LAW 430: Torts

Term 2

OGBOGU
 Table of Contents
Introduction ................................................................................................................................................ 1
Standard of Care.......................................................................................................................................... 2
Vaughan v Menlove ...............................................................................................................................................2
Buckley v Smith Transport ......................................................................................................................................2
Roberts v Ramsbottom (QB, 1980) wrong decision ..................................................................................................3
Mansfield v Weetabix (CA, 1998) ............................................................................................................................3
McHale v Watson (HCA, 1966) ................................................................................................................................3
R v Hill (SCC, 1986) .................................................................................................................................................4
McErlean v Sarel (ONCA, 1987) ...............................................................................................................................4
Fleming, Law of Torts .............................................................................................................................................4
United States v Carroll Towing co. (1947) ................................................................................................................5
Bolton v Stone .......................................................................................................................................................6
Wagon Mound No 2 ...............................................................................................................................................6
Latimer v AEC.........................................................................................................................................................6
The Role of Statutes ...............................................................................................................................................7
Saskatchewan Wheat Pool v The Queen .................................................................................................................7
Whistler Cable Television .......................................................................................................................................8
YO v Belleville (City) Chief of Police .........................................................................................................................8
The Role of Custom ................................................................................................................................................8
Trimarco v Klein .....................................................................................................................................................8
TJ Hooper ..............................................................................................................................................................9
Malcolm v Waldick.................................................................................................................................................9
Ter Neuzen v Korn ..................................................................................................................................................9
Proof of Negligence.............................................................................................................................................. 10
Byrne v Boadle ..................................................................................................................................................... 10
Fontaine v British Columbia .................................................................................................................................. 10
Standard of Care in Medical Negligence Cases ............................................................................................ 11
Sylvester v Crits .................................................................................................................................................... 11
Tailleur v Grande Prairie General .......................................................................................................................... 11
Error of judgment ................................................................................................................................................ 12
Wilson v Swanson ................................................................................................................................................ 12
Lapointe v Hôpital le Gardeur ............................................................................................................................... 12
Duty of Care .............................................................................................................................................. 13
Winterbottom v Wright ........................................................................................................................................ 13
Donoghue v Stevenson ......................................................................................................................................... 14
Deyong v Shenburn (1946, CA).............................................................................................................................. 16
Palsgraf v Long Island RR Co (NYCA, 1928) ............................................................................................................ 16
Home Office v Dorset Yacht Co Ltd ........................................................................................................................ 17
Anns v Merton Borough Council............................................................................................................................ 17
Caparo Industries v Dickman ................................................................................................................................ 18
Cooper v Hobart ................................................................................................................................................... 18
Cooper v Hobart Explained ................................................................................................................................... 18
Problems with Cooper.......................................................................................................................................... 19
James v British Columbia ...................................................................................................................................... 20
Childs v Desormeaux ............................................................................................................................................ 21
Remoteness .............................................................................................................................................. 23
Re Polemis ........................................................................................................................................................... 23
Wagon Mound, No. 1 ........................................................................................................................................... 24
 Mustapha v Culligan ............................................................................................................................................ 25
Smith v Leech, Brain and Co.................................................................................................................................. 25
Thin Skull Rule ..................................................................................................................................................... 26
Cotic v Gray ......................................................................................................................................................... 27
Wright Estate v Davidson ..................................................................................................................................... 27
Mechanics of the Accident ................................................................................................................................... 27
Hughes v Lord Advocate ....................................................................................................................................... 28
Cf Daughty v Turner Manufacturing ..................................................................................................................... 29
Jolley v Sutton London Borough Council (2000, HL) ................................................................................................ 29
Novus Actus Interveniens - Breaking the Chain ...................................................................................................... 30
Bradford v Kanellos (SCC, 1973) ............................................................................................................................ 30
Causation .................................................................................................................................................. 31
Barnett v Chelsea and Kensington Hospital Mgmt Comm ...................................................................................... 32
Lambton v Mellish................................................................................................................................................ 33
Corey v Havener ................................................................................................................................................... 33
Kingston v Chicago & NW Rwy [Suspect] .............................................................................................................. 33
Sunrise Co v The Lake Winnipeg............................................................................................................................ 34
Baker v Willoughby .............................................................................................................................................. 35
Jobling v Associated Dairy .................................................................................................................................... 35
Apportionment of loss among causes - Athey v Leonati ......................................................................................... 36
Factual Uncertainty .............................................................................................................................................. 37
Cook v Lewis ........................................................................................................................................................ 37
Sindell v Abbott Laboratories ............................................................................................................................... 38
McGhee v National Coal Board ............................................................................................................................. 39
Wilsher v Essex Area Health Authority .................................................................................................................. 39
Fairchild v Glenhaven Funeral Services.................................................................................................................. 39
Factual Uncertainty .............................................................................................................................................. 39
Canadian Approach .............................................................................................................................................. 40
Snell v Farrell ....................................................................................................................................................... 40
Resurfice Corp v Hanke [NEVER BRING THIS UP] .................................................................................................... 41
Clements v Clements ............................................................................................................................................ 41
Loss of Chance [not on exam, doesn't apply in Canada] ......................................................................................... 42
Defenses to Negligence Claims................................................................................................................... 43
Contributory Negligence ...................................................................................................................................... 43
Butterfield v Forrester (KB 1809) .................................................................................................................................. 44
Davis v Mann (Exch 1842) ............................................................................................................................................ 44
Froome v Butcher (ECA 1975)....................................................................................................................................... 44
Lewis Klar...................................................................................................................................................................... 45
Voluntary Assumption of Risk .............................................................................................................................. 45
Dube v Labar (SCC 1986) .............................................................................................................................................. 45
Crocker v Sundance Northwest Resorts Ltd (SCC 1988) ............................................................................................... 45
Waivers and Volenti ..................................................................................................................................................... 46
Cf Dyck v Manitoba Snowmobiling Assoc. Inc (SCC 1985)............................................................................................ 46
Labelling ....................................................................................................................................................................... 46
Lambert v Lastoplex (SCC 1971) ................................................................................................................................... 46
Illegality............................................................................................................................................................... 47
Hall v Hebert (SCC, 1993) ............................................................................................................................................. 47
Damages: Pecuniary Loss ........................................................................................................................... 49
Janiak v Ipolito..................................................................................................................................................... 50
Personal Injury..................................................................................................................................................... 50
Andrews v Grand & Toy Alberta Ltd ...................................................................................................................... 50
Non-Pecuniary Losses ................................................................................................................................ 53
Liebeck v McDonald's Restaurants ........................................................................................................................ 54
Morrow v Zhang .................................................................................................................................................. 54
Ratych v Bloomer ................................................................................................................................................. 55
Cf: Cunningham v Wheeler ................................................................................................................................... 55
Young plaintiffs.................................................................................................................................................... 56
Occupier's Liability .................................................................................................................................... 57
Occupiers' Liability Act ......................................................................................................................................... 57
Cullen v Rice ........................................................................................................................................................ 58
Roasting v Blood Band ......................................................................................................................................... 59
Government liability .................................................................................................................................. 59
Odhavji Estate v Woodhouse ................................................................................................................................ 60
Roncarelli v Duplessis ........................................................................................................................................... 60
First national Properties Ltd v Highlands (District) ................................................................................................. 60
Government Negligence ....................................................................................................................................... 60
Cooper v Hobart (2001, SCC) ................................................................................................................................. 61
Kamloops v Nielson (SCC 1984) ............................................................................................................................. 61
Just v British Columbia (SCC 1989) ........................................................................................................................ 62
Cf Brown v BC ...................................................................................................................................................... 62
Swinamer v AG Nova Scotia ................................................................................................................................. 63
NERVOUS SHOCK (PSYCHIATRIC HARM) ..................................................................................................... 63
Victorian Railway Commissioners ......................................................................................................................... 63
McLoughlin v O'Brien ........................................................................................................................................... 64
Alcock v Chief Constable of the South Yorkshire Police [CITE THIS] ......................................................................... 64
Reception in Canada ............................................................................................................................................ 66
Rhodes v CNR................................................................................................................................................................ 66
Vanek v Great Atl. And Pac. Co .................................................................................................................................... 66
Cf Mustapha ................................................................................................................................................................. 66
 Introduction
 Negligence: failure to take proper care in doing something - carelessness
 Intention: an act or instance of determining mentally upon some action or result
 About negligence: most prevalent cause of action in the law of torts, both in terms of number of claims and
the attention it receives from lawyers
 Expanded in recent decades as a result flexible judicial interpretation and application of core
elements
 3 core elements:
 (1) The negligent act
 (2) Causation
 (3) Damage
 No negligence if any element is not proved
 The negligent act: determined by identifying the appropriate standard of care to which defendant should
have adhered
 Then, that SOC is applied to the facts of the case to see if the defendant adhered to it
 Must show that the defendant fell below the standard of care
 Causation: Determined by showing a causal link between the defendant's negligent act and the plaintiff's
damage
 Ask: Did D's negligent act cause P's injury?
 Or is there some other cause or way to explain the injury?
 Damage: Vital element that triggers the claim and launches the entire litigation process
 No harm no foul
 Control devices:
 Existence of 3 elements doesn't automatically translate to liability (may not award damages).
Courts have developed control devices to keep negligence liability within the appropriate boundaries
o (1) Duty of Care
 Unless D owes a duty to take reasonable care of P's interests, harm to P can't result in
liability to D
 We can exclude certain persons from the scope of the defendant's responsibilities
 Negligent act itself! Reasonable foreseeability NB - plaintiff must show the consequence
is within contemplation
o (2) Remoteness of damage
 Similar to duty, it excludes liability for certain kinds of losses
 On the basis that they were utterly improbable consequences of defendant's negligent act
or responsibility
 Defenses:
 (1) Contributory negligence
o Partial defence
o Applies where P was also negligent
o Reduces amount of damages D is liable for
 (2) Voluntary assumption of risk
o Complete defense! No negligence on the part of D - P assumes all risk
o Volenti non fit injuria
 (3) Illegality
o P was engaged in illegal conduct when the negligent act occurred
o Operated as a full defence
o But scope severely restricted by the SCC

 Negligence analysis:
 (1) Does the defendant owe the plaintiff a duty of care?
 (2) Did the defendant's conduct fall below the standard of care?
 (3) Did the defendant's negligence cause the plaintiff's injury?
 (4) Did the defendant's conduct result in actual injury or damage to the plaintiff?
o Usually a right in property or bodily integrity

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 o Sometimes, pure economic loss - loss is simply monetary in this case
 5 kinds of PEL; only two are recoverable (not important for exam)
 (5) Was the damage reasonably foreseeable? (remoteness)
 Defence: Are there any defences that might shield the defendant from liability in whole or in part?

 EXAM: Duty of Care: optional! Do not attempt.

 SCC - don't need to make argument if precedent covers it
o Ex: write "Doctors owe their patients a duty of care"

Standard of Care
 Proving that the defendant's conduct was negligent:
 Did the defendant's conduct fall below the standard of care (that the law expects)?
 Generally the SOC required of D is objective, not subjective

Vaughan v Menlove
 D built haystack with chimney to prevent risk of fire
 When warned of possibility of fire, said he would chance it
 Haystack caught fire and destroyed P's property
 Trial court found D liable on the basis of failing to meet standard of ordinary prudence
 On appeal, D argued conduct should not be measured by that standard because he's dumb - doesn't
possess "highest order of intelligence"
 Standard should be whether he aced bona fide to the limits of his personal intelligence.
 Held: NO. Standard is that of a "prudent man"
o It is the OBJECTIVE STANDARD
o No allowances for personal quirks and idiosyncrasies
o Standard provides certainty - can't fluctuate to accommodate personal nuances
o A reasonable level of conduct is expected of all
 But does the law accommodate some allowances from the general rule?

Buckley v Smith Transport

 D's truck hit a streetcar; P alleged that D, corporation, was VL; P had to prove that D's employee was
neg.
o (fell below the SOC)
 Employee had syphilis of the brain - he was under delusion while driving
 Held: no negligence
o Had insane delusion - he was incapable of discharging objective standard of care
 Q: is the defendant free from liability when his insane delusion does not affect his ability to
appreciate risk? Should persons of lesser intelligence be held to a lesser standard?
o Negligence law penalizes D for careless actions
o The law assumes D is capable of exercising reasonable care or discharging duty of care
o Understand/control actions and consequences
 On intelligence: what about lesser intelligence today, with the advent of IQ taken into account?
o Ogbogu: who knows? Perhaps ought to operate like mental illness

 Negligence law penalizes D for careless actions

 Law assumes D is capable of exercising reasonable care or discharging duty
 Understand/control actions and consequences

 Diminished physical capacity

 Same thing as mental incapacity?

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Roberts v Ramsbottom (QB, 1980) wrong decision
 D suffered minor stroke while driving, no previous strokes, unaware of possibility of stroke happening
 Felt strange but kept driving and had two accidents, kept driving and collided with p and injured her
daughter
 Did D fail to meet objective standard of care?
 Held: Yes – despite impaired awareness, D had a sense of what he was doing and of his
surroundings
 He was able to control the car voluntarily and deliberately, even if inefficient
 Total loss of consciousness only thing that warrants exculpation
 Consistent with Buckley? Not much difference
 Note: less than average intelligence does not have an impact on standard of care

Mansfield v Weetabix (CA, 1998)

 D’s employee had a condition that caused his brain to malfunction when blood sugars were low
 Caused a series of accidents by driving when hypoglycemic
 Held: NO liability [Roberts is WRONG]
 Physical ability to drive affected, like Roberts
 Masfield: Standard is that of a reasonably competent driver unaware that he is suffering from
a condition that impairs driving
o But did the D in this case not have sufficient consciousness to have an idea of this condition?

McHale v Watson (HCA, 1966)

 Watson, 12, threw sharpened piece of welding rod at post after a game of tag
o Bounced off and hit McHale in the eye. She was rendered permanently blind
 Windeyer, J (trial): not liable – true that standard of care doctrine does not allow for idiosyncrasies,
but childhood is not an idiosyncrasy
 HCA
o Did trial judge err in applying a different standard?
o If not, was defendant liable on the lowered standard?
 Majority: held for defendant but for very different reasons
 McTiernan ACJ: semi-subjective duty of care – childhood is not peculiarity - three standards that
apply to children objectively
o (1) Babies: incapable of perceiving risk, incapable of negligence
o (2) Young adults: haven’t attained majority age, but nonetheless capable as adults of
foreseeing risk/probable consequences of actions - held to usual standard of care (reasonable
person)
o (3) In-between group (children): capacities to appreciate risk vary by age, intelligence, and
experience, held to standard of a child with same age, intelligence, and experience
 Semi-subjective as standard accounts for intelligence/experience
 Kitto J, concurring: no room for subjectivity—we can deviate from adult standard to account for
childhood, BUT can’t say that D is slow-witted or inexperienced
o Doesn't mean that age is irrelevant: Can be relied on as limitation to capacity that is not
personal but a general characteristic of stage of development
 Standard of ordinariness for a 12-year old
 Q: did D do anything a reasonable 12-year old boy with foresight and care expected of 12 year old
boys would not have done?
o Would any normal boy have thrown the spike? (apparently yes)
 "[A] piece of wood [the post] and a sharp instrument have special affinity' for a boy of 12
 Who would not have weighted risk of hard vs soft wood and the likelihood of the spike
sticking
 Kitto J: did not frame this issue correctly
o No 12 year old would consider softness of the wood
o But perhaps a 12 year old would think to not throw a sharp object, esp with someone standing
so close
 Dissent –Menzies J: No deviation (correct decision)

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 o Reasonable person applies without variation
o Reasonable person would not have thrown dart at head height
o Even on lowered standard, D still liable—it’s not reasonable for a boy to throw this
object
 Summary:
o McTiernan: semi-subjective; take into account age, intelligence, experience
o Kitto: no subjectivity - no intelligence or experience; maybe age as a general characteristic
o Menzies: no altered standard - CORRECT

R v Hill (SCC, 1986)

 Wilson, J (dissent): standard lowered for minors, but on the road to objectivity, the standard should
be adjusted incrementally in accordance with age
 But note: McEllistrum v Etches (SCC, 1956)
o semi-subjective standard was applied

 What if a minor engages in activity associated w/ adults?

McErlean v Sarel (ONCA, 1987)

 Two teens involved in trail bike accident
 Issue of whether d should be held to standard of adults
 Held: no special treatment when child engages in adult activity
 Rule: held to same standard as adults when engaging in an adult activity
 (1) Operating a motor vehicle is different from playing ball
o One cannot know whether operator of approaching car is minor or adult
 (2) Machines capable of high rates of speed regardless of operator and inherently dangerous in
wrong hands
 (3) When activity is insured minor is protected from ruinous liability
 Should law hold person who granted minor access instead?

Rules:
 Standard of care applicable in negligence cases is assessed objectively
 Defendant is negligent if conduct does not accord with that of a reasonable or prudent person
 No allowances for low or less than average intelligence (Vaughan)
 Exceptions to general rule: courts sometimes accommodate or allow lowered standard
 Defendant may be excused
 If acting under insane delusion and unable to appreciate risk or consequences (Buckley)
 If unable to discharge duty of care duty to physical impairment
o Even if still conscious - total loss of consciousness not required (Mansfield, overruling Roberts)
o Provided defendant was unaware of condition triggering impairment (Mansfield)

 Physically impaired defendant liable if she knew or ought to have known of condition AND failed to take
reasonable steps to address condition before engaging in risky activity (Mansfield)
 For young persons (minors), age matters – adjust standard of care in accordance with age (Hill –Wilson J)
 Intelligence and experience also matter (McTiernan in McHale)
 BUT no adjustment for minors engaged in adult activity (McErlean)

Fleming, Law of Torts

 (1) Reasonable person standard eroded over time
 (2) Objective standard necessary for welfare of society (compensation of injured plaintiffs)
 (3) Often changed when does not meet or hinders objective
 (4) Cases sometimes make adjustments to RP standard based upon specific factors
o Converse is not true (if person has higher level of experience, they may be judged to this
experience)
o Knowledge/Experience
 No allowances for substandard knowledge/experience
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  BUT converse is not true
 If a person has a higher level of experience, they may be judged according to that
experience
 E.g. lawyer w specialized skills held to higher standard than general practitioner
 Though lower intelligence/experience does not affect judgment
 Physicians: Held to average of a reasonably skilled practitioner of the class to which she belongs or
holds herself out to belong (i.e. surgeon held to higher standard than GP)
 Beginners – no lowered standard of care: held to standard of reasonably skilled and proficient persons in
that calling
 Layperson engaged in expert activity: Layperson undertaking this type of task will be judged by the
standard of the expert especially when public safety is implicated
 Physical and intellectual impairments: Physically disabled people often judged by standard of reasonably
prudent person with the same disability ( think blind man example from the textbook)
 No allowances for intellectual or emotional characteristics
 Lunacy
 Depends on whether D can appreciate risk and need to take care
 Fleming: Weight of authority suggests no allowances (Fleming) – but Buckley says otherwise

Standard of Care

 What does it mean to be a reasonable person? Who, by definition, takes reasonable care
 Posner – ‘Learned Hand Formula’
United States v Carroll Towing co. (1947)
 Barge broke away from moorings while unattended and collided w another ship
 Question of whether leaving barge unattended in harbour negligent?
 Failure to meet expected standard of care of reasonable person?
 Held: Learned Hand, J: test for reasonable person:
o B = burden/cost of precautions
o P=probability of accident occurring
o L=loss/cost of loss
 If B<PL= reasonable to take care
 Reasonable to take precautions where cost of avoidance (B) is less than cost of loss (L)
discounted by statistical probability of accident occurring (P)
 Where the cost of avoiding accident is lower than the expected cost of the accident - that is, it is
cheaper and more reasonable to pay to avoid the accident
o Then defendant ought to take reasonable care - should not have left barge unattended

 How does the Learned Hand test relate to the RP standard?

 If B<PL then D acted unreasonably - reasonable person standard not met
 If B>PL, then D acted reasonably - reasonable person standard met (not reasonable to take
precautions here)
 Difficult test to apply in practice
 Posner: McCarty v Pheasant Run
o LH test is really just RP test phrased differently
o Analytically better, but difficult to apply in practice because:
 B (cost of burden/precautions) is fairly easy to quantify, but VERY difficult to monetize L
and P
 If B is high, then it is not negligent to inflict harm on the plaintiff! So - okay to sacrifice the plaintiff's
wellbeing for the social or economic good without any compensation? Test is based on the
assumption that everything is reducible to monetary terms
 Bender: Economic analysis turns people into abstractions
 Weighed against profits or benefits to be earned from injury-causing activity
o Rather, no one should be hurt
 B can never be high enough to absolve D of taking precautions

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  Reasonable person test is one of conscious care and concern of a reasonable neighbour under
similar circumstances
 Posner's response to Bender: The caring person does not really get us anywhere - most neighbours really
couldn't care less about each other.

Bolton v Stone
 P hit and seriously injured by cricket ball - probability of injury extremely low, but not inconceivable.
Ball hit clear out of grounds only 6 times in 30 years. Landed in lane that was back entrance into row
of houses
 Test: D's actions are to be assessed on the RP standard
o But what does it mean to act reasonably in the context of this case?
o That D must have considered the cost of avoidance (B) and expected cost of harm (PL)?
 Lord Reid: Def not liable: We must draw a distinction between unforeseeable risk and foreseeable
real risk
o Sounds like P!
o Unforeseeable risk arises from events so bizarre and freakish no one could reasonable foresee
the outcome
 Foreseeable risk is risk one can foresee....
 To impose a foreseeable risk on another can be a breach of the standard of care
o But, once an unforeseeable risk occurs once, it is now foreseeable, right? (P's argument)
o Court: we can refine to account for the degree of foreseeable risk
 Foreseeable but small or infinitesimal risk VS Foreseeable and substantial risk
 The law doesn't seek to protect people from all risks
 We live in a crowded society and even the most careful person creates risk. Defendant only required
to refrain from creating FORESEEABLE AND SUBSTANTIAL risks
 D must also consider seriousness of the consequences - sounds like L!
 Where does B come in? Lord Reid said "I do not think that it would be right to take into account the
difficulty of remedial measures?"

