DUTY OF CARE Palsgraf v. Long Island Ry. Co (1928) Donoghue v. Stevenson(193 2) Neighbour? Buchan v. Ortho Pharm. Ltd.

(1986) Duty to Warn

The Foreseeable Plaintiff Test/ fireworks in bag at train platform Snail in ginger beer/duty of case/ leading case in negligence

Stroke caused by birth control pills; a risk not warned to consumers; even small % of chance of injury requires duty, but duty increases with likelihood and gravity of injury Breast implants rupturing a risk not warned by manufacturers Negligence by doctors

Hollis v. Dow Corning Corp. (1995) Learned Intermed. Subjective Test Reibl v. Hughes/ Arndt v. Smith Modified Objective Test Anns v. Merton London (1978) Two Tests

Looked at trilogy of cases which set out tests to be applied in considering a duty of care and proximity POLICY CONSIDERATIONS Did the Registrar of mortgage brokers owe a duty of care to an investor rising from broker Frustrated investors; lawyers trust account; investors were not clients of lawyer Road maintenance on highway Drinking at a private party; drunk guest driving; one killed; Child (another car) serious injured CARE: RESCURERS, Old traditional law regarding duty to rescue New law regarding duty to rescue

The plaintiff must belong to a class of persons foreseeably at risk; Proof of negligence in the air, so to speak will not do ; established The Foreseeable Plaintiff Test; in Canada, may have lost on remoteness issue A manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer w/o other inspections owes a duty to the consumer. Who is my neighbour?.within the ambit of the foreseeable risk of harm A manufacturer of oral contraceptives is under a duty to warn consumers directly (breaking from Reibl v. Hughes re: dr/patient and causation bec patient would take it anyway). one who brings himself into a relation with others through an activity which foreseeably exposes them to danger if proper care is not observed must exercise reasonable care to safeguard them from that danger; breach of duty to warn, leading to injury will give rise to liability. Warning must be adequate Confirmed mfgs duty to warn of dangers even if later discovered; varies with level of the danger in ordinary use, esp. medical products; learned intermediary rule Buchan principle reaffirmed; manufacturers are subjected to stricter standards of causation than doctors (Reibl and Arndt);; subjective test Held that a modified objective test (Reibl test) is applied in medical negligence cases would a reasonable person in the plaintiffs circumstances have consented if s/he had know all the material risks .. (1)between P and D there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on the part of the D may be likely to cause damage to the P;(2) policy considerations New/novel duty of care; was it a neighbour?; looked to statute; did not impose duty; no finding of proximity so didnt have to look at policy considerations Not sufficiently proximate relationship and, even if so, w/be policy considerations to consider outside of the relationship. Law society doesnt owe a private duty of care to investors Governments who have made a policy decision will be held to a duty of care to implement in a non-negligent manner. Policy up to govnt; procedure is where duty comes in Looked at Anns test and other novel claims, commercial host liability issues; social host liability new and novel so no prima facie duty; then found on facts proximity and foresee.; onus shift to D to establish public policy bar; court decided to leave it to legislature UNBORN, NERVOUS SHOCK A leasor does not owe duty to their clients; therefore, s/he can simply stand back and watch client drown (in this case) As guest of boat, owner/operator owes duty of rescue to guests; but failed in this case because Matthews fell overboard by own fault and no proof was still alive upon contact with frigid cold water.

NOVEL CLAIMS Cooper v. Hobart S.C.C. 2001 Anns Test Applied Edwards v. Law Society S.C.C 2001 Anns Test Applied Just v. B.C. S.C.C. 1989 Govnt. Liability Child v. Desormeaux (ont) Social Host SPECIAL DUTIES Osterlind v. Hill (1928) Rescue Matthews v. Maclaren (1969) Rescue

Horsley v. MacLaren, (1972) Wagner v. Int.Ry.Co Rescue

Horsley was rescuer of another guest on Ogopogo boat owned by MacLaren; Matthews died Duty owed to rescuers

Reaffirms the principle above and stresses that owner can be liable to both victim and rescuer if he causes or aggravates the peril of situation; but found not to be liable because of specific circumstances error of judgement reasonable person in emergency situation agony of the moment Danger invites rescue by Cardozo J. (1921)

Videan v. British Transport Comm., (1963) Rescue Winnipeg Child & Family D.F.G. 1997 What is Alive? Montreal Tramways Co. v. Leveille S.C.C. (1933) Born alive Duval v. Seguin (1972) Dobson v. Dobson (1999) Mothers Duty R.v. Morgentaler, (1988) Abortion Right Brooks. V. Canada Safeway (1989) Discrimination Jones(Guardian ad litem of) v. Rostvig (1999) R.H. v. Hunter (1996) Wrongful birth Mickle v. Salvation Army Grace Hospital (1998) Wrongful birth Kealey v. Berezowski (1996) Wrongful Conception Beecham v. Hughes (1988) Nervous Shock Rhodes v. CNR Co. (1990) Nervous Shock Strong v. Moon (1992) Nervous Shock Bechard v. Haliburton Estate (1991) Nervous Shock McDermott v. Ramadanovic Estate (1988) Nervous Shock

