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TORTS WINTER SUPER CAN

PROXIMATE CAUSE
General Principles
General test for Remoteness:
Wagon Mound No.1: Would a reasonably prudent person in Ds position foresee the probable consequences of the act
in question?
Wagon Mound No.2: Would a reasonably prudent person in Ds position foresee that the harm was a possible
consequence of his act?
Thin Skull Principle: the test is not whether a reasonably prudent man could foresee the particular harm, but whether
he could foresee the possibility of the type of injury suffered: the amount of damage suffered would depend on the
characteristics of the victim, and D was to take his victims as he found them (Smith)

Wagon Mound No.1 (1): (furnace oil spilt into the bay and caused a fire) A man is responsible for the
probable consequences of his act: the test for liability: would a reasonably prudent man foresee the probable
consequences of the act in question?
Hughes (2): (kid climbed down the manhole; a lamp fell in and caused an explosion) It is not necessary that
one foresee the precise concatenation of events; it is enough to fix liability if one can foresee the general way
the class or character of injury which occurred (the manner and state of harm is not important as long as the
harm itself is foreseeale)
Wagon Mound No.2 (2): (oil in water; Ps were owners of ships in the wharf which were damaged as a result
of the fire) Test for liability: would a reasonably prudent person in Ds position reasonably foresee that the
harm was a possible consequence of his act? (here, there was a real risk, and while the circumstances were
exceptional, it did not mean that a reasonable man would dismiss such a risk from his mind when it was so
easy to prevent it)
Bolton (3) (cricket ball) while on the ordinary meaning of the words, the fact that a ball might strike a person
in the road was reasonably foreseeable, the chance of it happening in the foreseeable future was minute, and
the risk was so small that a reasonable person would have been justified in disregarding it
Smith (3): (burnt lip, a pre-malignant condition, caused cancer) the test is not whether D could reasonably
foresee the possibility of the particular harm (death due to cancer) but whether he could foresee the
possibility of the type of injury suffered (the burn) thin skull rule applied

Acts of Third Parties and Intervening Forces


Duty to rescue:

No general duty to rescue, but one who attempts a rescue will owe a duty of care to the victim
A rescuer may owe a duty of care to a subsequent rescuer if:
(a) his attempt to rescue increased or created a new peril, and
(b) his negligent attempt induced the 2nd rescuer to move in and make the rescue
Consider whether the 2nd rescuer was contributory negligent
A host who has care and control of the premises will owe a duty to rescue (Horsley)

Where there is a negligent act of D which cases harm to P, and sometime after the accident there is a 2 nd accident
in which P suffers further injuries, look at whether the 2nd injury was a reasonable consequence of Ds original
negligence, and also consider contributory negligence

Harris (4): (bus scraped pole; P had his arm and the window and was crushed) D will not be freed from
liability merely because Ps injury was cause partly by his own negligent act, or the wrongful act of another
party + if the scope of Ds duty is to protect P from the very injury that occurred (care and control), D cannot
argue that Ps act was an intervening cause the test remains: was the possibility of the general type of
injury reasonably foreseeable to D? (d knew the children had a tendency to put their arms out their window
and he could reasonably be expected to foresee that such thing could happen in the case of P)

Horsley (5): (rescue attempt on the boat)a host has a duty to rescue a passenger who has fallen off board as
well as a 2nd rescuer if his own rescue efforts created a new peril which induced the 2 nd rescuer to get involved
(must find negligence in 1st attempt)
Weiland (6): (P got neck brace following an accident with D, could not see right and fell) An injury sustained
in one accident may be the cause of a subsequent injury + with regards to foreseeability of harm, the precise
mechanics of the way in which the negligence act resulted in the 2 nd injury does not need to be foreseeable (it
is foreseeable that if you injure somebody, you will weaken them and that could cause further injury)
McKew (6): (P injured by D, lost his balance while descending stairs and tried to leap but fell) A Ps
unreasonable act may constitute a sufficient intervening event to break the chain of causation and free D from
liability (here, the act of leaping may have been an error of judgment, but it was not so unreasonable so as to
free D from liability) better way to decide such a case is to apportion liability between negligent parties

Intervening Medical Error:


Normally, where D causes injury to P and where P employs a competent doctor, then D will be liable for further
damage caused by the doctors medical errors unless D can demonstrate that the doctors actions amounted to
gross negligence (Mercer, Papp, Thomson, Kolesar)

Mercer (7): If reasonable care is used to employ a competent physician to treat personal injuries wrongly
afflicted, the result of the treatment, even though by an error of treatment the treatment is unsuccessful,
cannot give rise to an action against the physician (unless the treatment is so negligent so as to be actionable)
Papp (7): a tortfeasor must assume the inherent risks of complications, bona fide medical error or
misadventure (such risks are reasonable and not too remote) onus is on D to prove that some new act
rendering another person liable (intervening medical error) has broken the chain of causation
Thomson (8): Where a doctor is employed to deal with an injury caused by a tortfeasor, an additional harm
resulting from the doctors mistake or negligence is considered one of the elements of the damages for which
the original wrongdoer was liable (unless there is proof of gross negligence on the part of the doctor)
Kolesar (8): an original D might be responsible for the later negligence of a doctor or hospital which
aggravated Ps injury unless it is completely outside the range of normal experience (gross negligence)
Price (8): one negligent doctor could be liable for additional loss caused by another doctors negligence

Suicide (where A commits suicide as a result of depression following an injury caused by Bs negligence):

If the suicide was the deliberate choice of a sane individual, then the decision to commit suicide may be looked
upon as an intervening act
If A is legally insane, then B may still be found liable
The courts have made a value judgment that suicide is not a reasonable response to pain and suffering