Wagon Mound No 2
 Wagon Mound docked to take on oil - due to bad fitting, oil was discharged into the harbour by the
defendant, covering part of the harbour. Dock owner welding, molten metal fell into water - ignite,
fire, burn.
 Trial: foreseeable but infinitesimal risk, so no liability
 OVERTURNED by Lord Reid!
o Bolton: risk was so small a reasonable person would be justified in disregarding it
o Another reason it was reasonable to ignore the risk in Bolton was the considerable expense in
eliminating it!
o In the case at hand, no avoidance costs - all it will take is to tighten the fitting, therefore the RP
would not create the risk.
 Ratio: a RP would not disregard a foreseeable but small risk, if that risk could have been avoided
without difficulty, disadvantage or expense - sounds like B!

Latimer v AEC
 Flood factory floor - slip and fall
 Held: NOT LIABLE - cost of avoidance would have been to shut down the plant
 Ratio: if the risk is foreseeable and substantial, cost of precaution is irrelevant, but relevant
consideration if the risk is foreseeable but small
 If the risk is foreseeable and small, but the cost of precaution is LOW, defendant may be found to
have acted without reasonable care.

 Summary:
 (1) If risk is unforeseeable, no liability
 (2) If risk is foreseeable, is it small or substantial?
o (a) if small, consider:
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  Seriousness of consequences
 Cost of precautions - if low, D may be liable
o (b) if substantial:
 Consider seriousness of consequences
 DO NOT consider cost of precautions

The Role of Statutes

 Q: In assessing the reasonableness of a defendant's conduct, is the fact that such conduct breached a
statute a relevant consideration?
 If there's a breach of statute, can we bring that to negligence?
 Remember: tort law and statutory regulation are distinct legal devices - tort law developed exclusive of
state regulation of hazards, which came later
 Breach of statutory rule matters to the regulator, but should it matter to the relations between the
plaintiff and defendant?
 Three possibilities:
 (1) Breach of statutory duty is determinative of liability
o Breach of statute is breach of SOC; the statutory rule IS the SOC
o The breach of the statute is itself a tort
 (2) Breach of statutory rule is totally irrelevant
o Such cases deal with the interaction between two private parties - plaintiff and defendant
o Not between the defendant and the state
o In determining the standard of care, obligations owed by defendant to the state does not
matter.
 (3) Somewhere in between: can be considered, but not determinative
o [CANADA]

Saskatchewan Wheat Pool v The Queen

 D stored and transported P's grain - loaded a quantity that was later discovered to be infested with
rusty grain beetle larvae - P was required to divert ship to Kinston, unload and fumigate, at cost of
$100k , which sought to recover
 Plaintiff didn't allege negligence or any other specific tort here!!
o Alleged breach of section to Canada Grain Act that prohibited delivery of infested grain to the
Board
 Dickson J: No general principle or rationale can be identified from existing cases
o From England, the painful emergence of a new nominate tort of statutory breach
 Involves a search for non existent Parliamentary intent to create a civil cause of action
 Arduous tests developed to determine whether duty is owed primarily to the state and
only incidentally to the individual, or VV
o In the US, some confusion in the cases (dominant position is that violation of statute is
negligence)
o Canada:
 (1) (side note) none of this applies to industrial statutes, which historically involve absolute
liability - no fault required
 (2) Cdn law rejects the idea of a civil action for breach of statutory duty
 To hold otherwise is judicial legislation
 RULE: Mere fact of a statutory breach does not give rise to a civil cause of
action
 No tort of statutory breach or civil cause of action for SB
 (3) instead, the fact of a statutory breach should be considered within the context of a
claim for negligence - as part of the evidence
 RULE: evidence of a breach of statutory requirements is a relevant consideration in
assessing whether the defendant breached the SOC, but is not determinative
o Other considerations in this case include whether D operated the terminal to accepted trade
standards, made regular checks for infested grain, and tested samples and carried out visual
inspections.
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  Breach of statute does NOT, in itself, constitute a tort OR a basis for a standalone civil action
o HOWEVER, a statute may be used as evidence of the standard of care, and a breach of that
statute as evidence of breach of that SOC
 TOF has 2 options:
o (1) reject the statutory offense for the purposes of negligence law
o (2) throw in the bag with all other evidence and treat as a factor in assessing if the standard of
care was breached
o CANNOT treat the breach on its own as determinative of whether negligence occurred
 Questions remain: What if the stat breach was intentional??
 Then you wouldn't sue in negligence
 Cases exist where courts have treated a breach as forming the basis of a private right of action
 By attempting to distinguish Sask Wheat Pool as applying only to cases of negligence

Whistler Cable Television

 Absent a statutory breach, has D committed a tort? NO. To compete is not to commit a tort.
 However, Broadcasting Act made it an offence to broadcast without a license, subject to a fine
 HELD: SWP confined to negligence law. Doesn't eliminate the 'tort of breach of statute'! [NOT A
THING]

 ***EXAM: BREACH OF STATUTE DOES NOT AUTOMATICALLY AMOUNT TO NEGLIGENCE***

YO v Belleville (City) Chief of Police

 Police disclosed youth CR - contrary to statute and penalty is criminal prosecution
 P sued for negligence
 No tort of breach of stat duty - case should be determined on negligence principles
o BUT: all defendants had a duty to the plaintiff to use reasonable care to keep his youth record
confidential
 Ds were negligent and breached that duty.
 What tort was committed here? Hard to say... HOW is this negligence?
o Can't 'negligently' disclose the youth's CR to their employer.
 In this case, appears as though the judge treated the breach of statute as determinative
o What should have been done: just prosecute the defendant as per the statute!
 Rule is not applicable in cases where statute expressly provides that person harmed by breach has
action for damages caused by breach
 P recovers if able to prove breach of statute and that breach caused damage!

 NO TORT for Statutory Breach

 If the provision outlines a penalty - go for the outlined penalty
 If the provision says that the plaintiff is entitled to seek damages in a civil suit, then the plaintiff may
do so
 If you're going for negligence then the breach is merely part of the evidence, and is not
determinative

The Role of Custom

 In determining whether there has been a breach of the SOC, is it relevant to know how similarly situated
persons conducted themselves?
 "Accepted trade standards"

Trimarco v Klein
 Bathtub glass shatters, commonplace to use shatterproof glass since 1950s, law in 1973 (door
installed prior though) - criminal sanction doesn't apply
 Should evidence of custom influence the SOC? YES it is influential
o Proof of an accepted practice and conformity be defendant may establish due care as well!!
 Why?
o (1) Custom shows collective judgment of many people on the issue
8
  Better than having a judge make it up - the community generally thinks that acting
reasonable entails the customary practice
o (2) shows that precautions that the court is imposing on the defendant are feasible
 If everyone can do it, then the defendant can as well.
 When certain dangers have been removed by a customary way of doing things, this may be
considered in determining whether a defendant has met the SOC or not
 Custom is not determinative
 Must the custom be universal? NO
 It is enough that it is fairly well defined and in the same calling or business, such that D either knows
about it or is negligently ignorant.
 Is the evidence of custom conclusive? NO
 Finder of fact must still be satisfied that the custom itself is reasonable. Just because everyone is
doing it doesn't mean it is reasonable. Focus is not just on what everyone else is doing, but also on
what is reasonable.

TJ Hooper
 Barges, tugs, storm and sink, no radio
 No general custom requiring the use of radio sets
 Even though they could be obtained at little expense, fairly reliable with maintenance, and offers
great protection
 D held liable at trial, but appealed on the basis that use of radio sets was not customary in the
industry - tried to use custom as a shield.
 LH: the custom itself is unreasonable - barges are unmaneuverable ships - sets are their 'ears' and
are quire necessary
o RULE: Custom is often helpful in the standard of care analysis, but only if the custom
itself is reasonable.
 SUMMARY
 Evidence of custom is never determinative or conclusive in the standard of care analysis
 It is influential, but only if it is a reasonable custom

Malcolm v Waldick
 Waldick slipped on D's icy driveway and fractures skull. D didn't salt/sand driveway - claimed this
was local practice in their rural community.
 Trial and ONCA ruled D's failure to salt was negligent, regardless of custom
 SCC: dismissed appeal in which defendant claimed that custom wasn't considered
o D is wrong. Local custom was taken into account but it is not determinative. Because it
wasn't applied, doesn’t mean it wasn't considered.
o Didn't offer sufficient proof of this 'custom' - relied only on testimony of one defendant
 Local standard, if it did exist, is in itself negligent
 No amount of general community compliance will render negligent conduct reasonable
 Ogbogu: Good decision
 Hypothetical: say there's a practice adopted by most or all astronauts, which exposes others to risk. How
do we determine the reasonableness of the complicated astrophysics that underlies such practice?

Ter Neuzen v Korn

 HIV transmission via AI - sued for negligence on physician's part - failed to warn plaintiff of the
dangers of contracting HIV from AI procedure
 Only one letter in a journal that was not heavily circulated warned of risk, no practice of screening
donors or warning anyone of risk.
 Physician complied with standard of medical practice in not warning patient of risk of HIV. He did
screen donors, but one was not completely forthright about sexual practices
 Trial: negligent; CA overturned. SCC (Sopinka) upheld CA
 Only two ways jury could have found D negligent
o (1) Jury could find that D violated the custom
 Evidence of custom in case was unambiguous.
9
  Defendant action COMPLIED with that custom - and did slightly more even by screening
donors.
 No jury acting judicially can correctly reach a conclusion that D failed to conform to
custom of the profession.
o (2) Jury could find that the custom itself was negligent
 Impossible conclusion for the jury or judge to reach in the case at hand.
 Case here involves a complex area of practice.
 Highly technical and scientific, beyond the competence of a TOF! Therefore not open to
a TOF to find such custom or standard practice negligent.
 Note: experts only say whether or not the practice is custom - not whether the custom, if
there, is negligent
o ONLY ONE EXCEPTION: Custom or standard practice if fraught with obvious risks
 The standard practice fails to take precautions that are readily apparent to anyone with
the experience or knowledge base of the TOF.
 As a general rule, where the standard practice or custom involves complex, scientific or highly
technical matters which are beyond the ordinary comprehension of a judge or jury, it is not open to
the judge or jury to find the standard practice or custom negligent (or unreasonable).
o Such situations are not reviewable by judge or jury unless the standard practice or custom is
fraught with obvious risks that any reasonable layperson can detect.

Proof of Negligence
 The plaintiff in a torts case must prove their case on the balance of probabilities
 Evidence can be direct or circumstantial
 Res ipsa loquitur (the thing speaks for itself)
 Mechanism for dealing with circumstantial evidence
 Traditionally, RIL was considered to be sufficient evidence where:
o (1) The thing that caused the damage was under the defendant's control
o (2) The event would not have occurred without negligence
o (3) There is no evidence as to why or how the event took place
 Morphed into interpretation that BOP shifted to the defendant to disprove negligence
Byrne v Boadle
o Barrel of flour rolled out of defendant's shop, struck and seriously injured the plaintiff
o HELD: Barrels of flour don't just get up and exit buildings - can only result from
negligence
o Accident reveals evidence that defendant can either rebut or be found negligent
o Q: What kind of evidence can defendant use to rebut RIL?

Fontaine v British Columbia

o Appellant's husband was travelling in car driven by hunting buddy - car veered off road in bad
weather. Both killed - nobody saw the accident and nobody knew when it happened exactly.
o Evidence of driver's negligence: car was moving with sufficient force to plough through small
trees, but also circumstantial evidence of other non-negligent causes like weather or worn tires.
o So, do the alternative explanations negate RIL?
 SCC: RIL no longer applies: it's technical, confusing, and unhelpful.
 Intended as a way of dealing with circumstantial evidence.
o NEW TEST for dealing with circumstantial evidence:
 (1) TOF must weigh circumstantial evidence against any existing direct evidence to
determine whether plaintiff has established, on BOP, a prima facie case of negligence
 (2) If P successfully establishes a prima facie case, it falls to the defendant to present
evidence to negate the plaintiff's evidence, or the plaintiff will succeed on the prima facie
case.
 ..how different is this test really?
 EXAM: Apply this test (prima facie), not RIL.

10
 Standard of Care in Medical Negligence Cases
 Every medical practitioner must bring to his task a reasonable degree of skill and knowledge and must
exercise a reasonable degree of care
 Bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent
practitioner of the same experience and standing, and if he holds himself out as a specialist, a higher
degree of skill is required of him than of one who does not profess to be so qualified by special training
and ability
 Conduct must be assessed against the conduct of a prudent and diligent doctor placed in the same
circumstances
 General principles
 Typically assessed by looking at conformity of the defendant's conduct with the accepted or
approves standard practice
o Standard practice is the first thing you look at!!!
 Consistent with ter Neuzen, courts will NOT overrule approved practice unless clearly unnecessary
or unduly hazardous

Sylvester v Crits
 5yo plaintiff injured during medical operation when anaesthetic exploded
 Anaesthetist created a highly explosive mixture of oxygen and ether; also placed the ether can on
the operating table, close to the plaintiff's head.
 Explosion caused by static electricity igniting escaped ether-oxygen mixture accumulated near the
plaintiff's head
 Court found there was a 'minimum of evidence' on approved standard practice
o However, obvious to a non-technical person that turning off the O2 tank would have prevented
the accident
o Rand J: It does not require a technician's understanding to see that a dangerous volume of the
gaseous mixture had built up in the immediate area in which the flash of flame appeared
 Approved standard practice
 Typically determined through expert testimony by reviewing professional standards of practice
o Often taken as conclusive evidence of the standard of care, unless 'fraught with obvious risks'
o Courts show deference as they lack technical expertise to determine what is appropriate

Tailleur v Grande Prairie General

 Plaintiff sustained an injury to her heel and Achilles tendon. Doc referred her to Dr. Sendziak, an
orthopaedic surgeon, for repair of the Achilles tendon
o Applied cast running from above the toe to below her knee
o Later diagnosed with gas gangrene requiring immediate above the knee amputation - rare but
devastating infection caused by clostridia perfringens, a cousin of clostridia tetanus (exists in
areas contaminated with fecal waste of domestic animals)
 Plaintiff sustained injury after swimming in an earthen dugout full of runoff water on an acreage that
had domestic animals
 Gas gangrene infection professes rapidly and results in amputation or death. Diagnosed if crushed,
dead, or devitalized tissue, dirt, or other sign of contamination present on wound site
 Tx includes proper cleaning, leaving wound open, monitoring, and antibiotics
 At trial, accepted that plaintiff's wound was a 'clean wound' - expers agreed that defendant followed
proper practice in treating wound. Every orthopaedic expert testified they would have done
exactly the same
 All agreed the cast did not cause gas gangrene. While the cast could delay detection, it would not
contribute as a cause
 Most likely cause was inoculation of the bacteria when the wound was sustained
 Cooke J: held that Dr. Sendziak breached the SOC because he failed to consider and react to the risk
of infection in the circumstances, especially since he is a part time farmer
o Reasoned that defendant should have used an alternative cast

11
  Would have made the lower limb visible, aiding visual inspection and earlier detection -
may not have prevented the gangrene but may have resulted in below the knee amputation
o Basically subbed in expert facts for his own
 Overturned on appeal - no evidence to support factual findings that:
o (a) risk of infection increased by circumstances
o (b) the doctor breached the SOC by selecting the wrong type of cast
o (c ) earlier detection was possible by visual inspection
 No evidence to support a breach of accepted orthopaedic practice. TJ didn't have the expertise to
comment on technical matters
o Not his place to review the matter, as he lacks the expertise
o Accepted practice not fraught with obvious risks that are detectable without diagnostic or clinical
expertise.
 "Where a common and accepted course of conduct is adopted based on the specialized and
technical expertise of professionals, it is unsatisfactory for a FOF to conclude that such a
standard was inherently negligent"
o ***Use this verbatim if you're dealing with medical negligence and custom on an exam!***
 However, "matters falling within the ordinary common sense of juries can be judged to be negligent"

Error of judgment
 Medical professionals should not be held liable for mere errors of judgment that are distinguishable from
professional fault
 Doctors make mistakes! Sometimes they arise out of bad judgment call, not necessarily negligence
o If tx A and B are options arising from the symptoms presented, and the doctor chooses the
wrong one, it's not negligence, but rather an error of judgment, provided that both are actually
reasonable options (within SOC) - doctors will sometimes explore a number of options
 Ask: is the wrong option a reasonable option?
 What distinguishes error of judgment from professional fault? Reasonableness
o ***There will be an exam question from here***
o Could a reasonably competent and similarly skilled professional have made the same error?
o An error of judgment is an error made in the context of the exercise of reasonable care
o "A doctor will not be found liable if the diagnosis and tx given to a patient correspond to those
recognized by medical science at the time, even in the face of competing theories" (-L'Heureux-
Dubé, LaPointe)
 A typical example: misdiagnosis that is consistent with approved standard practice
 However, doctor still negligent if she fails to reconsider diagnosis
o Ex: if tx A doesn't work, ought to consider tx B

Wilson v Swanson
 Defendant surgeon found growth in patient's abdomen during surgery
 Test by pathologist showed growth was "probably malignant"
 Defendant made judgment call to remove organs that would have been untouched in the surgery, and
not to wait for confirmatory test
o Turns out the growth was benign - patient sued
 "an error in judgment has long been distinguished from an act of unskillfulness or carelessness or due
to lack of knowledge"
o Court characterized this as an error of judgment, not negligence
o The option the doctor went with was indeed reasonable
 "The honest and intelligent exercise of judgment has long been recognised as satisfying the
professional obligation"
 "He obtained the opinion of a pathologist of recognized competence. He then made an admittedly
difficult decision - in making that decision I am satisfied he exercised his best judgment in what he
considered to be the best interest of his patient"

Lapointe v Hôpital le Gardeur

 5yo cut elbow, resulting in severed artery and severe blood loss
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  Attended to be emergency GP, who realizing he could not fix artery, made judgment call to send her
to peds
o So - was the judgment call negligent?
 Didn't perform blood transfusion, but communicated gravity of case to peds, including possibility of
shock
 Patient suffered massive cario-respiratory arrest due to O2 loss upon arrival in peds
o Left with irreversible brain damage
 So - should the doctor have performed the blood transfusion before transferring her to pediatrics?
o Remember - setting up the transfusion is likely to take a fair bit of time
 SCC held that the doctor made an error of judgment - exercised proper judgment in ordering transfer.
o Decision to transfer without giving her a transfusion was reasonable
 Reasonable because defendant stopped bleeding and replaced lost fluids
o Insertion of intravenous drip took almost an hour - defendant had to balance delays in
transferring patient with waiting for blood
o His actions were reasonable and something that would not be considered negligent - this was a
reasonable decision to have made!

