measures
Multiple causes which combine to cause one injury
- The defendants conduct need not be the sole cause or even the
predominant cause of the harm
Athey v Leonati
-

SCC held that where 25% of the


cause is connected to the negligent conduct it can
result in 100% liability
In Athey v Leonati p. 163,

o Pre-existing back condition


o Got in two accidents that further injured his back
o Went to the gym afterwards, doing some mild stretching
exercises within the range of what was approved by his doctor
o Activity results in a herniated disk, out of work
o Multiple causes of harm pre-existing injury, car accident #1, car
accident #2, stretching

o Sues one defendant negligent driving is found to be responsible


for 25% of the herniated disc
Issue: can an injury be apportioned between tortious and non-tortious
causes
- A pre-existing back injury (non-tortious)
- 2 successive injuries caused by 2 different negligent drivers (tortious)
- Non tortious injury from working out
- Result of all 4 causes combined was a herniated disc an inevitable
injury
- Defendant is found to be fully liable for the total injury
-

If otherwise, plaintiffs would not be fully compensated not being


made whole again!

- But for contributing factor was enough, even


though it wasnt 100%
-

Defendant can also then sue the other negligent driver for contribution
if he wanted to

Principle: where defendant caused only a part of the injury


- As long as the defendant is part of the cause he/she is liable even
though the act in question alone is not enough to create the injury
the material contribution test
- No reduction of liability just because other causes or pre-conditions
exist defendants remain liable for all of the injury they contributed to
or caused (thin skull principle) take your victim as you find them
- Plaintiff is entitled to be put back in their original position no
better or no worse
- but for wasnt an issue question is what the extent of the liability is
Crumbling Skull

- The plaintiff cannot be put in a better position than


that which existed prior to the negligent act
-

If the plaintiff had a pre-existing injury that would have eventually


caused a herniated disc in the future independent of other causes,
then there would be a reduction in overall damages
Dont want to over-compensate the plaintiff i.e. a cancer patient who
is only going to live for 2 years
Opposite in effect of the thin skull principle
If the person comes to the negligent event, already disabled with
respect to the ultimate injury that happens to them, then the tortious
individual does not have to pay to bring them back to a non-disabled
person
Damages lowered so plaintiff isnt over compensated

Tort is only designed to compensate for the actual injuries caused by


the defendants
Not a pre-existing crumbling skull

When causation cannot be proven due to complexities


- In medical malpractice cases and others the plaintiff may not know
what happened to cause their injury
- The defendant physician or technician is in a much better position to
know
- Given the rule that the plaintiff has the burden of proof throughout,
plaintiffs would be left without compensation in these types of cases

Snell v Farrell (SCC, 1990)


Facts:
- Dr. negligently proceeded with operation creating an unreasonable risk
of causing blindness noticed bleeding in the eye during the operation
but continued anyways
- Plaintiff suffers blindness in her eye after the operation
- Other possible causes existed such as the plaintiffs diabetes, weight
and age
- How can the plaintiff prove it was the Dr.s negligence that caused her
blindness?
- Not contested that the Dr. failed to meet the standard of care he
should have stopped the operation when he saw the bleeding
o But that is not enough, it has to be shown that this failure to
meet the standard of care is what actually caused the blindness
Issues: Basic issue Did the doctor cause blindness? In a case where the
knowledge is with the doctor and the action of the doctor
muddies figuring out the but for causation, what is approach in
looking at causation?
Reversed Burden of Proof
- SCC had to deal with earlier cases that shifted the plantiffs burden of
proof to the defendant to disprove causation
- McGhee case was followed in the courts below as long as the
defendant created an unreasonable risk of the injury that occurred,
then the defendant must prove that the risk did not cause the injury
shifting the burden of proof
o Huge reaction in the insurance companies and medical field

o Premiums went up, claims were up


Up until Snell and Farrel, Canada had been following the House of Lords
in McGhee in difficult situations where scientifically, causation had
not been proven

Problems with shifting the burden


- Result may be too harsh on defendants
- Medical malpractice crisis in the US and UK
- Public policy issue with respect to potential of defensive medicine
being practiced
o Response by the medical community
o Over due testing or will avoid procedures that carry certain risks
o Negative result for patients
SCCs evidentiary solution
- Disagreed with the McGhee solution too harsh to shift the entire legal
burden to the defendant
- But causation need not be proven with scientific precision
- Where defendants have special knowledge of the facts, very little
evidence on the part of the plaintiff will justify the court in drawing an
inference of causation if there is no evidence to the contrary
- No response or very weak response, then the court can draw an
inference
- Court differentiated itself from McGhee if the plaintiff can bring some
evidence, but the defendant cannot respond or disprove it then the
court can infer
- The solution requires weighing the evidence, not shifting the burden

- As long as the plaintiffs evidence is more than de


minimus, the defendant should answer it to avoid an
adverse inference of causation
-

The plaintiffs evidence need not be scientific proof here it was


sufficient to prove causation

When but for breaks down because of multiple causes


- Where there are multiple causes, any one of which could have caused
the entire harm, and the plaintiff cannot prove which one is responsible
for the loss
- E.g. 2 defendants each light a fire plaintiff suffers a loss as result of
combined fires, each of which was capable of causing the entire loss
- Test: but for the negligence of the defendant, would the plaintiff have
suffered the loss
- Plaintiff cannot succeed against either one of the defendants using the
but for test
But for the test breaking down

The but for test has the effect of exonerating both defendants from
causation
- Justice requires that both be responsible
- In this limited circumstance, the court will shift the burden to disprove
causation to the defendant
Ratio:
The legal or ultimate burden remains with the plaintiff, but in the
absence of evidence to the contrary adduced by the defendant, an
inference of causation may be drawn, although positive or scientific
proof of causation has not been adduced = tactical burden
That where the subject-matter of the allegations lies particularly within
the knowledge of one party, that party may be required to prove it
Notes:
-

But is what Sopinka doing, reversing the proof even though he criticize
McGhee? Not reversing the onus proof because the legal burden is still
on the plaintiff, and it is the tactical burden that shifts
Ultimate/legal burden = overall the ultimate burden it is the plaintiff
that a wrong occurred and proves the elements of tort. If not every
element of the tort is proven, the plaintiff does not succeed
Shifting/Evidential burden = If very little affirmative evidence, you
MUST draw an inference of causation UNLESS defendant brings in
counter evidence mandatory (feels this is unfair as reversing the
onus of proof) Wigmore as soon as the doctor operates, hes
creating more risk, so would shift would open flood gates.
o This is a burden that is relative to the evidence introduced
o Challenge to Sopinka: if the patient introduces very little
evidence, isnt that just shifting the evidential burden? He says
no! He distinguishes it by looking at may vs. must, in shifting the
evidential burden if the doctor does not answer why he
continued to operate you MUST infer that that the doctor is guilty
whereas in the tactical burden you MAY infer
Tactical burden = discretion, judge can choose based on the
evidence where the burden lies
o It comes in when evidence is particularly in the hands of the
defendant tactical shift of the burden of proof if they dont
cough up the information, they run the risk of an adverse
inference. Ex. Snell v. Farrell
The Canadian test: Very little affirmative evidence will justify the
judge finding the doctor liable but it will also justify the judge not
finding the doctor liable.
o Dont reverse the legal burden, reverse the tactical burden
o Later on Sopinka comes under fire for basically applying the
McGhee case

Cook v Lewis (SCC, 1951)


Facts:
- Plaintiff and defendants were both hunting in the same area
- 2 defendants negligently firing their guns at the same time, creating
an unreasonable risk
- Plaintiff is shot, but plaintiff normally must prove causation
- Both defendants deny they shot the plaintiff
- Impossible for the plaintiff to prove which one fired
Issue: Can the burden of proof be shifted to the defendant in the case where
it cant be determined which of the two defendants is negligent? YES
Principle
- The effect of the multiple discharges confuses their effect
- The plaintiff proved that both were negligent towards him
- The plaintiff is the victim of 2 wrongs the physical damage to his
person and a legal remedy for the wrong because of the confusion of
the consequences caused by both defendants
- Court shifted the burden to both defendants and the plaintiffs legal
right to sue has also been violated, as well as his security of person
o Plaintiff cannot sue because of the impossibility of proving it!
o Negligent act destroys the plaintiffs ability to prove their case,
therefore the burden of proof is shifted
- The legal consequence of that is that the onus is shifted to the
wrongdoer to exculpate himself
Reasoning
- (Idea taken from Summers v. Tice), Cartwright J for the majority in this
case says:
- If under the circumstances of the case at bar the jury, having decided
that the plaintiff was shot by either C or A, found themselves unable to
decide which of the two shot him because in their opinion both shot
negligently in his direction, both defendants should have been found
liable
- Rand J: defendant has set in motion a dangerous force which injures
plaintiff within scope of its probable mischief, which he then makes
impossible the means of proving the possible damaging results of his
act of the similar results of the act of another. He has violated the
victims substantive right to security, but also culpably impaired his
remedial right of establishing liability. By confusing his act with
environmental conditions, he has, in effect, destroyed the victims
power of proof
- As such, the legal consequence of that is that the onus is shifted to the
wrongdoer to exculpate himself.