Intermediate Inspection
Where there is evidence of negligence by both the original party (ex. manufacturer) and the intermediate
inspector, liability is to be shared between them (Ives)
Learned Intermediary Rule (Hollis): While a manufacturer generally has a duty to warn the consumer, it some
circumstances it may satisfy this informational duty by providing warning to a learned intermediary; the manufacturer
can only be said to have discharged its duty to the consumer when the intermediarys knowledge approximates that of
the manufacturer (Hollis); the principle is applicable where:
(1) The product is highly technical in nature and is intended to be used under the supervision of experts, or
(2) The nature of the product is such that the consumer will not realistically receive ant direct warning from
the manufacturer before using the product
A manufacturer of simple component parts will not owe a duty to ultimate consumers if: (Viridian)
(1) It is within the contemplation of the parties, than an immediate inspection will take place
(2) A proper intermediate inspection will reveal the defect
(3) The manufacturer is not aware of how the simple component parts are being used
(4) The component parts have to be machined and engineered by the intermediate party before it can be used
(5) Parties are sophisticated
(6) There is no reliance

Ives (9): (furnace caused problems; numerous inspections and P was never warned about risks; P became
sick) An intermediate inspector will not break the chain of causation to exonerate a manufacturer from
liability (liability should be apportioned between two negligent parties) + where there are duties on two or
more parties and negligence by each was a contributing cause of the damage, they were both liable
Hollis (9): (manufacturer of breast implants did not provide information about risks to the doctor) a
manufacturer can only be said to have discharged its duty to the consume where the learned intermediarys
knowledge approximates that of the manufacturer
Viridian (10): (diaphragms used in gas compressor were unfit for the purpose) A manufacturers duty to
potential consumers will be discharged where intermediate inspection is in reasonable contemplation which
would revealed the defect, them manufacturer is unaware of the purpose for which its basic product was
being used, the parties are sophisticated and there is no reliance

Government Liability
First thing to look t when suing the Minister: the statute empowering the Minister to take the action in question
(consider the extent and scope of authority granted)
IS THERE A DUTY OF CARE OWED?
IS THERE A REASON WHY THE DUTY SHOULD NOT APPLY?
(1) Policy Considerations
(2) Statutory Exemptions
IS THE DECISION A POLICY DECISION OR AN OPERATIONAL DECISION?
Policy: (decision on what to do) usually dictated by financial, economic, social and political factors and
constraints (ex. decision made by people at the top of the chain of command, using discretionary powers)
Operational: (actually doing the thing in question) concerned with the practical implementation of the
formulated policies
STANDARD OF CARE:
Where the decision is a policy decision, the Minister/Crown satisfies the standard so long as: (Comeau)
(1) The decision is relevant (within the governments authority)
(2) It is not arbitrary
(3) It is exercised in good faith
Where the decision is an operational one the normal principles of tort law apply
Government officials can be sued as individual for decisions which cause harm to individuals (The office of the
PM or premier cannot be sued, because it is created by custom and convention rather than by statute) (Dedock)

Comeaus Seafood (11): (lobster license retracted by the Minister) Where the minister is granted absolute
discretion by statute and, following government policy, causes harm to P, the Minister cannot be held to be
negligent (Minister acted on his authority legitimately for the purpose of implementing government policy)
Dedock (12): (cuts to the health care system by provincial government led to inadequate medical treatment)
representatives of the Crown can be sued as individuals for negligent decisions causing harm to individuals
Just (13): (boulder fell on car; provincial authority negligent in highway maintenance?) The Crown can be
liable for its operational decisions but is normally exempt with regards to policy decisions + when dealing
with a policy decision, apply the Comeau test
Brown (14): (highway not sanded on time and P crashed after hitting black ice) While the government has
responsibilities towards the citizens (ex. maintaining roads to prevent injury) it is only responsible for taking
reasonable steps to prevent injury (this case suggests that there is a reasonable component to government
decision making)
Ingles (15): (defective underpinning for house; city inspector did not do a complete inspection) Where a
statute provides for a positive duty such as inspection, a government agency cannot immunize itself from
liability by making a policy decision not to inspect in reaching a policy decision, the government agency
must act in a reasonable manner and exercise bona fide exercise of discretion (here, inspection was an
operational decision made to protect the health and safety of the public, and the government could not do a
bad inspection job and then rely on a policy argument)

Jane Doe (17): (the police failed to warn P about threats from a rapist despite knowledge) the decision by
police not to warn (because it may lead to panic and greater harm) does not extinguish the duty to protect the
public (and hence warn against a particular threat to a specific group)

Economic Loss
Pure Economic loss: loss suffered by an individual that is not accompanied by physical injury or property damage
Negligent Statements
Negligent statements: statements (oral or written) made that were reasonably relied upon but negligently made so as to
cause harm
DOES A DUTY OF CARE EXIST ON THE PART OF D?
Congos: 5 Requirements for establishing a duty of care in negligent statement cases:
(1) A special relationship between the representor and the representee (higher standard than the Anns test)
(2) Representation must be untrue, inaccurate or misleading
(3) Representor must have acted negligently in making the representation: made the statement in a careless manner
(4) Representee must have relied, in a reasonable manner, on the negligent misrepresentation (causation: objective test)
(5) The reliance must have been detrimental to the representee, resulting in damages
Hercules: 2 Requirements for establishing a duty of care:
(1) D ought to reasonably foresee that P will rely on his representation
(2) Reliance by P would, in the particular circumstances, be reasonable
Hercules: Factors to consider for reliance:
(1) Expertise and knowledge of the representor
(2) Seriousness of the occasion
(3) An initial request for information
(4) Pecuniary interest (financial benefit by P)
(5) Nature of the interest
(6) Disclaimers
DO POLICY CONSIDERATIONS NEGATE THE DUTY OF CARE?
The main factor to consider is INDETERMINACY: possibility that D may be exposed to liability in an indeterminate
amount for an indeterminate time to an indeterminate class
Hercules: Factors to consider:
(1) Does D know the identity of either P or the class of Ps who would rely on the statement?
(2) Does the reliance losses claimed stem from the particular transaction in respect to which the statement was made?
STANDARD OF CARE:
The representor is to exercise reasonable care (such care as may be expected of a reasonably prudent person in the
representors situation) as the circumstances require to ensure the representations made are accurate and not misleading
CAUSATION:
The representee must have relied on the negligent statements to his detriment the statements must have materially
contributed to the loss suffered by P