Son/trespassers claim was dismissed but held father/rescuer was owed a duty Foetal rights/legal personality

The rescuer (father/stationmaster) was owed a duty because he as a rescuer was foreseeable by the driver; basically reaffirms the principle of Wagner above Legal personality begins at birth and ends at death ; therefore, at the time of the commission of the tort, the infant respondent did not exist as a person in law A child born alive but with injuries can recover damages for consequences of 3rd partys negligent act and if dies of such injuries, can file action for wrongful death A more recent case that reaffirms the above principle The mother to be is not liable for injuries caused to the foetus; autonomy of a mother-to-be precedes over the foetus; besides, foetus is at one with mother Pregnant women have a fundamental right to control her body and make decisions in her own interest Pregnancy is essentially related to womanhood; thus women should not be penalized because it is their sex that bears children Canadian courts have not accepted wrongful claims because the premise is offensive; a disabled life is a net loss when compared to non-existence Cdn courts are willing to entertain these claims; $3.9 million dollar award against two doctors for negligently failing to refer a couple to genetic counselling Cdn courts sometimes express misgivings; defendant failed to detect foetal abnormalities but if detected, would abort; still courts award damages only in the difference of costs between an able-bodied child and a disabled child Courts routinely award damages for the additional costs, including pain and suffering associated with the unplanned pregnancy and the need to undergo a second sterilization but not for the costs of raising an healthy child Reaffirms that the test for liability for nervous shock be based on foreseeability limited by proximity Criteria for liability of nervous shock: a)relational proximity; b)locational proximity; c)temporal proximity;. ; this case failed to meet b) and c) Dismissed because of failure to meet the locational proximity (did not see mother lying injured) One of three situations where a defendant may be liable for psychiatric harm unaccompanied by physical injury. This notwithstanding Bechards thin skull personality.

Injuries sustained in utero but alive after birth Same as above Prenatal negligent act of the mother to be Autonomy of a pregnant woman Womens choice to be pregnant

Wrongful life claim on behalf of the child Wrongful birth claim made by parents Wrongful birth claim made by parents another view by courts Wrongful conception or pregnancy/ negligent abortion or sterilization Common-law was brain damaged in car accident thus suffered reactive depression Son killed in Hinton Train Disaster A daughters claim for shock upon hearing road pizza comment by school friend A rescuer responding to emergency created by defendants negligence (motorcycle driverHaliburton; second driver too who ran over Haliburton) Girl witnessing her parents car accident, suffered physical as well as psychiatric illness

Cited by Madame Justice Molloy as a good case of why mental distress damages should be awarded; as Southin J. in the case said what is the logical difference between a scar on the flesh and a scar on the mind

Anderson v. Wilson (1999) Nervous Shock

Warning letter of Hepatitis B

Bent the criteria rule if not compelled by pressing policy reasons (mostly in Ontario) flexible; also seeing this in other cases (loss of cremated remains)(watching death of parents in car accident)(distressing in the extreme horrifying and gruesome)

DUTIES OF Jordan House v. Mennow (1973) S.C.C. Intoxication Hague v. Billings (1989) Intoxication Crocker v. Sundance (1988) Dangerous Activity Stewart v. Pettie (1995) Intoxication Hunt v. Sutton (2001) Employee Intoxica. Prevost v. Vetter (2001) B.C.S.C Parent Liability Jane Doe v. Toronto Police (1998) Statutory Duty STANDARD Arland v. Taylor (1955) Reasonable Person Glasgow Corp. v. Muir et al (1943) Not Personal U.S. v. Carroll Towing Co. (1947) Learned Hand Bolton v. Stone (1951) Low Probability Miller v. Jackson (1977) Social Utility Paris v. Stephney (1951) Grave Harm Watt v. Hertfordshire (1954) H.L. Emergency Law Estate v. Simice (1994) B.C. Burden Cost Vaughn v. Halifax Bridge (1961) Burden