Ratio:
- Where it is equally likely that one of two events caused the damage,
and its impossible to figure out which it was, both will be held
negligent (reverses the onus).
- When the situation is such that a defendant or defendants can destroy
the plaintiffs power to prove causation, the onus of proof is reversed
and the defendant or defendants have to prove it (e.g. when there are
two wrongdoers)
SCC
- The culpable actor set in motion a dangerous force which embraces
the injured person within the scope of its probable mischief
- He has violated not only the victims right to security, but also
culpability impaired the victims right to establish liability
- The legal consequence?
- Onus of proof is shifted to the wrongdoer to exculpate himself if that
is impossible, both wrongdoers will be held liable
SCCs principle: alternative liability
- Where one of a small number of negligent actors causes the plaintiffs
loss but the plaintiff cannot point to which one, then the plaintiff must
sue all of them and they will all be liable unless they can disprove
causation on the balance of probabilities
Resurface Corp v. Hanke (SCC, 2007)
Facts: H placed a water hose into the gasoline tank of an ice-resurfacing
machine rather than the water tank. When hot water overfilled the gasoline
tank, vaporized gasoline was released into air, H was badly burned. H was
employed by City of Edmonton to run the ice-resurfacing machine and look
after the ice rink. Sued based on design defects (tanks were similar in
appearance and placed close together on the machine, making it easy to
confuse the two).
Issue: After Snell, when do we use the material contribution test? Which test
would have been better to use: But for or material contributions? But
For
Reasoning:
- But for test was correctly applied (but for the appellant putting or
leaving the hose in the gas tank, the explosion wouldnt have
occurred)
- However in obiter the judge sets our where the material contribution
test may be used as an exception to the but for test
1. But For Test:

Remains the primary test for causation in negligence acts


It applies to both single and multi-cause injuries (clarifies
misconception of Athey case)
Burden lies with the Plaintiff to prove causation
This test recognizes that compensation for negligent conduct
should only be made where a substantial connection between
the injury and defendants conduct is present
2. Material Contribution Test: Two requirements to meet before being
properly applied
a. Must be impossible for the plaintiff to prove the defendants
negligence using the but for test; the impossibility must be
due to factors outside of the plaintiffs control
b. It must be clear that the defendant breached a duty of care owed
to the plaintiff, thereby exposing the plaintiff to an
unreasonable/increasing risk of injury (which the plaintiff
suffered from)
- Examples of where it may be used:
a. Cook v. Lewis impossible to tell which two shots carelessly
fired at the victim caused the injury where both defendants had
negligently created an unreasonable risk
b. Walker Estate the test was not used but it could be used
where it is impossible to prove what a particular person in the
causal chain would have done had the defendant not committed
the negligent act or omission

Use of Material Contribution Test


- The basic test is but for with the plaintiff having the burden of proof
on the balance of probabilities
- It applies to cases where there are multiple causes
- But for the defendants negligence, the damage to plaintiff would not
have happened
- Court then apportions the liability between the contributors to the
injury
Substantial connection
- To be liable, the plaintiff must be able to prove that the defendants
conduct has a substantial connection to the plaintiffs injury
- If the plaintiffs injuries are unconnected to the defendants conduct
there can be no liability
- Material contribution only applies in special circumstances
o Ups the ante in terms of what the plaintiff has to show
What are the special circumstances?
- It must be impossible for the plaintiff to prove causation using the but
for test
- The impossibility must be outside of the plaintiffs control (like
scientific knowledge)

The defendant must have created an unreasonable risk of injury to the


plaintiff in breach of a duty of care owed to the plaintiff
The plaintiff must have suffered injury from that risk

Application to Resurface
- but for the plaintiff pouring the water in the gas tank, would the
accident have occurred?
- NO
- But for the design of the machine, would the accident have occurred?
- The answer is? Dont really tell us, but we can presume they asked the
question silently and came to the answer is NO, the machines design
had nothing to do with it
- Apportionment: The SCC found that the entire cause was the plaintiffs
negligence
- Is this a good result? Why? Why not?
Notes:
- But what exactly is the impossibility? Snell the issue of impossibility
was never brought up, impossibility is not no possibility, not just
outside of control, it is when whats happening is not fair to the plaintiff
- Arent the steps for increasing risk just proving if there is negligence or
not? The say there is negligence where all the other elements are
present, and instead of proving causation they would just sub increase
in risk
- Just a policy reason? Yea, essentially its unfair to the plaintiff and we
have to weaken the standard; it would offend basic notions of justice
and fairness
- Dont get caught on the ambiguity in materially contribution test: if you
have match and oxygen causing fire, there are two material
contributing but for causes, so materially contribution means:
increase in risk AND material contributing is one of the but for cases.
Fairchild v. Glenhaven Funeral Services Ltd. (HL, 2002)
Facts: actions brought against employers by former employees or their
estates. In each case, the employee had been employed at different times
and for differing periods by more than one employer. Both employers had a
duty to take reasonable care to protect them from asbestos dust, which they
both breached as in both employments the employee inhaled excessive
amounts of dust, and suffered from mesothelioma. Any cause of contracting
mesothelioma other than the employment was effectively discounted.
Issue: Is the employee entitled to recover damages, since, due to of the
current limits of scientific knowledge, she was unable to prove on the
balance of probabilities that her mesothelioma was the result of inhaling
asbestos dust during his employment by one or other or both of his
employers? YES

Reasoning:
- Most jurisdictions would afford the plaintiff a remedy.
o Either treating increased risk as equivalent to a material
contribution, by putting the burden on the defendant, by
enlarging the ordinary approach to acting in concert, or by policy
considerations
- Policy considerations when finding an employer negligent when he has
potentially not caused it, or when all the employers responsible are not
before the court.
o Unjust to impose liability on a party who has not been shown on
balance of probabilities to have caused the damage
o But such injustice as may be involved in imposing liability on a
duty-breaking employer in these circumstances is heavily
outweighed by the injustice of denying redress to a victim.
- Strong policy reason for compensating people who have suffered grave
harm at the hands of employer who owed them a duty (Greater
injustice). When the harm can only be caused by a breach of that duty
and when science does not permit the victim to prove exactly which
employer caused the harm, the injustice in denying the plaintiff
outweighs the injustice on the employer.
- Normally it is unacceptable to apply this less stringent test but there
are circumstances where the unattractiveness is outweighed by
leaving the defendant without remedy
o E.g. Cook V Lewis one of the hunters is held liable for an injury
which in fact he did not commit is outweighed by considering the
plaintiff should receive no compensation
- Judge specifically restricts this analysis to the type of case involving
this situation (owe a duty, breach, damages, no other reasonable
cause, but cant prove causation due to limits in science)
Ratio: In the specific case of where there is a duty owed, a breach,
damages, and no other reasonable causes other than the defendants
actions, but yet cant prove causation that one or the other specifically, on a
balance of probabilities due to inabilities of scientific knowledge, then the
plaintiff can seek damages against the multiple defendants.
Notes:
- There is an absence of the ability for a scientific expert to say
- Possible options of reasoning: material contribution test, burden shifts
(McGhee & Cook), concert (both tests), policy (Cook, Resurfice & Snell)
- What for of reasoning have they used here? They used the material
contribution test, and policy reasons
- Does material contribution = causation? Or is the view the is material
contribution not causation but once youve proved it we infer
causation; it seems that they are saying MC = causation

P. 45 they call out Sopinka, where showing very little evidence the
doctor had increased the material risk then that reversed the tactical
burden. They are saying, its not really reversing the tactical burden to
the but for causation, just recognize it openly
Fairchild using McGhee approach

Clements v Clements
Facts:
- defendant was driving motorcycle with his wife on the back
- Motorcycle was overloaded
- Nail punctured the rear tire
- Defendant exceeded the speed limit to pass a car
- Bike began to wobble and crashed
- Plaintiff is brain injured in the crash
Application of the but for
- On a balance of probabilities, but for the overloading of the bike, would
the accident have happened
- There is no need for scientific proof
- Or.. was the defendants negligence necessary to bring about the
crash?
- If the plaintiff cannot establish this on a balance of probabilities, she
fails
Reconciling but for with material contribution

- C of A: the material contribution test is not a


test for determining factual causation
- Instead, it provides a basis for finding legal
causation when there is a possibility that the
defendants behaviour could have been a
factual cause
-

Held: plaintiff could not prove the drivers speed and overloading
caused the crash
Distinction between legal causation and factual causation
determination on the balance of probabilities as to what happened by
using the evidence available and what the plaintiff can bring to bear
2. Medical Disclosure and Causation: A Different Care or Not?