Hedley Byrne (19): (bank made a qualified statement that E was creditworthy) an innocent but negligent
misrepresentation by itself does not give rise to a cause of action (something more is required) the speaker
has to have undertaken some responsibility (expressly or by implication) and where a statement is qualified
with words such as in confidence and without responsibility, then the person to whom the statement is
made bears the risk that it is not true or negligently made
Fletcher: an omission (failure to disclose a fact) can amount to a negligent statement

Congos (21): (P accepted a job offer based on negligent statements made by the employer about the prospects
for the businesss success) For there to be a proximate relationship, it must be reasonably foreseeable to D
that P will be relying on the information provided by him to make a decision
Hercules (21): (shareholders relied on audits for personal investment purposes) due to the possibility that D
may be exposed to liability in an indeterminate amount for an indeterminate time to an indeterminate class,
policy considerations are an important part of the analysis in negligent statement cases
BC Checko (23): (K to erect transmission lines and clearing of eight of way was inadequate) It is possible
that a tort action and a breach of K action can co-exist: the mere fact that the parties have dealt with the
matter expressly in their K does not mean that they intended to exclude the right to sue in tort

Negligent Performance of Services


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

B.D.C. (24): (due to the negligence of a courier company, certain documents did not reach their destination
on time and P suffered a loss) Where D has no actual knowledge of the person or class of person whose
interests depended on Ds acts or where there was no reliance by P on D, there was no proximity and hence
no duty owed by D to P

Economic Loss Caused by Defective Products and Structures

Winnipeg Condominiums (24): (contractor built a defective structure and new purchaser sued for money
spent fixing the problem) Where a contractor (or any other person) is negligent in planning or constructing a
building and where that building is found to contain defects resulting from that negligence which pose a real
and substantial danger to the occupants of the building, both injuries caused to occupants as a result of the
defect and the cost of repairing and putting the building into a non-dangerous state by the owner are
recoverable in tort

Relational Losses
Relational Losses: instances where there is a claim for a purely economic loss by P based on damages (physical or
proprietary) done to another person potential for this category to be huge, so the law is extremely restrictive
The principle for recovery for economic loss is the Anns test:
IS THERE A PRIMA FACIE DUTY OF CARE
When is there a duty of care for relational economic loss?
McLachlin (C.N.R.): Relational economic loss is recoverable where, in addition to negligence and foreseeable loss,
there is sufficient proximity between the negligent act and the loss the factor of proximity will sufficiently limit
recovery of pure economic loss to avoid indeterminacy
La Forest (C.N.R.): No duty could arise in respect to economic loss claims unless the case fell within one of the
following categories:
(1) Cases where the claimant has a possessory and proprietary interest in the damaged property
(2) General average cases
(3) Cases where the relationship between the claimant and the property owner constituted a joint venture
ARE THERE POLICY CONSIDERATIONS WHICH NEGATE THE DUTY OF CARE?
Policy reasons for reluctance to allow recovery for pure economic loss: (DAmato)
(1) Economic interests have been seen as less worthy of protection than bodily security and property
(2) Risk of liability in an indeterminate amount for an indeterminate time to an indeterminate class
(3) It may be more efficient to place the burden of economic loss on the victim
(4) The restrictive approach discourages a multiplicity of lawsuits, in favor of channeling claims into one action

C.N.R. (26): (boat struck and damaged railway bridge owned by the government but used by P) McLachlin:
(liberal approach) pure economic loss is recoverable where, in addition to negligence and foreseeable loss,
there is sufficient proximity between the negligent act and the loss (here, Ps work was closely allied to the
operations of the government such that it could be considered a joint venture) VS. La Forest: (conservative
approach) no duty of care can arise in respect to pure economic loss unless the case fell with in the narrow
exception categories where identifiable policy factors strongly supported recovery this case left the law in
an unsatisfactory state: two visions presented (here it was found that D was already liable to the owner of the
damaged property, and to the extent that deterrence was sought to curtail reckless conduct, it already existed,
and recovery for a pure economic loss was unnecessary)
DAmato (27): (P injured and could not do his old job, and his employer suffered losses) Indeterminacy is a
crucial component of the 2nd branch of the Anns test because an injury to one party will obviously have a
ripple effect, causing economic loss in various forms to a large number of people and there is hence a serious
risk of claims by multi-numbered plaintiffs
Bow Valley (28): (D built a rig; the heating system caught fire and was out of commission; owners sued for
economic loss) where a case does not fall within a recognized category for recovery of relational economic
loss, the court can use the Anns test to decide whether the situation was one where the right of recovery was
to be recognized (policy considerations play a major role)

Wrongful Birth
3 categories of negligence with respect to professional negligence and child bearing: (Kealey)
(1) Wrongful Birth: negligence advice by doctor leads parents to decide not to take measures (ex. prenatal
surgery or abortion)
(2) Wrongful Life: planned pregnancy brought about a child with a defect, and child brings action against
the doctor (and sometimes parents) but for the negligence, he would not have been born and would not
have to carry the burden of the defect
(3) Wrongful pregnancy: doctors negligence (ex. in sterilizing the mother) causes pregnancy
3 Approaches used by the courts to deal with damages for wrongful pregnancy:
(1) Total recovery: all reasonably foreseeable damage should be compensable
(2) Offset-Benefit analysis: balance the benefits of having the child (for child and parents) against the costs
of having a child (courts often say that the joy of having a child outweighs the costs of having it
(3) Limited damages: public policy demands that damages are not granted for all harm, but only for the
unplanned pregnancy part
The assessment of damages associated with a healthy childs birth focuses on the specific interests of the parents
that claimed to be burdened by the doctors negligence: was the sterilization sought for reasons that were:
(a) Genetic (to prevent the possibility of the birth of a defective child)
(b) Therapeutic (to prevent harm to the mothers health)
(c) Economic (to avoid additional expenses of raising a child)