AFFIRMATIVE ACTI Intoxicated patron; kicked out of hotel; got killed on highway

ON: NONFEASANCE Invitor/invitee relationship; commercial establishment; duty of care to actively intervene and arrange transportation; duty to the patron as well as the public they may come into contact with while intoxicated. Reaffirms duty to control conduct of patrons if intoxicated by sellers alcohol in defendants establishment Sundance should have acted on established duty to stop patron from participating in drunken state; waiver not counted. Affirmative duty to ensure he did not participate in the first place. Drinking establishment held not liable because there was a group who could be responsible for a persons conduct under alcohol; defendant not apparently intoxicated but drank alot Employer under duty to ensure that harm anticipated and taken positive steps to prevent her from driving home; pub too was held liable Appealed established that mother had proximate relationship but not necessarily foreseeable that teenager would drive and harm herself and others; sent back to trial; also social host liability issue Police liable for breach of duty to warn specific neighbourhood; fear of scaring off the rapist unjustified as there were ways to warn and still not scare off rapist; statutory and common law duty A reasonable person is a mythical creature of law whose conduct is the standard by which the Courts measure the conduct of all other persons; an impersonal test Emphasized that the reasonable person test be free of personal equation Formulated the Learned Hand Formula (Liability is when B<PxL); in this case, Probability of harm happening was high enough and Liability/severity of harm was high as well while burden of preventing this harm was not too high (hire a bargee) In this case, probability too low (few balls over 20 years); severity not too bad while burden to prevent such harm is too much therefore not liable Dennings assessment>Burden of injunction against cricket ground too high for this type of interference; instead held that the plaintiff be compensated with $ settlement Illustrated that the graver the harm (this is the higher the L); the higher the standard of duty imposed; This type of tort action is now replaced by WSIB (workplace injuries) Social utility of the activity is high combined with actions taken in emergency; thus, greater risk of individual injury is acceptable. Court was harsh about the medical systems budget constraints when measured against the individual harm; burden was less than severity of potential harm; doctors held liable Small precautions which wouldnt have cost a lot would have minimized damages

Patron intoxicated with sellers alcohol but not stopped from driving Ski resort/tubing competition/drunk then became quadriplegic Two couples in car accident after leaving drinking establishment Employee at office party; went to pub then drove home Teenagers drinking in home; police; woke mother up and she did nothing Woman raped in a neighbourhood known by police to be at risk OF CARE Standard of care; the reasonable person test A case referred in Arland v. Taylor Bargee not present when flotilla broke away from dock, causing damage to other ships Cricket match; a ball hitting an elderly lady on adjacent road House adjacent to cricket ground; broken windows, etc One-eyed employee losing his eye by employers failure to provide goggles. Firefighter injured on way to fire

Man not given a medical test that might have shown his condition Painting carried out which damaged several cars in N.S.

Buckley and TTC v. Smith TPT Ltd. Disabled Slattery v. Haley (1923) Disabled Joyal v. Barsby (1965) Child White v. Turner (1981) Professional Ter Neuzen v. Korn (1995) Custom CAUSATION Kauffman v. TTC (1959) But-For Test Snell v. Farrell (1990) More Flexible But For Test -- MCR Walker v. York Finch (2001) S.C.C. MCR Athey v. Leonati (1996) Concurrent and Indivisible Injury Arneil v. Paterson (1931) Indivisible Injury Nowlan v. Brunswick Construction (1972) Concurrent Torts Cook v. Lewis (1951) / Summers v. Tice in USA Joint TFs Dillion v. Twin State gas and Electric Co. (1932) Cause

Ill driver causing accident

If a person is not able to understand and carry out the duty of care, s/he then is not liable for damages (but vicarious liability possible for another person ie guardian) This case was referred to in the decision of Buckley and TTC v. Smith TPT Ltd above Established that the Reasonable Person Test NOT be applied to children but established that children be subjected to own test vis a vis children of same age and experiences; unless adult activity Held that mistakes dont necessarily mean drs are liable but if negligent, (according to drs of same expert), can be held liable; in this case, liable for not doing proper tissue check Courts must consider, in determining whether a dr was negligent, the custom and practices of the field along with available knowledge of that time; found not liable Necessary but not sole cause cause or materially contribute to the risk; more than half of total global risk factors; outside the de minimis range; generally P to prove on the b. of p. The plaintiff failed to pass the But-For test; not proven that the handrail was faulty; or that she wouldnt have fallen if a different handrail; therefore, handrail didnt CAUSE fall; thus TTC not liable Established a more flexible analysis of the But-For test (MCR); the legal or ultimate burden remains with the plaintiff but in the absence of evidence to the contrary adduced by the defendant, an interference of causation may be drawn, although positive or scientific proof of causation has not been adduced; C.R.C.S. materially contributed to the occurrence of the injury; had proper screening been in place the donor more likely than not would not have donated the tainted blood The tortious drivers (separate) still liable for all damages even though the plaintiff had history of back pain (thin skull principle); presence of other non-tortious contributing causes (stretching) doesnt reduce the liability; all fully liable for consequences as one injury since they were a cause or contributing cause Although sheep was killed by two dogs, one was held liable because the owner of another dog was a no show; liable for ALL damages caused by two dogs; otherwise both liable Although poor design of ventilation contributed to the leak, contractor held joint and severably liable for the whole liability Establishes that in this type of case, burden of proof be shifted to the defendants because they would be in a better position to explain what happened and disprove Because the boy would fall to a certain death, the fact that he was electrocuted (earlier death) made no difference;

