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1) Does the D owe a duty of care to the P?
a) Does the case fall within a recognized category of relationships?(Donoghue, Cooper v. Hobart)
i) Defendants act forseeably causes harm to the plaintiff or plaintiffs property,
ii) Defendants negligent misstatement,
iii) Defendants duty to warn of risk of danger
iv) Municipalitys duty to prospective purchases to inspect housing developments without negligence,
v) Government authorities undertaking a policy of road maintenance to do so w/o negligence,
vi) Relational economic loss (related to a contracts performance)
vii) Relationship between claimant and property owner constitute a joint venture.
b) If no, then apply Anns Test (Cooper v. Hobart)
i) Step 1: Donoghue v. Stevenson Test
(1) Proximity - was defendants relationship w/ the plaintiff sufficiently close that a reasonable person would
think of the effect of the act on the plaintiff?
(2) Foreseeability - could a reasonable person forsee that the act would harm the plaintiff?
ii) Step 2: Policy Considerations are there policy considerations that negate the duty of care? (Coopers, Syl
(1) Personal autonomy (Dobson v. Dobson)
(2) Indeterminate liability (Cooper)
(3) Unforeseeable plaintiff (not strangers)
(a) No liability for unforeseeable P (Hay v. Young)
(4) Type of damage (pure economic loss not included in Copper)
(a) Psychological injury not covered in Hay v. Young, but overruled in later cases
(5) Floodgates
2) Is there a case of misfeasance? (positive duty to act)
a) General: No duty to rescue a person who is in peril from a source completely unrelated to the defendant, even when
little risk or effort would be involved in assisting (Horsley et al MacLaren)
b) Is this an exception to the general rule because it falls into a special relationship
i) Relationships of Economic Benefit (Jordan House)
(1) Positive duty to rescue in relationship of economic benefit.
ii) Relationship of Control and Supervision (Crocker v. Sundance)
(1) Positive duty to either prevent injury or to assist others in vulnerable position
(2) Examples: teacher/pupil; employer/employee
iii) Creation of Danger (Oke v. Weide, Crocker)
(1) Duty is based on foreseeability and proximity. Someone who creates a danger (even if he does so nonnegligently) is in a different position from a bystander.
iv) Reliance Relationships (Zelenko)
(1) If a defendant undertakes a rescue (even if under no duty to do it) the defendant must not omit to do what
an ordinary person would do in performing the task. Gimbel Principle: by admitting they were going to
help, they need to make a concerted effort at an attempt to rescue
v) Statutory Duties (ORourke v. Schact)
(1) A positive duty of care may arise in tort law where there is a statutory duty
(2) Emergency Medical Aid Act - anybody who gives medical help during an emergency cant be found liable
for injury or death UNLESS gross negligence. (Zelenko)
(3) Police officers are under a positive statutory duty to maintain traffic patrol (ORourke)
3) Does this meet the Childs test for finding a positive duty of care?
a) Three factors to differentiate duty of a commercial host to duty of a social host
i) Reliance and ability to monitor alcohol consumption
ii) Regulation
iii) Profit
b) Three new factors for proximity
i) Creation and control of risk
ii) Concern for autonomy
iii) Reasonable reliance