Kealey (31): (sterilization procedure failed due to doctors negligence and P had a child) An award for child
bearing costs often depends on the courts finding that the birth of a healthy child in fact constituted a harm
or injury (here, any possible injury was turned into a joy for the parents and costs were not recoverable)

Negligent Infliction of Nervous Shock


The test for establishing a duty in nervous shock cases is foreseeability of shock (Marshal v. Lionel Enterprises)
WAS P CLOSELY AND DIRECTLY AFFECTED BY DS NEGLIGENT CONDUCT?
Factors to consider:

The form of shock must be a recognizable mental illness, and not mere emotional distress (expert evidence)

Has P put himself in the geographic/physical proximity of the negligent act?

Did the witness view the aftermath of the negligent act with his unaided senses? (Devji v. Burnaby)

The class of Ps can include close relatives and loved ones, but is no limited to this a rescuer who witnesses a
horrible accident can recover (Bechard)
Are there any bystanders involved? (harder for bystanders to recover, unless they were fellow workers, or closely
related to the injured party)

Rhodes (32): (Ps son was killed in a train crash) A person who suffers psychological injury as a result of
being informed of the death of a relative, or visiting the scene some days later cannot, in the absence of any
unexpected alarming or horrifying experience caused by the circumstances of the accident, be said to have
been closely and directly affected by the negligent act that caused that accident (here, Ps illness was
attributed to the death of her son and not to the trauma of the accident itself
Bechard (33): (P and H were in an accident; D ran over H and P, trying to rescue H, was traumatized) a
rescuer who witnesses a horrible accident to the victim can recover + the thin skull can be applied to nervous
shock cases (but here, any reasonable person witnessing the horrible accident would experience shock)
Vaneck (34): (child felt sick after dinking from a contaminated juice box, and parents suffered emotionally)
The law expects reasonable fortitude and robustness of its citizens and will not impose liability for the
exceptional frailty of certain individuals not the same was thin skill before D will be held in breach of a
duty to a bystander, he must have exposed that bystander to a situation in which it is reasonably foreseeable
that a person of reasonable robustness would be likely to suffer psychiatric injury (if parents are confronted
with an every day incident that is dealt with appropriately and there is no serious effect or long term
consequence, they cannot recover for shock)

THE RELEVANCE OF THE PLAINTIFFS CONDUCT


Contributory Negligence
Contributory Negligence: Failure of P to take reasonable care for his own safety or property which contributed to his
loss (P participated in the creation of the risk and partially caused his own loss this is a Partial Defense
Contributory Negligence Act:
S.1: Where damage is caused by multiple parties, the court will hold them jointly and severally liable, but as between
themselves, each is liable to make contributions in the degree in which he is found at fault
S.2: A tortfeasor can settle with the victim and then commence an action against other tortfeasors
S.3: Where both D and P were partly negligent, the court will apportion damages with respect to the degree of fault
S.4: If it is not practicable to apportion liability, parties will be held equally at fault

Butterfield (36): (D put a pole on the road; P, riding his horse very fast in clear day light, missed the pole and
injured himself) A party cannot cast himself upon an obstruction made by fault of another, and avail himself
to it, if he did not himself use common and ordinary caution to be in the right (no longer good law)
Davies (36): (P left his donkey on the road and D struck the donkey with his wagon) Where D could have
avoided the injury to P using ordinary care, then it is of no relevance that Ps conduct may have also been
improper (no longer good law)
Labbee (36): (P not wearing seatbelt; was ejected out of window in accident and crushed by the truck) If the
injury would not have been avoided or lessened in severity had P worn a seat belt, his default was not a basis
for finding contributory negligence (look at the harm sustained and not the specific injury: here, P would
have died regardless of whether he had worn a seatbelt or not)
Flemming in Law of Torts (37): a Ps own negligence will not prejudice him unless it was causally relevant
to his own injury in the sense that but for it he would not have been hurt, and failure to use an available
seatbelt is relevant only if, and to the extent that, the injury would have been significantly lessened if it had
been worn
Galaske (37): (P, not wearing a seatbelt, and his father were passengers in Ds care; they were in an accident
and P was injured) Drivers based on their right to drive, by virtue of their control over the car, and under
statute had an obligation to ensure the safety of young passengers by ensuring they wore their seatbelts and
the presence of a parent would not negate the duty owed by drivers

Voluntary Assumption of Risk


Voluntary assumption of risk: a complete defense based on the argument that P voluntarily assumed the risk of harm
which resulted

Voluntary Assumption of Risk as 2 correlative effects:


(1) It means that P is agreeable to bearing the injurious consequences of Ds negligent conduct
(2) It meant that D is relieved from any duty of care to P in respect to the particular risk of harm

Hambley (38): (the cop had set a road block to stop a criminal, and the criminal struck the police cruiser,
injuring P) the defense of voluntary assumption of risk could not succeed unless the evidence permitted a
genuine inference that P consented not merely to the risk of injury, but to the lack of foreseeable care which
could produce that risk
Crocker (38): As a complete bar to recovery, voluntary assumption of risk applies only where P has assumed
both the physical and legal risks involved in the activity in question

Illegality of the Plaintiffs Conduct


There s a limited power on the court to deny recovery to a P on the ground that to do so would undermine the
integrity of a justice system used only where allowing Ps claim would introduce inconsistency in the law
either by permitting P to profit from an illegal or unlawful act or to evade a penalty prescribed by criminal law
DID THE INJURED PARTY SUFFER A RECOGNIZED SORT OF INJURY, AT THE HANDS OF SOMEONE
WHO OWED THIS PARTY A DUTY OF CARE, AND WHO CAUSED REASONABLY FORESEEABLE
DAMAGE BY FALLING BELOW THE STANDARD OF CARE IMPOSED BY LAW?