Tort committed by a lunatic thus not voluntary act Standard of care expected of children; girl running across the road; contributory negligence Breast reduction; not enough tissue removed; Sloppy stitching job; mistake vs. negligence HIV infection by artificial insemination before 1985 But for the Ds negligence, the injury would not have occurred (not the Ds actions!) The But-For test; fell down escalator on TTC premise Dr. found discolouration during cataract operation; hard for plaintiff to adduce evidence; material contribution to risk plus evidentiary murkiness Negligence in blood donorscreening program; HIV virus transmitted Back injury by two tortious car accidents and a non-tortious stretching plus back pain history Sheep being killed by two dogs of different owner Poor architecture, vs. sloppy workmanship/inferior materials 2 partner hunters shooting plaintiff; dont know which

Boy falling from side of bridge but grabbed on wire only to be electrocuted

Penner v. Mitchell (1978) Non-Culpable Injuries Baker v. Willoughby (1970) Concurrent Torts Wakelin v. London & Southern Western Ry. Co. (1886) Burden of Proof MacDonald v. Woodard (1974) Highway Traffic Act Dahlberg v. Naydiuk (1969) Directly Caused Injury Cook v. Lewis (1951) Multiple Negligent Defendants Lloyds of London v. Scalera (2000) S.C.C. Sexual Consent Shannon v. T.W. (2002) O.J. Parental Responsibility Act Fontaine v. B.C. (1998) Res lpsa Loquitur (the thing speaks for itself) Sindell v. Abbott Lab (1980) Novel Approach REMOTENESS Re Polemis and Furness, Withy & Co (1921) Directness Test

Plaintiff losing 13 months of work but had heart condition for three months Plaintiff was injured in left leg and sued defendant but before trail, was shot in same leg in robbery; the damages flowed from the combined effect of the tortious acts of both torts Traditional approach in tort regarding burden of proof

Held that the defendant be responsible for damages only caused by her negligent act and nothing else; thus plaintiff was recovered only for ten months Issue was apportionment of damages from two concurrent cases; instead the first tortious defendant was liable for damages as if the second tort never occurred

If no evidence available on a particular issue, then plaintiff loses the suit; decided in this case that the plaintiff did not have prima facie case; nonsuit; modified a bit by Snell Onus of proof on defendant as accorded to the Highway Traffic Act R.S.O. 1970; and upon proving that the injury was by motor vehicle, the onus operates Relied on Cook v. Lewis; onus of proof be shifted to defendant to disprove allegation of negligence; second exception to the rule of onus of proof on plaintiff Exception to the rule of onus of proof on plaintiff; in cases where there are multiple tortfeasors, they must disprove negligence If the defendant does not dispute contact took place, D bears the burden of proving that P consented or that a reasonable person in his position would have thought she consented Parent liable unless proves that reasonable supervision of child and made reasonable efforts or prevent or discourage the child; activity that caused loss or damage was not intentional; in this case parents provided T.W. with not perfect but reasonable supervision. Decided in this case that the Latin doctrine be abandoned; replaced it with clearer statement: Plaintiff still has burden of proof on a b of p but this can be done with circumstantial evidence (sufficient to raise an inference that negligence caused accident); defendant can present evidence negating or plaintiff will have established proof; jury to decide if prima facie case established; Innovative stretch of Summers v. Tice; Market-share Liability and required that the companies be responsible for damages according to the amount of their share in the market of the drug; Summers v. Tice is like Cook v. Lewis in Canada This case, in determining remoteness between fire and dropping of the plank, applied the Directness Test; held that the plaintiff was entitled to recovery because the loss of the ship was a direct result of the defendants negligence

A gas attendant was hit by defs car as he stood over the engine Defendant fired at a deer but missed and struck plaintiff

Two partner hunters shooting the plaintiff; dont know which one Suit against five bus drivers for sexual assaults Parents responsibility for loss or damages caused by their children Accident, without evidence, widow brought suit against dead drivers estate;

Daughters developing cancer caused by DES taken by mothers during pregnancy

Servants of the def dropped a plank into plaintiffs ship which contained cargo of benzine; created spark which combined with benzine caused fire

Wagon Mound (No.1) v. Morts Dock (1961) Foreseeability Test Hughes v. Lord Advocate (1963) Kind of Injury not Extent Smith v. Leech Brain & Co (1962) Thin Skull Marconato v. Franklin (1974) Thin Skull Wagon Mound (No.2) v. Miller Steamship (1967) Assiniboine School v. Greater Winnipeg Gas (1971) Possibility of Injury Bradford v. Kanellos (1973) Intervening Causes Price v. Milawski (1977) Intervening Causes DAMAGES Andrews v. Grand & Toy LTD Heads of Damages MacCabe v. Westlock Roman Catholic District No.110 (2001) Gendered Tables Survival Actions and Dependant s Keizer v. Hanna (1978)