Osborne (148-156)
A patients right to self-determination cannot be exercised unless he
has sufficient information to determine what is in his own interest
The duty of care of medical disclosure:

o Any health care professional must answer the patients questions


and to volunteer information about the patients health and
treatment options
The standard of care:
o As adopted in Reibl all material risk must be disclosed
o Material risk = one to which a reasonable person in the
circumstances of the patient would attach some significance in
determining the course of her heath care
o The standard of disclosure is tailored to the particular
circumstances of the patient; the physician must taken into
account what she knows about the patient
o The physician must take reasonable steps to assure himself that
the patient understands the information presented
Causation
o To establish causation it must be proved that the patient would
not have consented to the procedure if the defendant physician
had performed her duty to inform the patient of the material risk
of the treatment
If the patient would have made the same decision in any
event, no causation is proved
o The test is a modified objective test: asks what the reasonable
person in the plaintiffs circumstances would have done (Reibl)
Can take into account age, income, marital status, any
special consideration affecting the patient, the patients
reasonable beliefs, fears, desires, expectations and
concerns

Reibl v Hughes (SCC, 1980)


Medical Disclosure and Causation
Facts
- 44 year old plaintiff, 18 months away from a full pension
- Plaintiff had a non-emergency blockage in his artery which carried a
risk of stroke, paralysis and death if not removed
- Surgery carried the same risk if it was performed he was not told
much more than he would be better off having surgery than not
- Plaintiff consented to undergo the surgery which was performed
competently
- Plaintiff was not informed of the risks of having the surgery
- Plaintiff had a stroke following the surgery leaving him paralyzed and
impotent
Issues

Is the respondent liable for battery? NO (The appellant consented to


the operation despite the fact he was uninformed; failure to disclose is
an issue left to the tort of negligence)
Is the respondent liable for breaching the standard of care in that he
failed to disclose certain risks of the operation? YES (The respondent
had a duty of care to disclose information that a reasonable person
would want to know)
Did failure to disclose the information cause injury in that the appellant
would not have undergone surgery had he known the risks? YES (a
reasonable person in the circumstances of the appellant would not
have gone through with it (modified objective test))

Battery
- NO
- Requires lack of consent to the operation itself
- Here, the facts do not support battery action because he consented to
have the operation he got
- Examples of battery, p. 227- what would be required to have a case of
battery in the sense of an operation different surgery all together
Negligence
- To meet the standard of care of obtaining informed consent, Dr. must
disclose all material and special risks to the patient
- What are material risks? Any risk, no matter how remote, that carries
serious consequences
- The risks that are particular to the individual patient
- Not miniscule, i.e. bruising, swelling, pain are to be expected with
surgery
What information must be disclosed?
- Material risks must be disclosed
- Determined by expert medical evidence
- Determined by patients evidence and family evidence
- Exceptions:
o Emotional of psychological condition of the plaintiff
If the news would upset the patient so that it would upset
the patients condition further
o Emergency
- Here, there was a failure to disclose material risks huge economic
risks, elective procedure
- The patient has to be consulted to determine the material risks to have
a full and proper disclosure, must be done in the plaintiffs own context
major breakthrough in giving patients a lot more say in how they are
treated at the hospital or when they have a procedure done

Causation
- But for the failure to disclose the material risks would the patient
have suffered the harm? I.e. would the patient have suffered the harm?
Would the patient have had the operation anyway?
- A subjective or objective test?

- What would this patient have done had he been


properly informed of the risks? Or
- What would a reasonable patient have done if
properly informed of the risks?
-

People who are aggrieved are obviously going to say I would have
never had the operation! And would always be able to prove causation
Objective test a reasonable person would always listen to their
doctor, doctors would always win
Dilemma of causation putting the plaintiff themselves in a
hypothetical situation always going to protect their lawsuit

Subjective/Objective Test
- Test for duty to disclose
o Can it be said that a reasonable person in the patients position,
to whom proper disclosure of attendant risks has been made,
would decide against the surgery?
- Objectively based on the evidence of risks, how would a reasonable
person decide to do on the question of surgery vs. no surgery? i.e. the
reasonableness of having the operation
- If the Dr. fails to weigh the pros and cons without looking at the special
considerations of this patient, (retirement pension and alleviation of
headaches) would the reasonable patient have agreed to the operation
- Here a reasonable patient would have declined
- First branch of the test look at the surgery and ask what a reasonable
person would say
- Second branch special considerations of the patient
- Leading case, blend of both subjective and objective

Ratio:
- The test is to disclose information that a reasonable person would want
to know: answer patients questions + nature of surgery + gravity of
surgery + material risks + special circumstances
- Uninformed consent in medical operations does not constitute battery,
but negligence
- When using the modified objective test, the patients particular
concerns must be reasonably based idiosyncratic and
unreasonable/irrational beliefs are irrelevant (the judge must
subjectively assess these factors in light of the reasonable person)
DUTY OF CARE GENERALLY, WHO DO YOU OWE A DUTY TO?
Donahue and Stevenson
Cooper v Hobart
Hill v Hamilton-Wentworth Police Services Board
What
-

is Meant by a Duty of Care?


Is a question of LAW and legal policy
Is a classification of RELATIONSHIPS
A duty of care creates a LEGAL responsibility to exercise reasonable
care towards a person or group of persons
STANDARD OF CARE is a matter of facts vs DUTY OF CARE being a
matter of what is required of people by LAW
Social engineering part of civil law
Includes a large quantum of policy considerations
o Role of policy in the question of duty

Why do we have Duty?


- Consequentialist view: you need to have actually made an
unreasonable risk
- Duty based view there is no such thing as harm as bad in and of
itself, only bad when the breach of the standard is to someone who you
owed a duty to
Pre Donahue v Stevenson
- Law prior to Donahue was categorical
o Silos of duty
o If a lawyer could place the facts of the case into one of the preexisting categories (innkeeper and guest, doctor and patient,
teacher and student etc) then you would be able to have a duty
of care found by the courts
- No underlying principle had been crafted to explain the concept of the
legal duty to take care

o No grand principle to refer to in novel situation


There was a gap in the law for consumer products where no contract
existed between the consumer and the manufacturer no category
existed, lack of a principle of general application

Donoghue v Stevenson
-

Brought forth the notion of close and direct relationship, captured by


the words proximity and contemplation/foreseeability of damage to the
plaintiff
Establishing duty is the primary instrument of control over the extent
of negligence liability

What were the most important facts in Donahue v Stevenson?


o She didnt purchase the ginger beer, no relationship with the
caf where it was purchased, her friend had purchased it, no
remedy available through contract law
o The bottle was opaque and one would not be able ascertain the
contents of the bottle by looking at it no opportunity for
intermediate inspection even if she had purchased it from the
distributor
o Ginger beer was contaminated by a dead snail
o Plaintiff suffered harm when she drank the ginger beer
o Prior case law held that no duty of care was owed by
manufacturers to ultimate consumers in negligence law
- Put a motion before the court to strike the claim crucial mistake of
the defense strategically decided to move on a procedural case, the
case never made it to trial
- Procedural notion when to the House of Lords
- House of Lords decided there was a duty of care sent back to trial but
was settled outside of court
Why is Donahue so important?
- Issue: whether the manufacturer of a product sold to a distributor
where the distributor could not discover the defect complained of, is
under a duty of care to an ultimate consumer of the product to take
reasonable care that the product is free of defects? OR
- Did Stevenson owe a duty of care to May Donahue? YES
- Most importantly, the duty of care was defined through a principle of
general application, not through a categorical assessment
- What is the principle established by Donahue?
o Moral principle based on the Bible Love thy neighbour
o Fundamental principle of human relations, love thy neighbour as
you love yourself
o Good Samaritan moral high ground

o The rule that you are to love your neighbour, becomes in law,
that you must not injure your neighbour the lawyers question of
who is my neighbour receives a restricted reply
Neighbourhood Principle
- It is a principle that defines the relationships between parties that give
rise to LEGAL duties to take care
- What is the common element in relationships that carry with them a
LEGAL duty to take care?
- H of L says it comes from the Biblical requirement to love your
neighbour but in law it has a more limited application
- So, who in LAW is my neighbours

- A neighbour is a person or persons who are so


closely and directly affected by my act that I
ought reasonable have them in contemplation
as being so affected when I am directing my
mind to the acts or omissions that are called
into question
-

o Most cited rule in law, not a bad idea to commit this to memory
You must take reasonable care to avoid acts or omissions which you
can reasonably foresee would be likely to injure your neighbour
If the duty exists, you must take reasonable care

Lord Macmillan adds


- The concept of legal responsibility may adapt to changing
circumstances of life
- The categories of negligence are never closed
- Novel situation new situations always arise, especially in our rapidly
changing world
Implications
- Donahue v Stevenson opened up the whole field of product liability of
manufacturers to foreseeable consumers
- Duty of care is not to be confined to a closed list of specific
relationships
- Duty of care is based on an open-ended and general concept of
relationships of proximity which is capable of expansion in new types of
relationships
o Proximity/proximite relationships
Cooper v Hobart
- The Canadian court modified the Anns test: first decide if the case falls
within any recognized category of relationship where a duty of care has
previously been recognized or is analogous to; if not apply the test: is

there a prima facie duty established by foreseeability and proximity?