 Summary
 A medical professional is held to a standard of care expected of a prudent, diligent, and
reasonable skilled practitioner of the same standing and experience.
 A medical professional who acted in conformity with approved standard practice is not negligent,
unless the standard practice is fraught with obvious risks
 Medical professionals are not legally responsible for error of judgment that are distinguishable
from professional fault

Duty of Care
 ***Will not test this on the exam - do not argue that it's been established***
 Remoteness
 Unless a defendant owes a duty to take reasonable care for the plaintiff's interests, breach of SOC resulting
in harm to the plaintiff is not enough
 Even if you've shown the SOC has been breached and have satisfied the 3 criteria, still have to
determine whether a duty of care is owed - whether the defendant is responsible
 Legal artifact made by the courts to exclude certain defendant's from liability
 Liability is confined to a certain type of person
 A person who is under a legal obligation or duty to exercise the requisite standard of care with
respect to the plaintiff
 Duty to care for your interests or welfare
 Even if plaintiff can show the other elements of negligence, defendant not liable if they fall outside the
duty of care
 Question of law - the judge determines if the duty exists
 Not a question of fact
 Must convince the judge that DOC exists

 Donoghue v Stevenson
 Seminal decision - starting point for duty of care analysis
 Pre-Donoghue
Winterbottom v Wright
 Defendant is a coach manufacturer
 Contracts with postmaster to maintain coaches in good working order
 Postmaster contracted with third party, Atkinson, to deliver coach
 Atkinson contracts with plaintiff to drive coach to its destination
 En route, coach broke down due to hidden defects

13
  Plaintiff was seriously injured - sued defendant manufacturer
 Chain of causation: Defendant manufacturer - postmaster/Atkinson - Coach driver /Plaintiff
 Privity between:
 Defendant & Postmaster
 Postmaster & Atkinson
 Atkinson & Plaintiff

 At the time of Winterbottom, nothing connecting the defendant and the plaintiff - no concept!
The only thing connecting two parties was privity of K
 No privity between P and D so no legal connection
 Issue: did the defendant owe the plaintiff a duty of care?
 Court: NO
 No precedent for this
 No privity of K between P and D
o 3rd party interests to a K are not important
 Granting plaintiff relief will open the floodgates
 Anyone injured by the upsetting of a coach could sue the manufacturer
 Baron Rolfe:
 Duty flows ONLY from K
 P's K was with Atkinson, and D's w Postmaster
 No duty between P and D
 Only basis for a duty to exist is the Kual link
 Damnum absque injuria: loss without a violation of legal rights
 Hard cases make bad law
 Fleming: courts consider many factors in the duty of care analysis
o History, ideas of moral and justice, administrative convenience, social norms
o It was a time of precedent
 Winterbottom based on fear of 'impeding industrial development'
 But should no longer be a concern with the advent of insurance
 Insurance has led to widening of scope of duty - industries can obtain insurance against losses

Donoghue v Stevenson
 Facts: Friend purchases bottle of ginger beer for plaintiff. Bottle was opaque so P couldn't detect contents.
Bottle had decomposed remains of a snail - P claims she got gastro-enteritis from consuming beer
 Issue: Did the defendant manufacturer owe the plaintiff a duty of care?
 Trial: NO DUTY (trial decision affirmed by Court of Sessions; P appealed to HL)
 HL: Yes, on a 3-2 split
 Dissent (Buckmaster J): Winterbottom is the law
o Absent a Kual relationship between P and D, there is no duty
 2 exceptions:
 (1) Inherently dangerous articles such as firearms
 Anyone injured by firearms falls under that exception
 (2) Articles that are dangerous by reason of hidden defects known to the
manufacturer

14
 o Floodgates issue - then D will eventually owe duty to all person who consume the product
regardless of Kual privity
 Note: Donoghue didn't have privity!
 Majority opinion (Lord Atkin) [Ogbogu recommends reading the case in full]
 Duty of care has been determined based on precedent of established classifications
o Contract, Bailment, Transfer of custody of chattels
 This approach results in denial of claims that don't fit established categories
 Approach is inconsistent with the CL methods of adjudication
o If there is no law, then maybe create new law. But if there is precedent then apply it.
 Rather than relating the specific facts of a case to established categories, we should relate them to a
general principle - a principle that relates to most facts
o [Ogbogu thinks Atkin is right - if all you're doing is comparing facts then you won't get
the right result]
o Neighbour Principle
 You must take reasonable care to avoid acts of omissions which you can reasonably
foresee would be likely to injure your neighbour
 To whom?
 "Persons so closely and directly affected by my act that I ought reasonably to have
them in contemplation as being so affected"
 No limit really to who your neighbour can be so long as your imagination can get
there
 In Donoghue, customers beyond the manufacturer fall within the scope of
neighbours
 Application of these principles:
o D intended the product to reach the consumer in the form it left the factory - no real possibility
of other inspection
o No Kual relationship but a direct relationship exists
 D intended the product to be consumed
 D can foresee that negligence on his part will cause injury to P's legally protected
interests
 What about Winterbottom? No duty alleged in Winterbottom other than that arising out of K - doesn't
apply or govern here (reading down)
 [Winterbottom is not destroyed - the principle is expanded to include more facts that
Winterbottom would not be able to touch. Existing precedent doesn't apply]
 Concurring judgment (MacMillan J)
 Claim in tort is not precluded by the absence of Kual privity - Winterbottom doesn't apply
o Not a problem in contract here!
 P in Winterbottom sought to impose Kual liability on D
 Agrees with the application of the Neighbour Principle
 To sum up, two main/intersecting ideas flow from the Neighbour Principle
 (1) Close and direct relationship (proximity)
 (2) Contemplation of foreseeability (foreseeability)
 Emphasis not just on foreseeability of harm, but also on foreseeability of harm to a person who is a
proximate relationship with D
 Lord Atkin:
 D owes P a duty to take reasonable care to avoid acts that will result in an injury to the plaintiff's
life and property
o (Injury to the plaintiff's legal rights)
o Defendant only in breach of DOC where they injure the plaintiff's legal rights (misfeasance)
o Remember difference between misfeasance and nonfeasance!
o This principle creates problems - people's legal rights evolve over time
 Query:
 Which of the two intersecting ideas is the essential component (or trigger) for the duty of care
inquiry?
 Is it proximity that triggers the duty of care analysis or is it foreseeability of harm?

15
  Can we ignore one or find that a duty exists simply on one element?
 3 interpretations/approaches
 (1) Classic/current English position
o You need both
 (2) NZ (formerly CDN) position
o Foreseeability alone is sufficient
 First, ask if risk of harm is reasonable foreseeable
 If yes, then ask if there are policy reasons to limit
 The scope of the duty;
 Class of persons to whom it is owed; or
 Quantum of damages
 As a judge is there anything I can do to not allow liability to the defendant in the
case that the plaintiff ought not to get relief?
o Anns formula (Anns v Merton Borough Council (1978, AC)) [bad]
o Kamloops v Nielsen (1984, SCC)
 (3) Foreseeability + Proximity - Policy Limitations (CDN/AUS)
o Cooper v Hobart (2001 SCC)
 Is there precedent? This makes things easier if there is! Then you don't need to do the
analysis.
 Stage 1: Prima facie duty of care
 (a) Foreseeability - if yes, move on to (b)
 (b): proximity/internal policy
 (i) analogous categories - if no, move on to (ii)
 (ii) proximity + internal policy
 Stage 2: External policy
 This is a legal artefact

 Misfeasance vs Nonfeasance

Deyong v Shenburn (1946, CA)

 P, actor, had his clothes stolen from dressing room during a rehearsal
 Argued producer owed him a duty of care to safeguard property, because it was foreseeable that the
producer's negligence would lead to theft of clothes
 Held: NO Duty
o Did D interfere with P's legal rights?
o No legal right against the world to have clothes looked after. There may be harm to a protected
interest (clothing, but no legal right entitling P to claim protection of that interest from D)
 No proximity? Reliance on guarantee by D would have produced different result
o Modern employment statues may impose an obligation of safekeeping
 Because no guarantee, no legal right to have your clothes looked after
 [Will not test this concept unless he states that a legal right exists]

Palsgraf v Long Island RR Co (NYCA, 1928)

 Ratio: Negligence is not actionable unless it involves the invasion of a legally protected
interest, the violation of a right
 Package dropped by a passenger when d's employee pushed him onto train
 Package contained fireworks, which detonated
 Shock from explosion knocked over scales at the other end of the platform; one fell and injured P
 Issue: did the defendant owe her a duty of care?
 Majority (Cardozo CJ) - no duty of care [right on the result but explanation isn't great]
o "The conduct of the defendant's guard, if a wrong in its relation to the holder of the package,
was not a wrong in its relation to the plaintiff, standing far away"
o Persons are not protected from all kinds of harm, but from harm which interferes with a legal
right
o "What plaintiff must show is a wrong to herself, ie a violation of her own right

16
  Not just a wrong to someone else, or wrongful conduct because it's "unsocial"
o No duty of care if Mrs. P is not within the ambit of risk created by D's employee
o Duty can't be derived from risk posed to another
 [OGBOGU DISAGREES]
o If no hazard as apparent to the eye or ordinary vigilance
 Negligence requires close and direct relationship between the doer and sufferer
 Legal rights though.... Palsgraff had a legal right not to have her bodily integrity
interfered with
 Risk to P must be seen to be in guard's contemplation when he created it.
 AND risk to P must be seen to be in guard's contemplation when he created it.
 Dissent (Andrews J) [Better]: Negligence is an act or omission which unreasonably affects the right
of others, including those not within the ambit of the risk
o Since employee's act is a negligent breach of duty owed to the holder of the package, he is
liable for the outcome where there is injury to another
o To confine breach to the person owed the duty is too narrow
o D not absolved from liability just because he didn't injure the 'closets and most direct person',
but rather, a more remote person
o Proximity isn't just the closest person but those within some foreseeable ambit
o The question is how remote the person is
o BUT, the broader scope of liability has limits
 Factual cause
 Proximate cause
 Arbitrary line drawn on the bases of convenience, public policy, and practical politics
o [?] Andrews J thinks Palsgraf is close and proximate - Ogbogu disagrees
 Main difference between both opinions?
 Majority: No duty if no proximity, not reasonably foreseeable, and no violation of a right - inquiry
stops here!
 Dissent: There can be a duty without proximity, provided that there is a factual and proximate
cause
 Classic private law reasoning vs classic policy reasoning
 This case was wrongly decided - control devices would have worked but Cardozo took it
down the wrong path
o Neither was right, but Andrews was more right than Cardozo
 Only bring up misfeasance if it's very clear that that is the issue

Home Office v Dorset Yacht Co Ltd

 Focus on whether there are reasons to exclude the duty of care (policy analysis)
 Several "borstal" boys escaped while guards were sleeping
o Damaged a yacht
 Issue: were guards/HO liable for tortious acts of competent adults?
 HO also argued duty not recognized OR should not be recognized for policy reasons
 Majority applied Donoghue to reach conclusion that D owed the owners of yacht a duty of care
 Outcome/damage is foreseeable and not public policy reasons to deny liability
 Lord Reid: Donoghue is a milestone and Atkin's speech a 'statement of principle'
o Principle isn't a statutory definition
o It will require qualification in new circumstances
o Ought to apply unless there is some justification or valid explanation for its exclusion

Anns v Merton Borough Council

 [Still referenced re: duty of care analysis]
 Focus on whether there are policy reasons that negative or limit a prima facie duty of care
 Ps were tenants in a block of flats which developed structural defects
 Because foundations were too shallow
 D responsible for inspecting block of flats during construction
 Issue: Did D owe Ps a duty of care?
17
 o HELD: YES
o Wilberforce: Duty of care analysis based on 2-part test
o (1) is there a prima facie duty of care?
 Ask - is it within the reasonable contemplation of D that his carelessness will likely cause
damage to P? Foreseeability!
o (2) Ask: are there any conditions which ought to negative, reduce or limit:
 (a) the scope of the duty
 (b) the class of person to whom it is owed
 (c ) quantum of damages
 Policy, not legal considerations!
 No policy reasons to prevent duty in Anns

Caparo Industries v Dickman

 3-part test: foreseeability, proximity and whether it is fair, just and reasonable to impose a duty of
care
 Overruled the previous 2-part test
o Min difference is retreat to foreseeability and proximity
o Far, just and reasonable standard arguable same as second part of Anns test
o Anns applied in Canada until Cooper

Cooper v Hobart
 1997 - D suspended a registered mortgage broker's license
o Froze its assets because broker allegedly used investor's funds for unauthorized purposes
o Named P was one of over 3000 investors who lost substantial investments due to broker's
misconduct
 Sued D claiming he breached SOC correlative to a duty of care owed to investors
 Ps alleged that D became aware of broker's offences in mid-1996
 Should have acted earlier to suspend license and to notify investors that broker was under
investigation
 If he had done so, their losses would have been avoided or mitigated
 This is a situation of pure economic loss
o Remember there are only 2/5 kinds of PEL that can be recovered. This situation is one of them
o If institution is negligent and that leads to economic loss, then you're entitled to recovery
 Ps applied to have action certified as class action (number of plaintiffs who have a common
complaint, so courts will allow them to combine their cases as a matter of efficiency)
o Had to show that action discloses a cause of action
o Component: there must be a duty of care owed by D to investors
 Trial court: pleadings disclosed as a cause of action
o CA reversed!
o Issue before the SCC: did D owe P a duty of care as an investor to protect him from economic
loss?
o NO DUTY OF CARE
 Duty unrecognized, and this is not a proper case to recognize a new duty
o "We attempt to clarify the distinctive policy considerations which impact each stage of the Anns
analysis"

Cooper v Hobart Explained

 There are two stages of the Anns Test
 Stage 1: Prima facie duty of care
 Stage 2: Policy inquiry
 Stage 1: Two questions arise
 (1) Foreseeability: Was the harm foreseeable?
o Was the harm that occurred the reasonably foreseeable consequence of the defendant's act?
o If no, analysis ends (no duty of care)
o If yes, go to question (2)
18
  (2) Proximity analysis
o Focused on the factors that arise from the relationship between the plaintiff and defendants
 Have to shift gaze to the plaintiff and defendant and ask if there's something that connects
the two parties; that necessitates the finding that the defendant's actions would effect
plaintiff?
 Viewed as a legal and a policy matter
o Includes a broad application of policy considerations (policy internal to proximity analysis)
 What policy reasons/factors tell us something about the relationship between the two
people that allow us to decide whether or not they are proximate?
o Analysis is two-pronged
 (1) Are there any analogous categories of cases where proximity has previously been
identified? Is there precedent?
 Examples: Physical harm to P or P's property, nervous shock, negligent
misstatement, duty to warn of risk of danger, relational economic loss, gov't liability
for economic losses and physical damage arising from failure to inspect property
 If there is an analogous category, prima facie case is established. Go to stage 2 of
Ann's test
 (2) Full proximity analysis
 Factors that allow us to evaluate the closeness of the relationship between P and D
 And to determine whether it is just and fair to impose a duty of care on D having
regard to that relationship
 No single unifying characteristic: diverse and fact-specific
 We look at expectations, representations, reliance, property, and other interests
involved.
 Good indicator of what you can do
 When dealing with public authority, as in Cooper, proximity must be grounded
in statute.
 Goal of the Prong 2 analysis: To establish new categories
 The categories are not closed and new categories of negligence may be
introduced
 If new category is found, prima facie case is established: Go to Stage 2 of
Ann's test
 If no new category, inquiry ends - no prima facie case.
 Stage 2 of Anns test: "External" Policy Inquiry
 Ask: are there policy reasons to limit the duty of care?
o This policy analysis is not concerned with proximity
o Rather, concerned with effect of recognizing duty on other legal obligations, legal system,
and/or society more generally
 Summary:
 Stage 1: Prima facie duty of care analysis
o (1) Foreseeability analysis. No: stop; Yes: go to 2
o (2) Proximity analysis: (2 prongs)
 Prong 1: Analogous categories?
 Yes, go to State 2; No, go to Prong 2
 Prong 2: New category?
 No, stop; Yes, go to stage 2
 Stage 2: External policy analysis

Problems with Cooper

 Scope of internal policy
 Insufficient proximity between registrar and investors
o "Such a duty would come at the expense of other important interest, of efficiency and public
confidence in the system as a whole
o Sounds like State 2 analysis
 Confusing on issue of policy

19
 Analogous categories
 How analogous do the categories have to be?
 When dealing with public authority, as in Cooper, Proximity must be grounded in statute
 Rare to find express statement of proximity
 Question is whether statue, which is designed to protect the public, can be read as creating a right in
the plaintiff as an individual
 Deciphering legislative intent

 Practice case: Ogbogu loses his fingers because he got cold

 Ski Shop: Analogous scenario? Physical harm
o Reliance
o Representation
 Coach: Representation
 Practice Case 2
 P works on a large farm
 Employer operates under a harvesting license issued by the provincial government
 Through their union, employees expressed concerns to Minister regarding closure of sections of farm
during harvesting season
 Minister responded by enacting policy requiring a clause in every harvesting licence preventing
closure of farm during harvesting season.
 Two years later, harvesting licence renegotiated. Ministry staff involved in renegotiation inadvertently
deleted the clause in the new license.
 P's section of the farm closed during the next harvesting season and she is laid off. Sues the
government for negligence (CL for negligence of employees)
 Harvesting licence issued under stat authority, which provides 3 conditions for license
o Creating or maintaining employment opportunities
o Managing or utilizing farm produce
o Furthering agricultural development
 Minister has discretion to relax or disregard conditions
 Q: apply Cooper v Hobart to determine if plaintiff is owed a DOC
o Is this foreseeable? Yes
o Proximity analysis - is it grounded in statute?
 Note: they're claiming pure economic loss
 Promise was made to employees - when mistake was made that affected the
employees
James v British Columbia
 Facts are just like Practice Case #2
 Notice that courts tend to disagree on proximity analyses
 Observe: If you're the defendant - ask the plaintiff to show that the duty of care is owed!
 Sawmill permanently shut because Minister and staff inadvertently removed from tree farm license
clause that would have prevented mill closure
 Plaintiff claimed analogous category: PEL (2 sub categories)
o (1) The independent liability of statutory pubic authorities
o (2) negligent performance of a service
 Trial judge: (1) is inapplicable. Duty imposed by statute is to public as a whole, not to workers in
forestry industry
o Case is indistinguishable from Cooper - in Cooper, we didn't agree that this form of economic
loss applies
 How about category (2)?
o This is where you have a service provider who has a K between client or customer and service
provider is to provide reasonable skill and care
 There's a 3rd party beneficiary here too, who stands to gain income from the K - no privity
of K
 But 3rd party ben stands to gain or lose
 (Hedley Byrne v Heller)

20
  Example:
o I enter into K with a solicitor to draft my will, in which I make a gift to my daughter
o Solicitor negligently prepares or fails to prepare will
o My daughter fails to inherit - her loss is purely economic
o No privity between daughter and solicitor
o Can recover under this sub category

 Result:
o Duty established
o Cause of action disclosed
o Class action certified
 BCCA: Prima facie DOC: Foreseeability and proximity are both okay
o On Category (1): TJ wrong: case is indeed distinguishable from Cooper
o Minister has discretion - registrar in Cooper did not
o Legislation required Minister to balance competing interest in implementing conditions
o Negligence was operational in nature: not arising from policy but from implementation of the
policy
o "It can safely be said that the more 'operational' a power or duty may be, the easier it is to
superimpose upon it a common law duty of care" (Anns)
o On category B: Analogy works!
 "The employees can be said to have relied upon the Minister to exercise reasonable care
to retain Clause 7 in the licence unless and until he reached a decision on policy grounds
to remove it"
 Even if analogous categories did not exist, we would still find that this meets full proximity
analysis based on 'expectations, representations, reliance...
 Other notes
o If minister had discretion to withdraw the clause at any time, how could the plaintiff have
reasonably relied on it?
o Cooper may be confusing, but what effect has it had on the cases?
o Retreat and surrender - defendants win in the vast majority of cases where courts are called
upon to recognize a new duty of care - major shift from pre-Cooper
 Case in point: Childs v Desormeaux
Childs v Desormeaux
 Dwight Courrier and Julie Zimmerman hosts a BYOB party. Guests drink alcohol.
 Inebriated Desormeaux drives away, causes accident, injures P
 Only alcohol served by hosts was 'three-quarters of a bottle of champagne in small glasses at
midnight"
 Hosts know Desormeaux was a heavy drinker - had 12 beers, left party with BAC of 235mg per
100mg
 Issue: does a social host owe a duty of care to a person injured by a guest who has consumed
alcohol at his or her party?
o SCC:
o Is there an analogous category?
o Canadian law doesn't provide a clear answer on whether duty is owed by social hosts
21
 o Duty recognized for commercial alcohol providers, but not the same thing
 Three main differences in the proximity relationship
o (1) Commercial hosts are better able to monitor consumption
 Easy and expected by host, patrons, public
 They have to ensure payment
 Regulators require training in monitoring
o (2) Sale and consumption of alcohol strictly regulated
o (3) Duty is necessary to suppress "perverse" incentive that CAPs have to encourage over
consumption for profit
o BOTTOM LINE: Not an analogous category
 New duty then? NO
o Injury to Ms. Childs was not reasonable foreseeable to the facts
 [Ogbogu disagrees: should be RF especially given his history]
 TJ didn't find that hosts knew or ought to have known D was too drunk to drive
 [Ogbogu disagrees: this point is stupid]
 Thinks proximity, not foreseeability, is the issue here.
 Should they have reasonably foreseen injury to road users based on D's past history?
 History of alcohol consumption and impaired driving does not make impaired driving
and consequent risks to motorist foreseeable
 D didn't display signs of intoxication when escorted to vehicle
 Nonfeasance, not misfeasance - wrong alleged is a failure to act or nonfeasance in
circumstances where there was no positive duty to act

22
 Remoteness
 Remoteness/Cause in law/Legal causation/Proximate cause
 Duty of care inquiry: is the defendant obligated to take reasonable care not to injure the plaintiff?
 Remoteness inquiry: Assuming a duty of care owed, and that duty was breached:
 Was the resulting injury (or the mechanism by which it occurred) a natural or sufficiently direct
consequence of the negligent act?
 The line here is drawn on law, not fact
 Assuming:
 That the plaintiff is someone foreseeably affected by the defendant's negligence
 That the plaintiff's relationship with the defendant is sufficiently close and direct,
 Is the specific injury or result suffered by the plaintiff foreseeable?
 General thoughts:
 Courts have resorted to all sorts of tests to resolve remoteness problems
 Because no single concept appears sufficient to resolve myriad of difficult factual situations
 Decisions based on a blend of common sense, pragmatism, and judicial policy regarding issues.
 What's important is to recognize all the doctrines that apply, and where to apply them
 Thin skull rule - remoteness problem
 Duty/remoteness overlap

 Ask if it's foreseeable for the defendant's actions to lead to harm

 Focus on the injury sustained by the plaintiff
 Is it foreseeable that these events would occur?
o Think Palsgraff
 Foreseeability is what binds duty of care and remoteness! Duty of care just looks at harm more
broadly than remoteness
 Duty = foreseeability of harm, not foreseeability of the actual harm arising from the facts
 Harm in an abstract sense
 Remoteness = foreseeability of specific harm suffered by the plaintiff
 Harm in an actual sense
 Not a freak event - don’t' want to award damages against the defendant because the plaintiff suffered
from some freakish event.
 To satisfy remoteness, must the plaintiff show that the type of damage suffered is a foreseeable
consequence of the negligent act?
 Or is it enough to show that some kind of injury was foreseeable, and that as a result, D should be
liable for any injury that results.