Oil spill spread to plaintiffs wharf where the workers were welding, creating sparks that when combined with oil caused fire A boy was playing near manhole but scared by sparks in nearby lamp and fell into manhole Thin-skulled plaintiff rule; burn on lip at work, leading to cancer later Plaintiff was injured and traumatized by defs negligent driving Same situation as above but different plaintiff; ships (containing furnace fire) damaged by fire on contact w/ oil Father adjusted SkiDaddle for son; lost control and hit pipe that was already cracked by negligent Gas Co; created explosion in school Grill fire>fire extinguisher>hissing/ popping sound>screaming gas 2 separate dr.s contributing to patients permanent disability in ankle

The court decided to employ the foreseeability test, that is, it allows greater correlation b/w the blameworthiness and the scope of liability; the plaintiff had difficulties as if the def ought to have known oil with sparks would create fire, the plaintiff should have known as well (welding); not liable because not foreseeable Post Office held to be liable because the nearby lamp had a known danger of sparks; although the boy falling into the hole wasnt foreseeable, it was foreseeable that the lamps produced sparks and the sparks caused the boy to fall Distinguished by Wagon Mound because of thin-skull issue; held that defendant still responsible for plaintiff as s/he is Plaintiffs eggshell personality and need for psychological treatment must be recovered by defendant; same principle as above Unlike the difficulties experienced in the previous case, contributory negligence is not the issue here; it was foreseeable that the oil spill on contact with furnace fire would cause fire; thus liable for damages Father and son were joint tortfeasors; but father/son with Gas Co. were independent tortfeasors causing indivisible injury; held to be 50 percent liable each; NOUVOUS ACTUS INTERVENIENS not applicable here Defendant not liable because the hysterical patron was not foreseeable of the grill fire; Within the Scope of Risk Test NB: has dissenting opinion! 1st drs mistake in xraying foot not ankle > 2nd drs reliance on original x-ray was foreseeable thus 1st dr was liable; 2nd drs failure to order to second x-ray > compounded the risk of permanently disabling the ankle was foreseeable thus 2nd dr was liable; held that both were liable by 50 percent. Put the plaintiff in as close a position as s/he would have been but for the injury; no more, no less; P has burden to prove quantum Assessment of Damages; no longer lump sum compensation; now divided into: Pecuniary Loss (which includes future care, lost earning capacity, considerations relevant to both ie. inflation, interest rate, taxes) and Non-Pecuniary Loss (pain and suffering, loss of amenities, loss of expectation of life) Wages for male earnings statistics should not be applied to determine the earnings the female would have made had the accident not injured; though agreed that inequities in the workplace should not be projected into the future, need to consider facts re contingencies (e.g. she would have had children) Family Law Act R.S.O. 1990 and Trustee Act, R.S.O.1990

Andrews rendered a quadriplegic in a traffic accident for which the drivers were found partially liable Plaintiff, 16 yrs old, rendered quadriplegic bec of PE teacher breaching standard of care expected of a PE teacher Claims for Wrongful Death or Injury Killed in car accident;left behind wife and 6 mos infant;33 yrs old;avg earnings of 15,000 x 31 working years

Family Provider; assessment of damages to include income tax, inflation, contingencies- see pg. 430 in textbook for list of contingencies as examples; look at

The Death of a Dependant Alaffe v. Kennedy (1973)

Spouse and Child Plaintiffs wife & 4 mos baby killed in motor accident; defs liable Full compensation but P has to mitigate or will not recover; Exception are gifts, other benefit which has consideration, subrogation Plaintiff was injured as he crossed a road ; off work almost 20 wks; collected DA benefits; at CofA, damages less the DA benefits;plaintiff appealed TO NEGLIGENCE D negligently caused fire; P arrived on scene to help stop fire, forgetting fire extinguisher Plaintiff was passenger in defs car not wearing seatbelt when car accident; contributory neg? Both plaintiff and def teasing; plaintiff started; escalated into fall down stairs and hit wall; bad wall; fell to ground; plaintiff rendered quadriplegic but def nothing R.S.O. 1990 Both the plaintiff & respondent drunk and car accident; first respondent grabbed wheel to straighten out cars course but overturned causing personal injuries to plaintiff(appellant) Both got equally drunk; P asked D to drive; then lost control and was severely injured; sued D for allowing him to drive in his intoxicated condition; appeal to SCC if D could use defence to negate the Ps cause of action Voluntary Assumption of Risk a complete defence thus D not liable for injuries sustained by P; Defence is where P, knowing of the physical risk of harm, in essence bargained away his legal right to sue for injuries incurred as a result of any negligence on the defendants part; HOWEVER in this case, there was evidence that the plaintiff was aware enough; therefore lost case. Contrast this case with Crocker v. Sundance This defence is still applicable for policy reason; not used often in Canada; now use contributory negligence. However, essence is that there is generally no right of action arising from a base or immoral cause; is a complete defence so P can not profit from illegal conduct or evade consequences of a criminal sanction (fines, lost income while in jail) No damages for pecuniary loss for possibility of $ from infant to father; plaintiff awarded for loss of housekeeping, management and services of wife 10,000; but now, can claim for loss of guidance, care and companionship in claim about baby entitled to lesser of (1) cost of repair; (2) cost of replacement or (3) loss in market value Cant double recover, unless right of subrogation not exercised by authority who holds right (e.g. employer) Should benefits from collective bargaining be deducted from compensation payment? No; plaintiff is entitled to keep DA benefits AND full compensation b/c there was evidence that he gave up something (lesser hourly rate as per collective bargaining) in return of that benefit therefore ought not to be punished Plaintiff contributory negligence? No b/c it was an emergency and he did what any reasonable man would do in an emergency Yes contributory negligence; specific kinds of injuries sustained by plaintiff corresponded to lack of seatbelt; if seatbelt then those injuries wont have happened; defendant had to prove that if P had been wearing seatbelt, the injury would not have happened Cameron held liable but only for pushing Mortimer down the stairs but wall broke, Cameron was not b/c it was not foreseeable kind of injury; and Mortimer owed a duty to take reasonable care for his own safety; ultimately City and Landlord held liable for faulty wall and pay damages 40 and 60 percent respectively; apportioned according to degree of fault; not of causal responsibility