Are there any residual policy factors that may impact this duty?
Foreseeability: duty of care is owed only to those whom the defendant
might reasonably foresee as being adversely affected by his failure to take
care
Proximity: Consideration of factual closeness and micro-policy factors
- Closeness of the relationship includes: physical closeness, social
closeness, circumstantial closeness, causal closeness, and closeness
created by a representation, an assumption of responsibility, reliance
and reasonable expectations
- Micro-policy factors come into play because they relate to the
relationship under consideration rather than broad societal interests
- Most cases will be decided on this, but its an elusive concept
Duties of affirmative action:
- Generally no duty to provide assistance, confer benefits, or to rescue
others from situations of dangers from a source completely unrelated
to the defendant
- Exceptions: special relationships where the characteristics are
assumption of responsibility by the defendant, any
control/authority/supervision the defendant has over the plaintiff,
commercial benefits derived by the defendant from the relationship,
close family/personal bond, dependence/reliance of plaintiff on the
defendant, special expertise of the defendant in emergency situation,
statutory obligations, etc
o Recognized special relationships: contractual/quasi-contract
relationships (employee/employer), fiduciary relationships
(parent/child), relationships of authority, control and supervision
(teacher/student), relationships of occupier and visitor,
relationship of professional rescuers, police, emergency
personals to citizens in danger
Horsley:
- owner/operator of a pleasure boat is under a duty to take reasonable
steps to rescue a passenger overboard. The relationship was such that
there was authority and control by the boat owner over the
passengers, the implied assumption of responsibility and expertise and
competence that were expected by the passengers
Jordan House
- bar owners owe a duty to patrons who get intoxicated on their premise,
the duty of protective care on an intoxicated person, there was a
reasonable relationship of commercial host and patron, the special
danger the plaintiff would have when leaving the bar, and being served
beyond the point of intoxication allowed by provincial license; as well,
the premise is a public place where you need to seek to minimize risk
to users of those services
Childs

the social host of a private party does not owe a duty of care to
members of the public injured as a consequence of an intoxicated
guests operation of a motor vehicle on leaving the party; Coopers test
applied and no special relationship to create a degree of proximity
necessary to give rise to cause of action
The Good Samaritan Cases
- The usual duty of care attaches to the defendant as he commences the
rescue (see Alberta Emergency Medical Aid Act addresses this
concern to restricting the liability)
Cooper v Hobart
Facts: Hobart, (registrar of Mortgage Brokers) suspended a brokers license
and issued a freeze order in respect of its assets. Cooper (appellant, and one
of 3000 investors) sued H for breach of a duty of care, arguing that H knew
for 14 months that this broker was being investigated, but failed to notify the
investors. According to the appellant, if the Registrar had acted more
promptly, the losses suffered by the investors would have been avoided or
diminished. Class Action trial judge certified the class action, one plaintiff
can carry the action for all of the plaintiffs. There is a preliminary obligation
in a class action to convince a judge that it is an appropriate case for a class
action everyone suffered in the same way and is seeking the same type of
remedy. Trial judge would have determined that the regulator owed a duty of
care to the plaintiff, and ergo the class. The regulator was aware of
complaints that the broker was taking money from investors and being
investigated. He failed to notify the investors, according to the appellant, if
the Registrar had acted more promptly the losses suffered by the investors
would have been avoided or diminished.
Issue: Did the Registrar breach the duty of care that he owed to the
appellant and other investors? NO
Reasoning:
- Application of the Anns test = the importance of Anns lies in its
recognition that policy considerations play an important role in
determining proximity in new situations
o Different types of policy considerations are involved at each
stage of Anns.
- Proximity is the close and direct relationship as established in
Donoghue. Factors to consider when looking at proximity in deciding
duty of care:
1. Can look at expectations (go beyond physical)
2. Representations
3. Reliance (are investors relying on regulator to do their job?)
4. Property or other interests involved

Court finds that even if Registrar had foreseen the investors would be
affected by his careless behaviour, there was insufficient proximity
between the Registrar and the investors to impose a prima facie duty
of care
o The circumstances do not disclose proximity sufficient to
establish a prima facie duty of care.
o This case does not fall within, nor is it analogous to, a category of
cases in which a duty of care has previously been recognized.
o Not a situation in which a new duty of care should be recognized.
Even if a prima facie duty of care had been established under the first
branch of the Anns test, it would have been negated at the second
stage for overriding policy reasons
o Such a duty would come at the cost of other important interests
(efficiency, public confidence in the system as a whole)

What is the relationship?


- Seems to fit the test, but the SCC decided there is no duty of care
- Donahue and Stevenson principle seems to work! But now we have a
problem, the Supreme Court says no!
- Between then and now Anns test policy is now playing a role in the
relationship!
Ratio:
When a duty of care does not fall into any of the recognized categories
of duty, the Anns test is used to determine whether the duty extends
to the new situation
A duty of care can be overridden by policy reasons
A duty of care can be increased by certain factors such as
expectations, representations, reliance, and the type of property or
other interests involved
ROLE OF POLICY
- Issue: what is the role of policy in the duty analysis?
- How do policy considerations affect the Donahue v Stevenson analysis?
- The importance of Anns lies in its recognition that policy considerations
play an important role in determining proximity in new situations
- Should the law of negligence recognize a duty of care between a
statutory regulator and members of the public foreseeably affected by
his/her decisions?
- How far should the duty of Donahue v Stevenson go? How do we limit
this principle?
- Foreseeability is not enough to satisfy the test not restricted enough,
the implications will be too great and there will be cases where you
dont want to find a duty
- There must be a relationship of neighbourhood or proximity

How close must the proximity of a plaintiff and defendant be?


It is still good law, but it didnt see the implications of the future
Should regulators of the public be responsible for this type of loss?
o Who would take the job? Should public servants be liable?

Anns case
- The Anns case introduced a more nuanced test: Even if there is a
relationship of proximity (neighbourhood), is there a reason to negative
the duty?
o First step is the neighbour test
o Second branch to the test will be if there are any policy
considerations that weigh in to negative the duty
- In new cases, Anns added that policy considerations must weigh in
before finding a new duty of care at both stages of determining
proximity and determining pure policy considerations
- What policy considerations are considered at each stage?
Policy Tests Affirmed in Canada through Cooper and Hobart
Proximity Stage
- Was the harm that occurred the reasonably foreseeable consequence
of the defendants act?
- If yes, are there reasons that tort liability should not be recognized visa
vie the relationship (factors arising from the relationship as between
the plaintiff and the defendant)
- If no, a prima facie duty arises
Residual policy test
- If there is a prima facie duty of care, are there any residual policy
considerations outside the relationship of neighbourhood, which may
negative the duty of care.
o The greater, broader effect of the law
Defining the relationship
- Relevant considerations:
o Expectations
o Representations
Made by the parties to each other
o Reliance
That people place on other people because of their
relationships
o Property interests involved
o Other interests involved
o Given these considerations, the questions: is it just and fair to
impose a duty of care?