Re Polemis
[NO LONGER GOOD LAW]
 D chartered ship from P for use in transporting petrol
 Due to rough storm some petrol leaked and filled ship hold with petrol vapour
 Stevedores employed by D dropped a plank into the hold

23
  This caused a spark, which caused a fire, which destroyed the ship
 Arbitrator: Stevedores acted negligently
 But D contended the damage to the ship was too remote
 That is, that this kind of damage was not foreseeable
 CA: As long as some kind of injury was a foreseeable result of the negligent act, D is liable for any
kind of injury that results
o The fact that the damage caused is different than expected is immaterial
o Rule: If a reasonable person can foresee that an act would cause damage, and the damage
caused is directly traceable to the negligent act, it does not matter that is not the exact kind of
damage expected.
 Scrutton LJ: "Once the act is negligent, the fact that its exact operation was not foreseen is
immaterial
o The fact that the knocking down of the planks produced an unexpected result does not relieve
the D from liability
o Foreseeability of actual extent of the damage suffered by P is not required
o Rather, just foreseeability of some damage
o If the damage is a direct consequence of (or traceable to) the negligent act, P can recover.
 BAD LAW: remember the injury that occurred must be foreseeable
 In sum [BAD]:
 If the injury suffered is directly traceable to the negligent act, recovery is possible
 It does not matter that sepcific injury was unlikely to occur
 So long as some harm is foreseeable, any harm directly traceable ......
 Recalls Ann

Wagon Mound, No. 1

 [CITE THIS FOR REMOTENESS]
 P, wharf owners, are carrying on welding operation
 D, an oil-burning vessel, leaks oil due to ship-owners' negligence
 Through discussions, everyone agrees oil CAN'T be lit on fire on water surface
 So, P (manager) keeps welding
 Some molten metal, wood and cotton cause a fire which destroys dock and several ships
 P And D agree this damage was NOT foreseeable (TJ Agreed)
 However, P suffered some other foreseeable damage
 Such as congealment of spilled oil on slipways
 Issue before PC: Was this type of damage remote and what is the proper test for remoteness?
 Directness (Re Polemis) or RF?
 Do we ask whether the fouling and congealment was:
o (a) directly traceable to the oil leakage; OR
o (b) a reasonably foreseeable consequence of the oil leakage?
 HELD: Foreseeability is the test for remoteness
o Re Polemis overturned
 VISCOUNT SIMONDS:
o The essential factor in determining liability is whether the damage is of such kind as the
reasonable man should have foreseen
o Damages suffered by P must be reasonably foreseeable
o Under Re Polemis, the negligent actor is held liable for "all consequences, however
unforeseeable" as long as direct (traceable to) negligent act
 Will lead to palpable injustice against the defendant
 Consider the following case:
 Ben and Jerry suffer some unforeseeable losses as a result of the Haagen-Dazs' negligence
 Ben also suffers some further foreseeable loss
o Should Ben recover for ALL losses then? Or just the foreseeable loss?
 It does not seem consonant with justice or morality that, for an act of negligence, which results in
some foreseeable damage, the actor should be liable for all consequences, however unforeseeable,
so long as the can be said to be direct
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Mustapha v Culligan
 [READ THE WHOLE CASE]
 P saw a dead fly in an unopened bottle of Culligan water
 Neither he nor his family members consumed the water
 Although all members of his family had consumed D's water for the last 15 years
 Mustapha became obsessed with what he had seen and with potential implications of past
consumption for his family's health
 He was diagnosed with major depressive disorder, with associated phobia and anxiety
 He freaked out majorly
 Trial decision: Reaction "objectively bizarre"
o But clearly foreseeable that supply of water with dead flies would cause P to suffer some
degree of nervous shock
o Awarded $80k in general damages, about $25k in past and future special damages and
$237,600 in past and future economic loss
 Culligan appealed to ONCA
o CA - Issue: whether defendant may be liable for damages for psychiatric harm where the harm,
by any objective measurement, consists of an exaggerated reaction by an obsessive person of
particular sensibilities to a relatively minor or trivial incident.
o CA/SCC: NO
 Culligan DID owe Mustapha a duty of care
 And the standard of care was indeed breached
 BUT, were the plaintiff's damages too remote to warrant recovery?
 Per WM #1: Was the actual harm reasonably foreseeable?
 No person of ordinary fortitude would have foreseeably suffered this kind of injury
from seeing flies in an unopened bottle of water
o But what if plaintiff had been diagnosed with and was being tx for severe OCD prior to the
incident?
 OR: your negligence results in a weight that won't furt a fly being dropped on me
 Turns out I am an acute hemophiliac (rare bleeding disorder that can damage organs and
tissues) and I suffer massive and severe internal injuries?
 Even less foreseeable
 Should not matter - too remote if we follow Mustapha
 Consider the following: The defendant is liable where plaintiff is unusually or
uniquely prone to an unusual or unpredictable degree of injury as a result of the
defendant's negligent act
 If defendant's negligence injures P with unique or unusual predisposition to
unforeseeable harm, then the defendant is liable

 Thin skull: Plaintiff with a proved vulnerability to an otherwise remote harm

 Ordinarily wouldn't affect anyone
 Disposition must be proved

Smith v Leech, Brain and Co

 Workers at D's plant must dip stuff into a molten metal bath from behind a small corrugated shield
 D's employee is splashed on the lip, resulting in a bad burn
 Burn becomes malignant, and he dies of cancer later
 Deceased employee was suffering from 'pre-malignant changes' prior to the incident due to the
nature of his job - burn was a promoting agent
 Family sued
 We have a physiological vulnerability or predisposition to injury (cancer, not burn)
 But cancer (and death) not really foreseeable as no defendant would have been aware of
vulnerability or predisposition to cancer.
 Is this specific type of injury (cancer/death) foreseeable?

25
 o Is it foreseeable that a small splash would case a burn that would in turn cause a lethal cancer
(and death)?
 HELD: WM #1 doesn't not apply to this type of fact pattern
 Did not address thin skull rule cases
 No proved predisposition to the harm suffered in WM1
 TSR: A tortfeasor takes his victim as he finds them
o It is not answer to negligence to say that the plaintiff:
 Would have suffered less injury (degree) or no injury at all (type)
 If the plaintiff did not have a thin skull ie vulnerability or predisposition that led to the
degree or type of injury suffered
 Nagging problem: the cancer and death are clearly not foreseeable - whether
viewed as specific types of injury or degrees of injury arising from burn.

Thin Skull Rule

 [A] tortfeasor takes his victim as he finds him/her
 It is no answer to negligence to say that the plaintiff:
o Would have suffered less injury (degree) or no injury at all;
o If the plaintiff did not have a 'thin skull' ie a vulnerability or predisposition that LED to the degree
or type of injury suffered
o Nagging problem: the cancer and death are clearly not foreseeable - whether viewed as
specific types of degrees of injury arising rom burn
 Lord Parker CJ:
 Burn was foreseeable
 Burn triggered cancer and eventual death
 The test is not whether these defendants could reasonably have foreseen that a burn would cause
cancer and that Smith would die
 The question is whether these defendants could reasonably foresee the type of injury which he
suffered, namely the burn
 What, in the particular case, if the amount of damages which he suffers as a result of that burn,
depends on the characteristics and constitution of that victim
 Burn was foreseeable and that's all that matters
 The extent of the injury caused by the burn is irrelevant
 Particularly so where the plaintiff's vulnerability or predisposition led to that degree of injury
 The rule is then: if the threshold injury is foreseeable, injuries that flow from it are irrelevant but only
as applies to thin skull plaintiffs
 Mustapha:
 Once a plaintiff has established the foreseeability of a mental injury would occur in a person of
ordinary fortitude - the defendant must take the plaintiff as it finds him for the purposes of damages
o Not a general rule
 If initial injury to the plaintiff is foreseeable, the defendant is liable for linked injuries that only arose
because the plaintiff has a thin skull, regardless of foreseeability
 Questions:
 Is the TSR too harsh on defendants?
o The ultimate consequence suffered by Smith (death) is disproportionate to threshold injury
(burn)
 What do you make of reduction of damages in Smith because the deceased might have developed
cancer without the burn?
o Crumbling skull rule: plaintiff had some signs of cancer - already a degree of cancer - if you
leave him alone he'll still get cancer but the burn exacerbated it
 Ought to then reduce damages since some of the harm already present
 Where plaintiff has an exacerbated rule then that plaintiff is still liable but damages
reduced to account for preexisting damage
 Genetic predisposition: thin skull rule
 Harm (cancer) must be present for CSR to apply

26
 Should the thin skull rule apply to cases where a plaintiff with depression prior to negligent act
commits suicide because unable to accept the threshold injury caused by negligent act?
 OGBOGU WILL TEST TSR/CSR AND DIFFERENCE
 Harm is already present, and defendant's negligence makes it worse. LESS damages and so favours
the defendant.

Cotic v Gray
 P, a man with history of mental problems, committed suicide after surviving car crash
 His mental condition deteriorated after the crash because of guilt feelings over the death of the negligent
driver and of his son
 Wife of P brought suit
 ONCA: TSR applies - P can recover
 Note: as a general rule, suicide by a normal and healthy individual would be an unforeseeable intervening
act distinct from negligent act
 In Cotic, suicide is a result of predisposition to depression and flows from the threshold injury.

Wright Estate v Davidson

 As a general rule, a victim who suffers aggravated damage because of a physical or mental
precondition will always recover, and his extended injuries will never be too remote, because the
possibility of a predisposition to injury is foreseeable as a class of harm
o The extent of injury need not be foreseen, only the type of injury.

Mechanics of the Accident

 How the accident happened can be relevant to remoteness analysis
 If injury suffered is foreseeable, does it matter that the manner in which it occurred is unforeseeable?
 Characterization NB as advocacy tool
 Morris, p 194
 All cases, for purposes of remoteness, fall within 3 categories
o (1) Typical, ordinary case
 Mr. Builder drops brick on Mr. Pedestrian, causing head injury
 Obviously foreseeable
o (2) Extraordinary case - freakish facts
 D left truck on highway at night without flares
 Car crashed into truck and caught fire
 Plaintiff rescues car occupants
 Hands gun on mat to husband to retrieve mat to pillow wife's head
 Husband, dazed and confused, shoots plaintiff
 Obviously unforeseeable
o (3) Everything in between - not ordinary or freakish - this is where mechanics really matter
 Result of remoteness analysis depends on description/characterization of facts
 A more general description of the facts is likely to yield conclusion that incident was
foreseeable
 Ex: Car A hits Car B - a spark from the collision ignited a gaswell on the side of the
road.
o Conversely, a more detailed description will likely yield finding that incident was unforeseeable
 Car A hit Car B at a speed of 30 km/hr
 Car A had a rare chrome bumper - most bumpers made of plastic materials
 Car B has a plastic bumper. But small bracket holding one taillight is made of combustible
metal
 Bracket flew off upon collision, past both cars, across 8ft wide trench and 15ft platform,
into 18in wide entrance to deep gaswell
 Ignites explosion in gaswell
 TWO lessons
 Advocacy skills as mush as knowledge of doctrine will help win cases
 The role of a good judge is to settle on a reasonable description of facts.
27
  Fair and just to both P and D
 Respectful of idea that liability is imposed for unreasonable risks, not every risk
Hughes v Lord Advocate
 Postal employees are working on cables located underground
 They open a manhole and are working below
 Hole is covered by a tarp tent surrounded with red paraffin warning lamps
 Employees take a tea break and leave manhole unattended
 Two kids prepare to descend into manhole, taking lamps with them
 One lamp knocked or dropped into manhole, went boom
 Plaintiff/appellant falls into manhole and suffers serious burns
 Mechanics of the accident
 Lamp fell and broke in manhole
 Paraffin escaped, vaporized
 Detonated by naked light of lamp
 Sessions: Mech of explosion, which caused the burning, was unforeseeable, so accident or injury was
unforeseeable. D not liable.
 HL reversed - defendant is liable
 Lord Reid: True, explosion/mechanics of accident not foreseeable - experts agreed
 Not clear if injuries were directly caused by explosion of by fire in manhole
 But injuries were caused mainly by burns, which were foreseeable
 Because it is foreseeable that if boys entered a dark tent, they would take the lamp with them
 And if lamp fell and broke, boys would be burned and injury may be serious
 Accident was caused by a known/foreseeable source of danger, but caused in a away which could not
have been foreseen - Mechanics of the accident
 Mech not important so long as the injury is foreseeable!!
 Unforeseeable mechanics (explosion) likely made the injury more serious
 But the risk of burning injury from a known source of danger - the lamp - was foreseeable
 It should not matter to recovery that damage was made more serious by unforeseeable events
 Lord Guest
 It is foreseeable that if you leave dangerous lamps in circumstances children would find alluring,
burning might occur
 It is not necessary that the precise details leading up to the accident should have been reasonable
foreseeable
 It is sufficient if the accident which occurred is of a type which should have been foreseeable by a
reasonably careful person
 The focus on mechanics of the explosion is misleading and based on fallacious reasoning
 Issue is whether igniting of paraffin and consequent burns was a foreseeable consequence in the
circumstances
 Immaterial that burning was caused by explosion from vaporized paraffin
 Could have been caused by contact between liquid paraffin and naked flame
 But who cares? Both are burning accidents and would lead to burning injuries.
 What matters is that burning was caused by a potentially dangerous paraffin lamp
 Left in circumstances that one can foresee that children would find alluring
 And if they play with the lamp, it is foreseeable that paraffin might spill and ignite
 And burning will occur
 Would the HL have reached the same result if the injury suffered was loss of hearing from explosion/
 Did the defendants breach the standard of care?
 Fairly deserted street - no nearby houses
 Tent over manhole, warning lamps, sides closed
 Removed ladder from manhole, never bothered by children before.
 Bottomline:
 It is sufficient to focus on the foreseeability of the source of harm suffered/type of harm
suffered
 If foreseeable, no need to examine the actual mechanics of the accident or precise course of
events that led to the accident.
28
Cf Daughty v Turner Manufacturing
 Asbestos cover falls into molten metal cauldron
 Nobody know immersion of cover posed danger, so nobody stepped away
 Only foreseeable risk was splashing, which did not occur
 Cover disintegrated upon immersion, causing explosion (not a foreseeable risk)
 Explosion ejected liquid from cauldron and injured P
 P argued even though the risk was unforeseeable, he should recover because
 Actual injury sustained (burning) was of the same kind as injury that would be sustained from
splashing
 If burning is foreseeable from the splash caused by lid slipping or being knocked over, then actual
mechanics by which his injury occurred (explosion) should not bar recovery
o Held: NO
 Reasoning
 Hughes dealt with foreseeable risk of dangerous allurement to children, which might cause them
burning
 P in Hughes was injured by foreseeable risk (potentially dangerous alluring situation) and suffered
foreseeable injury
 Accident and injury in Hughes was foreseeable, and did occur, even though it was made more
severe by unforeseeable events
 Here, the only foreseeable risk is splashing from inadvertent slipping or knocking into molten liquid.
 Take home point:
 Characterization of facts and damage in relation to risk is extremely important in remoteness analysis
 Keeton, p 190: degree of specificity vs degree of generality can have a significant impact
 Case in point: Jolley v Sutton London Borough Council (2000, HL)

Jolley v Sutton London Borough Council (2000, HL)

 Dilapidated boat was left abandoned for at least 2 years beside a block of flats on land owned by
defendant council
 Council aware of preserve of boat, but plans to remove it not implemented
 P and his friend, aged 14 and 13, started to repair boat
 Used a car jack and some wood to prop it up - boat fell off prop while boys were working on it and crushed
P
 Sustained serious spinal injuries, rendered paraplegic
 WB: For Plaintiff
 General characterization
 Presence of boat would attract children
 Boat posed two types of foreseeable risk
o (1) young children falling through
o (2) older children propping it up
 CA reversed
 Although reasonably foreseeable that children would play on boat and be injured, not foreseeable
that they would prop up the boat and be injured
o Narrow, more specific characterization
 Ogbogu likes this decision
o Asks: is the damage suffered foreseeable? Best characterization of the issue
 HL, for plaintiff
 Two rival descriptions of risk, but trial judge's characterization is better
o Does not say why
 Perhaps because if D had met standard of care, both specific and general risk would have
evaporated
 Cases show that in remoteness analysis, reasonable people can disagree
 In exam, argument and clarity of reasoning is important
 Analysis and conclusion should be well supported
 Apply the law as clearly as possible

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  Don't use mechanics if you don't need to - if it's clear that it's not a foreseeable accident,
don’t need to do a characterization
 EXAM may not have a clear yes/no answer

Novus Actus Interveniens - Breaking the Chain

 What if following D's negligent act, but before P suffers actual damage, something or someone triggers or
worsens the P's damage?
 Novus actus interveniens - new act intervenes - new intervening act
 A new act which intervenes between defendant's negligence and plaintiff's injury
 Complete defence
 Test is reasonable foreseeability!
 If intervening act is within the scope of foreseeable risk created by original defendant's negligence, that
defendant is still liable
 Hint: the more capable the intervening act is, the more likely it is to be deemed unforeseeable

Bradford v Kanellos (SCC, 1973)

 Gas grill in D's restaurant caught fire
 Extinguishers activated, producing hissing sound
 A patron heard hissing sound and yelled "GAS!"
 Panic ensures. P pushed or fell from her seat and was injured
 D argued that there may have been negligence with respect to cleanliness of grill
 But actions of hysterical third party were novus actus
 Trial: held for P
 Third party's actions were foreseeable
 Natural consequence of an emergency
 CA reversed
 Third party's actions were novus actus - broke chain of causation
 D could not have foreseen intervening acts
 SCC (Martland J) agreed
 Injuries not caused by D's negligent act, but by hysterical patron
 Not reasonably foreseeable, especially since hysterics resulted from proper functioning of fire
equipment, not the fire
 Laskin J dissented
 If was reasonably foreseeable that the stampede could happen if visible gas grill caught fire and
extinguisher went into operation
 Even if patron acted negligently (and not clear that he did), injury to P still foreseeable
 Reaction to hissing sound and gas grill on fire was natural/probably/ordinary consequence of original
negligent act
 Bottom line:
 Reasonable foreseeability is everywhere
o Characterization matters in remoteness/NAI analysis

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 Causation
 Standard of Care: Principles we rely on to characterize the actions of the defendant as negligence
 Duty of Care: How we assess defendant's legal responsibility for foreseeable risk posed to a class of
persons
 Remoteness: How we assess the foreseeability of specific kinds of injury
 Causation: Factual causation, or "cause in fact"
 Purely factual question of whether, the unreasonable risk created by D, as a matter of fact, caused the
injury suffered by P
 What connects the defendant's conduct to the plaintiff's injury
 Must show that defendant's conduct caused injury to plaintiff

 Two main rules to causation:

 (1) But for
o First and general rule
o Defendant is 100% to blame for what happened to plaintiff
o "But for" their actions then the damage wouldn't have occurred
o If that rule doesn't exist, be careful to put blame on defendant
o SCC: Don't need scientific precision for this to apply
 Prove on BOP that defendant is to blame. That there's only one person/thing
responsible
 (2) Material contribution
o The only exception to the "but for" rule
o Multiple defendants, all human beings, who are 100% to blame (no science needed) - then
you blame all of them
o Plaintiff has 2 choices
 Go against one of them - then defendant can sue the others for indemnity
 Sue all parties to blame - then they split
o Ex: 2 defendants and 1 non-human cause, then the rule will not apply
 Must be all human

 Note: Law students tend to seek causation. If you can't apply the BFR or MCR then there is no
causation - that's it.
 Terminology
 Do not confuse factual causation of cause in fact with remoteness/proximate cause/cause in law/legal
cause
 Factual causation deals with the simple question of what, in fact, occurred
o Pure factual inquiry into whether D's act caused P's injury
 The proximate cause/remoteness/case in law/legal cause inquiry is based on judgment/law, rather
than fact
 Assuming D's act factually caused P's injury, should D be legally liable for that injury?
o We dealt with question under 'remoteness'
 Bottom line:
 Cause in fact is a straightforward concept
 Requires that we simply link defendant's conduct with the plaintiff's injury
 Question: Did the defendant's conduct cause the plaintiff's injury?
 Not that simple!
 (1) Courts have struggle with what legal test to use in determining cause in fact
 (2) Evidence often unclear on what happened
o Especially where there are several possible causes, including D's negligence

 Proof of causation
 How do we determine cause in fact from the evidence? The "but for" test
 "But for" the defendant's negligence, would the plaintiff have suffered the injury?

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 o If no, defendant is liable
 P would not have suffered the injury without D's negligence
o If yes, defendant is NOT liable
 Then there would be some other cause
 P would have suffered the injury regardless of D's negligence
o "But for" test works well in vast majority of cases
 Example:
 D fails to stop at a red light at intersection. P is crossing intersection. D's vehicle hits P - P suffers
back injury.
 But for D's negligence in failing to stop at a red light, would P have suffered the back injury?
o Most likely not, so D's negligence caused P's back injury
 Issues
 In some situations, the but for test leads to the perverse result that there is no causation
 When, as a matter of common sense and or justice, it is quite clear that the act in question
contributed to the injury
 These situations have forced the counts to invent other tests for causation where necessary
 There are two main situations where this problem arises:
o (1) Pre-emptive causation
o (2) Duplicative causation
 Pre-Emptive Causation
 Theoretical problem - no case law
 Ex: P is just about to drink a cup of tea that X, third party, laced with poison. D fires gun negligently
and kills P
 But for D's negligence, would P have died?
 Yes - P would have died anyway through the fault of X - poisoned tea
 D merely pre-empted death by poison
 Duplicative causation
 D and X each independently start fires
 P's house is destroyed by the fire
 Not clear from evidence which fire triggered the destruction of P's house. Each fire, on its own, is
sufficient to destroy P's house. The "but for" test would result in no liability for D or X.
 But for D's negligence, damage to P's house would have occurred anyway, because of X's negligence
 But for X's negligence, damage to P's house would have also occurred, because of D's negligence

Barnett v Chelsea and Kensington Hospital Mgmt Comm

 Night watchman (P's spouse) and two co-workers drank tea around 5am. They became sick and went to
hospital when the day workers arrived. Nurse informed doc on call that patients were vomiting. Doc told
them to go home and did not admit or treat them. P's spouse died.
 Ruling and analysis
 Defendant D owed a duty of care and breached the standard of care
 But did the D's negligence cause the plaintiff's spouse's death?
 Evidence was that even if the P's spouse was admitted and treated properly, he would have died
anyway.
 Because it was not possible for him to have taken antidote on time
o Due to elapsed time spend waiting for day workers to arrive
o And regular procedures followed in such cases
 Neild J - evidence is significant - even if D had responded properly, there would not have been
enough time to save P's spouse. But for D's negligence, P's spouse would still have died, so NO
LIABILITY.
 Note: Doc's failure to admit/treat would have been cause in fact IF, AND ONLY IF, the P's spouse would not
have died without that failure.
 To figure out the "but for" test, ask:
o (1) What happened? P's spouse died.
o (2) What would have happened if the negligence is taken out of the picture?
 P's spouse would have been admitted and treated, but still would have died.