Damages for Property Loss Collateral Benefits Cunningham v. Wheeler (1994)

DEFENCES Walls v. Mussens LTD (1969) Contributory Gagnon v. Beaulieu (1977) Contributory Mortimer v. Cameron (1994) (City/Stingray) Contributory Negligence Negligence Act Dube v. Labar (1986) Voluntary Assumption of the Risk Hall v Hebert (1993) Ex Turpi Causa Non Oritur Actio

Battery, Assault, and Intentional Infliction of Mental Suffering; Sexual Harassment; Informed Consent and a Doctors Duty of Disclosure Bettel v. Yim (1978) P, with other 6 or 7 boys bother Ds Battery is an intentional wrong; the logical test is whether the D store; playing with matches; finally, was guilty of deliberate, intentional and unlawful violence or D saw P and grabbed by arm and threats of violence; thus to import negligence concepts into the when heard Ds denials, got angry filed of intentional torts would be to ignore the essential

Norberg v Wynrib (1992)

K.M. v. H.M. (1992)

Holcombe v. Whitaker, (1975)

Police v. Greaves (1964)

Wilkinson v. Downton (1897)

Radovskis v. Tomm (1957) Samms v. Eccles (1961)

and shook, Ds head struck Ps nose; P framed action in assault but courts framed it as battery bec physical contact is involved here; P succeeded P addicted to painkillers and obtained drugs by D in exchange of sexual favours; gave in; filed action on grounds of sexual assault, negligence, breach of fiduciary duty and breach of K; SCC decided in favour of P by dismissing Ds defence of ex turpi causa non ortiur actio (illegal or immoral act) P victim of incest until 16 but filed action at 28; had case but limited by s.45 of Limitations Act; SCC allowed appeal and awarded damages to P P filed for assault as D said if you take me to court, I will kill you; D contended it was merely a conditional threat of violence and no act; P succeeded On complaint, policemen arrived scene only to be confronted by resident who said ..you come a step closer and you will get this straight through you guts; dismissed for the threat was conditional and no act; prosecutor appealed to C of A; allowed Joke by D to P that husband was in serious harm; but P was in vilent shock and vomiting and other permanent physical consequences; filed for 100 pounds; won Infant P filed action for Ds rape; mother, too for nervous shock; dismissed P severe emotional distress by Ds sexual advances; trial judge dismissed Ps claim as there was no physical harm in the strictest sense; ultimately, Utah S.C allowed appeal and awarded P damages P filed action of battery, intentional infliction of emotional distress and negligence against D (bisexual husband) for knowingly exposing her to HIV; D claimed no reasonable cause of action; Rosenberg J dismissed Ds claim P discriminated against by D bec of ethnic origin; chose tort instead of Ontario Human Rights Code; tort action on grounds of mental distress, frustration, and loss of dignity and self-esteem; at C of A,

difference between the intentional infliction of harm and the unintentional infliction of harm resulting from a failure to adhere to a reasonable standard of care Intentional infliction of unlawful force on another person and consent expressed or implied is defence to battery but must be genuine and cannot be obtained under threat by force or threat of force thus the two step test is that one, proof of inequality in the positions of the parties (complainant free to choose?) and two, proof of exploitation abuse of position in pursue of own interests In response to Limitation rule, SCC ruled that in incest cases, often harm does not manifest until well past the time limit thus new rule is that the time limit runs from time of discoverability of connection between harm and incest through therapy thus appeal allowed While words alone cannot constitute an assault they may give meaning to an act and both, taken together may constitute an assault thus if P is in immediate risk of harm upon verbal threat, P may have a case Same principle as above Holcombe v. Whitaker, that is, words used under situation where act was perceived by P as possible, may constitute as an assault