Kind
-

Think about these things when coming to a determination of whether


or not they want to impose a duty of care to the defendant what are
the consequences of the breach?
of Harm Relationship policy considerations
Physical harm
Harm to property
Harm to psyche
Financial harm

Residual considerations how the harm arises will be very important


- Negligent misstatement
- Misfeasance in public office
- Duty to warn
- Government responsibilities operation v policy
- Duty to maintain public services
- Relational financial losses
- Alternative remedies
THE EVOLVING DUTY TEST
Donahue
- Established the neighbor principle, based on a conception of proximate
relationships and foreseeable damage
- Duty net is cast very wide
- Products liability in particular but applies to all relationships
Anns
- Government liability, proper inspection of a building
- Policy considerations cant be able to sue the government for
everything, competing interests in society
- Two stage analysis incorporating policy into the mix
- As between the wrongdoer and the victim, are there any policy reasons
to
o Negative the duty
o Reduce it
o Limit the class to whom the duty is owed
o Limit the type of damage that it covers
- Onus is on the defendant plaintiff wont come up with the reasons!
reverses what is supposed to be the plaintiffs onus - When do we find a duty of care owed by the government?
- If you just apply Donahue and Stevenson yes they are proximate
- But should they be liable? What is it about that relationship?
- Gives us a tool to limit the liability depending on the facts of the case
and the policy considerations attached to it

Cooper
- Added another layer to the duty test
- First branch
o Proximity of the relationship question (categories are not closed,
close and direct relationships)
o Policy question focusing on the relationship: expectations,
representations, reliance, property, other interests)
- Second Branch
o If a prima facie duty arises, are there any residual policy reasons
to negative the duty?
o Effect on other legal relationships, society generally, other
remedies, indeterminacy, government policy v operation)
Government Liability
- Governments have two functions making policy
o We elect them for their policies, doesnt make good sense to be
able to sue them for policy decisions because of the effect on the
people that are trying to govern
o Pure policy decisions of government are immune from tort law
principle has come about through the Anns test, and subsequent
tests like Cooper
o Dont want to interfere with broad policy issues
o Not immune if the decisions are made in bad faith
- Difficult to differentiate between policy and operational aspects
- Government makes policy, and then carries out the policy
o The purely operational features of government are vulnerable to
tort
o Can zero in on the negligence
-

Arguments lie in deciding what is policy and what is operational, many


things could be argued either way

Cooper gives us the ability to nuance the duty test, especially for the courts
because they can take all sorts of things into consideration when making
that decision. Strong message to lawyers that all sorts of evidence can be
taken into account when arguing a case of duty beyond whether or not the
damage was foreseeable
Application of Cooper
- Novel case no precedent for this kind of duty
- Duty of care arises out of a statute
- Statute does not impose a duty of care to investors
- Duty is owed to the public as a whole
- Statute expressly exempts the defendant Registrar from legal action
for performance of duties unless done in bad faith - could be sued -

Foreseeable harm is not enough no proximity


No need to proceed to the second branch of the test

Donahue told us that the categories of tort are never closed should be
without comment that you can do the first branch of the duty test with any
relationship
Almost seems like full circle to Donahue
If its novel, go through the tests if its not, dont have to
Obiter in Cooper
- Even if the first branch was satisfied, there would still be no success
here. Residual policy reasons to negative a duty of care
o Registrar must balance private and public interests in doing the
job
o Registrars decisions are quasi-judicial
o Registrars job is government ..
Hill v Hamilton Wentworth Police Services Board
(SCC 2007)
Facts: Police suspected aboriginal man of committing robberies. Had him
placed in a foil lineup, and two other similar crimes committed while he was
in custody. Man convicted, but later acquitted on Appeal. Sues police under
police negligence. TJ found this tort did not exist, CA did, but held police not
liable. Appeal to SCC
Issue: Is police conduct during the course of an investigation or arrest
subject to scrutiny under the law of negligence at all, or should police be
immune on public policy grounds from liability under the law of negligence?
Is there a tort of negligent investigation? Yes, tort of negligent
investigation existed in Canada (but in this case not negligent)
Reasoning:
Applied the Cooper/Anns test, found a prima facie duty (Cooper/Anns
test confirmed)
The requirement of reasonable foreseeability was clearly made
out and posed no barrier to finding a duty of care; a clearly
negligent police investigation of a suspect could cause harm to a
suspect.
There was sufficient proximity between a police officer and a
suspect, as the relationship between the parties was personal,
close and direct, thereby giving rise to a prima facie duty of care.
Keep in mind that these are driven by policy as well

There were no broader policy reasons for declining to recognize a


duty of care owed by the police to a suspect.
1. Policy reasons cannot be speculative, there must be potential for
negative consequences thats apparent; must be serious,
compelling, and convincing reasons
2. The quasi-judicial argument is reflect in that the standard of
police officer is used
The court distinguishes lawyers from police; as a police you
not suppose to engage in a quasi-judicial concept
3. The discretion argument doesnt let them off the hook for
negligence, doctors/layers have discretion too
4. The fact that the police will have to be extra careful is not a bad
thing
5. Chilling effect argument, police officer now concerned with tort
actions: the court says the argument is if you have to be
reasonable nobody wants to be a police officer and there is no
evidence that having a standard of care of police investigating
would cause a chilling effect
The respondent police officers owed a duty of care to appellant, which
required them to meet the standard of a reasonable officer in
similar circumstances.
Profession with special knowledge and skills
While the investigation that led to appellant's arrest and conviction
was flawed, it did not breach this standard, when judged by the
standards of the day

Ratio:
SCC confirms the use of the Cooper/Anns test
There is a tort of police negligence
When judging police under negligence, the standard is that of the
reasonable police officer.
Note:
Note the policy reasons for finding a duty for reasons of personal
interest (not going to jail) would support finding proximity
The policy reasons to not impose the duty as well considered (6)
Examining the relationship
- Factors: is the relationship sufficiently close and direct such that
Donahue applies?
- Are there other factors? Ie expectations, representations, reliance,
other interests engaged by the relationship?
- Is this a novel duty case?
- What policy considerations about this particular relationship arise?
o Duty to the public at large

o Duty to victims
o Duty to individual suspects
o Dont want a burden of police officers having to worry about
negligence suits for working on the front lines
o Relationship of neighbourhood would think there would be an
obvious relationship between harm and foreseeability
o From a policy perspective we live in a free society, in our
relationship with the police we dont want to be concerned that
we could be thrown into jail and convicted
o What is a more important policy consideration in a free and
democratic society? To have the police officers not having an
onerous duty vs our right to liberty and freedom that makes the
police act in a way that doesnt intrude on those rights, conduct
their investigations and actions in a way that is mindful of this
o It would be contrary with good public policy to have tort interfere
with other branches of the law i.e. Charter
o Presumption of innocence, devastating consequences of a
wrongful conviction and going to jail reputation, loss of job,
family, friends, physical and psychological damage inflicted on
someone incarcerated
o Proximity is definitely there not an easy case to decide, court
has to balance the rights and responsibilities of the police and
the public
Prima Facie Duty
- If no policy consideration overrides the duty of care, we end up with a
prima facie duty - but is still not the end of the analysis
- Relationship is physically proximate
- Relationship is personal
- Plaintiff was singled out
- Plaintiffs reputation and fundamental freedoms are at stake
consequences of the relationship, freedoms, reputation are at stake
- What if we dont find a duty?? Then what? What can the plaintiff do if
they are thrown in jail wrongfully because of a slipshot investigation?
- Are there other adequate remedies for wrongful convictions to restore
the plaintiff to his pre-tort status?
- We recognize in our society that when people are harmed wrongfully
they deserve to be put whole again
- If no duty is found, he is remediless justice hasnt been served
another policy consideration is the concept of justice!
- There is no contract, no damages from breach of conduct
- No crime against the police for a wrongful arrest
- No vindication in that sense

So we have to do something in tort, there is nothing for the plaintiff


policy consideration with respect to this line of inquiry and finding a
prima facie duty

Positive Policy Considerations re: a finding of proximity?


- Are there public interests involved in finding a duty of care?
- Wrongful convictions bad! Likely to be less wrongful convictions if a
duty is found
- Institutionalized racism using race to sink the suspect in the line up,
do we want police officers operating with a racial profiling mindset?
Will applying a standard of care and a duty to their relationship reduce
the occurrence of these attitudes?
- Denial of justice
- Response to failures in the justice system
- Consistency with the Charter
Negative policy reasons for finding proximity?
- Incompatible obligations for the police
- Increased costs of investigations
- Chilling effect on police activity dont want that!
Residual Policy Considerations
- Look at in the broader vision for things that should cause us to pause
and not cause a duty
- Are there compelling and serious reasons to negate the duty of care?
- Quasi-judicial nature of police investigations?
o Weighing whether or not there is a chance of conviction when
they arrest/investigate quasi judicial function
o Government liability case law when a gov. servant is exercising
quasi-judicial powers we should leave them alone
o Overall way that tort law looks at government actors in this
capacity
- Requirement for use of discretion
o Have to use discretion day in and day out
o Do we want courts to be second guessing government actors in
their use of discretion?
o Residual argument
- Chilling effect?
o If all police officers thought they could be sued, what overall
effect would that have on policing?
- Flood of litigation?
o People found not guilty every day in court
o Can everyone then turn around and sue the police for a bad
investigation

o Whenever we talk about flood gates we are talking about costs


courts flooded with applications for damages for wrongful or
negligent investigations
Indeterminate liability?
o Similar to floodgates when would the liability ever end?
o Constantly fighting off tort cases
Tort recovery for acquitted persons that may be guilty?
o Justice argument can be made on both sides no remedy in tort
= no justice will be done
o Flip side of the coin give tort damages to people who have
been acquitted but they are still guilty giving them damages is
not a just outcome either
o Residual policy matters on both sides
What does the court do with all of these considerations? How do they
deal with it?
o Compelling and serious reasons to negate the duty of care
o New words
o Duty test is still evolving something has been added
o Defendants side the considerations must be compelling and
serious before the prima facie duty is negated
o Prima facie duty is found in this case but at the residual level it
must be compelling and serious
Not good enough, show us with evidence that those policy
considerations are serious ones
o In this particular case, the police did not have compelling and
serious evidence to back up their policy arguments
o Couldnt demonstrate with evidence
A reasonable police officer doesnt jump to conclusions or racial profile