Hall (38): (P sued D for letting him get behind the wheel of a car when he knew P was impaired) Dismissing
a Ps claim based on illegality of conduct is not justified when it is merely for compensation for personal
injury sustained as a consequence of Ds negligence purpose is to put P in the position he would have been
in had the accident not have happened (no profit)

Exclusion Clauses
Exclusion clause: D has breached the duty of care but claims that the risk was excluded through a K by which P
waived his legal right to bring an action a complete defense

Dyck (39): P cannot argue that the exclusion clause is unreasonable if he knows (or should have knows)
about the clause and the dangers of the activity in question, and has voluntarily participated, and where D has
exercised no pressure on P and has not taken advantage of him
Crocker (39): It is not sufficient to merely have P sign a waiver; A party must take reasonable steps to ensure
that P understands the effect of what he is signing and has full knowledge of the partys intention to exempt
itself from liability

Mitigation of Damages
Mitigation is a post damage concept: It has to do with whether P took reasonable steps to minimize the extent of
his damages (a complete defense)
DID THE PARTICUALR PLAINTIFF TAKE REASONABLE STEPS TO MITIGATE HIS DAMAGES?
There is no difference between an egg-shelled skull and an egg-shelled personality, but a condition preventing P
from mitigating his damages by seeking treatment must be pre-existing; the inquiry has two steps: (Janiak)
WAS THE PSYCHOLOGICAL INFIRMITY A PRE-EXISTING ONE?
(The condition must be a pre-existing one)
WHAT WAS THE NATURE OF THE PSYCHOLOGICAL INFIRMITY?
(Focus on Ps capacity to make a reasonable choice)
Other Factors: degree of risk to P from the treatment, the gravity of the consequences of refusing it, and potential
benefits derived from it

For the purpose of damages, consider which damages are avoidable and which ones are not, and compensate for
unavoidable damages only

Janiak (39): (P had a fear of surgery and refused treatment following his injury) Post accident, P is bound to
act not only in his own interest but in the interest of the party who is to pay for the damages, and must hence
keep damages to a minimums by acting reasonably to mitigate those damages
Marcoft (40): If a man is recommended by his own medical advisor and by others to undergo a course of
treatment, he ought to undergo it (court refused to allow subjective attributes to enter into the question of the
reasonableness of Ps refusal of treatment)
Elloway (40): Where Ps psychosis is itself a factor in his refusal, he cannot be held responsible for
worsening his condition
McGrath (40): Where there is a conflict of expert opinion, it is not unreasonable for P to refuse the treatment
as long as P follows one of several courses of treatment recommended, he is deemed to be acting
reasonably
Morgan (40): The court applied an objective test: would a reasonable man in all the circumstances, receiving
the advice which P received, have refused the operation?

REMEDIES AND LIABILITY


3 Principles on Damages: (Townsend)
(1) Damages are assessed, and not calculated (assessment of Ps needs)
(2) Finality: damages are granted as a one lump sum (cannot go back afterwards and reconsider damages)
(3) P has property of the award and is free to do as he wishes with the sum of money recovered
Compensatory Damages: damages used to compensate the victim
Punitive and Exemplary Damages: damages used to punish the wrongdoer
Aggravated Damages: damages granted for extra added suffering, pain or humiliation (to punish and to compensate)
Nominal Damages: symbolic damages given where someones legal rights are offended, but they have not suffered
harm
Special Damages: damages that have been accrued up to the time of the trial
General Damages: damages given for immeasurable losses (ex. pain and suffering, loss of appearance, loss of family)
The compensation as a whole is meant to provide P with the means of living his life the same as before until the
time of his death
Pecuniary Loss: measurable market place losses: (goals are punishment, deterrence and denunciation)
(a) Future Care
(b) Loss Income Capacity
Non-Pecuniary Loss: non-measurable losses such as pain and suffering, loss of happiness, etc.

Andrews (42): (P injured in accident and rendered a quadriplegic) A claim for cost of future care is a
pecuniary claim for amount reasonably expected to be expended in putting the injured party in the position
(financially) he would have been in if he had not sustained the injury
Townsend (44): Damages are assessed and not calculated; damages are granted as a single lump sum; P has
the freedom to do what he wants with the recovered sum
Whiten (45): Punitive damages are awarded against D in exceptional cases for malicious, oppressive and
high-handed misconduct that offends the courts sense of decency
INTENTIONAL TORTS

INTENTIONAL INTERFERENCE WITH THE PERSON


Intention
For the purpose of intentional torts, intention means the intention to being about the act (motive is irrelevant)
The purpose of this type of tort is to protect the bodily integrity of individuals

There is no need to prove a loss or damage; it is sufficient for P to demonstrate that he was directly affected by
Ds act, and the onus will then shift to D to show that he was not negligent
Where there is an intentional tort, P may also be able to sue in negligence:

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

For intentional torts, all that P has to prove is that he was affected by Ds act

Goshen (46): (referee pushed down P while being escorted out the ring) For D to be found liable for an
intentional tort, it must be shown that he intended to bring about the act (and not the harm to P) (here, D
was entitled to protect his face as he was leaving the ring, and his act of bumping into P was
unintentional; but even if he did intentionally push P, it could be argued that he was doing so in aid and
in consort with the police officers in achieving a common goal of getting him out of the ring safely)
Garratt (47): (a 6 year old pulled a chair from under P) The mere absence of any intention to injure P or
to play a prank, or to commit an assault or battery on P would not absolve D from liability if he in fact
had the knowledge that P would probably attempt to sit down where the chair had been
Carnes (47): (D wanted to strike A with pliers, but missed and unintentionally struck B) If one person
intentionally strikes at, throws at, or shoots at another, and unintentionally strikes a 3 rd person, he is not
excused on the ground that it was a mere accident, but his actions will constitute battery (Ds intention
was to strike an unlawful blow, to injure some person by his act, and it was not essential that the injury
be to the one intended)
Basley (47): (D, mowing his lawn, accidentally crossed onto Ps lawn) Mistake as a defense does not
work in intentional torts (Ds act was voluntary and he intended the result of his act, and his intentions
and knowledge were not material)
Smith (47): (D was carried on to Ps land by force of others) The trespass was of the party who carried
upon the land and not the trespass of D
Tillander (47): (3 year old dragged a baby over 100 feet) A child of a tender age (ex. under 7) cannot be
liable in negligence for intentional torts because he does not have the mental capacity to act willfully
or intentionally
Lawson (48) (non-psychiatric patient attacked by a psychiatric patient) Where a person, by reason of
mental illness, is incapable of appreciating the nature or quality of his act, such person has committed no
tort since the intention, which is an essential element of the cause of action, is missing