4) Is this a case where the Crown owes a duty?
a) Does this fall under PACA?
(1) Is this an officer, agent, or employee of the Crown? (S.5(1))
b) Is this policy or operational? (Just)
i) Policy made by higher level of authority, financial, must be made in good faith
ii) Operational administrative, government inspections, frequency, manner in which carried out, time when it
should be carried out
iii) The government may have a duty of care to a plaintiff, but this duty is negated (Anns test) if there are explicit
statutory exemptions or if the governments decision was one of policy and made bona fide as a proper exercise
of discretion, not operation
c) The standard of care for government is not as high as the neighbour standard the standard of care must be assessed
in light of all surrounding circumstances including budgetary restraints and the availability of qualified personnel
and equipment (Just)
d) The government can be sued for constitutional torts, even if liability is denied in statute or common law (Jane Doe)
[Constitutional Torts]
SPECIAL POLICY Concerns With Pure Economic Loss:
1) Floodgates Fear: Economic loss cases present the potential for liability in an indeterminate amount for an indeterminate
time to an indeterminate class.
2) Economic interests not as important: Have not traditionally been assigned the same value or importance as personal
safety or property interests
3) High cost of Insurance: Traditional reluctance to reallocate economic losses from those who suffer economic loss to
whose who cause them.
4) Free market economy: It is generally permissible to intentionally inflict economic loss on rivals and competitors.
*This raises extra problems for 2nd stage of Anns.
5) Does this fall within an already recognized category of PEL?
a) Misrepresentation?
i) Hedley v. Byrne
ii) Queen v. Cognos
iii) Hercules v. Ernst and Young
iv) BG Checo
b) Negligent Performance of Service
i) BDC Ltd. v. Hofstrand Farms Ltd.
c) Negligent Supply of Products/Structures
i) Winnipeg Condominiums v. Bird Construction
d) Relational Pure Economic Loss
i) Contractual damage property (CNR, Bow Valley)
ii) Contractual personal injury (DAmato)
iii) Non-Contractual damage property (Starr Village)
iv) Non-Contractual personal injury (Fatal Injuries Act)
6) Negligent Misrepresentation
a) There must be a duty of care based on a contract/fiduciary or special relationship between the representor and the
representee (factors to consider: foreseeable reliance and/or foreseeable damage, reasonable reliance, voluntary
assumption of risk, proximity between the parties i.e. direct contact (at all material times)) (Queen)
i) Anns Test for Duty (Hedley)
(1) Foreseeability D must reasonably foresee that P will rely on his representations
(2) Proximity reasonable reliance (Hercules)
(a) The defendant had a direct or indirect financial interest in the transaction in respect of which the
representation was made
(b) The defendant was a professional or someone who possessed special skill, judgment or knowledge
(c) The advice or information was provided in the course of the defendants business
(d) The information or advice was given deliberately, and not on a social occasion

(e) The information or advice was given in response to a specific enquiry or request
(f) Was there a disclaimer (Hercules, Cognos)
(3) Are there policy reasons to negative the duty? (Hercules)
(a) Did the defendant know the identity of the plaintiff?
(b) Did the plaintiffs use the statements for the purpose for which they were made?
b) The representation must be untrue, inaccurate, or misleading
c) The representor must have acted negligently in making said misrepresentation
i) Includes duty to use reasonable care not to make unfounded statements or negligently failing to disclose NB
information through silence. (Queen v. Cognos)
d) The representee must have relied, reasonably, on said negligent misrepresentation (Ernst v. Young)
i) Factors to consider: Skill of the representor, nature of the occasion, the soliciting of advice, Financial gain,
Experience, The nature of the statement, the presence of any disclaimers
e) The reliance must have been detrimental to the representee in the sense that damages resulted
Negligent Misrepresentation
1. Duty of care owed (representor to representee)
Duty of care
2. Misrepresentation
3. Negligence
4. Reasonable reliance
5. Detriment
7) Is this a negligent performance of services? (B.D.C v. Hofstrand)
a) Is there a duty of care owed by the supplier of services?
i) Anns Test
(1) Foreseeability
(2) Proximity/Reasonable Reliance
(a) Knowledge - of existence the respondent; identity of class of claimant
(3) Policy reasons (indeterminancy)
b) Failure to supply the service
c) Negligent supply of services
d) Reliance on the service
e) Damage/detriment
8) Is this a relational pure economic loss?
a) Contractual (LaForest test from CNR)
i) Property Damage (Bow Valley/CNR)
ii) Personal Injury - Servitium (Damato)
b) Non-Contractual (Anns Test)
i) Property Damage (Star Village)
ii) Personal Injury (Per Quod consortium; Fatal Injuries Act)
(1) This is now a cause of action that both husbands and wives can use
9) Is this contractual relational PEL?
a) Is there a duty?
i) LaForests Exclusionary Rule: liability for cause Relational Contractual PEL
ii) Exceptions to the rule:
(1) Possessory/proprietory interests (Norsk)
(2) General average cases (this is not very important for us and is mainly Maritime law)
(3) Joint Venture (two or more parties getting together for business)
iii) These categories are not closed and can apply the Anns Test to determine new ones
b) What there a breach of the standard of care?
c) Causation
d) Proximity/Remoteness
e) Damage
10) If none of the above, can a new category of duty be created using Anns Test
a) Is there a duty? (Anns Test)
i) Foreseeability
ii) Proximity