Standard of Care
- We have now found a legal relationship in the analysis have passed
all the tests of duty
- That just gets us to first base the court found a legal duty of care
owed to those that they investigate
- Next step is to determine whether or not the standard of care was
breached what was done here to fulfill this duty
-

A reasonable police officer in all the circumstances


Doing what?
o Acted on a police tip, had a sighting of the plaintiff, identified him
as an aboriginal and used that identify in a line up, interviewed
witnesses sitting together so that they could hear each others
stories, didnt act on another theory once they had contradicting
evidence that it wasnt him at all and they had arrested the
Hispanic suspects, didnt revisit the case

Bolton and Stone formula for analyzing standard of care


o What does a reasonable person do in similar circumstances?
o What would a reasonable police officer do?
o Balance of likelihood of harm and gravity of harm
Risk of injury high likelihood of harm from being wrongfully
convicted, even just arrested and investigated, reputation
Extent of injury high gravity is high
Vs.
Cost of avoiding risk time and resources of spending more
time investigating, but does it outweigh the gravity and
likelihood of harm do a better investigation, dont put him in
a line up where he is bound to be chosen, dont ignore the fact
that the robberies have been solved, just have to open up his
case again
Utility of conduct high utility, want the police to act on tips,
investigate, protect the public, we want the police to
investigate crimes
Exercising discretion
Laying charges on the basis of reasonable and probable grounds
Common law factors: balance of likelihood of harm, gravity of harm,
cost of avoidance, utility of conduct
Statutory standards
o Look at the statute that creates the power relationship to see if a
standard of care is breached

Application of the standard


- Standard is not perfection
- Standard of care of reasonable police officers in this case was met
o Just as in Challand and Bell, not required to be perfect
- Structural bias not good but no evidence that a reasonable police
officer at the time would do things differently p.314
- Awareness of wrongful convictions (1995) not as high as today
- Exercise of discretion to not re-evaluate theory after new evidence, is a
mere error in judgment
- Police can reasonably move on and close investigation
- Standard of care was met, perhaps an error in judgment, but not
significant enough to find a breach of the duty
- Good example of how the tools are used, even if we dont agree with
the outcome
Conclusions What have we learned
- The tort of negligent police investigation exists in Canadian law
- Police owe a duty of care to those they investigate
- There are no policy reasons at the proximity stage of the analysis nor
at the residual stage that are compelling enough to negate the duty
speculative policy reasons are not enough

The standard of care is that of a reasonable police officer in the


circumstances and it appears to be quite low

The Unforeseeable Plaintiff


- Need for foreseeability
- Fundamental to Donahughe and Stevenson
Hay (Bourhill) v Young (HL, 1943)
Facts:
- the pregnant plaintiff was a passenger on a bus
- A negligent motor cycle drive collided with a car near the bus and was
killed
- Plaintiff witnessed the sound of the collision and the blood on the road
- Plaintiff was shocked and suffered a miscarriage
Issue:
- Was there a duty of care owed by the motor cycle driver to the plaintiff
o NO
o Duty of care is not owed to the world at large
- Was the plaintiff foreseeable? Does the neighbourhood principle apply
here? Does a negligent motor cycle driver have her in contemplation of
having her injured through his acts or omissions?
- Are bystanders in contemplation
- NO Duty of care she was an unforeseeable plaintiff
The concept of reasonable foresight
- The act was negligent
- But was the act negligent to the plaintiff
- Duties of care cannot be derivative

to someone else

on a duty owed

Here the negligent driver did not owe the plaintiff a duty because a
reasonable observer would not have foreseen her being harmed in the
manner she was by the drivers actions
Duty has to be owed to you specifically cant build on a duty owed to
someone else

Reasoning:
- Negligence must always be fitted to the particular case. It is always
relative to the individual affected need to ask not only was the act
itself negligent, but whether it is negligent vis--vis the plaintiff.
- Lord Wright - I cannot accept thatthe reasonable hypothetical
observer could reasonably have foreseen, the likelihood that anyone
placed as the appellant was, could be affected in the manner in which
she wasYoung was guilty of no breach of duty to Hay

Freseeability of the unborn


- No question that duty of care exists by drivers to their passengers to
drive carefeully
- Does it exist for a fetus, or is an unborn child unforeseeable?
- Duval v Seguin it is foreseeable that other users of the highway
may be pregnant (p.323)
o VERY important and famous case
o Put aside the notion that fetuses are unforeseeable
o Traffic accident involving a pregnant woman and another driver
the other driver was negligent the pregnant woman and her
fetus were harmed, fetus was born alive with injuries
o Should the negligent driver pay for damages to the fetus? Have
to first find a duty that is owed to the fetus

o The duty crystalizes at the time of birth once


the child is born and alive and separate from the
mother, a duty crystalizes from the action before
birth

o Highly foreseeable that pregnant women and their fetuses are


part of our society
o If you negligently harm the pregnant woman, you run the risk of
harming the fetus who will be harmed at birth then you will owe
a duty to that child
The unborn are foreseeable
The duty is owed to the mother
The child has to be born alive
The duty crystalizes at birth
Have to prove causation still but for test, still have to prove a breach
of the standard of care
But here we are learning that even the unborn are foreseeable in the
DUTY test
If the mother is within the area of foreseeable risk, so should her
unborn child duty crystalizes at birth

Dobson v Dobson
Relationship of duty exists between an unborn child and third parties
Does the mother owe a legal duty to her unborn child?
Facts: A pregnant mother drove negligently and caused prenatal injuries to
her fetus. The child was born with cerebral palsy due to the car accident
while in the womb. The childs grandfather sued the mother in a friendly suit
to collect insurance money for the childs damages.

Issues:
What are the policy considerations on the first branch of the test? ie is there
a prima facie duty owed?
o Baby suing the mother for negligence while pregnant
o No third parties
o Clearly passes the first branch of the test, foreseeability of the
unborn child is one of the closest proximities that exists
o She would obviously have in contemplation how her acts and
omissions would affect the child
But the second question to ask are there any policy considerations in the
relationship that would negative the duty of care, must be clear, persuasive
and compelling?
o Affects the familial relationship, dont want to tread on the
relationship between the child and mother
o Lawsuit of a child suing its mother is not something we want, will
disrupt the family harmony creates tensions and problems
within the family if the mother is found to be legally responsible
for the
o Defeats the purpose of compensation if you sue the hand that
feeds you, sue the breadwinner for medical costs but the
mother is still responsible for feeding the
o Busy body factor officious third parties who are deciding that
they are standing in the shoes of the unborn to limit the
behaviour of the mother or sue her in tort
o There are so many things that could potentially harm the fetus
o The uniqueness of the relationship cant separate fetus from
the mother
o Intrusions of a legal duty on the bodily integrity, privacy and
autonomy rights of the mother
o Mothers will protect their fetuses without the law
o Mothers could be held liable for lifestyle choices within the family
o If child could sue relationship would be undermined, family
harmony affected
What are the residual policy considerations?
o Eludes to the fact that mothers take good care of their fetuses by
in large, and there is no need for the law to step in to control
pregnant mother as we do in cases of drunk drivers etc
o Only women can become pregnant laws disadvantaging women
because of this biological fact raise Charter questions of gender
discrimination ultimately would be discouraging women from
becoming pregnant

o Pregnancy should be encouraged and respected as a contribution


to humanity
o If a legal duty existed, third parties could interfere with a
mothers life choices
o A legal duty would affect every pregnant woman and every
potentially pregnant woman in Canada
o Neither deterrence nor compensation goals of tort would be
served
o Caring for special needs children should not be the job of tort law
because it will not solve the problem
o Legislation is the preferred option
Dissenting opinion Major, J.
There should be a duty owed
Doesnt really do the proximity/policy analysis
Starts the analysis at the duty owed to a live child we
already know that
Goes back the injury occurred prior to the birth ignores
the relationship prior to the birth
The child hasnt had an existence prior to the birth in
relationship to the mother
The causation occurred prior to birth though
Doesnt look at policy considerations, or even residual
policy considerations of the relationship beyond the tort
Are they compelling enough to negate the duty?
o The whole decision is about policy, not foreseeability
the child is clearly foreseeable both prior to and after
birth
FAILURE TO ACT
Nonfeasance
- An omission; failing to do
something
- Generally not responsible, no
duty owed
- Exceptions: Charter of Human
Rights in Quebec (mandates
Good Samaritanism)