Assault
DID P HAVE A REASONABLE APPREHENSION OF HARMFUL OR OFFENSIVE CONTACT?

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

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

To be an assault, there must be means available to carry out the threat (Stephens)
WAS THE HARM IMMINENT?

The apprehended contact must be imminent


Barring ones way can constitute assault (Bruce)

De S. & Wife (48): (D struck at P with a hatchet but did not hit her)There is no need to cause harm to commit
assault; all that is needed is that there be a reasonable apprehension of harm
Stephens (49): (D advanced towards P, fist clenched, but was stopped before he could strike at P) The
question was whether D was advancing in a threatening manner to strike P, so that his blow would almost
immediately have reached the chairman if he had not been stopped; then, even though he was not near
enough to actually have struck him, it amounted to an assault since he was advancing with that intent
Tuberville (49): (D put his hand on his sword and threatened P) If one strikes another in discourse, it is no
assault, because there is no intention to assault. If one who intends to assault strikes at another and misses
him this is an assault. And if a person holds up his hand against another in a threatening manner and says
nothing, it is an assault
Bruce (49): (P was cut off by D, stopped his car and gestured at D with a clenched fist; a fight broke out and
P was injured self defense?) For assault, it is enough that P, on a reasonable ground, believes that he is in
fact in danger of violence; if A shakes his fist at B, B can strike back if he, on reasonable ground, believes he
was in imminent danger + barring ones way can constitute assault

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Battery
Battery: the intentional infliction of harmful or offensive contact with another person (trespass to a person)
DID D INTEND THE HARMFUL OR OFFENSIVE CONTACT TO OCCUR?
WAS THERE ACTUAL HARMFUL OR OFFENSIVE CONTACT WITH ANOTHER PERSON?

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

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

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

A certain amount of unwanted contact is considered by the courts to be inevitable in everyday life (Cole)

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

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

The contact need not be with Ps body; it may be with something P is carrying or wearing
Defenses to Battery:

Consent
Self-defense
Defense of property
Necessity
Legal authority

Sexual Wrongdoing: unwanted sexual contact clearly constitutes battery and may also constitute other torts such as
assault and intentional affliction of emotional distress

Cole (50): battery requires, at a minimum, the lease touching of another person
Bettel (51): (store owner picked up and shook P and accidentally head butted him) foreseeability has no place
in the realm of intentional torts; logical test: whether D is guilty of deliberate, intentional and unlawful
violence or threat of violence if physical contact was intended, the magnitude of consequences is
irrelevant

Vicarious Liability in Sexual Wrongdoing Cases


Employers are vicariously liable for: (Bazley)
(1) Employee acts authorized by the employer
(2) Unauthorized acts so connected with authorized acts that they may be regarded as modes of doing an authorized act
Policy considerations to take into account in dealing with vicarious liability matters: (Bazley)
(1) Provision of a just and practical remedy for the harm (effective compensation)
(2) Deterrence of future harm by fixing the employer with the responsibility of the employees wrongful acts (better
supervision and organization)
In determining the sufficiency of the connection for intentional torts, the relevant factors included: (Bazley)
(1) The opportunity that the enterprise afforded the employee to abuse his power
(2) The extent to which the wrongful act may have furthered the employers aims
(3) The extent to which the act was related to friction, confrontation or intimacy inherent to the employers enterprise
(4) The extent of power conferred on the employee in relation to the victim
(5) The vulnerability of potential victims to the wrongful exercise of the employees power

Bazley (52): (D hired a pedophile who sexually assaulted a kid in one of Ps programs) where the wrongful
act of the employee (sexual wrongdoing) is so closely connected with authorized acts of his employment such
that the employment can be said to have provided the means to carry out the unlawful act, the employer may
be held liable

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Jacobi (53): (Program director of D company sexually assaulted 2 children) Employers are to be held liable
where the strong connection between the employment and the assault was enhanced by a combination of jobcreated power and intimacy + non-profit enterprises lack an efficient mechanism to enterprise the costs
associated with other business (economic interest = corresponding liability)

Intentional Infliction of Mental Suffering


Intentional Infliction of Mental Suffering: The performance of an act or the making of a statement (probably false)
which is calculated to ensure mental anguish to P and which in fact causes such mental anguish
This is a better area to succeed in, as opposed to mental infliction of nervous shock

Wilkinson (54): (D, as a practical joke, told P that her husband was seriously injured; P suffered emotional
distress) Whether D intends the result or not, he is still liable because he knew or believed that his act would
create a reaction (it is no answer to say that more harm was done than was anticipated, nor was the harm too
remote)

False Imprisonment
False Imprisonment: The intentional confinement of another person within fixed boundaries without lawful
justification
WAS THERE CONFINEMENT?

A prison has to have boundaries, and those boundaries would have to prevent P from passing (it had to prevent P
from the power to move freely and included the notion of restraint within some limits confined by an exterior will
or power (Bird)

The confinement must be total: there is no false imprisonment if there is a reasonable means of escape from the
area of confinement

The alternative means of escape must be reasonable (available to P without danger)


WAS THE CONFINEMENT WRONGFUL OR WITHOUT LAWFUL JUSTIFICATION?
DID P VOLUNTARILY SUBMIT TO CONFINEMENT?