(1) Reasonable reliance (Hercules)
(a) Factors:
(b) Did D have financial interest?
(c) Professional
(d) Request
(e) Seriousness (deliberate or social)
(f) Course of business
(g) Disclaimer? (Hedley, Cognos)
b) Policy (Hercules)
i) Ie. indeterminancy
ii) Identity of who will be affected must be known in advance
iii) Liability will only be found if the representee relies on the information for the very purpose for which the
information was given
iv) Floodgates Fear: Economic loss cases present the potential for liability in an indeterminate amount for an
indeterminate time to an indeterminate class.
v) Economic interests not as important: Have not traditionally been assigned the same value or importance as
personal safety or property interests
vi) High cost of Insurance: Traditional reluctance to reallocate economic losses from those who suffer economic
loss to whose who cause them.
vii) Free market economy: It is generally permissible to intentionally inflict economic loss on rivals and competitors
c) Can this be concurrent? (BG Checo)
II. STANDARD OF CARE What was the D required to do?
1) Does the ordinary Reasonable Person Standard Apply? If YES, go to Q2. IF No, is it higher or lower standard?
2) Reasonable Person Test: Standard of care is determined by an objective test: the standard of a reasonable person
(Vaughan v. Menlove)
a) Reasonable person not expected to account for rare contingencies that are not reasonably foreseeable. (Blyth)
b) What factors would a reasonable person consider before acting?
i) Foreseeable Risk (Bolton)
ii) Likelihood of Damage (Bolton)
iii) Seriousness/Gravity of Harm (Bolton)
iv) Cost of Preventative Measures (Bolton)
(1) Cost of preventative measures is irrelevant as an excuse against finding negligence.
v) Custom or Approved Practice (Waldick)
vi) Statute
(1) R. v. Saskatchewan - If theres no duty at common law, statute cannot create one UNLESS statute expressly
does so. Non-compliance with statute is evidence of negligence, but not determinative of negligence.
(2) Gorris v. Scott Statutory breach will only result in liability if the type of loss occurred is the type of loss
contemplated by the statute
(3) Ryan v. Victoria Compliance with statute does not supersede compliance of common law standard of care
3) Is the D held to a higher standard?
a) Doctors?
i) Standard
(1) Skill, knowledge, judgment average doctor with regard given to the particular group (Challand v. Bell)
ii) Is there a duty to inform?
(1) Modified Objective Test: Doctor must disclose all the things a reasonable person would want to know about
the procedure in that persons situation (Reibl)
(2) Must take patients personal characteristics/situation into account (Arndt v. Smith)
(3) Re-disclosure is required after w/drawl of consent only when theres a significant or material change in the
circumstances that could alter the patients assessment of the costs/benefits of the procedure that became
apparent during course of the procedure. (Ciarlariello)
(4) Liability in negligence may arise only if the failure to disclose information causes the loss or injury
b) Lawyer? (Brenner)
i) Standard: Reasonably competent and diligent solicitor
ii) Standard is discharged if lawyer acts in accordance w/ the general and approved practice followed by solicitors
UNLESS such a practice is inconsistent w/ prudent precautions against a known risk