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 o Thus, since injury would have still occurred regardless of D's negligence, no causation and no
liability

 Duplicative causation: Where more than one party independently but concurrently cause the plaintiff's
damage
 Resulting in non liable under the "but for" test

Lambton v Mellish
 Nuisance case, but reasoning relevant (negligence wasn't well developed then)
 Two companies catering to visitors in common area by providing games, rides, organ music, etc
 This generated a lot of noise, which was found to be "maddening" and a nuisance
 D argued that noise can only be factual cause of nuisance if, and only if, the nuisance would not have
occurred but for their activities.
 That is, not liable because without the noise generated by them, P would have still suffered the nuisance
owing to other company's activities.
 Chitty J: If there are two or more tortfeasors, each aware of what the other is doing and each contributing to
the damage, each is liable in full

Corey v Havener
 P was riding his horse-drawn carriage
 Two defendants came up from behind on two loud and smoky motor tricycles which backfires as they
passed him
 P was injured as a result of the horse being startled
 Jury found both defendants contributed to P's injury
 But is the outcome defensible on the "but for" test?
 They would both escape under the BFR
 Court treated the two tortfeasors as one
 Where each defendant contributed to the plaintiff's injury
 Consider indemnity here
 Each being liable in full to the plaintiff
 Bottom line: notwithstanding the but for test, two or more tortfeasors who jointly or concurrently cause or
contribute to the plaintiff's injury are each fully liable for damages.

Natural cause + Tortious Cause

 What if one of the causes is a natural cause?
 A negligently pollutes river. River is also polluted by non-negligent circumstances, ie natural disaster.
Is A liable? A would argue that pollution would have occurred without her negligence.

Kingston v Chicago & NW Rwy [Suspect]

 Damage to P's property by united fire - from D's locomotive and unknown origin
 If, in situations of duplicative causation, one of the causes is a natural cause
 Then there is no causation and the tortfeasor will not be liable
 But the defendant must demonstrate that the other cause was a natural cause
o What happens if the other cause is of unknown origin?
 Doctrine doesn't apply
 Duplicative causation = causes occur contemporaneously or concurrently
 Wrap up: Where the defendant's negligence caused or materially (and concurrently contributed to the
plaintiff's injury, defendant is fully liable.
 Except where the defendant can demonstrate that the other contributing and concurrent cause was a
natural cause.
 What happens if the causes are not concurrent, but sequential?
 Two unrelated, sequential events cause damage to P
 Which defendant is liable?
 Independent intervening cause

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 But for D's negligence, would injury occur?
(1) NO - D 100% to blame for injury
(2) 2 or more Ds, 100% to blame for injury (Duplicative causation)
(3) D and unknown cause D to blame (Suspect rule)

 What happens if the causes are not concurrent, but sequential?

 Two unrelated, sequential events cause damage to P
 Which defendant is liable?
 Independent intervening cause

Sunrise Co v The Lake Winnipeg

 P's boat was grounded two consecutive times in unrelated accidents
 First grounding resulted from D's negligence
 After this accident, on way to anchorage area, boat was grounded again
 Either through owner's negligence or force of nature - not clear
 Each incident alone would have necessitated detention in dry dock for repairs
 Repairs for both incidents in dry dock was completed in 27 days
 Repairs for first incident alone would have taken 27 days
 Repairs for second incident alone would have taken 14 days
 Who is responsible for the loss of earnings resulting from the detention for 27 days?
 L'Heureux-Dubé:
 When you have two unrelated incidents which are sequential and which cause property damage, and
the first incident was sufficient to cause all of the loss, then the nature of the second incident or
cause (tortious or non-tortious) is irrelevant
 "No causal link between the second incident and the loss of profit suffered by the plaintiff"
 In such situation, the party who caused the first accident, D, bears full responsibility for the loss
 Regardless of whether or not the second accident was caused by the owner, a third party, or by no one
 Ask: What is the loss/injury here?
 McLachlin (dissenting): Restitutio in integrum
 Ogbogu: too focused on fairness, not causation
o This rule can be safely ignored
o Do not argue the dissent on an exam
 The purpose of damages is to restore P to position he would have been in but for D's tortious
conduct
 Where a second intervening incident necessitates repairs at the same time as repairs resulting from
the first incident
 A court can conclude that because the second incident would have put the ship out of commission
anyway
 The person who caused the first incident is not responsible for the entire loss
 Events which subsequently and independently diminish the loss caused by the first tortfeasor must
be reflected in damage awards
o We have to recognize the causal contribution of the second intervening cause
o This approach produces fairer results
o It is more generally applicable
o "It avoids intricate arguments about factors such as the order of accidents, their impact on the
use of the ship, and causation"
o The only question is how best to accomplish this
 Two approaches:
o (1) Full diminishment where second incident is a non-tortious cause
 Discount completely the loss occasioned by non-tortious cause
 D (who caused the first incident) is responsible for only the difference
 In the present case, P would recover for 13 days (27 less 14-day diminution for second
incident)
o (2) Pro rata apportionment
 Two causes of the detention and loss of earnings

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  D is solely responsible for 13 days of grounding
 D and subsequent cause responsible for 14 days
 Divide equally - 7 days each
 D responsible for 20 days

 Causation is not a question of fairness, but of fact

 A finding has to be made on causation before the question of damages
 Bottom line: First cause, full cause, full responsibility for loss
 What happens when the loss is a personal injury rather than property damage?
 Applying the "but for" rule to the facts of Sunrise Co
 Why? Two accidents in the case are not concurrent
 "But for" is the traditional rule (NO, so D is liable)
 But for the defendant's negligence (first accident), would the plaintiff have suffered damage (loss of
earnings for 27 days)
 But for the second accident, would the plaintiff have suffered damage (loss of earnings for 27 days)
o YES, because of D's negligence
o So, second incident is NOT a cause

Baker v Willoughby
 P sustained injury to leg and ankle due to D's negligence
 Sued for lost income
 Before trial, P shot in attempted robbery and sustained injury to already injured leg
 Leg had to be amputated
 D argued he was not liable for lost income after the date of robbery
 HL: NO. D's negligence and robbery were concurrent causes of the loss of income flowing from
independent intervening event (robbery)
 Injury of the leg still remained after the robbery
 D is responsible for the value of the losses after the date of robbery caused by him

Cf...

Jobling v Associated Dairy

 P suffered back injury due to D's negligence - could only engage in 'light work'
 Before trial, suffers from a spinal disease unrelated to initial accident (independent intervening event),
which resulted in total incapacity to work
 No signs or symptoms of disease at the time of accident
 Issue: Is D responsible for lost earnings for partial incapacity for the rest of P's working life OR only up until
the time that disease resulted in total incapacity?
 Lord Keith: If independent intervening event is non-tortious, D remains liable
 Ogbogu: grossly unfair
o Might end up cutting off the defendant if you apply the "but for" rule
o Don't forget about the BFR
o Exam: BFR is the rule he wants to see
 However, D's liability for damages should be reduced to account for loss of income flowing from non-
tortious independent intervening event.
 This approach accords with the principle that tort law compensation should return P to the original position
prior to or absent D's negligence
 P would have suffered the disease anyway
 By making D pay for the ongoing losses less losses linked to non-tortious intervening cause, P is returned
to original position
 Making D responsible fully for ongoing losses without reduction will make P's position better than the
original position
 If the intervening event is tortious, as in Baker, D is also liable for ongoing losses less contribution of
second tortfeasor
 D cannot say second tortfeasor is solely responsible for loss flowing from independent intervening event
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 Because it is unfair to impose full liability for independent intervening event on second tortfeasor without
recognizing P was already injured to some extent by D (first tortfeasor)
 Both tortfeasors are jointly liable for total loss after or flowing from independent intervening event
 If D alone is sued by P, he is responsible for position of total loss after or flowing from independent
intervening event
 That portion cannot be reduced or eliminated by the fact that a second tort (independent intervening event)
occurred.

Apportionment of loss among causes - Athey v Leonati

 P suffered back injuries in two successive MVAs
 Soon after he experienced disc herniation during a mild stretching exercise
 Herniation caused by combination of injuries from two MVAs and pre-existing condition
 Cause #1 - MVAs - Tortious
 Cause #2 - Pre-existing condition - Non-tortious
 Trial Judge:
 Herniation caused by combination of MVAs (25%) and pre-existing condition (75%)
 Sidenote: why is pre-existing condition relevant in this case?
 Why not just apply the TSR and hold responsible for the whole thing?
 NB: because TRS is a remoteness rule and not a rule of causation
 In the remoteness doctrine, we disregard pre-existing conditions in determining whether the P's injury is
too remote
 That is, the fact that P has a pre-existing condition that exacerbated or triggered her injury and which may
not be foreseeable is irrelevant in det whether that injury is remote or not
 Here we are asking whether the pre-existing condition, as a factual matter, actually caused the injury
 And if it did, should the courts apportion some of the losses to the pre-existing condition?
 Or conversely, should damages for the tortious case (MVAs) be reduced to account for causality
linked to pre-existing condition?
 SCC (Major J): NO
 We will not apportion losses between tortious and non-tortious contributing causes
 If D's negligence is cause of injury, presence of non-tortious contributing causes will not reduce D's
liability
 Because this will result in P not receiving full compensation
 This case should be distinguished from other situations where apportionment is possible:
o (1) multiple tortious causes: Each D is liable in full and can seek contribution and indemnity
from one another
o (2) Divisible injuries: separate and distinct injuries not true apportionment - each D liable on but
for rule
o (3) Independent Intervening Events: non-tortious event is sequential to or occurs after tortious
event
 Failing to apportion or account for IIEs in reducing D's damages will make P's position
better than the original one (Baker, Jobling)
 Disc herniation in present case is not independent intervening event
 It is the product of tortious and non-tortious events
 The pre-existing condition is not a sequential or independent intervening event either
o (4) "Crumbling Skull" rule: Respondent's strongest submission
 Applies where a pre-existing condition is inherent in the plaintiff's original position
 That is, P's original position includes the pre-existing condition which would have
detrimentally affected P anyway
 Any compensation that does not discount the future (foreseeable) measurable risk and
effects of the pre-existing condition will put P in a position better than the original position
 Therefore, D's liability ought to be reduced to account for the measurable risk of the pre-
existing condition.
 Different from the TSR
 D is not arguing that the injury (disc herniation) was made worse or triggered by a
pre-existing condition
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  And that as such the injury or the extent of it unforeseeable or too remote
 Rather, that the pre-existing condition is part of the plaintiff's 'original position' and a
factual cause
 And therefore, while D is responsible for the injuries, his liability should be reduced
to account for the 'other factual cause' so as not to make P better off than the
original position
 SCC: Good argument, but does not apply here because trial court didn't find that
there was a measurable risk that the injury would have occurred without MVAs
o (5) Loss of Chance
 Conclusion
 Where D's negligence caused or materially contributed to the plaintiff's injury, the defendant is fully
liable
 Defendant can't escape liability by pointing to another contributory or intervening cause (tortious or
non-tortious), unless it is a natural cause
 However, damages owed by D can be reduced where:
o The injury to P would have resulted from a pre-existing condition which existed before the
defendant's negligence (CSR)
o A non-tortious independent intervening event occurs after the defendant's negligence, which
affects or worsens P's original position.
 Courts will not apportion losses between causes

Factual Uncertainty
 What happens in cases where the courts are unable to make a finding of fact about what actually caused
the accident
 Not a question of which cause to blame, but who or what in fact caused the accident
 Evidence is inconclusive
 Even scientists cannot provide answers
 Or the events are such that we don't know exactly what happened

Cook v Lewis
 Defendants, Cook and Akenhead, were hunting in a hunter-infested area of Quisnam Lake
 Turns out it was Lewis
 Seriously injured, lost an eye
 Jury was unable to return a verdict because impossible to tell which D hit the plaintiff
 But for test is not applicable
 Should the court impose liability on both, one, or none of them?
 On BOP, was each D's negligence a 'cause in fact'?
 Court: both Defendants are liable, but slightly different reasons
 Cartwright J, Majority
 If all A can prove is that he was injured by EITHER B or C, but is unable to establish who among B or
C caused the injury, then the action, absent special circumstances, must fail
 Special circumstances
o Here, P can demonstrate special circumstances
o P argued that Ds were in a 'joint enterprise' (recognized exception)
o Merely sharing the spoils of a hunt does not make a person liable for the fault of another
o Ds liable because they are in a better position to tender evidence as to who really is the guilty
party
o If they cannot or will not exculpate themselves because each was blameworthy, they will both
be liable
 Reversed the burden of proof
 This way, P not left without a remedy
 Ogbogu: Terrible rule of law - we rarely reverse the burden of proof
o Defendants should not be required to prove their own innocence in this case
o Bad law - later overturned
 Rand J, concurring

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  Ds breached the SOC in shooting negligently
 In doing so, they wrongly and foreseeably interfered with the plaintiff's ability to prove cause-in-fact
and obtain a remedy
 The latter wrong - foreseeably impairing P's ability to prove factual causation, shifts the onus of
proof or legal burden
 D must then disprove cause-in-fact and is liable if unable or impossible to do so
 Locke J, dissenting [GOOD]
 P could not prove who shot him - end of story
 What is the difference between the two majority judgments?
 Cartwright: Evidentiary rationale
o Ds are more likely than P to know what happened, so burden shifts to them
 Rand J - Rights rationale
o Right to bodily integrity gives rise to a right to remedy
o Right to bodily integrity includes within it the means to vindicate the right
o If you interfere with the means of vindication (by making it impossible to prove causation), then
you have interfered with the right itself
 Bottom line:
 In special circumstances involving factual uncertainty, courts would shift the burden of proving factual
causation
o Facts similar to Cook v Lewis
o Perhaps where the rights or evidentiary rationales apply?
o But can we really modify conventional causation rules in this manner (ie simple to ease the P's
burden of proof)
o Remember on exam: just apply the law.

Sindell v Abbott Laboratories

 P develops cancer and pre-cancerous lesion from drug (DES) ingested by mom during pregnancy to
prevent miscarriage
 Drug manufactured by over 200 companies - impossible to say which one made he dose ingested by mom
 Ds were six manufacturers with 90% of the market share
 They moved to strike claim on the basis that P can't prove causation
 Court held for plaintiff
 Weird! No way to find them liable - here we have 200 people! Causation by market share, which
makes NO SENSE
 Reasons: Where P knows the type of drug but not the manufacturer, special considerations arise
 The main bar to recovery is an old Common Law rule that says that for the burden of proof to be shifted to
Ds, all potential Ds must be before the court
 This rule would require 194 additional defendants with a market share of 10%
o For tort law and product liability to make any sense, we need to eliminate this rule
 Rule: if P sued enough manufacturers such that their combined market share is a substantial
percentage, burden shifts to Ds to disprove causation
 Tendency to shift to support the plaintiff
 In this case, there is really no way - the six manufacturers shouldn't even be in court! Simply
causation on the bases that they have big shares
 If Ds cannot disprove causation (by showing who made the DES in question), causation will be assumed
to be proportion of their market share
 This case makes no sense
 Dissent
 P's reasoning: None of these manufacturers injured me, but each of them almost certainly injured
someone
 Approach taken by majority to resolving this problem is not tort law
 It resembles the 'deep pockets' theory of liability
 But wealth cannot be equated with causation
 We cannot have one rule for the rich and another for the poor
 Market share is, in fact, not a stable thing

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  More like deep pockets where it should be causation

In Canada and other Commonwealth courts:

McGhee v National Coal Board

 P is covered in coal dust and sweat (non-negligently) at work
 No showers provided at work, so has to ride bike home to wash off
 Developed dermatitis
 Alleged negligence was employer's failure to provide adequate shower facilities
 Plaintiff: could not be determined on medical evidence if the delay in washing off dust contributed to the
disease
 All that could be said was that the exposure created risk of dermatitis
 P could not prove dust was the specific cause
 Unclear if he would not have developed dermatitis if showers were provided at work
 Court: Causation is proved
o Again, has gone against the 'but for' rule
 Lords Reid and Simon: Inference of causation
 Where the D materially contributed to or increased the risk of the injury occurring, we can conclude
that the D contributed in fact to the injury
 So P just has to prove that D increased the risk of injury
 This rule would have very broad implications
 Lord Wilberforce: Reverse the burden of proof
 Burden shifts to the tortfeasor who created a risk that led to the expected injury to show some other
cause
 Or face liability
 Which option is better?
 The approach taken by Wilberforce makes causation a redundant in cases of factual uncertainty
 If there is factual uncertainty, P does not have to prove causation at all
 Wilberforce's approach held sway in the Commonwealth until Wilsher v Essex Area Health Authority

Wilsher v Essex Area Health Authority

 In Wilsher, HL affirmed McGhee but followed Lord Reid's inference of causation principle
 Inference of causation can be drawn where D materially contributed to or increased risk of the injury
suffered
 In Wilsher, inference not made
 Med mal case involving a preterm baby born with O2 deficiency
 Catheter was twice inserted into a vein, rather than an artery, and baby was given excess oxygen
 Baby developed incurable retinal condition and eventually became blind
 Could have been caused by the excess O2, or 5 other conditions associated with preterm birth
 Evidence inconclusive
 Degree of uncertainty did not permit drawing an inference of causation

Fairchild v Glenhaven Funeral Services

 Some Lords affirmed McGhee per Lord Reid
 Others developed "new" principle
 Bottom Line in Fairchild:
 Where the cause of the injury/disease is scientifically uncertain:
o P need not prove that the defendant's tortious conduct caused her injury
 Essentially a restatement of McGhee, per Reid
o Rather, P only has to prove that the defendant materially contributed to the risk of the injury
suffered by her

Factual Uncertainty
 Cook: "But for" applies, except in special circumstances (undefined)
 Two approaches: you shift the burden to D if an evidentiary or rights rationale exists
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 Sindell: reverse onus is sometimes applied to eliminate need to prove causation
 McGhee, per Reid: if D materially contributed to risk of injury that occurred, draw an inference of
causation
 McGhee, per Wilberforce: if D materially contributed, then reverse the burden of proof
 Fairchild: P simply has to prove that D materially contributed to risk of injury that occurred

 ALL THESE CASES SUCK

Canadian Approach
 Snell v Farrell
 Resurfice Corp v Hanke
 Clements v Clements

Snell v Farrell
 P was undergoing cataract surgery
 Developed retrobublar bleeding
 Surgeon noticed outward signs of bleeding, but continued with the operation
 9 months later, when blood in vitreous chamber cleared, surgeon was able to see that optic nerve had
atrophied - resulted in loss of sight
 Experts testified at trial that when such bleeding occurs, operation should be stopped
 Breach of SOC
 But that there are many causes for the atrophied condition, including P's comorbidities
 High blood pressure and diabetes are potential non-negligent causes
 None of the experts could say what caused the atrophy - complete uncertainty
 She had high BP and also diabetes
 TJ applied Wilberforce in McGhee to rule in favour of P
 P has shown that D's negligence created a material risk of a type of injury which then occurred, so burden
of disproof shifts to D
 SCC:
 Issue: what is the correct standard of proof of causation where we have factual uncertainty between
a negligent and non-negligent cause?
o Answer: The traditional "BUT FOR" test, although based upon common sense inferences
from the evidence
 Sopinka J:
o Basic rule of evidence is that onus is on the party who asserts a proposition to prove it
o However, where the subject matter lies particularly within the knowledge of one party, that party
may be required to prove it
o However, those circumstances don't exist in factual uncertainty cases - no reverse onus of
proof
o The traditional test actually applies in these types of cases
 Good, but then they confuse it
o If you don't apply it too rigidly
o Causation doesn't require scientific certainty, just a common sense approach
o A common sense approach allows courts the room to make common sense inferences
o Which obviates the need for reverse onus
 P's evidence may be limited, but if it is consistent with our intuitions, then there is a prima facie
inference of causation
o D will need to present evidence to rebut the inference of causation
o Failure to do so will result in having the adverse inferences drawn against him
 Inference can be drawn even where scientific proof has not been adduced
o Consistent with balance of probabilities
 Bottom Line:
o Inference of causation: finder of fact can take a robust and common sense view of the facts
 Can still find causation this way
 Applying rule to Snell, finder of fact drew a common sense inference
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  By concluding that it was more likely that the injury was a result of the negligence
 It does not matter that medical evidence did not go far enough as to support inference
 It is possible to draw inference while giving due regard to available medical evidence
 Especially since the med evidence did not contradict the inference
 TJ reached the right result, but applied the wrong test
 In essence, standard of proof is not certainty, but balance of probabilities
 This case is also wrong

Resurfice Corp v Hanke [NEVER BRING THIS UP]

 P is Hanke - injured when water hose was placed into gasoline tank rather than adjacent water tank of
Zamboni
 Mixture of water and gasoline led to the release of vaporized gasoline into the air in the arena
 Gas ignited by overhead heater, causing explosion and fire
 P severely burned
 P received WCB no-fault benefits
 Alberta WCB commenced subrogation action against manufacturer of ice-resurfacing machine, alleging
design defects - D should not have put water tank next to the gas tank
 Similarity of appearance caused confusion, which was the cause-in-fact of the accident
 Trial judge ruled cause was P's dreadful mistake of operating machine after having observed hose in gas
tank
 CA reversed
 SCC restored trial judgment based on finding of fact that the design defects did not confuse P and so did
not cause his injuries
 End of story!
 McLachlin, in obiter, continues re treatment of causal uncertainty
 Basic test is the but for test, even for multi-cause injuries
 Never been displaced - remains the fundamental test
 In special circumstances, a material contribution test is used instead
 [special exception]
 Where it is impossible for the P to prove causation using the but for test; and
o (Problem: if it's impossible to prove causation using the BFT, then no causation!)
 The D breached a duty of care owed to P, thereby exposing P to unreasonable risk of injury, and P
suffered from that injury
 (looks a lot like McGhee)
 Applying but for test to deny liability would offend basic notions of fairness and justice
 So while in Snell, the court opted for the inference of causation
 McLachlin brought in material contribution as a way to estimate causation
 No need for an inference - causation is estimated if D materially contributed to risk
 But is proving a contribution to risk the same as proving cause of actual harm or contribution to actual
harm?
 McLachlin's obiter means that P does nto have to prove causation in cases of factual uncertainty
 But merely that D contributed materially to a risk of the injury that occurred
 This is, in fact, something P has to prove under standard of care - D failed to take reasonable care
and created a risk of injury which materialized
 McLachlin destroyed causation in factual uncertainty...