No false imprisonment where P voluntarily submits to confinement

But, it is false imprisonment if P voluntarily goes into confined areas to avoid embarrassment (Sinclair)

Bird (54): (P insisted on passing along a fenced off area, and D stationed 2 policemen to prevent P from
proceeding forwards; P could go back but instead chose to remain there for about hour) Where P is
partially obstructed by D, but is at liberty to move and ho in any other direction at his free will, and where no
actual force or constraint used on him, there is no false imprisonment
Chaytor (55): (Ps were price checking at a competitors store when the manager accused them of spying and
called the police; Ps accompanied the police and remained at the station for some time to avoid
embarrassment and because they felt compelled to do so) where P remains in a place to avoid embarrassment
or because he feels compelled to do so, there is a sense of psychological imprisonment for which P may be
able to recover

Abuse of Public Office


Test for Misfeasance of Public office:
(1) A DELIBERATE UNLAWFUL CONDUCT IN THE EXERCISE OF PUBLIC FUNCTIONS
(2) AWARENESS THAT THE CONDUCT IS UNLAWFUL AND LIKELY TO INJURE P
(3) TORTIOUS CONDUCT IS THE LEGAL CAUSE OF PS INJURY
(4) THE INJURIES SUFFERED ARE COMPENSABLE IN TORT LAW

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Odhavji (56): (following a robbery, the police officers and the police chief promised to provide the special
investigation unit with certain information and failed to do so) the tort of abuse of public office seeks to
protect each citizens reasonable expectation that public officers will not intentionally injure a member of the
public through deliberate and unlawful conduct in the exercise of public functions

DEFENSED TO INTENTIONAL TORTS


Consent
Consent: Where P consents to the commission of an act that would otherwise constitute a tort, D is not liable
Elements of the defense:
(1) EXPRESS OR IMPLIED CONSENT
(2) CONSENT GIVEN FREELY (without duress, fraud or given by someone who is incapable of consenting)
Two-step process in determining whether or not there has been legally effective consent to a sexual assault:
(Norberg)
1)
2)

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

The doctrine of informed consent: no medical procedure may be undertaken without the patients consent, obtained
after the patient has been provided with sufficient information to evacuate the risks and benefits of the proposed
treatment and other available options (Malette)
The emergency situation is an exception to the general rule requiring a patients prior consent.: 3 requirements:
(1) the patient must be unconscious or without capacity to make a decision, while no one legally authorized to act as
agent for the patient is available
(2) time must be of the essence
(3) under the circumstances, a reasonable person would consent

Brian (56): (vaccination had left no mark and doctor vaccinated the immigrant on ship) If Ps behaviour is
such as to indicate consent on her part, D is justified in his act, whatever her unexpressed feelings may have
been. In determining whether she consented, D is guided only by her overt acts and the manifestations of her
feelings; the duty, however, remains on D to show that P did consent
Norberg (57): (doctor gave patient pills in return for sexual services) Where there is substantial inequity of
power (due to age, gender, relative bargaining power, other factors) and that power was abused, there was an
element of exploitation and consent could be vitiated
Malette (57): (Jehovahs witness had a card on her that stated she refused any form of drug transfusion; the
doctor gave her a transfusion anyways) where there is no express consent, a doctor cannot make a decision
for a patient when she is unconscious and there is some clear indication (an opportunity to know) that she
does not wish to receive the treatment
Marshall (57): (while P was unconscious, the doctor realized that he had to have a testable removed; an
emergency situation) Where there is a sense of urgency, the doctor is entitled to use his discretion if consent
cannot be received

Self Defense
Self Defense: A person may, without liability, harm another person in order to protect himself from an actual or
threatened attack; a person may also do so where he honestly believes that an attack is imminent
Self Defense requires: (Cockroff)
(1) Balance: have to respond to force with a balanced response
(2) Immediacy: Immediate need to respond to the threat
Defense of 3rd persons: a person is entitled to protect their family members (as long as the conditions are met
balance and immediacy) assault is not on D but D is allowed to weigh in (do pets fit under this?)

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Cockroff: (P was moving his fingers towards Ds eyes, and D bit Ps finger off) Self defense requires
BALANCE (have to respond to force with a balanced response) and IMMEDIACY (immediate need to
respond to a threat)

Defense of Property
Defence of property: A person is permitted to use reasonable force to defend his or her property from wrongful
interference.
Defence is most commonly raised where a property owner takes steps to physically eject a trespasser.
Elements of the Defence
1) AMOUNT OF FORCE

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

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

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

A property owner can take reasonable steps to keep trespassers off his property, but cannot deliberately harm
trespassers in trying to keep them off

A property owner may not set a deadly trap such as a spring gun (Bird v Holbrook)

Bird: (spring gun set up in garden; shot a trespasser) A property owner cannot take law into his own hands
(vigilantilism) and he must respect the humanity of trespassers + a property owner owes a duty to warn even
trespassers of serious dangers on his property (P overreacted to the defence of property should have at least
posted a warning. Use of force was not reasonable in these circumstances)

Necessity
Necessity: Defence is raised where D committed a tort in order to prevent or remedy a situation of immediate danger.
Elements of the Defence
1) INNOCENT PLAINTIFF

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

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

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

D is asking to be excused for his own intentional behaviour


3) DAMAGES

Even where the defence is successfully raised, it is not certain that D will be totally relieved of all responsibility to
pay damages to P. It may be that there will be a finding that D was justified, because of necessity, in committing
the tort, but P may still be entitled to damages
Types of Necessity:
1)
2)

Public Necessity: where D is arguing interference with persons private rights for the public good; community
interest greatest good for greatest number. Ex: police who pushes someone to chase after a criminal (Dwyer v.
Staunton)
Private necessity: In the case of great and imminent danger, in order to preserve life, the law will permit
encroachment on private property. But must be limited somehow. Mere hunger and want is not defendable, as it
leads to chaos.