4) Is the defendant held to a lower standard?
a) Children? (Heisler v.Moke)
i) Two Part Test:
(1) Determine if the child can be held liable at all (objective)
(2) A child of like age (tender years), intelligence, and experience (some subjectivity)
5) Mental/Physical Disability? (Fiala)
a) No capacity to appreciate the standard of care or to act like a reasonable person, OR
b) No control/not able to discharge the appropriate standard of care
1) Which causation test to apply?
a) But for test general
b) Modified Objective Test Reasonable person in same situation (Reibl)
c) Material Contribution Test
i) If other test would result in unfairness (Athey v. Leonati)
ii) Multiple Causes (Fairchild, Hanke, Cook)
iii) Multiple Ds (Leaman)
2) Who has the burden of proof?
a) Legal Burden
i) Always on P to prove negligence on balance of probabilities (Wakelin)
b) Evidentiary Burden
i) Shifts back and forth
c) Did D make it difficult for P to prove negligence?
i) When the defendant makes it difficult or impossible to prove the negligence, then the legal consequence is that
the onus is shifted to the wrongdoer [Practical Effect is that Def now has to prove that theyre not negligent]
(Snell, Cook)
3) How do we apportion fault?
a) Tortfeasor is liable for restoring plaintiff to the position he would have been in absent the defendants negligence
(even if those injuries turn out to be more SEVERE than anticipated b/c of pre-existing condition i.e,. thin Skull
Doctrine) (Athey v. Leonati)
i) If the defendant is liable, the presence of other non-tortuous contributing causes does not reduce defendant's
liability. The court assigns 100% liability to tortious causes (even when there are other non-tortious causes).
Otherwise, P would only be able to recover when D was sole cause.
b) Is there more than one tortfeasor?
i) Once you are part of a cause, it does not matter how much you are at fault. All tortfeasors (i.e., ppl who cause
the plaintiffs injury) are equally at fault. (Cook v. Lewis)
c) More than one potential tortfeasor and unable to determine who is at fault
i) Where there must have been negligence on the part of one or both parties and the court is unable to distinguish
which party is liable, both parties should be found equally at fault, and liability is apportioned equally.
4) Is cause proximate/remote?
a) The damage must be reasonably foreseeable as a probability (Wagon Mound I)
b) This was changed, and it is now enough for the damage to be a mere possibility to be a proximate cause (WM II)
c) Was they type of damage foreseeable?
i) Hughes v. Lord Advocate As long as the type of harm is foreseeable, the extent or manner of the harm are not
ii) Policy Place cost on party that can better bear the cost; punishing tortfeasor
5) Is the P thin-skulled?


Even if its not foreseeable that the Pl was thinskulled, Def is responsible for all damage that ensues as long as the
ultimate injury was an extension of the original injury. Tortfeasor takes the victim as he finds him. (Smith v.

6) Is there a novus actus (intervening force)?