Clements v Clements
 Ms. Clements was riding pillion on a motorcycle driven by Mr. Clements
 Motorcycle 100lbs overload (negligent act)
 Nail punctured rear tire
 When D accelerated to pass another vehicle, nail fell out, tire deflated rapidly, and motorcycle began to
wobble
 Mr. Clements was able to slow down, but not enough to regain control
 Or to permit him and Ms. Clements to get off without significant injury
 Crashed, Ms. C thrown off
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 Ms. C sustained severe traumatic brain injuries; sues, through litigation guardian
 For insurance purposes
 Mr. Clements didn't dispute he was negligent driving an overloaded bike too fast
 Issue was whether his negligence caused Ms. C's injury, or tire puncture and deflation
 Factual uncertainty
 TJ: invoked material contribution test as in Resurfice
 Impossible for P to prove causation on BFT, D materially contributed to P's injury
 CA reversed on the basis that the 'but for' test not satisfied - material contribution didn't apply
 Here we have a tort cause, and a non-tortious cause
 We don't recognize this as being
 SCC, per McLachlin
 Basic rule is the BFT - scientific proof or precision not required - TJ can take robust and pragmatic
view of the facts
 As an exception, P may succeed by showing D's conduct materially contributed to the risk of P's injury
 But there is a need to flesh out the 'impossibility' criterion for the latter rule
 Material contribution rule applies, where:
o P has established that her injury would not have occurred "but for" the negligence of two or more
tortfeasors
o Each possibility in fact responsible for the injury, and
o P is unable to show, through no fault of hers, that any of them is the "but for" cause
 Basically, material contribution thing only applies in Cook v Lewis type situations
 Hold D liable for material contribution without evidentiary or rights rationale
 McLachlin ordered a new trial because TJ committed two errors:
 Required scientific proof of "but for" causation
 Followed her obiter in Resurfice by applying material contribution to risk test in a case that did not
involve the fact pattern she just invented

On an Exam
 Begin with or use the BFT (Barnett, Clements)
 Unless case involves joint tortfeasors or multiple causes contributing to P's harm
 If joint multiple tortfeasors, use material contribution test (Corey)
 Can sue just one D, and they'll seek indemnity, or you can sue them all and apportion
 If one cause is negligent and the other is natural cause, no causation (Kingston)
 If first cause is negligent and responsible for full loss, second subsequent cause (whether tortious or
not) is irrelevant (Sunrise Co)
 First cause, full cause
 If the first cause remains concurrent cause together with a second tortious intervening cause, first D
remains liable for losses linked to her negligence (Baker; Jobling)
 If first cause is negligent and second intervening cause is innocent, latter can be taken into
account in damages against first D, ie apportionment (Jobling)
 If one cause is negligent and the other is non-tortious, negligent D is fully liable (Athey)
 No apportionment
 Bad rule: inconsistent with Kingston and the BFR
o Take away: do not apportion losses between causes
o Thinks Athey should have been decided on the BFR
 If there is factual uncertainty, and one of the possible causes is negligent, draw an inference that the
alleged negligence caused the actual harm by taking a robust and pragmatic view of all the facts
(Snell, Clements, McGhee (Reid))
 If multiple possible causes, all negligent, asses multiple contribution to risk of injury

Loss of Chance [not on exam, doesn't apply in Canada]

 Knee injury - full recovery, 40%
 60% chance you'll never recover, regardless of negligence
 Negligence hurts knee

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  Can sue for the 40% chance of recovery
 Typically in negligence, seek to restore to 100% state
 Where D claims I have a 40% chance of recovery - not enough to satisfy the but for rule
 But for D's negligence you might not have recovered (?) kind of weird rule

Defenses to Negligence Claims

 What actions of the plaintiff might disqualify or limit her recovery?

 Three defenses
 (1) Contributory Negligence
 (2) Voluntary Assumption of Risk
 (3) Illegality

Contributory Negligence
 Plaintiff's failure to take reasonable care for her own safety
 Which contributes to the accident or her loss/damage [very important - if you skip it, you have not
done the full analysis]
 Partial defense
 D remains liable
 Absolves D of liability to the extent of P's contribution
 Contributory Negligence Act, RSA 2000 C-27
 Just codifies the common law
 Apportionment of liability - s 1
 When by fault of 2 or more persons damage or loss is caused to one or more of them, the liability to
make good the damage or loss is in proportion to the degree in which each person was at fault
 But if, having regard to all the circumstances of the case, it is not possible to establish different
degrees of fault, the liability shall be apportioned equally

Voluntary Assumption of Risk

 Plaintiff is taken to have consented to the risk of harm generated by the defendant's negligence
 Volenti non fit injuria
 Full defense

Illegality
 Ex turpi causa non oritur actio
 Out of a base cause, no action can arise
 Plaintiff engaged in illegal conduct in the course of suffering damage should not be permitted to recover
 You break into someone's house, then fall down a flight of stairs in state of disrepair
 Complete defense

Contributory Negligence

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 Butterfield v Forrester (KB 1809)
 D obstructed highway with a pole while making repairs to his home
 P left the public house at duck, on his horse
 Which he was riding 'violently' (not intoxicated...?)
 Struck the obstruction, was thrown from his horse and was seriously injured
 Witness said he would have seen the obstruction if riding the horse slower
 TJ instructed jury that if P could have avoided the obstruction by taking reasonable care, they should find
for D
 Was this instruction correct?
 Bayley J: Yes. P was riding too fast and hey would not have been hurt if he employed ordinary car
 Lord Ellenborough: P should not be able to take advantage of another's fault if he fails to use ordinary
care
 Complete defence approach no longer the case
 Liability is apportioned

Davis v Mann (Exch 1842)

 D driving at a smartish pace - negligently ran over and killed P's donkey
 Argued that P was also negligent tor tying the donkey facing highway with forefeet 'fettered'
 Court held not CN because D could have avoided injuring the donkey if he had exercised proper care
 Parke B: "Although the ass may have been wrongfully there, still the defendant was bound to take actions
to prevent mischief"
 No negligence on the part of the D - P should have avoided the accident to begin with
 Donkey did not cause injury - D's negligent driving did
 To be contibutorily negligent, P's negligence must be causative of the injury
 Last clear chance rule
 This Act applies if damage is caused or contributed to by the act or omission of a person, whether or
not another person had the opportunity of avoiding the consequences of that act or omission and
failed to do so
 You didn't take the one last clear chance to avoid injury, so no liability
o This rule has been done away with by the contributory negligence act
o Last clear chance rule is no longer valid
 Section 3.1 (or around there)
 Think about it - still negligent right?
 CN is negligent conduct by plaintiff, which contributes not merely to the accident, but to the damage

Froome v Butcher (ECA 1975)

 P driving at speed limit, but not wearing seatbelt
 Head on collision with D, who was passing illegally
 P suffered injuries to his ribs, and a broken finger
 Finger injury could not have been prevented by wearing seatbelt
 Not about what caused the accident, but what caused the damage
 P testified he did not wear seatbelt because he thought he was better served by being thrown from car
 Not necessary if you're driving in good conditions below the speed limit
 TJ awarded £450 and would have reduced award by 10% if required to do so
 Should damages be reduced for failing to wear seatbelt? YES
 P argued that D caused the accident, not his failure to wear seatbelt
o NO
 Question is not what caused the accident, but what caused the damage
 Both the accident and failure to wear seatbelt caused the damage
 Not a criminal offence to fail to wear seatbelt
 No criminal liability does not amount to immunity to civil liability
 Personal autonomy?
o If I honestly believe it is safer to not wear a seatbelt, why should the law interfere?
 Standard of care is not subjective, but objective
 Forgetfulness? Sorry. Too bad. Also negligence
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 o Wearing a seatbelt is the sensible thing to do
 What share of liability should fall to the plaintiff?
 If failure to wear a seatbelt made no difference, no contribution, no reduction of damages
 If failure made all the difference, then 25% reduction
 If failure made considerable difference, then 15% reduction

Lewis Klar
 How about a parent who fails to ensure young child is wearing belt or properly buckled in?
 In Canadian seat belt cases, courts all over
 Failure to wear seatbelt generally unreasonable
 But sometimes, accept flimsy excuses that run counter to Froome
 Should a legislative requirement to wear seatbelts be determinative in such cases?
 No - think to statutory breach - should not be determinative
 How about a parent who fails to ensure young child is wearing belt or properly buckled in?
 Sue mom and the guy who caused injury

Voluntary Assumption of Risk

 Arises where P is taken to have consented to risk of harm generated by D's negligence
 Used to be a very broad defence
 Merely exposing oneself to a known risk of another's negligence was enough
 Now, more restricted and difficult to establish
 SCC: D must prove an agreement, whether express or by implication, whereby P has consented to
accept both the physical and legal risk of the injury from D's negligence
 Physical risk: actual physical harm that would occur
 Legal risk: waive right to sue/bring an action
 If there's a risk and P accepted that risk
 Drunk friend, get into car asking for a ride - that's volenti
 Also CN though (partial defence)

Dube v Labar (SCC 1986)

 P and D, friends, were on all day binge drinking
 Driving back from Whitehorse, they stop to pick up hitchhikers (P driving)
 Car stalls
 After brief exchange, P and D switch places
 Car flips, P is injured
 D argued volenti, inter alia
 Jury accepted defence, Yukon CA upheld
 SCC upheld jury verdict, but restricted the scope of the defence
 D must show that P, knowing of the virtual/certain risk of harm (knowledge of physical risk)
 Bargained away her legal right to se for injuries incurred as a result of D's negligence (knowledge of
legal risk)
 Acceptance of risk may be express or implied from the conduct of the parties
 But requires understanding on part of both parties that D assumed no responsibility of P, and P
agreed to this
 P must have an understanding!
 Must highlight or point out the clause waiving legal right
 Volenti likely inapplicable in vast majority of drunk driving or willing passenger cases
 Lack of awareness
 CN still an option!

Crocker v Sundance Northwest Resorts Ltd (SCC 1988)

 Grossly intoxicated P participated in inner tube race down a mogul rain on a ski hill
 Seriously injured
 Ignored advice from D to withdraw from race
 D argued volenti
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 Court: given P's level of intoxication, he could not have appreciated and accepted physical or legal
risk of injury
 No volenti, but 25% contributory negligence

Waivers and Volenti

 Frequently used in commercial, sporting and recreational events
 Validity usually determined by applying the law of contract
 Not enforceable unless reasonable notice was given to P of its terms
 Issue: irrespective of a waiver's significance in contract law, does it lend support to a volenti defence?
 In Crocker, SCC refused to enforce waiver
 Because P did not read it and thought it was just part of form to enter race
 So it was void
Cf Dyck v Manitoba Snowmobiling Assoc. Inc (SCC 1985)
 P snowmobiler, crashed his machine at a race sponsored by D
 Signed waiver gave rise to a volenti defence
 How do we reconcile these cases?
o P in Dyck had read the waiver and had better understanding of its terms?
o But did he have a clear understanding of what the waiver really meant?
 Arguable he didn't have an understanding of what the waiver meant
o Bottom line: For a waiver to apply, there must be reasonable notice and clear
understanding (and acceptance) of its terms
 Make sure to give people the opportunity to read the waiver, draw attention to important provisions
 Good way to do it in two forms - waiver and forms saying "I have read and understand the waiver,
and will sign the waiver"

Labelling
 Is the warning on a product label sufficient to allow a manufacturer to say that user voluntarily accepted
the physical and legal risks of product

Lambert v Lastoplex (SCC 1971)

 Manufacturers have a duty to warn consumers of dangers inherent in use of their products
 Applicable standard of care is to take reasonable steps to provide warnings that allow product to be used
safely
 Nature and extent of warning required depends mainly upon the nature and degree of danger posed by
product
 P, engineer, using a special fast-drying lacquer to seal the floors of the basement
 Fact that engineer, D contends, is NB because of work standards
 Furnace, in adjacent room, had a pilot light
o Fire - P tried to exit but explosion caused burns and property damage
 Lacquer came with a warning label that substance should be kept away from open flames and high heat -
very general warning
 Competing product had much more specific warning
 Risk of explosion/fire from pilot lights and light switches
 High danger, need a specific warning!
 TJ: for P, no volenti or CN
 CA: for D, volenti
 SCC: For P, full recovery
 Judgment principally fully focused on duty to warn
o Have to provide enough warning commensurate with the product
 Duty requires explicit disclosure from manufacturer
 Because of failure to warn, D can't argue volenti
 That is, D had to prove that P appreciated/understood the (legal and physical) risk of leaving pilot on,
and willingly took that risk
 Without proper warning, knowledge of that risk can't be established
o Irrelevant of if he's engineer or not
46
  No proper warning or failure to warn, no volenti
 No CN either, even though P had some special knowledge, at least in general terms of inherent
dangers
o Fact that he was an engineer, without more, is not enough to make him contributory negligent

Illegality
 Ex turpi causa non oritur actio
 Out of a base cause, no action can arise
 Plaintiff engaged in illegal conduct in the course of suffering damage should not be permitted to recover
 You break into someone's house, then fall down a flight of stairs in state of disrepair
 Complete defense
 Also restricted considerably over time

Hall v Hebert (SCC, 1993)

 P and D, young gentlemen, spent the evening drinking lots, including in a field, into the early hours of the
morning
 They then take a drive in a 'souped up muscle car' down the road that was so bumpy that the keys fell out
of the ignition
 D turned the car around and suggested that they do a 'rolling start' - P asked if he could drive, D agrees
 P tries to jump start vehicle, but gives it too much gas
 Car goes off the road into a gravel pit, landing upside down
 P sustains significant head injuries; sues D alleging various acts of negligence
 D argues ex turpi - accident happened in the course of committing illegal act
 Trial judge - ex turpi does not apply
 Only crime jointly (?) committed was drinking in a public place, and that was not causative of damage
 What matters is what P was doing at the time of damage
 P was operating vehicle under the influence of alcohol
 CA (five justices, unanimous judgment)
 Ex turpi applies
 SCC reversed and restricted doctrine
 Cory J [treat as minority judgment]
 Focuses on second arm of Anns test - question best dealt with as part of public policy inquiry
 Basically tried moving this to duty of care analysis
o ehhh
 Public policy does not bar the plaintiff's recovery
 Permitting his recovery would not shock the conscience of right-thinking members of society fully
apprised of facts!
o The doctrine of ex turpi causa should be eliminated from application to tort cases
 Illegality should be just another factor examined under the second branch of Anns
o Ask: as a matter of public policy, should the illegality of the P's conduct disentitle him or her
from recovery?
o Case at bar - no
o Does the illegality then mean that D owes no duty of care?
o Will this shock the conscience of the public? Is liability excused?
 McLachlin J [follow this one]
 Traditionally, basis of illegality rule is to prevent a person from profiting from his/her wrong (ex:
murderer collecting on life insurance)
 If this is the basis of the rule, then it should have little impact on tort law, because tort law is
compensatory
o The only damages we should disallow are those that would lead to a windfall or profit
 Has to make the plaintiff better than they were at the beginning
 P should be able to recover if not
o Few classic exceptions
 (1) claim for damages for lost earnings based on illegal profession or activity

47
  (2) Bar to recovery where a claim for exemplary damages might otherwise be granted - no
windfall damages
o Exemplary damages - damages against the defendant for egregious conduct to make an
example/punish the D
 No role for ex turpi besides these exceptions
 Claim in tort law is generally not a claim to a profit
 Rather, for compensation, aims to restore P to original position
 Traditional rationale - to prevent persons from profiting from wrong - does not apply to tort law -
except for the exceptions above
 Profit as a term is too ambiguous
o Better explanation is that doctrine would apply where allowing recovery would introduce
inconsistency in tort law
o Law must aspire to be unified, coherent, with all parts in harmony
o This need to internal coherence demands a bar to recovery for that which is illegal
o That is, for that which violates another part of the law
o This is why tort law allows a defence of illegality - to protect the legal system from incoherence
o Ex: P caught committing burglary due to negligence of fellow criminal cannot successfully
recover cost of imposed fine
o Because this allows criminal P to off-load punishment that society has deemed he should
receive
o What type of analysis will best achieve the purpose of protecting the legal system from
incoherence?
 Cory J: matter of public policy determined in the duty inquiry per Anns
 McLachlin disagrees, for 3 main reasons
o (1) Duty is about relationship between P and D, and is predicated on foreseeability, not morality
of P's conduct
 Illegality is best viewed as a defence rather than a matter of duty of care
 Although P has established a cause of action in negligence, D's responsibility for the
wrong is suspended
 Best to allow the defendant to assert and prove the defense of illegality
 Better have a good reason for allowing a criminal to recover - need harmony between the
different types of law
 Because of concerns for the integrity of the legal system
o (2) Dealing with illegality at duty stage creates new problems
 Burden of proof - if illegality goes to duty, then P will have to disprove illegality
 Duty is all or nothing, which means all of P's claims would be wiped out
 If defence, properly understood, it can be applied to certain heads of damage, such as
profits from illegality
 While not affecting compensatory damages
 If you're trying to profit from illegality or get a windfall, strike down
 ONLY compensatory damages, disallow the others
o (3) Under contract, D has to prove illegality
 Would be ironic to impose burden on D for a breach of contract part of a case, while
imposing the burden on P in tort portion of case
 Not good to be inconsistent between contract law and tort law
 In present case, P is seeking only compensatory damages
 Not seeking to profit from wrong, so no possibility of incoherence in the law
 Trial judgment upheld
 Ex turpi does not generally apply to tort law, save where P is seeking to profit from illegal activity
 How about the following:
 Burglar who falls down stairs in state of negligent disrepair
 Murderer, fleeing from police, slips on icy sidewalk
 Murderer who sues manufacturer of murder weapon for defect that injured him in the course of
committing offence

48
 Limitations Act
 More in Civ Pro
 P must bring action within specified time limits
 Generally, two years from the time P knew or ought to have known of claim - whichever expires first
 Or 10 years from when claim arose
 Time stops for P under disability - functional disability, dependent adult, minor not under actual custody
 Fraudulent concealment may stop the clock

Damages: Pecuniary Loss

 Negligence requires proof of actual damage
 Unlike some torts, which are actionable without proof of damage
 One of the elements to prove in establishing negligence
 Arises mainly in personal injury cases
 Liability will be admitted in vast majority of cases - only question is what is the claim worth?
 Point of tort law is to compensate plaintiff - restore him or her to pre-accident position (status quo)
 Law allows for punitive and aggravated damages
 Aggravated damages are compensatory
 EX: For humiliation, embarrassment or distress caused by nature and gravity of D's wrongdoing
 Punitive or exemplary damages are awarded where D's conduct is so outrageous, vicious, malicious, or
despicable
 Such that is warrants a severe reprimand
 EX: Intentional injury
 Viewed as exception to compensatory norm
 Restoration to status quo impossible in personal injury cases
 Best the law can do is to provide, to the extent possible, monetary compensation as substitute for status
quo
 Also damages for some thing such as pain or loss of enjoyment of life
 Courts giving you money as an approximation with the intent of returning you to the status quo as
best as possible
 How do courts determine that amount? Focus mainly on personal injury