Misfeasance
- Positive conduct that creates a
risk of harm
- Can be found liable
- Can owe a duty to certain
people

The law looks at these two types of behaviour differently


-

Non-feasance used to affect whether or not a duty would be found

Positive behaviour that harmed people is what the law was concerned
with
Some jurisdictions require Good Samaratinism some European
countries and Quebec
Statutory duties are created to require people to come to the aid of
others in need
The common law requires no such duty unless the duty tests are met
as set out in the common law
No liability will be imposed at common law even where harm is
foreseeable and preventable by the defendant
However, the common law can create duties from action as well as
from inaction

The Biblical Duty of Care


- Addresses moral obligations, not legal obligations
- Requires positive action regardless of proximity in order to meet moral
requirements
- Biblical rule has to do with moral order, not the public order
- We are not concerned with peoples private, moral behaviour
Horsely v Maclaren (SCC, 1972)
The Duty to Rescue cite for the fundamental principle that there is
no duty to rescue, even though there is a duty in the facts of the case a
duty to rescue a rescuer

You do not owe a duty to come to the rescue of a person who finds
himself in peril when its completely unrelated to the defendant, even
where little risk or effort would be involved in assisting (no
proximity)
No principle is more deeply rooted in the common law
There is no duty to confer a benefit in the law
The common law only recognizes that there is a duty not to cause
harm see notes on p.333

The law of tort is there for people who have


acted to harm someone, not someone who fails
to act to benefit them

Donoghue v. Stevenson not been extended to include a duty to confer


a benefit (just not to cause harm)
Jessup said the Well-Known Quote: "So, despite the moral outrage of
the text writers, it appears presently the law that one can, with
immunity, smoke a cigarette on the beach while ones neighbour
drowns and, without a word of warning watch a child or blind person
walk into certain danger".

p.333 Notes
- Where do you draw the line in requirement for duty? When there are
children involved? When harm has been inflicted in the past? When do
we intervene? Is it a slippery slope that you cant comfortably go
down?
- What about using the criminal law as a tool for addressing a failure to
intervene?
o Standard of proof is higher protection of the accused,
protection of freedom of autonomy, liberty, in a democratic
society
o You will only catch the worst offenders beyond a reasonable
doubt
o The statute could expressly state that a civil liability would not
be available in the event of criminal conviction on a failure to
rescue
o Victims wont be offered a remedy besides justice, no
compensation for the injured person
o With a criminal provision, it could be recommended that there is
a fund attached to the offence similar to the Crimes
Compensation Board
o Sanctions in a criminal offence can have a much graver impact
on a person in the sense of the negative burden of holding a
criminal record impact on employment, travel, etc vs paying a
fine or having an insurance claim against you
- There ought to be a law this is an issue that comes up and that
people are aware of
Where a Duty to Rescue Exists
- In certain categories of cases where:
o the relationship is for the defendants economic benefit
o The relationship is one of the defendants control or supervision
Teacher/student, daycare operators, lifeguards, police
officers, firefighters
Horsley/McClaren people were going out in a boat on
Lake Ontario, man overboard, Captain of the boat cant just
drive away taken you offshore to be in a place of peril
o The defendant has created a dangerous situation
Open pit excavations
o It is a relationship of reliance
Closing gates to railroads to protect people from crossing
the tracks, stopped doing so and someone got hit by a
train relied on the behaviour
Reasonable reliance

Zelenko plaintiff passes out in the store, removes her


from the store, places her in the infirmary and leaves her
there she was helpless, they interfered and created a
reliance
If a defendant undertakes a task, even if under no duty to
undertake it, the defendant must not omit to do what an
ordinary man would do in performing the task
o It is a relationship created by statute
Statute always trumps common law
Case with the drunk guy that hurts himself on the ski hill in the tubing
competition
o Case found a duty to rescue him from himself
o Used his foolishness to benefit their economic situation, benefits
from the exploitation of the fantastic event that made everyone
laugh didnt set out to injure Crocker, but they also didnt care
prepared to take the risk that they created to acquire an
economic benefit for themselves
o Increased the risk by serving him alcohol
o Found a duty and got over the policy competing policy of
exploitation of people and exposing them to high degrees of risk
to make money

The distinction between nonfeasance and misfeasance has become a non


distinct dinstinction
Jordan House
- Proximity they were aware of his drinking problems, reasonably
foreseeable that he would get drunk on the premises, had previously
recognized a duty to patrons by driving them home and setting aside
rooms for drunk patrons
o Creation of risk throw him out at night, cold, rainy, icy, slippery
conditions and they knew he had to walk home no room to walk
on the side of the road
- Whether or not a bar should owe a duty of care to patrons that they
are serving alcohol too
- Relationship of economic benefit scope of the duty, if you just found a
duty based on the reliance of a drunk on the person serving them no
one could ever get drunk in a bar! Dont want to create a duty in every
situation of people drinking and over drinking floodgates argument
- Cooper and Hobart test residual policy considerations for finding a
duty in this situation safety of the public, risky behaviour of drunks,
limits the expense of the liberty of bars to over-serve their patrons,
cost to society of paying for damage,
- Jordanhouse also had control and supervision, could even be
categorized as creating a dangerous situation

Facts:
- H struck M with his car while driving negligently
- Conditions were hazardous outside dark, rainy, slippery
- Patron of hotel was known to be a heavy drinker and a risk taker
- Had been barred in the past and was ejected this night
- Hotel was aware of excessive drinking and intoxication; he would walk
home on highway
Issues:
- Does the hotel owe M a duty of care?
- What is the nature of the duty? Affirmative or negative?
- What is the scope of the duty?
- What standard of care is required to satisfy the duty?
o Standard is often the mirror of the duty
o Standard is what people do; duty speaks to the relationship
legal obligations as to that relationship
o What does a duty consist of? Where do you draw the line?
- Statutory Provisions
o Saskatchewan Wheat Pool statutes and tort law there is not a
normative tort for the breach of statute, but it can be evidence of
negligence in a standard of care
Can also be a sign of duty
o Liquor Licence Act what does it say about duty?
Not to over serve patrons
Cant permit drunkiness or rowdy behaviour in the bar
Bar has the right to eject someone
No liquor shall be sold or served to anyone who apparently
is in an intoxicated condition
Addresses the standard of care describes the behaviour
that is expected of the licensee under the act
o Liquor Control Act what effect is this?
Whoever serves liquor to a patron owes a duty to protect
them from suicide or meeting death by accident
Duty subscribed to the notion of serving alcohol
Duty is owed to the patron who commits suicide or dies by
accident allows the family to carry an action against the
server/bar
2nd duty in the statute as well look it up
- Two statutes address the standard of care for serving alcohol to
patrons
- Statutory provisions can provide evidence of negligence and liability in
a civil action

Addresses two other duties that dont appear to apply to this case the
plaintiff didnt hurt anyone else, didnt commit suicide, or wasnt killed
Why would the court cite it?
o Shows that the legislation is willing to address this type of duty
have already spoken on the issue, even though it is not the
precise situation
o Risk that is being created by over-serving and all of the
consequences that can occur as a result of the over-service
o Court is telling us that although the legislation is not on point, it
is demonstrating that this is a serious problem
o We can use this in our duty analysis
Creates a relationship between the parties
Governing body has taken a policy position that overservice is not a good thing, and will penalize persons who
create risk by over-serving patrons
Neighbour principle clearly a bartender over-serving a patron will be
able to foresee that if they continue to do so, they will be put in a
dangerous situation
Policy considerations (specific)
Residual policy considerations
Two statutes have already been created to address this residual
policy issues of over-serving liquor, safety of patrons, safety of staff,
safety of public, medical costs all support the creation of a duty of
care
*The case did not turn on the existence of either one of these statutes
they were not critical, but were not unimportant
Common law analysis of duty of care is what the court used to find the
duty