a) When Defs negligence is a cause of injury and Def should have foreseen the likelihood of the danger occurring, Def
is not freed from liability just b/c Pl contributed to own injury - damages should be apportioned to the degree of fault
of the parties respectively. (Harris v. TTC)
7) Is this a recurring situation?
a) Rescue
i) Reckless acts will break the chain of causation (Horesley)
b) Second accident
i) If a subsequent accident is: a) reasonable time-period of initial accident and b) not caused by an unreasonable
act or negligence, then considered part of the initial injury, and the D liable. (Weiland v. Cyril Carpets)
ii) If the second accident was caused by the P acting unreasonable or negligent (intervening negligence) then chain
of causation is broken and the D is not liable. (McKew v. Holland)
1) Contributory Negligence?
a) Contributory Negligence Act - A failure to take reasonable care for ones own safety in circumstances where one
knows or reasonably ought to foresee danger to oneself. Its a partial defence that leads to a reduction in the damages
payable by the Def
b) Did P take reasonable steps to avoid the danger?
i) No claim can be made against the D b/c the P was negligent and could have prevented the injury by being
prudent/ reasonable. P should use reasonable care to avoid injury. (Butterfield)
c) Last clear chance - Even if P is contributory negligent, if the D had the last clear chance to avoid the loss, the D will
be liable. (Davies v. Mann)
d) Seat belt defense?
i) Passengers and drivers have a duty to wear seat belts (or else contributory negligence) ANDDriver always has
duty to ensure children (under 16) wear seatbelt. (Galaske)
ii) Ps negligence in not wearing seat belt will not make him contributory liable if he would have died had he been
wearing the seatbelt
2) Voluntary Assumption of Risk?
a) This defense is a full defense and only applies where P has assumed both legal and physical risk.
i) Policy: People should have freedom to waive legal rights.
b) The volenti doctrine has no application to a policeman who is aware of a risk of injury, which in facts befalls him in
the discharge of the duties of his office (Hambley)
3) Illegality?
a) D must prove that: 1) The P was using the tort action to make a direct profit from illegal conduct, or 2) The tort
action would circumvent, subvert, or negate a criminal penalty (Hall v. Hebert)
b) Policy: Recovering compensation for personal injury is not the same as profiting from wrongdoing it is simply to
put injured party in the same position as if the tort had not occurred.
4) Exclusion Clauses
a) Will operate when: (Manitoba Snowmobile in Crocker)
i) Covers precisely the type of negligence, which occurred.
ii) Attention is drawn to its contents.
iii) Participant understood the clause.
iv) Participant voluntarily agreed to take part in the activity, and
v) Party seeking to rely on it did not exert pressure

1) The Rule of Rylands v. Fletcher


The person who for his own purposes brings on his lands, and collects and keeps there anything likely to do
mischief it if escapes, must keep it in at his peril, and if he does not do so, is prima facie answerable for all the
damage which is the natural consequence of its escape
2) Must show three elements to find strict liability
a) Non-natural Use of Land
i) Essential element of strict liability in Rylands v. Fletcher rule
ii) Dangerous, extraordinary, special and of no general benefit to the community
iii) Rickards v. Lothian
(1) Non-natural = special use bringing with it increased danger to others, and must not merely be the ordinary
use of the land or such a use as is proper for the general benefit of the community
b) Escape of Something Likely to Cause Mischief
i) Read v. J. Lyons & Co
(1) Did not extend strict liability to all losses generated by a non-natural use of land, thus narrowing Rylands v.
(2) There must be escape
c) Damage/Harm
i) Strict liability only applies to damage to property, not personal injury (Read)
ii) But Perry v. Kendricks ruled that the principle does apply to personal injury
** Onus of proof is on D
1) Consent (complete defense)
a) Plaintiff either expressly or impliedly consented to Ds non-natural use of land
i) Implied Knowledge of and acquiescence to dangerous use of land
ii) Voluntary assumption of risk
2) Benefit to Plaintiff
a) It is either express or implied
b) Where there is no benefit to plaintiff, court is less likely to imply consent
c) Even when there is some benefit, plaintiff is entitled to protection of strict liability if plaintiff does not consent
3) Default
a) Negligence on behalf of the Plaintiff (Fault of Plaintiff)
i) We dont need a case for authority when there is a statute and statute always trumps common law
ii) Can be apportionment or complete defense
b) Intentional
4) Act of God/Act of 3rd Party
a) Where escape is caused by deliberate and unforeseeable act of a person over whom D has no control that no
reasonable person could be expected to foresee it and guard against it, there is no liability under Rylands v. Fletcher
i) Does not apply if D could reasonably foresee and guard against it
ii) Rickards v. Lothian
b) Act of God is complete defense
5) Statutory Authority
a) Legislation must clearly authorize particular activity in question for this to be a defense
b) Courts will imply a legislative intention to authorize certain harm only where the damage is a necessary or inevitable
result of the authorized act
c) Narrow
Liability for Fires (Narrow defense)
Fire Protection and Prevention Act: Only applies to provide immunity for fires started by an act of God or an act of a 3rd
party; accidents
Principle of Rylands v. Fletcher applies to some fires. The fire must be a non-natural use of land. This principle only
applies to unreasonable fires
Even an accidentally and spontaneously ignited fire might not be protected by the statute if the fire is not properly
controlled and hence spreads. The new fire is not then considered to be an accidental one.
Onus on D to establish the defense of act of God/3rd party, then burden of proof to disprove is on P