 Damages for wrongful death

 Spouse or children of deceased victim sue for support
 No CL cause of action
 Provinces have adopted fatal accidents legislation
o Confers on surviving spouses and children (sometimes parents) the right to sue for losses
arising from wrongful death of relative
 Damage to property
 Chattels
 If altered or no longer available, measure of damages is the value
 But what is value?
 Destroyed chattel: purchase price or depreciated value?
 Because tort law seeks to return P to status quo or pre-accident position, value may reflect measure
of depreciation
 Value is therefore market value at time of accident
 Damaged chattel - measure of damages is diminution in value
 Pre-accident value minus post-accident value
o Depreciation accounted for
o Ask: what's the pre-accident value? And what's its value now?
 If cost of repair is less than diminution, courts will often award cost of repair
 May award cost of repair in some cases where higher than diminution
 Subject to mitigation principles
 Mitigation
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  P must take all reasonable steps to mitigate her loss
 P can recover for costs incurred in taking such reasonable steps
 P CANNOT recover for losses successfully mitigated
 D has option of proving P failed to act reasonably to mitigate loss
 Failure to mitigate may result in reduction of damages
 Need reasonable opportunity to mitigate!
o D must show that this opportunity was present
Janiak v Ipolito
 P suffered serious back injury due to D's negligence
 P was informed that if he had corrective surgery, there was a 70-75% chance of full recovery
 He would return to work thereby mitigating future income loss
 10% chance of a "poor result" including 1% chance of quadriplegia and 0.1% chance of death
 P refused surgery
 SCC: refusal amounted to a failure to reasonably mitigate
 Balance of risk versus consequences of refusing surgery meant P should have had surgery
 Absent psychological condition which precludes rational decision-making
 Fear of surgery does not justify unreasonable failure to have an operation
 Damages reduced

Personal Injury

Andrews v Grand & Toy Alberta Ltd

 21 year old man suffered injury, rendered quadriplegic from motor accident
 Lost bowel, bladder, sexual functions
 Had to reposition in bed every two hours; restricted respiratory functions; needed constant care
 Liability not an issue
 P contributorily negligent, and damages apportioned at trial (75% to D, 25% to P)
 TJ awarded about $1mill; reduced by CA to ~$500k
 Issue: 75% and 25% of what?
 Lower courts disagreed on legal principles applicable to assessment of damages
 Prior to Andrews, courts had a tendency to make global awards (and still do)
 No consistent breakdown of or no breakdown at all of heads or categories of damage
 No explanation or itemization of how amounts are arrived at
 Often a lump sum grabbed out of thin air
 Created possibility of undercompensation or overcompensation
 No guarantee that similar cases would be treated similarly - a hallmark of our justice system
 Dickson CJC:
 It is NB that P is not a vegetable or piece of cordwood but a human of above average intelligence
with an unimpaired mind who wants to live as other people do
 Specifically, he wants home care, not institutional living
 Divide damages up into heads of damage!
 (1) Special damages ($77,344) - receiptable expenses
 Compensate P for damages that can be specified, ie calculable because they were actually incurred
prior to trial
 Includes pre-trial losses such as past income loss, past care costs, and other out of pocket expenses
 Generally not controversial because they have already been incurred
 No need to speculate - P proves by providing receipts
 (2) General Damages
 Compensation for future losses and other damages (past pain and suffering) that can't be
precisely quantified at the time of trial
 Some quantification or value is ascribed to them for purposes of providing P with a damage award
 General damages therefore includes pecuniary damages (losses calculable in monetary terms)
 Future losses --> future care, lost earning capacity (future income)
 As well as non-pecuniary damages (losses that can't be calculated in monetary terms)
 Ne receipts for these kinds of damages
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  Even though we don't know the exact value, courts will have to estimate
 Generally 3 kinds
o (1) Pain and suffering
o (2) Permanent Disability/Disfigurement
o (3) Loss of expectation of life
 General Damages - Pecuniary - Future Care
o Encompasses various costs associated with treatment or care that are yet to be incurred
o Nursing, personal attendant services, user fees, home or auto modification, etc
o Anything arising from treating the injury or associated with ongoing disability
o Probably the most important head of damage for plaintiffs
 Courts typically most generous on this one
 Ex: Future costs of home care - $4135/mo (Generous by 1978 standards)
 Only alternative is institutional care, assessed at $1000/mo
 TJ awarded home care; CA awarded institutional care; SCC awarded home care
 Why?
 (1) point of damages is to put P in pre-accident position, which is living in a home and not an
institution
 (2) Therapeutically the best option for P
 (3) Cost mostly taken care of by liability insurance anyways

 Methodology for awarding costs of future care:

 (1) set the amount
 (2) account for variety of factors that impact on ultimate amount to be awarded
o Life expectancy: 50 --> 45 (5-year reduced life span for quadriplegics)
 So if 50 years is the normal life expectancy, we knock off 5 years
o Not on the hook forever
 Contingencies of life
o Adjust amount to account for future events that might increase or decrease cost of
future care
o Positive or negative adjustment
 Typical contingencies associated with cost of future care:
o P might require periods of hospitalization (cheaper than home care)
 If admitted, cheaper than having him at home - so need to discount from award
o Might benefit from social services (thereby saving on costs)
 Need to discount this too
o Might have to pay for special equipment (thereby spending more)
 Ie something new, like new kind of wheelchair
 Upward adjustment
o So you adjust upward or downward with future cost of care considered
 TJ discounted award by 20% for 'contingencies and hazards of life'
 Conventional approach at the time, based on assumption that negative contingencies will outweigh positive
 CA further discounted xx%, seemingly to reflect P's reduced 'duration of life'
 BAD
 SCC: "duration of life" already accounted for under life expectancy
 Consistency is gooooood
 20% discount is speculative but acceptable because any other number would be just as speculative
 Side notes
 Andrews did need hospitalization alter
 Today, courts tend to deal with contingencies on a case by case basis
 Often conclude it is zero - negative and positive likely to cancel each other out
 Or that discount should be much less than 20%
 Capitalization or discount rate (adjustment for inflation and rate of return on investment)
o Inflation - adjust upwards
o Court assumes that because damage award is intended to last for 45 years, it will be prudently
invested by P
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 o Question is what rate of return should be assumed by the court?
 Take present rate of return on long-term investments
 Subtract inflation rate
 Viewed flexibly: 10% less 3.5% --> 7%
 Capitalization discount on 45-year award is significant
o 7% per year over 45 years
o Award would have been $2million without this discount
o Also, Dr. Deutsch's prognostications regarding inflation rate turned out to be wrong
 Went up over 20%; P undercompensated
 Some provinces have legislated the capitalization/discount rate
 Rea and Bale excerpts critical of capitalization/discount rate
 Aff'd by Dickon J in Lewis v Tood & McClure
 Q of fact: TJ has a great deal of discretion
 "Gross-up" for tax on the interest earned on the lump sum
 Count for the impact of taxation on the income generated from lump sum awards for cost of future
care
 Discount for return of investment, then add tax
 Dickson J viewed tax burden as difficult to predict, and disallowed the accounting
 However, now accepted as a proper head of damage
 Typically increases by 30-40%

 General damages - Pecuniary - Loss of earning capacity

 AKA Future income loss; prospective loss of earnings
 We gaze more deeply into the crystal ball
 But for the accident, what sort of career would Mr. Andrews have had?
 Not the same as past income loss - no extrapolation from PL
 Not the same as present earnings - head looks at loss of earning capacity
 Lost capacity is a capital asset
 What is that capacity/asset worth?
 Conceivably worth more than present earnings
 Court adopted valuation based on the current line of work
 No consideration of possibility of educational advancement
 Rather, SCC focused on his current work and mid-range salary in assessing earning capacity
 Methodology:
 FIRST: Estimate P's future earnings, then deduct from it the amount that P is still capable of earning
(= 0 since P not capable of earning anymore)
o $0 because he's quadriplegic - so the number that comes up is what he'll have to get for future
earnings
o Trial award: he was earning $830/mo as apprentice for CN
o Maximum for that line of work was $1750
o CA/SCC: $1200
 Conservative but reasonable estimate
 Gross income
 Why not give him $1750? Why not assume he'll cap out?
 OGBOGU thinks unfair award - would have awarded $1750
 SECOND: determine length of time over which the P would have earned income
o Andrews could have retired at 55 with a full pension
o Why not use 65? Why use expected working life span (55) rather than reduced post-accident life
expectancy (45)?
o Lost capital asset is capacity prior to accident, not post-accident
o What is the P's working life expectancy over the period between 23 and 55?
 30.81 years
 THIRD: Apply contingencies
o Income level is set ($1200) and the time level is set (30.81)
o Deduct contingencies such as 'unemployment, illness, accidents, and business depression'

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 oSCC sticks with conventional 20%
oToday, courts will look at positives as well - promotion, salary increases, possibility of earned
income beyond retirement, age, etc.
 FOURTH: apply capitalization for return on investment (same as in cost of future care)

RECAP: TORT LAW DAMAGES FOR PERSONAL INJURY

 (1) Special damages
 Past/pre-trial income loss
 Past/pre-trial care costs
 Other out-of-pocket expenses
 (2) General damages
 Pecuniary
o Future care costs:
 Annual cost * life expectancy ± [contingencies of life] - [Capitalization (rate of return on LTI
- inflation) + Gross up
o Lost earning capacity
 [(Lost future earnings - Residual earning capacity x remaining working life ± contingencies
of life - [Capitalization (rate of return on LRI - inflation)]
 Non-pecuniary
o Pain and suffering
o Permanent disability or disfigurement
o Loss of life expectancy
o Loss of "golden" years

 Courts have also recognized two additional heads of pecuniary damage:

 (1) Loss of capacity to carry out homemaking services
 P, prior to injury was a stay-at-home spouse, or single
 Calculated on the basis of the cost of replacement homemaking services
 (2) Diminished ability to establish a permanent relationship with another person
 P is catastrophically injured or disfigured or has suffered a head injury or some other type of injury
 Which reduces the likelihood of being able to establish a permanent relationship with another person
 Because two persons can live together more cost-effectively than separate
 And P has lost to some degree the opportunity to realize those savings

 Please see textbook for Andrews damages calculation

 The SCC didn't give him a gross-up

Non-Pecuniary Losses
 Not easy to determine the "quantum" (appropriate amount) of damages
 You don't have anywhere to start from - have to do an estimate
 No objective market value for NPL
 Courts ascribe a value anyways
 Money does not provide true restitution
 If nothing of market value has been lost, then question is what artificial value to ascribe to loss
 Area characterized by judicial concern for overcompensation
 In Andrews, Dickson CJ notes wildly extravagant awards in the US
 Struggled with what numbers exactly to put to them
 Not down to do what is done in the US
o US awards aren't that extravagant - oddball jury awards are actually infrequent
o Often reduced on appeal
 Mainly punitive damages, which are tightly controlled by Canadian courts and rarely exceed $100,000

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 Liebeck v McDonald's Restaurants
 Lady in NM ordered 49c cup of coffee from McDonald's drive thru
o Spilled coffee on her lap; gets scalded; sues
o Jury awarded her $160000 (20% contrib)
o PLUS $2.7 million in punitive damages
 Overall award was reduced to $640000 by TJ
o Overall parties appealed
o Case eventually settled out of court for undisclosed amount
o [hot coffee documentary on netflix]
 Actual facts:
o She suffered 3rd degree burns covering 16% of her body
o Remained in hospital for 8 days and underwent skin grafting
o Followed by two years of tx
o Evidence that McDonald's required franchises to serve coffee at 82-88˚C (180-190F)
 Which would cause 3rd degree burns in 2-7 seconds
 Competitors served coffee at substantially lower temperatures
o Their QCM testified that goods hotter than 140F were a burn hazard, and coffee would burn the
mouth and throat
o Witnesses testified that McD didn't plan to reduce temp of coffee
o Documents showed a number of complains between 1982-1992
o Including prior complains of burns
 So - overall award is at least understandable and even reasonable
o Example of good advocacy on P's part - to up the punitive damages
o Facts provide informed judgment - avoid snap/unfounded judgment
 Dickson CJ probably overstates US situation
 Dickson's approach in Andrews - place CAP on non-pecuniary awards
 Uninformed?
 Non-pec awards have a functional basis - $ to provide solace for P's non-pec damages
 Andrews is a mentally alert but catastrophically injured young man
 That is as bad as it gets (well, we don't know that)
 Says this is worse than being a vegetable - he is aware of circumstances
 As such, he needs solace for his injuries
 But the award can't be limitless or over-compensatory
 Got the cap - $100,000 [OGBOGU THINKS UNFAIR]
 Lindal v Lindal
 CAP should be adjusted for inflation
 Jan 2017: $368,946 - current cap
o www.mckellar.com/statistics
 Court will award less for lesser damages
 Is a cap on non-pecuniary damages a good application of judicial discretion?
 Matter for legislature?
 Is the cap justified?
 Lee v Dawson - BCCA hinted that CAP was a bad idea
 Indicated it might limit CAP to catastrophic injures in the future
 In AB, non-pec damages have been limited by statute in certain circumstances
 Minor Injury Regulation, Reg 123/2004
o Minor injuries (sprain, strain, whiplash, etc)
o Capped at $4000, adjusted for inflation from 2007
o Currently $5020 (Jan 1 - Dec 31, 2017)
 Constitutionality of minor injury cap challenged in:
Morrow v Zhang
 P was diagnosed with grade 2 whiplash following MVA, would have received non-pecs in excess of
cap
 TJ ruled that minor injuries distinction was based on a personal characteristic
 Amounted to discrimination of grounds of physical disability in violation of s 15 of the Charter

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  ABCA reversed
 RE: Non-pec awards
 Juries (rare in AB, more common in BC, ON) tend to award less than judges for relatively minor
injuries (ie whiplash)
 But award more, sometimes above the cap, in cases of catastrophic injury
 Courts of Appeal reduce award to CAP on appeal
 Collateral Benefits
 What happens where accident victims receive benefits from third party sources?
 EI, ECB, private disability insurers (sick pay; group insurance plans)
 That is, benefits that are 'collateral' to the damage award
 Should courts deduct the amount of the benefit received from the damage award?
 [Will likely be on EXAM]
 Two scenarios:
 Scenario A:
o X paid into a disability insurance plan that reimburses 80% of regular income in the event of
injury that prevents her from working
o If injured by Y and unable to work, should a court deduct that amount from income losses?
 Scenario B:
o What if X's plan was paid for by her employer?
 If X is allowed to recover as if no collateral benefits existed, then we have a problem of DOUBLE
recovery
 If collateral benefit is deducted and D pays only NET LOSS, then D has the windfall benefit of X's
foresight or employer's generosity
 Allow X full recovery, but require her to pay back collateral benefit to insurer
 All three approaches have been used by courts
 General Rule
 P is entitled to full compensation, but no more. No double recovery. No windfall
o Use this rule on the exam
 Private insurance exception
o If P paid out of pocket for the collateral benefit, then the value of benefit should not be deducted
o P is entitled to full recovery of damages from D + full value of collateral benefits funded out of
pocket
 Does the exception extend to employer-paid insurance?
 P notionally paid for it as it is part of an agreed compensation package
Ratych v Bloomer
 Police officer injured in MVA due to D's negligence
 Continued to receive full salary while off work for several months pursuant to terms of collective
agreement
 Also, did not lose any accumulated 'sick credits'
 Should employment benefits be taken into account in assessing damages for loss of earnings?
o SCC: deduct employment benefits to avoid double recovery
 Basically, let D go
 Measure of damages should be 'actual loss'
 Private insurance exception does not apply absent evidence that employee contributed
to the fund from which benefits were paid
 No evidence, no exception

Cf: Cunningham v Wheeler

 P received disability benefits from employer under terms of the collective agreement
o Basically accepted a lower wage to get the benefits
o As benefit goes up, wage goes down
 No deduction from his pay for the disability benefits
 TJ accepted evidence that collateral benefits was an important aspect of collective agreement
negotiations
 If benefits increased, hourly wage goes down and vice versa
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  Held: 4-3 - no deduction as benefits fall within private insurance exception
o If you can show that you offered something up then this works
 Because some type of consideration was given up by employee in return for the collateral benefit
o The bargaining trade-offs between wages and benefits constituted such consideration
 Other kinds of consideration:
o Direct contribution by employee
o P gives up some money (eg, EI) in return for benefit
o Benefit is part of employee's work package/wages - employee worked for it
 Trial courts decline to deduct if there is the slightest evidence of some consideration or contribution
from employee
 Section 570(3)(4): Awards must be reduced by aggregate of (inter alia):
 Certain no-fault benefits received under a vehicle insurance K
 Alberta Health Care Insurance benefits
 Prescribed income continuation or replacement benefits
 Disability pension benefits
 Worker's compensation benefits
 NB: Net of tax, contributions and premiums paid by the employee
 Regardless of private insurance exception, in AB you will have damages reduced to account for what
you're getting from this list of benefits
o But you get back your premiums and the tax you paid in relation to those premiums
 Lump sum or periodic payments?
 Bottom line is lump sum
 Issue: should damage awards be paid by D as a lump sum or periodically, as it is incurred?
 At CL: damage awards must be single lump sum
 Advantages of periodic payments: adjustable to contingencies; removes guesswork; avoids
overcompensation
o Period payments in some provinces but lump sum is the general rule (avoids the disadvantages
of periodic payment)
 Disadvantages: administrative costs: lack of finality or certainty
 SCC rejected periodic payments and ruled in favour of lump sums
 A matter for the legislature, not the courts
 CL perspective: lump sum
 ON, MB, and BC have enacted legislation providing for periodic payment alternative
o What do you think of a publicly-funded no-fault scheme for damages resulting from negligence?
o Perhaps this scheme is better?
Young plaintiffs
 Andrews formula particularly difficult to apply to young plaintiffs
 Especially as relates to lost earning capacity
 Young plaintiffs typically don't show aptitudes that allow us to assess that head of damage
 Arnold v Teno: P was 4 YO rendered quadriplegic when struck by D's car on way to purchase ice
cream
 TJ relied on educational level and vocational circumstances of parents/older siblings
 P's mother was a teacher; court awarded $10,000 per year
o ONCA agreed
o SCC: NO
 Spence J: We can't assume she will follow her mom's lead
o Or that she will be a washout or public charge
o Reduced award to halfway between trial award and poverty line - $7500
o Plus 20% deduction for contingencies of life
 Is this fair? (No)

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 Occupier's Liability
 Liability of an occupier of land to persons who enter onto the land
 Someone in control of land
o Need not be an owner or lessor
o Could be a tenant
 Someone with authority to grant or refuse entry
 Largely governed by statute
 Cases typically involve personal injury suffered by plaintiff while using defendant occupier's property
 Why create a special area of tort law to deal with such cases? Is negligence law not enough?
 Occupier - Proximate relationship - Visitor
o Duty of care - negligent act - causation - no remoteness - damage
o OL easier to prove than negligence
 CL developed as a discrete area of tort law
 Prior to when general tort of negligence was recognized
 Grandfathered!
 Ps invariably bring claims in both areas - if one fails, the other might succeed
 Statutory cause of action may be limited ('using' language in AB and BC statute)
 OL under the CL (in SK and NB)
 Four graduated standards of care (cf two under AB statute)
o Matters whether visitor is a trespasser, licensee, invitee, or contractual entrant
 Trespass vs Kual entrant (less to more onerous care)
 Trespasser
 Originally, no duty owed by occupier to make premises
 Safe
 However, occupier to refrain from intentionally or recklessly injuring trespasser
 In 1970s, HL introduced duty of humanity standard to be applied on a case-by-case basis
o Duty of Humanity determined by looking at:
 Gravity and probability of injury
 Character of the intrusion
 Nature of the premises
 Foreseeability of the trespasser
 Licensee: Visitor who has express or implied permission to be on land
 Express: social guest
 Implied: Mail carrier
 Occupier has a duty to prevent injury to licensee from hidden dangers that the occupier has actual
knowledge of
 All you'd have to show is that D was aware of hidden dangers and did nothing to prevent that
injury
 Invitee: someone with permission and in whose visit the occupier has an economic interest - ie, store
customer
 Occupier's duty has duty to take reasonable care to prevent injuries caused by foreseeable or
unusual dangers
 Contractual entrant: person who enters land under the terms of a contractual agreement
 Ticket holder to Oiler's game
 Absent contractual terms to the contrary, and reasonable notice of those terms:
o Occupier has duty to make premises as safe as can be made with reasonable skill and care
o Statutory reform has simplified standard by creating broad overarching duty of care that applies
to all or almost all entrants
 D must make premises safe unless there's something on the ticket excluding liability

Occupiers' Liability Act

 BRING THE ACT INTO THE EXAM
 Note: definitions of occupier and premises
 Two categories of entrants: trespassers (ss12-13) and visitors (everyone else) (ss 5-11)

57
  Occupier: Person who is in physical possession of premises, or, who has responsibility for, or
control over, condition of premises, activities conducted on the premises and persons allowed to
enter
o There can be more than one occupier (co-owners, owner + tenant)
 Premises: Extended definition - goes beyond the usual suspects
o Excludes aircraft, motor vehicles and non-specified vehicles and portable equipment
 Visitors: ie non-trespassers
o Entrant as of right - person permitted by law to enter without occupier's permission
o Contractual entrant
o Any other lawful entrant (guest, licensee)
o Trespasser in retreat: Person whose presence becomes unlawful after entry and who then
takes reasonable steps to exit
 Section 5 - common duty of care
 Occupiers owe visitors a common duty of care to take reasonable care to see that the visitor will be
reasonably safe in using the premises
o Practical effect is to impose common law duty of negligence on occupiers
o Provided visitor is using premises
o Other effect is increasing CL duty owed to licensees and decreasing corresponding duty owed
to Kual entrants
 Trespassers
 (in BC: no distinction between trespassers and visitors - general duty owed to all)
 AB statute distinguishes between visitors and trespassers
 How trespassers are treated ends on whether they are regular/ordinary trespassers or children
o NO duty of care owed to ordinary trespasser, unless injury or death to trespasser results from
occupier's intentional or reckless conduct
 Child trespassers
 If the occupier knows or has reason to know:
o (1) that the child trespasser is on the occupier's premises, and
o (2) that the condition of or activities on the premises pose a danger of death or serious bodily
harm to the child
 Then occupier owes duty to take reasonable steps to see that the child will be reasonably safe from
danger
 Factors to consider in determining if duty has been discharged:
o (1) Age of the child
o (2) Child's ability to appreciate the danger
o (3) Burden of removing the danger/protecting child versus risk posed by the danger to the child
Cullen v Rice
 P, 16-yo high school student, went to a restaurant for dinner
 Restaurant had a well-known rule - teenagers must leave promptly after finishing meal
 No hanging around, punks
 P, who was aware of rule, refused to leave when asked to do so
 In a bid to evict P, employee pushed him towards/into restaurant door, made of glass
 Glass door failed to open, shattered, and cut P
 Issue: what duty was owed to P under OLA
o Depends on if he is a visitor, regular trespasser or child trespasser
o Visitor: common duty of care (s 5)
o Regular trespasser: no duty unless injury results from wilful or reckless conduct (s 12)
 Child trespasser: common DOC - but depends on age of child; ability to appreciate the danger;
burden vs risk (s 13)
 Held: NOT a child trespasser
o Regular trespasser, but P's injury not the result of wilful or reckless conduct by D
o Wilfulness of pushing directed at eviction, not injury
 Which legal regime is better for ordinary trespassers?
 CL: duty of humanity - individual circumstances of case
 Section 7: Volenti [legal and physical risk?]