Factors in Jordan justifying a positive duty of care


- There is a duty to protect the plaintiff from injury when:
o Relationship is host and patron different than other
relationships, economic benefit
o Defendants personal knowledge the plaintiff special risks
o Existence of house rules that were breached
o Court finds a special relationship to broaden range of
affirmative duties without reaching all citizens with knowledge of
the risks to the plaintiff
- There are different alternatives that they could have taken call him a
cab, call the cops, put him in a room, drive him home
o Application of the standard cost of avoidance and level of the
risk, magnitude of the risk Bolton and Stone as the touchstone
case
o utility of conduct not a pro social activity
o Wouldnt have cost the bar much to avoid the risk

Goes against the notion of no duty to rescue


Creates a positive duty to act rather than a typical refrain from
action

Notes
- Third party? Yes, a duty can be owed to an innocent third party who is
harmed by someone who is over-served
- Courts are moving strongly on the issue of liquor service and on the
point of economic benefit
- Parties at home? Strictly social pure parties with friends vs. a party for
economic benefit? Even a social situation can creep into an economic
benefit
Exam analysis
- always go back to the first principles
Other Relationships of Control and Supervision
- Doctor and patient most unequal relationship, will have positive
duties to their patients
- Parent and child important in some situations (policy considerations)
not to find a duty of care
- Driver and passenger
- Teacher and pupil
- Employee and employer
- Hospital and patient
- Prison and inmate most severe control, inmate has lost their freedom
to the institution
- Occupier and entrant see examples on p. 146 and 147
-

Power and control can be in the form of money, livelihood, health, job
etc

Creation of Danger
- Oke v Weibe Transport driver recognized the danger he caused nonnegligently
- Took positive steps to ameliorate the danger removed debris, talked
to garage owner
- Negligent driver is killed by post while driving on the median
- Does the first driver owe the second driver a duty of care?
o Does a duty of positive care reside in the original driver?
o Was the harm to the second driver foreseeable by the first
driver?
First driver collided with the sign, creating the risk
created a relationship between him and the other drivers
on the road recognized to the point that the he went to

the garage and sought advice on how to negate the risk


so therefore he created a risk with the guy who was
impaled proximate relationship with the other drivers and
should have acted positively
First driver stopped and examined the risk created
First driver recognized an obligation to act positively and
failed to follow through to the police
What would the standard of care be?
When you create a danger and recognize that you created it, then you
all of a sudden have a relationship such that you must follow through
and do something positive

Reliance relationships: Zelenko


- How did the duty to protect or to rescue arise?
o Once he began to apply care he created a duty for himself
o Removing her the action created a relationship of reliance even
if she is unconscious and doesnt know about it
o She is relying on him to do the right thing
- What standard of care applies to a volunteer rescuer?
- How could the defendant have avoided having a duty of care?
o Leave her on the floor
Statutory Duties
- ORourke v Schact
- Weve look at statutes in standard of care, and duty
- This isnt a new concept
- What statutes impose duties on the Police?
o Police Act
o Highway Traffic Act
- What were the statutory duties in this case?
o Warn approaching traffic of a hazard in the road
o Maintain a traffic control
o Direct traffic to ensure orderly movement
o Prevent damage to persons or property
- It would have been easy for an officer to do something as simple as
parking a car with lights on in front of the hole until it could have been
fixed
- Police are in a different position than a citizen or a good Samaritan
they are under a positive duty by virtue of their office to protect the
plaintiff from a hazard
- Statute imposes a specific positive duty
- The traffic they were aware of included the plaintiff
- The common law is also applicable and makes the positive duty
oweable to an individual citizen such as the plaintiff

p. 355 the duty switch, from relevant statute and from common law,
owe general duties
What positive duty was breached?
o To protect the plaintiff from going in the whole
What standard of care was imposed by the court?
o Do something!
As simple as parking a car in front of the whole
Was there another source from which the duty was found?
o
How can non-feasance become mis-feasance?
o What the police failed to do was so serious that it became misfeasance
o Lines can be blurry between the distinction of the two
o Dont look for a brightline between the two, not always there
o Instead of not doing something, that omission becomes the
commission of a bad thing!
Police can owe a positive duty to individuals
note 1. Jane Doe Rape victim of the Balcony Rapist found to owe a
specific duty of care to her and others like her to warn her about the
danger low cost, high risk, high magnitude of risk

** Just because there is a statute, doesnt mean that there will be


magically a duty relationship created read the legislation carefully
before you jump to conclusions!**They can be persuasive, they can weigh
in, they can be evidence, they can direct the court, can trump the
common law** At the end of the day, the court gets to decide and fill it in,
sometimes maybe with the common law public and private duties can
exist at the same time**
Childs v Desormeaux
Facts:
- Drunk attended a private New Years Eve BYOB Party
- Hosts served small amount of champagne
- Drunk known to be a heavy drinker alcoholic for 20 years, couple of
DUI charges - and consumed 12 beers in 2. 5hours
- Hosts did not monitor his drinking or interfere with him driving home,
he had come to the party already drunk
- Host accompanied the Drunk to his car
- Drunk collided with plaintiffs car causing her severe injury profoundly
disabled for life
- Drunk driver had no insurance
Issues

Whether private hosts owe a duty of care to third party members of


the public for alcohol related injuries caused by their guest
Is it a new category?
Can private hosts be distinguished from commercial hosts?
What differences are there in the proximate relationship?

Commercial Hosts
Capacity to monitor consumption is
expected
Hosts are paid for the drinks and
service
Hosts are trained to recognize
intoxication
Sale and consumption regulated by
law creates responsibilities to reduce
risk
Profit incentive to over-serve

Private Hosts
Monitoring is not expected
Are not paid for the drinks or the
service
Hosts are not trained
No regulation of private parties
No institutionalized methods of
protecting the consumers
No profit incentive to increase the
risk

Duty Analysis
- Is there a prima facie duty of care?
- What links are there between the hosts and the third party road user?
- Was the plaintiff reasonably foreseeable to the social host?
SCC
- No prima facie duty because the TJ found no specific evidence of
knowledge of intoxication
- General knowledge of the risks of drinking and driving not enough to
found a duty of care
- Duty being argued for is a positive duty to act
o If you are going to require by law to do something positive to
help someone, then mere foreseeability of danger is not enough
- Where duty being sought is to act, foreseeability is not enough
o Public policy of autonomy
o Freedom to do risky activities
o Personal responsibility
o Dont want to go too far into the world of good samaritanism
- Nexus between the parties is key
o There must be something extra in the proximity to make it a
special enough circumstance to imply a positive duty
o Nexus is the level of interaction and knowledge that may lead
to the creation of a duty
- Defendant didnt know the plaintiff, but you can still construct a special
relationship with strangers based on the facts of the case

If the facts were different if the hosts knew of the level of intoxication
and continued to serve the drunk, knowing he would get in his car and
drive, maybe then there would be a duty found that would be owed to
the drivers on the road
o Obiter comment very significant
o Not saying that there is NO liability for social hosts, the line is not
that clear
o Just on THESE facts, the line is clear that there was NOT enough
knowledge and enough interaction with the drunks state of
intoxication to create that Nexus

Nexus
- Policy to protect individual autonomy is strong
- Duty to take positive action to prevent danger to others requires a
strong nexus
- Here, allegation is that the plaintiffs should have interfered with
Demoreauxs autonomy to protect another from danger where they did
no positive act to endanger the plaintiff
- Hosting a party where alcohol is served is not enough to create a duty
to third parties who are harmed by the actions of your guests
Decision
- More is required than merely serving alcohol at a private party to
create a duty of care on to third parties injured by the inebriated guest
- Court leaves open the situation where the social host continues to
serve alcohol to an obviously drunk guest knowing they will be driving
home
- The guest will be the liable one they dont park their autonomy at the
door
- No evidence of reliance on the host to intervene or monitor or prevent
driving
- p. 345
Requirements for a duty to be found creation or control of a risk
- Where the host attracts and invites third parties to an inherent and
obvious risk that the host has created or controls
- Paternalistic relationship of supervision and control exists pre-existing
- Where host hosts a public function or engage in a commercial
enterprise grey area between clearly commercial institutions such as
Jordan house and a party at home that is a firm/office party with some
connotations of a business event with commercial benefit to be gained
(might qualify); golf tournament private party in a public place
- Where there is a reasonable reliance engendered by the host that is
not followed through
- The book is not closed on the duty of private hosts

TAKE AWAY: Having a party where alcohol is served is not


enough if your guests drink and go out and kill someone
Duty comes out of creating risk to foreseeable plaintiffs basic principle
Klar 5 categories realized

Economic
Control
Created Danger
Reliance
Statutory Duty

Childs 3 Categories of positive


duties to act identified
Invitation to Risk created
Supervision and Control
(paternalistic, e.g. parent child)
Public function for commercial
enterprise (Jordan House categorized
under here)