Liability for Harm Caused by Animals
Plaintiff must prove that animal was dangerous and that keeper knew animal was dangerous
Two types of dangerous animals:
(1) Ferae naturae animals that are dangerous as a group

Strict liability is automatically imposed

A keeper is strictly liable even though the injury many not have been of the kind that led courts to categorize the
animal as ferae naturae

Ie. Lions and bears

(2) Mansuetae naturae animals that may be dangerous as individuals

Where animal is known to be dangerous, strict liability imposed

Scienter action may exist even where dog has not yet bitten anyone, but where a dog is constantly barking at,
chasing, or trying to bite
Foreseeable, aggressive, past actions of animal
(3) Cattle

Strict liability is imposed on cattle that trespass on neighbouring land

Technically separate from the scienter action, more analogous to Rylands v. Fletcher (escape)

Cases show liability not only for crops, but buildings, chattels, people

Default of plaintiff if injury is result of Ps fault

Consent P voluntarily expose themselves to risk of injury by animal


Illegality (ex turpi causa non oritur action) P involved in illegal act at time of injury
1) Purpose of Products Liability: to ensure the costs of injury resulting from defective products are borne by the
manufacturer rather than by injured persons powerless to protect themselves
2) Case: Greenman v. Yuba Power Products Inc
a) To establish manufacturers liability it is sufficient that P prove that he was injured while using the device in a way
that it was intended to be used as a result of a defect in design and manufacture of which plaintiff was not aware
b) Once P shows that there was damage
1) Is this an employer/employee relationship?
a) There must be a material increase of the risk of wrongdoing as a consequence of the employers enterprise and the
duties entrusted in the employee.
b) Sufficiently related/close connection Test: Was there a sufficient connection between the creation or enhancement
of the risk occurring and conduct authorized by the employer to justify vicarious liability (Bazely)
c) Factors:
i) The wrongdoing must have been committed during the course of employment
ii) The opportunity that the enterprise afforded the employee to abuse his power
iii) The extent to which the wrongful act may have furthered the employees aims
iv) The extent to which the wrongful act was related to friction, confrontation or intimacy in the employers
v) The extent to which the wrongful act was conferred on the employee in relation to the victim
vi) The vulnerability of potential victims to the wrongful exercise of the employers power
2) Is this an employee or an independent contractor?
a) Control Test: Level of control employer has over worker (671122 Ontario Ltd. v. Sagaz Industries Canada
i) Whether worker provides own equipment
ii) Whether worker hires helpers
iii) Degree of financial risk taken by worker
iv) Degree of responsibility for investment and management
v) Employee is paid a wage or salary; contractor paid lump sum
vi) Contract is in business on his own account