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 o General duty owed by occupier does not apply to risks willingly accepted by visitor
 Section 9: Warning
o A warning, without more, does not absolve occupier of duty to visitor, unless enough to enable
visitor to be reasonably safe
Roasting v Blood Band
 P ventured into a construction site (bleachers in a grandstand)
 Bleachers were off-limits because of absence of guard railings
 P had been specifically warned not to go there
 Ignored warning, went to bleachers, fell off and was seriously injured
 Issue: did the occupier satisfy statutory duty under s 5 of the Act?
 Romaine J:
o Do the premises present reasonably foreseeable risk to persons exercising ordinary care and
diligence?
o YES - unprotected bleachers
o Did the occupier take reasonable steps to ensure that users of the premises were reasonably
safe?
o Occupier (D) argued that warning amounted to reasonable step
 Held: Warning was sufficient
o Reasonable steps need not be physical barrier
 Section 8: variation of duty of care
 Liability to visitor may be extended, restricted, modified or excluded by express agreement or notice
 Only if reasonable steps are taken to bring the extension to the visitor's attention

Government liability
 Used to be immune from tort action
 Petition of right procedure required permission from Crown to sue Crown
 [pt]
 [t]
 Federal and provincial governments have adopted legislation permitting legal proceeding against the
Crown
 Proceedings Against the Crown Act
 Consistent with other provinces
 Section 5
 Crown can be sued in tort as if it were an ordinary person, for:
o (1) Torts committed by its officers, agents
 Directly or via VL
o (2) Breach of duties owed to servants and agents as their employer
o (3) Breach of duties linked to ownership or possessory interests in property
o (4) For actions taken under statute, regulation or bylaw
 Municipalities did not have immunity at CL
 Typical actions
 Misfeasance in a public office
 Negligence
 (all you really need to know - hey yes you can sue the Cr)
 Misfeasance in a Public Office
 New emerging tort - most actions against public authorities based on negligence
 Deals with claims of intentional misconduct by Cr through its agents
 Intentional, not negligent conduct
 Tough to find situations where Cr intentionally hurts someone
 Three requirements
 (1) Actor must be a public official
o Defined widely
o Uni-Jet Industrial Pipe Ltd v Cana (AG)

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  RCMP officer divulged information to media regarding details of searches prior to
execution of search warrant
 (2) Activity in issue must relate to an exercise of a statutory authority or power
o IE: statutory expropriation schemes
o What if the alleged misfeasance relates to a failure to perform a statutory duty?
o Is such failure an activity relating to the exercise of a statutory authority or power?
Odhavji Estate v Woodhouse
 Police officers failed to cooperate with an investigation into a fatal shooting involving the
officers
 ONCA drew distinction between failing to perform a statutory duty and improper exercise
or abuse of power
 SCC: NO
 No basis for the distinction
 (3) Wrongdoing must be intentional
o (A) Public official knowingly acts beyond his power or jurisdiction (ultra vires)
o (B) Public official acts within power/jurisdiction, but for improper purpose
Roncarelli v Duplessis
 See slides
 Admin law too
o Where D is an elected official, BCCA has cautioned against imputing bad faith
 Have to find evidence of wrongdoing!!

First national Properties Ltd v Highlands (District)

 Developer sued Mayor for frustrating efforts to develop land
 Mayor wanted land preserved as park [nothing inherently wrong here]
 Mayor surreptitiously disclosed information obtained by virtue of his position to third party
purchaser (NCC)
 Developer's planning and zoning application delayed and denied
 Because NCC had purchased some tracts of land
 TJ: found against Mayor for abuse of public office
 BCCA reversed on grounds that mayor acted IV and his advocacy for land preservation
was well known
 Mayor acted without malice or motive to gain private advantage (ie not bad faith)
 No confidential information disclosed by Mayor to NCC
 Preservation of land a proper municipal purpose
 What if government official doesn't know or care if they have exceeded their authority?
 Then, that 's enough to prove intention - to act for an improper purpose
 Court doesn’t care if you didn't know
 Three Revers District Council v Bank of Englad (HL, 2000)
 Alberta v Nilsson (2003)

Government Negligence
 Most government activities are judged according to the ordinary principles of negligence law
 Same analysis as with private bodies
 Slight difference: public official causing MVA in the course of their duties
 Or, gives out negligent advice on which others rely
 Public officials owe duties of care like everyone else, and must conform to the legal standards of care
 What applies to us applies to them
 Issues arise where governmental conduct relates to political activity, policy-making, budgeting
 Separation of powers - accepted principle that executive to make decisions without having the courts
scrutinize them at all times
 If those things are subject to judicial review, then governments wouldn't be able to act
 Courts reluctant to impose negligence law on these kinds of activities unless statute requires them to
do so
o Pronouncements generally made with respect to legal matters or implication
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  Ie where charter breach
o Why?
 (1) Democratic concern: government officials should be exclusively accountable to those
who elected them - no second guessing by courts
 IE if gov makes a budget that doesn't offend the law then they won't interfere
 Hinders democracy
 (2) Pragmatic concerns: Courts lack access to expertise and resources to get involved in
such activities
 (3) Floodgates concerns: Litigation might proliferate if such decisions are reviewable
o EX: if government makes a law requiring vaccination
 You can challenge that law on the basis that it offends Charter rights
 That's the end of it though if the courts find to the contrary
 Re: efficacy - not up to the courts - they don't have the expertise for that evaluation
Cooper v Hobart (2001, SCC)
 Stage 2: "External" Policy
o This is contrary to what's above! This kind of analysis is the same kind that courts don't like to
do / outside purview!
o Don't use CvH in exam
 Questions around the competency and legitimacy of courts second-guessing political and policy decisions
 Policy-operational distinction
 Way to determine what matters are reviewable or not
 Bottom line: if court characterizes it as a true policy decision by the government, then no evaluation
 If operational, then it can be reviewed by the courts
 Amounts to operational decision/action
 No liability to government if it's pure policy
 Court's cannot review it!
 Liability if operational
 Policy decisions: questions about whether and how to implement a government program (discretionary)
 Not reviewable
 Operational decisions: questions around actual operation or delivery of the program once it is implemented
 Reviewable

Kamloops v Nielson (SCC 1984)

 Brought Anns test into Canada
 Municipality failed to enforce bylaws and prevent completion of a house with defective foundations
o Inspected twice, two 'stop work' orders, not built according to approved plans
o Failed to actual halt the completion of the house
 Builder, to the building inspector's knowledge, completed the building
 Owner city alderman and builder's father) moved in
 Sold house to P, who discovered defects and sued the city
 ...but what's the harm here? Pure economic loss - no actual harm
o All that was lost was the cost of fixing the defective building
o One class that's allowed in Canada (1 out of the 2 of 5 that you can get relief for)
 Majority of SCC imposed liability on Kamloops on grounds that the matter was largely operational
 Why? (Wilson J)
o Municipalities have statutory authority to enact bylaws to regulate construction of buildings, and
to ensure enforcement via inspection
o Deciding whether or not to act on that authority by enacting bylaws and setting up an inspection
system is policy matter
 The way the bylaw is actually implemented is operation
 Ie decided to act/not act upon the
 Once said bylaws are enacted and inspection system set up, manner in which it is
operated is operational matter
o Policy-operational distinction not the last word on the matter

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  Gov can still my liable for failing to consider whether or not stat power should be
exercised
 City might still be liable in the absence of bylaws and an inspection system
 For failing to consider whether it should have instituted bylaws and system
 In making policy decision, decision-maker must act in good faith
 IE: no improper purpose or unreasonable decisions
 If there's evidence of this to disadvantage someone specifically in bad faith
then this is reviewable by the courts
 Bad faith/improper purpose = reviewable
 Pre-policy is reviewable by the courts
 Policy is not
 Policy decisions are not justiciable in tort law - cannot expose government to liability
 Difficult precedent to apply
 (Policy vs operation will not be on exam)

Just v British Columbia (SCC 1989)

 Winter, Highway 99 - major commuter road from Whistler to Vancouver
 Traffic at standstill
 Large boulder which had come loose from steep wooded slopes above crashed down on P's car
 Killed P's daughter and severely injured P
 Earlier rock falls - plus freezing and thawing and heavy snow buildup on trees
 All creating a high risk of rock falls
 There is a system set up by the Dept of Highways fro inspection and remedial work
 Rock work engineer carried out visual inspection for risk of rock instability
o Reported findings and recommendations to District Highways Manager
o Who submitted requests for provincial rock scaling crew to be sent it
 Issue: is the decision to adopt a visual inspection system a policy decision?
 McLachlin J (BCSC)
o Says policy decision, not reviewable by court
o Government, as a matter of policy, adopted a system of visual inspections
o Unless it can be shown that Mr. Oliver conducted visual inspection negligently, then no liability
o CA affirmed
o SCC reversed (Cory J)
 Allegation of negligence here fell within the operation aspects of governmental ____
 That is, the initial decision about WHETHER (NOT HOW) something will or will not be
done
 Policy decisions usually made at high levels of authority
 And involve considerations such as budgetary allocations or other political matters
 Beyond this, everything else (manner and quality) is operational
 Changes the meaning of operational
 Decisions about how to implement are under 'operational'
 Manner and quality includes resource allocation and other discretionary matters
o Sopinka J dissenting
 Extent and manner of inspection program is policy
 Ogbogu thinks Sopinka is right
Cf Brown v BC
 P driving from Gold River to Campbell River
 30 mins out, skids off icy patch on highway and over embankment
 Suffers catastrophic injuries
 Three other accidents occurred on same stretch of highway that morning
 BC Dept of Highways had instituted program for snow and ice maintenance on highway
o Two work schedules - winter and summer
 Accident occurred in November - fell in 'summer'
 Highways Department crew still on summer maintenance schedule
o Was the department's decision to maintain summer schedule a policy or operational one?

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  Cory J: POLICY
 Decision to maintain a summer schedule, with all that is entailed in terms of reduced service, was
one of policy
o Inconsistent with earlier decision in Just
 Involved classic policy considerations of financial resources, personnel and significant negotiations
with gov unions
 Can only be impeached if an improper or irrational exercise of discretion or made in bad faith
 But, is it really a threshold decision as per Just?
o Not matter of whether something should or should not be done about snow/ice
o But more one of how to go about it
 Bottom line: threshold decisions - definitely policy: Never call it operational
o Manner and quality of system established by threshold decision: Definitely maybe
Swinamer v AG Nova Scotia
 Deals with pre-policy, same year as brown 1994
 P injured when tree along highway, which had Dutch Elm disease, fell on P's truck
 Province had initiated a preliminary program of identifying and flagging trees with the disease
 Wanted to make decision on policy once it had established the scope of the problem - such as
immediate removal, gradual removal, etc.
 PRE-POLICY
 Accident occurred during pre-policy period - is this reviewable?
 Two interpretations
o (1) decision to determine the scope of the problem before making a policy decision was in and
of itself a policy decision
 Cory J, etc
o (2) No private law duty on public authority until it makes a policy decision
 Because it's pre-policy, no private law duty [McLachlin and LaForest]
 Ogbogu thinks this is right
o Pre-policy not reviewable unless it fails to make a decision with respect to whether or not they
should carry out their actions
 No pre-policy liability unless government should have at least adopted some policy in the interim
 Exception does not apply here as province was acting reasonably in the first trying to inform itself
about the scope of the problem before deciding
 POLICY: NOT REVIEWABLE
 PRE-POLICY: NOT REVIEWABLE - unless government should have at least adopted some policy in the
interim
 OPERATIONAL: REVIEWABLE

NERVOUS SHOCK (PSYCHIATRIC HARM)

 Courts are suspicious of claims based on psychiatric harm, especially if a secondary victim
 Just another type of negligence claim - do usual negligence analysis - varies with remoteness and
proximity
 Testable on exam, re if DOC is owed
 Secondary persons - didn't suffer direct physical or psychiatric harm
 Psych harm affecting 2˚ victim NB - have to spot this
 Cases where alleged damage can't be tested or assessed by way of visual inspection
 Psych injury can be damaging too
 Largely some suspicion
 Not objectively verifiable - issues take us to subjective recesses of aspects of science that are less intuitive
 Typically pose remoteness problems regarding whether specific kind of damages was foreseeable

Victorian Railway Commissioners

 Coultas was in a horse-drawn carriage with husband

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  Approached a level railway crossing, railway employee negligently lifted barrier to allow them cross,
which led them into path of an oncoming train
 They cross, but Mrs Coultas faints
 Medical evidence shows she suffered severe nervous shock from fright of being in the path of the
oncoming train
 Found for P, PC overturned
o Reason: all nervous shock is too remote
 Since Coultas... Expansion/contraction - FLUX
 Liability if P is also physically injured (kinda expansion?)
 If you have physical injury and psychiatric harm
 Liability if P is in a zone of danger (expansion)
 Liability for reasonably foreseeable shock (contraction)
 Liability for reasonably foreseeable shock suffered by proximate P (contraction)
 Why suspicious?
 (1) Little agreement on what nervous shock is:
o Dependent on physical injury?
o Mental reaction to physical stimuli?
o Purely psychological reaction?
 (2) Lack of scientific consensus on how the mind interacts with the body
o Law reflected prevailing scientific opinion
 (3) Divergent opinion in the Commonwealth on how to apply DOC to NS claims
o Proximity between D and P?

McLoughlin v O'Brien
 P learned her husband and three children were in a car accident
 She visits them at hospital where she is told one of the children passed away
 She sued the negligent driver for nervous shock [she is the secondary victim here!]
o Say: There is a secondary victim on the facts
 Tell him if they recover or not
 Lower courts: injury was not foreseeable
 CA agreed
 HOL reversed
o Majority applied Anns - foreseeability + no policy reasons for negating duty
 Anns does not require proximity - only foreseeability!
o Injury was RF
o Direct injury to P or directly witnessing accident not necessary
o Enough that victim is P's spouse or child, and P witnessed, by sight or hearing, the immediate
aftermath of the accident

Alcock v Chief Constable of the South Yorkshire Police [CITE THIS]

 Hillsborough Disaster of 1989
 Facts
 Soccer game at Hillsborough stadium in Sheffield, South Yorkshire
 High steel fencing placed between spectators and pitch due to hooliganism concerns
 Fans arrived early and there was buildup of fans outside turnstiles at one end of the stadium
 Bottleneck, about 5,000 fans involved
 Police decided to open outer exit gate that didn't have turnstiles
 Thousands spilled into stadium - crush - about 95 dead, 400+ injured
 Another died 4 years later
 16 plaintiffs bring action claiming damages for nervous shock alleged to have been caused by seeing
or hearing news of the disaster
o All of them are secondary victims!
 Police admitted negligence and liability to those injured or killed, but argued that no DOC was owed to
NS claimants
 2 plaintiffs were actually there; 14 was on TV
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 o TJ: found for 10/16 Ps
o CA: none could recover
o HL: affirmed CA - no DOC owed
 Issues:
 Are the Ps sufficiently close to the victims?
o Can a brother recover? Brother in law?
o (Just because someone is your brother doesn't determine the matter)
o Relational proximity is important
 Does viewing a simultaneous broadcast of the incident qualifying as witnessing by sight or hearing?
o Is shock caused by viewing a broadcast enough?
o Visual or aural proximity
 Does it matter that P did not witness 'immediate' aftermath?
o Locational/temporal proximity
 Lord Ackner:
 Claims under this category have very specific features - absence of those features disqualifies the
claim
 As with every negligence claim, the risk of psychiatric illness resulting from shocking event must be
reasonably foreseeable
o (Anns)
 To limit volume of potential claims from shocking events, only 'proximate' plaintiffs can recover
 Plaintiff's that are 'proximate' to primary victim and to the accident or its immediate aftermath
o We impose this to limit the volume of potential claims
o In nervous shock cases, you have to show proximity!! (EVEN ON EXAM)
 Nature of claim - the following must be present in the facts or else the claim won't succeed
 Pre-negligence analysis for nervous shock cases
 (1) Shocking event must result in recognized psychiatric harm - grief isn't enough
 (2) Only psychiatric harm induced by shock can be the basis for recover
o Psychiatric harm caused in other ways, such as from caring for disabled relative is not enough
 (3) Shock and resulting psychiatric illness must arise from seeing or hearing the shocking event
o Not enough to merely be informed of, or to read or hear about it
o Ie reading about it in the paper is not enough
 (4) Shock must be sudden appreciation by sight or sound of horrifying event, which violently agitates
the mind
o Slow accretion of grief not enough
 Duty of Care analysis:
 Caparo - reasonable foreseeability + proximity + no policy reasons negating duty
 At the time the cases was decided, Caparo was still law so proximity fell under DOC
 Foreseeability - not really an issue in Alcock
 Is it RF that the psychiatric injury suffered by the Ps would affect the persons of ordinary fortitude?
 Proximity Analysis
 Control mechanism - only proximate plaintiffs can recover
 Three elements of the proximity analysis - all required
o Relational Proximity: Is P within a class of persons whose claims should be recognized?
Relationship to 1˚ victim?
o Locational/Temporal Proximity: Is the shock suffered by P close both in time and space to the
accident or its immediate aftermath?
o Visual/Aural Proximity: Did P actually see or hear the shocking accident or its immediate
aftermath?
 Primary vs Secondary victims
 Ps are not "primary victims" - ie they were not directly affected by the incident resulting from D's
negligence
 They are secondary victims - affected by virtue of a relationship with a primary victim
 Distinction taken into account in proximity analysis
 Relational Proximity

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  Is P's relationship to the primary victim sufficiently close such that it is reasonably foreseeable that P
would suffer nervous shock if primary victim is injured?
o P must prove they are sufficiently close to the primary victim
o Rebuttable presumption
 D can challenge it
o Decided on case-by-case basis
 Closeness not assumed by actual relationship
o Factual matter that must be proven!
 Locational/Temporal Proximity
 Shock must occur close in time and space to the accident or its immediate aftermath
 Shock from subsequent identification qualified, but not too long after
o McLoughlin - 1 hour after - fine
o Alcock - 8 hours after - NO
 Visual/Aural proximity
 P must actually see or hear incident or immediate aftermath
 Could be in person or through simultaneous broadcast
 If TV, suffering of primary victim must be portrayed (generalized portrayal isn't enough)
 Why nobody in Alcock succeeded
 Relational: Not established at trial that there was close relationship between primary and secondary
victims
 Locational/Temporal: Only Harrison and Alcock, present, but didn't find out about the fate of relatives
until much later
 Visual/Aural: Harrison heard on the phone hours later/Alcock found out in morgue 8 hours later
o All others watched on TV
 P's couldn't prove all three elements of proximity
 In the UK, Alcock is still good law

Reception in Canada

Rhodes v CNR
 P's son killed in train crash in AB; CNR admitted negligence
 P hears of death from third party days later in Vancouver - didn't see body
 Held: no locational/temporal/visual/aural proximity
 But what if P saw newspaper photos of accident immediately after the crash?
o Might meet some proximities

Vanek v Great Atl. And Pac. Co

 11 year old Eva consumes contaminated juice at school, is fine
 Parents are not; develop stress related complications
 Held: DOC analysis based on foreseeability and recognizable psychiatric harm (Anns/Kamloops)
 P did not witness actual event
 Not extremely distressing
 Complete normalcy in immediate aftermath

 Why Ogbogu likes Alcock

 It's very clear re: what it wants
 Can be clearly applied
 Is it an NS case? Does it meet the 4 criteria?
Then,
 Is a DOC owed? Proceed with proximity

Cf Mustapha
 CA/SCC: NO
 Culligan owed Mustapha a DOC
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  SOC was breached, but P's injury was too remote to warrant recovery
 No person of ordinary fortitude would have foreseeably suffered this kind of injury from seeing flied in
an unopened bottle of water
 Differences between Mustapha and other cases
 Primary vs Secondary victim
o How do we handle the duty of care (foreseeability/proximity/policy) analysis for primary victims?
o Does P have to prove specific injury (NS) or simply personal injury of whatever kind?
 Is it enough to say you suffered some harm, or psychiatric harm?
 Majority in Page v Smith
 It should not matter that the physical illness suffered by the P operated through the medium of the
mind or nervous system without physical injury
 If you can show some kind of injury, it's good enough
o You've shown damage
 If you're Mustapha and you have physical injury to show as well, psych may be too far, but let's say he
gets sick - that's closer
 Donoghue
o Saw the snail - if the NS claim didn't succeed then she can fall back on her having gotten sick
from the beer
 If both, discuss Alcock and also standard analysis
 If nervous shock, don't forget about the physical injury
o You can address both

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