Bell-Ginsburg v. Ginsburg (1993)

D has wilfully done an act calculated to cause physical harm to P to infringe her legal right to personal safety and in fact caused physical harm and the harm is not remote (remote issue here is without precedent but succeeded nonetheless in relation to intentional infliction of nervous shock) Held that no evidence of visible and provable illness as result of nervous shock emotion although father did say wife had not good nerves still not sufficient Rule is that for an action for severe emotional distress to succeed, although not accompanied by bodily impact or physical injury, where the D intentionally engaged in some conduct toward the P a) with the purpose of inflicting emotional distress or b) where any reasonable person would have known that such would result; and his actions are of such nature as to be considered outrageous and intolerable in that they offend against the generally accepted standards of decency and morality J found allegations of battery can be substantiated as fraud vitiates wifes consent to sexual activity; as for intentional infliction of emotional distress, could be liable if the emotional effects of the Ds conduct were a) direct and immediate and b) intended or foreseeable or a probable consequence SCC disagreed common law as proper venue for this type of action as it is not the place of courts and there is such an elaborate machinery set up by legislature to remedy common law tort of discrimination and thus P must file follow procedures laid out by the OHRC

Bhadauria v. Bd of Gov. of Seneca College (1979)

Janzen v. Platy Enterprises Ltd (1989)

action allowed in tort but SCC disagreed P worked as waitresses at Ds restaurant; another employee engaged in conduct of sexual nature; boss unsympathetic; quitted and out of work for a month; filed action for physical and emotional consequences of harassment; C of A decided sexual harassment is not sex discrimination but SCC overruled and said yes P filed action of battery for removal of testicle during operation of hernia; at trial, P won but SCC allowed Ds appeal P, JW, injured in car accident and rushed to hospital; had card stating NO blood transfusion even if necessary due to JW; DR still gave blood transfusion; saved life but sued by P for battery; P succeeded 16 yr old pregnant; aborted; parents filed against Dr on grounds that girl had not given informed consent due to age (not aware of ethics involved in abortion) P underwent disc surgery which left him paralysed; second operation partially alleviated paralysis; P action against D for lack of informed consent dismissed at trial but appeal to Sask C.A. allowed P sued D for costs of rearing daughter injured congenitally by chickenpox during mothers pregnancy; if informed of risk, would have aborted; trial dismissed Ps claim; C of A allowed appeal but SCC upheld trial ruling on basis of Ps own suspicion of mainstream health care and desire of children

C of As contention (in response to issue if sexual harassment is discrimination on basis of sex) that the sexual harassment was simply based on sex appeal of specific complainants dismissed by SCC bec only a woman could be subject to sexual harassment by a heterosexual male such as employee here and sexual attractiveness cannot be separated from gender (similar rational as pregnancy cannot be separated from gender all pregnant people are women thus sex discrimination issue if discriminated against an individual pregnant person

Human Rights Code, R.S.O Marshall v. Curry (1933) Malette v. Shulman (1987)

Consent usually required for doctor but in these circumstances, necessary to remove testicle in accordance with medical practice and DR accepted as skilled professional and was only executing duty as doctor to preserve health of patient The right of self-determination which underlies the doctrine of informed consent also encompasses the right to refuse medical treatment and DR told of refusal by card; thus no consent to perform blood transfusion; hence liable for battery - ultimately, card was valid advance directive and DR ignored it Rule is that the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed; here, girl is intellectually mature and able to make own decision; thus parents appeal dismissed Failure to advise adequately of all available options and failure to advise of risks even small may constitute action of uninformed consent; here no reason for D to withhold info for therapeutic privilege thus D liable for damages of battery To discuss causation in medical malpractice, SCC used a combination of objective and subjective tests in determining if patient would still consent if informed subjective would rely on particular patient (already damaged by experience) and objective is whether the average prudent person in patients position would have foregone treatment if informed of all material risks; here, preferred test is Reibl v. Hughes bec it has the desired effect of ensuring that patients have all the requisite info and strikes a reasonable balance

C. v. Wren (1986)

Haughian v. Paine (1987)

Arndt v. Smith (1997)

Health Care Consent Act

Strict Liability and Vicarious Liability Rylands v. Fletcher (1868) P filed action against D for damage to property by water (RE: escape of goods from flowing from Ds mill; trial property) dismissed action; Appeal and HL allowed Ps action; D is liable for damages Read v. J.Lyons (1947) P on Ds factory premise for

Ratio created here is that the person who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief, if it escapes must keep it in at his peril, and if he does not do so is prima facie answerable for all the damage which is the natural consequence of its escape; can excuse himself by showing that the escape was owing to Ps default or vis major or act of God; but here nothing of the sort, thus D liable for damage to neighbours property Doctrine of Rylands is that there must be escape of something

Gertsen v. Metro Toronto (1973)