3) What are policy justifications for imposing vicarious liability on employers? (Bazely)
a) Employer takes benefit and profits of business and is thus responsible for harm generated by inherent risk of the
b) Employer has power to select, supervise, and control his employees
c) But, on the other hand, vicarious liability turns employers into voluntary insurers
1) Has the P proven that the injury was caused by the direct acts of D?
a) The onus is on P to show that they were injured by a direct act of the D
2) If the P is successful, the onus then shifts to the D to prove that their action was neither negligent nor intentional
a) The word intent is used to denote that the actor desires the consequences of his act, or that he believes that the
consequences are substantially certain to result from it (i.e. knowledge of consequences) (Garrat v. Dailey)
3) Was the intent transferred?
a) It is not essential that the injury be the one that was intended (Carnes) nor the that it be the tort that was intended
i) Only general intend to harm is required; the only intent required is the intent of doing what the D did(Basley). It
is irrelevant what the final consequences/outcome of your actions are
ii) Mistake is not a defense to an intentional tort (Basely)
4) Was the act voluntary?
a) Voluntariness is an essential element of an intentional tort, the act must have been directed by his conscious mind
5) Does the D possess the mental ability to appreciate the nature of the act?
a) A child cannot be liable for an intentional tort as it may lack the ability to appreciate the consequences of his actions
b) A mentally ill person cannot be liable for an intentional tort if he does not appreciate the consequences of his actions
(if consequences are known, but the person is unable to distinguish right from wrong, the person will be liable
6) Is this assault?
a) Are the necessary elements of assault present?
i) An apprehension of harm (do not have to have actual harm) (Wife, Bruce)
ii) The assault/apprehension of harm must be immediate or imminent (Stephens)
(1) There must be a means of carrying out the threat
iii) An intention to physically harm
(1) If Ds attitude was such that, despite the threat, he did not intent to assault, there is no assault (Tuberville)
7) Is this battery?
a) The least touching of another in anger is a battery (Cole v. Turner)
i) There must be (i) Physical contact; (ii) Intention; (iii) Directness
ii) The onus is on D to show lack of negligence and intention
b) D is liable in intentional torts even for consequences he did not intend. Remoteness is not an issue here (Bettel)
c) Sexual Wrongdoing unwanted sexual contact constitutes battery
8) Is this an infliction of mental suffering?
a) Willful injuria is malicious
b) Remoteness is an issue what would be the natural effect on reasonable persons or what is the possible result
c) There is no liability for intentional infliction of mental suffering unless there is some recognizable physical or
psychological harm
1) Is there apparent or actual consent? (Needs to only be apparent) (Obrien)
a) If yes, has it been vitiated?

i) Fraud?
ii) Threat?
iii) Power dependency (Norberg v. Wynrib)
b) If no, is this a medical emergency? (Marshall)
i) Is there explicit holding of consent to vitiate consent? (Mallette)
2) Was this done in self-defense?
a) Was it proportional to the original act? (Cockcroft)
3) Was this a defense of property?
a) Did the trespasser enter the property using force? (Green)
i) If yes, can occupier can use force
ii) If no, occupier must act peaceably
b) Was there a warning of defense of property? (Bird)
4) Was the act done out of necessity?
a) Was the action based on public welfare? (Dwyer)
b) Was this act done out of necessity that still has to be compensated for? (Vincent)
c) Was the act done as a result of a great and imminent danger? (Southwark)
d) What are the policy implications? Floodgates (Vincent)
1. Did the occupiers take the reasonable care to make the premises safe? (Waldick)
(a) Or, did the invitee/licensee voluntarily assume the risk?
1) Does this fall under PACA?
a) Is this an officer, agent, or employee of the Crown? (S.5(1))
2) Is this policy or operational? (Just)
a) Policy made by higher level of authority, financial, must be made in good faith
b) Operational administrative, government inspections, frequency, manner in which carried out, time when it should
be carried out
c) The government may have a duty of care to a plaintiff, but this duty is negated (Anns test) if there are explicit
statutory exemptions or if the governments decision was one of policy and made bona fide as a proper exercise of
discretion, not operation
3) The standard of care for government is not as high as the neighbour standard the standard of care must be assessed in
light of all surrounding circumstances including budgetary restraints and the availability of qualified personnel and
equipment (Just)
4) The government can be sued for constitutional torts, even if liability is denied in statute or common law (Jane Doe)
[Constitutional Torts]
** See under duty