Dwyer: (path opened through the snow through Ps property, and since there was no other way through, D
drove through the path) Regard for the public welfare is the highest law. If public road is impassable, one can
use private lands, taking due care to do no unnecessary damage; interference with private property is justified

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by the immediate urgency with a due regard for public safety and convenience. Private property rights are to
be respected but rights of public are higher rights (public necessity)
Vincent: (D tied his boat to Ps dock during storm and the ship damaged the dock) Where D prudently and
advisedly avails itself of Ps property for the purpose of preserving its own property, P is entitled to
compensation for the property damages done (private necessity no strong police consideration)
Mouse: (D threw Ps property overboard the ship during the storm to lighten the weight so that the ship
would not sink) In case of great and imminent danger, in order to preserve life, the law will permit
encroachment on private property

Legal Authority
Legal Authority: Where D claims that a statutory provision authorises the conduct that would otherwise constitute a
tort. The defence is most commonly raised in cases of false imprisonment, battery or assault, and the Criminal Code is
the statute most frequently relied upon

Reynen: (P underwent a rectal search, during which condoms full of heroin were discovered, and he brought
an action against the police for assault and battery) Police officers who have reasonable grounds for believing
that a person under arrest for the possession of drugs is carrying the drugs internally are authorized by law to
search for the drugs and are not liable for assault and battery where no more force is used than is necessary
for the purpose
Mohamed: (P was injured when he was attacked by a police dog while escaping) To come within the
protection of s.25(1)(b) of Criminal Code, the defence must show that the force was used by a peace officer
authorised by law to engage in law enforcement, that he acted on reasonable grounds, and that the force used
was necessary for the purpose

BUSINESS TORTS
Deceit
Deceit: D commits the tort of deceit when he knowingly or recklessly makes a false statement with the intention that P
will act on that statement
The requirements for the tort are broken into 5 elements: (Derry)

A false representation or statement

Knowingly false

Made with the intention to deceive P

Materially induced P to act

Resulted in damages
Hedley Byrne is the most authoritative case for deceit cases

Derry: (D made reckless statements on which P relied) for the purposes of the tort of deceit, what is required
is fraud (representation has to be made knowingly or without belief in its truth)
Young: inducement must be material in the basic reason for P entering into the agreement (here, the element
of deceit was not material in inducing P to enter into the K; P was not induced to enter into the K by Ds
representation, but by his personal decision to enter the shipping business

Inducement
Inducement: D induces breach of K if, knowing of a K between P and a 3 rd party, he does something without
justification and with the intention of bringing about a breach of K between P and the 3 rd party, and in fact a breach of
K is brought about
Types of Inducement:
1) Direct (Lumley)

Where a person acts directly upon a party and causes that party to break a K, for practical purposes the person is
breaking the K, although not a party to it. The direct intervention itself is wrongful. The result is the same if the

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person, instead of so acting upon the mind of the contracting party, prevents the contracting party through a
tortious act from performing the K
2)

Indirect (Torquay Hotel)


Where a person persuades or procures a 3rd party, often an employee of the contracting party but possibly an
independent 3rd person, to do an unlawful or wrongful act, and the persuader or procurer has the knowledge and
intention to do the damage that is in fact suffered. There is no action where the act is lawful, notwithstanding its
consequence was to prevent the performance of the said K

Lumley: (D lured the opera singer away from P) an action would lie for any malicious procurement of any
breach of K if, by the procurement, damage was intended to result and did result example of direct
inducement
Torquat: example of indirect inducement
Brimelow: Defence of justification available to D if the interference (inducing others not to contract) is
justified by duty. (It was the only means open to them to fulfill their duty.) No general rule exists as to what
interference is justified.

Intimidation
Intimidation: D commits the tort of intimidation when, with the intention of making P obey his wishes, he causes
actual harm to P by threatening to commit an unlawful act Idea is that you threaten a party so that they change their
behavior in a way thats damaging to the economic interests of someone
The essential ingredients of the tort of intimidation are: (Rookes)
1. a threat by one person to use unlawful means
2. so as to compel another to obey his wishes, and
3. the person threatened must comply with the demand (rather than risk the threat being carried into execution)
2 types of intimidation:
(a)

(b)

Where the intimidation is of P itself


Person would have tort action if compelled to discontinue business when threatened of personal violence
Where the intimidation is of other persons to the injury of the P
Indirect, compel to do or procure an illegal act which will cause harm to P
Intimidation of Ps customers to withdraw business
Employer compelled to fire servant

Rookes: Intimidation includes (1) threats of criminal or tortious acts (2) threats of breach of contract and
other civil actions. Tort of intimidation includes (1) intimidation of a P, or (2) intimidation of other persons to
the injury of the P

Conspiracy
Conspiracy: An agreement made, without a legitimate object or purpose, between 2 or more persons to commit:
a) an unlawful act, directed at P, that D knows or ought to know is likely to cause injury to P; or
b) an unlawful act, if the agreement is made with predominant purpose of injuring P or Ps interests; or
c) a lawful act by unlawful means, if the agreement is made with the predominant purpose of injuring P or Ps
interests; or
d) a lawful act, if the agreement is made with the predominant purpose of injuring P or Ps interests
The tort of conspiracy exists if: (Canada Cement)
1. The predominant purpose of D's conduct is to injure P, whether or not D uses unlawful means, OR
2. If D's conduct is unlawful and directed towards P (alone or with others) in circumstances D should know injury to
P is likely. The predominant purpose need not be to cause injury, but there must be a constructive intent (D should
have known injury to P would ensue), AND
3. P must suffer actual damage
Interference

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Interference: Cannot intentionally cause someone economic loss

Turtle: If can show that Ds only purpose was to injure a P, that would be a tort. If intentionally interfere to
injure Ps legitimate interests, thats enough

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