***DEFENCES TO THE RULE 340909 Ontario Ltd. V. Huron Steel Products Ltd (1990) (RE private nuisance) Hollywood Silver Fox Farm Ltd v. Emmett (1936)

Tock v. St. Johns Metropolitan Area Board (1989)

T.G. Bright & Co. v. Kerr (1939) (RE vicarious liability)

inspection when a shell exploded, injuring; filed action for injuries; HL dismissed cause D dumped waste into landfill site but methane gas seeped from site and accumulated in Ps garage; car started and exploded; P filed on ground of strict liability (and neg and nuisance); P succeeded in all actions IN RYLANDS v. FLETCHER: see P had apt building 1977 near Ds plant since 1947; so noisy loss of rental income and value of bldg; filed action for nuisance; P succeeded P breeder of fox and sign annoyed D; when P refused to take down sign, D discharged gun to interfere with breeding on own property; P filed action for nuisance; P succeeds Ps bsmt flooded by water by rain; citys blocked sewage responsible for damage and when unblocked, bsmt had sustained substantial damage; filed for neg and nuisance; at trial, failed in neg but succeeded in nuisance; CA reversed ruling but SCC upheld trials ruling D as a wine dealer sued by P for Ds employee as a motorcycle deliverymans role in car accident, causing injuries to P Ds subcontractor then employee responsible for injury to P; P succeeded in action for breach of duty by employee Employee directed by CPR to travel but used own car despite standing order prohibiting use of uninsured vehicles while company business; car accident injuring P; P succeeds At bar in hotel, bouncer German excessively struck P in course of employment; P failed in action against hotel

from one manes close to another mans close and that the escape is in consequence of some non-natural use of land; here the explosion occurred on Ds own property and no escape had occurred. Thus no case of strict liability as in Rylands ratio Rylands applicable here bec waste in landfill not natural in area of residential community thus not supported by overriding public welfare theory and beneficial only to T.O. not to community thus non-natural use of land and T.O. defence that it was natural and public necessity fails

pp. 652 to 654 in text To determine if nuisance occurred, courts consider a number of factors: one is the severity of the interference, having regard to its nature, duration and effect; two, the character of the locale; three, utility of Ds conduct; and four, sensitivity of use interfered with; in this case, except for forth factor as it was not relevant, Ds plant had failed in each one Authority is that a person who shoots on own land, or makes other noises on own land for the purpose of annoying or injuring his neighbour, does, by the common law, commit the actionable wrong of nuisance for which he is liable in damages at common law and was liable to be restrained by an injunction in a court of equity; thus D was found liable for damages & injunction ordered during breeding season Although city was protected by statute, provisions only authorise the city to construct sewage system not how or where it was to be done; to citys discretion; thus regardless of care, skill and reasonable duty, the courts found the city liable for damages to Tocks property; * the rule is that statutory regulation may be a defence only if it stipulates how a service is to be provided. Otherwise, a permissive legislation, that is, to authorise a service is not sufficient. SCC held in favour of D bec D had no control over precise manner in which task was performed; but in dissenting judgement, Duff stated that the principal is liable to 3rd persons in a civil suit for breach of duty of his agent in the course of employment although the principal did not authorise, justify, participate or indeed know of such misconduct yet had benefit from such duty in itself Issue was nature of relationship between Macs Milk and employee answered by either control test or organisation test; established that on these two tests, employee is under responsibility of Macs Milk; and neg occurred in course of employment thus D vicariously liable Rule is that 1)servant using masters time, place, or tools for own purposes then master not liable 2) servant employed to do work outside scope of employment then master not liable and 3)servant doing some work which he is appointed to do but does it in a way which his master has not authorised and would not have authorised had he known of it BUT master still liable; here, regardless of which car, employee still had to drive thus D vicariously liable for employees tort Although within course of Germans employment to keep order and to ask persons who were conducting themselves in a manner contrary to statute or regulations to leave the premises and if necessary to remove such persons forcibly; but here German

Armstrong v. Macs Milk Ltd (1975)

C.P.R. v Lockhart (1942)

Griggs v. Southside Hotel Co. (1947)

but succeeded in action against German Bazley v. Curry (1999) Curry, an employee of NPO, Childrens Foundation was a paedophile and abused child in care of organization; upon complaint, was fired but damage done and Bazley filed action against Childrens Foundation for injury in now deceased Currys care; at trial,held to be liable and C of A agreed; at SCC, agreed as well; thus vicariously liable

struck blow when P used insulting language to German and German assaulted as an independent act which had no relation to business of employer thus hotel not liable Scope of employment test met and also new test created by SCC which is that of close connection between the risk created or enhanced by the enterprise and the wrong committed test which is that the employer significantly increased the risk of harm by putting the employee in his or her position and requiring him to perform the assigned tasks; and the organization being a non-profit charity is not an exception This new test is applied in another case, Jacobi v. Griffths (1999) but cautioned that the test be applied with serious rigour (reasons stated on page 193 of supplementary text)