Torts Big CAN – Negligence

Duty of Care.................................................................................................................................. 5

Anns-Cooper Test......................................................................................................................5

STEP 1: CAN A PRIMA FACIE DUTY OF CARE BE FOUND?.......................................................5

Cooper....................................................................................................................................... 6

Positive Duty............................................................................................................................. 7

Policy......................................................................................................................................... 7

STEP 2: ARE THERE ANY RESIDIUAL POLICY REASONS TO NEGATE PRIMA FACIE DUTY OF CARE?.....................................................................................................................................7

Duty of Care Cases.................................................................................................................... 8

Donoghue.............................................................................................................................. 8

Cooper................................................................................................................................... 8

Moule vs Amos...................................................................................................................... 8

Long Island Railway................................................................................................................9

Rankin.................................................................................................................................... 9

Childs................................................................................................................................... 10

Sundance............................................................................................................................. 11

Kennedy v Coe..................................................................................................................... 11

Common law duty to control the conduct of intoxicated people..........................................12

Duty to Prevent Crime & Protect Others................................................................................12

Jane Doe.............................................................................................................................. 12

Hill........................................................................................................................................13

Professional Duties................................................................................................................. 14

POLICE..................................................................................................................................14

MEDICAL PROFFESIONALS...................................................................................................14

MANUFACTURERS................................................................................................................14

LAWYERS..............................................................................................................................15

Hollis v Dow Corning............................................................................................................15

Standard of Care......................................................................................................................... 17

STEP 1: WHAT IS REASAONBLE IN THE CIRCUMSTANCES?......................................................17

STEP 2: WAS THERE A BREACH?...............................................................................................18

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Standard of Care Cases........................................................................................................... 18

Probability of Injury................................................................................................................. 18

Severity of Harm......................................................................................................................18

Cost of Risk Avoidance.............................................................................................................19

Social Utility............................................................................................................................. 19

Economic Analysis of SoC.........................................................................................................19

Special Cases in SoC................................................................................................................ 20

Mental illness...........................................................................................................................20

Children................................................................................................................................... 20

Professionals............................................................................................................................21

Degrees of Negligence.............................................................................................................21

Causation.....................................................................................................................................23

Causation for a single defendant............................................................................................24

Causation for multiple defendants.........................................................................................24

Causation Cases.......................................................................................................................24

Kaufman v Toronto Transit..................................................................................................24

Barnett v Chelsea & Kensington Hospital Management Committee....................................25

Richard v CNR.......................................................................................................................25

Ediger v Johnston, 2013 SCC................................................................................................25

Causation & factual inference..................................................................................................25

Snell v Farell.........................................................................................................................25

BENHAIM v GERMAIN, SCC 2016.........................................................................................26

Causation & Multiple Causes...................................................................................................27

ATHEY v LEONATI.................................................................................................................27

CLEMENTS v CLEMENTS, SCC 2012......................................................................................27

Remoteness.................................................................................................................................29

Remoteness Cases...................................................................................................................30

Wagon Mound #1................................................................................................................30

Huges v Lord Advocate........................................................................................................ 30

Wagon Mound #2................................................................................................................30

Assiniboine South School Division v Greater Winnipeg Gas.................................................31

Mustapha v Cullingan of Cad...............................................................................................31

Intervening Causes..................................................................................................................32

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Intervening Causes Cases........................................................................................................33

BRADFORD v KANELLOS.......................................................................................................33

PRICE v MILAWSKI................................................................................................................33

TONG v BEDWELL.................................................................................................................34

CHUNSANG v BRIDSON, 2008 ONSC....................................................................................34

Defences......................................................................................................................................35

Contributory negligence (partial)...........................................................................................35

Walls v Mussens Ltd ...........................................................................................................35

Gagnon v Beaulieu.............................................................................................................. 36

Apportionment of Loss............................................................................................................36

Mortimer v. Cameron (1994) (CA)......................................................................................36

Voluntary Assumption of Risk (Complete).............................................................................37

Dube v Labar........................................................................................................................37

Damages......................................................................................................................................39

Thin skull vs Crumbling skull...................................................................................................39

Smith v Leech Brain & Co....................................................................................................39

Marconato v Franklin..........................................................................................................39

Types of Damages................................................................................................................... 40

Vicarious Liability........................................................................................................................41

Principal agent.........................................................................................................................41

T.G Bright & Co v Kerr, 1939 SCC........................................................................................41

Master Servant........................................................................................................................42

Baziely v Curry, 1999 SCC....................................................................................................42

Liability of Public Authority........................................................................................................44

Just v BC...............................................................................................................................44

Imperial Tobacco v Canada, SCC.........................................................................................45

Duties found:...........................................................................................................................46

Duties NOT found:...................................................................................................................46

Tort law = series of rules that govern our interactions with each other Negligence = a cause of action that constitutes a branch of tort law conceded with liability for careless conduct

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Themes of Tort Law: Reasonableness Autonomy Dignity Consent Capacity

Corrective Justice (from Clements v Clements): Recovery in negligence presupposes a relationship between the plaintiff and defendant based on the existence of a duty of care — a defendant who is at fault and a plaintiff who has been injured by that fault. If the defendant breaches this duty and thereby causes injury to the plaintiff, the law “corrects” the deficiency in the relationship by requiring the defendant to compensate the plaintiff for the injury suffered. This basis for recovery, sometimes referred to as “corrective justice”, assigns liability when the plaintiff and defendant are linked in a correlative relationship of doer and sufferer of the same harm (E.J. Weinrib – Author) - CRUCIAL IDEA to tort law- All of contemporary negligence law is structured around the notion of corrective justice- A way of articulating what we do when we are so preoccupied with compensation – compensation is

a mechanism for achieving corrective justice - Broader question: is corrective justice the right focus for tort law? Is there another framework that

is better suited towards furthering the goals of tort law?

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Duty of CareGeneral principals

Does not assign fault. This is the threshold for who could be held liable Duty of care ensures injured parties are not left uncompensated Preforms 2 main functions:

o Provides an overall framework for the broad range of situations in which liability for careless conduct may arise

o Acts as a limit to prevent an the floodgates from opening an unlimited spectre of liability o Duty of care constantly balancing these two principals of compensating and limiting

Categories of who your neighbour are NOT closed (Donoghue) Duty of care is an invention to limit how much we can sue each other Andrew Gay (guest

lecture)

Neighbour quote from Lord Atkins in Donoghue: "The rule that you are to love your neighbour becomes in law: you must not injure your neighbour; and the lawyer’s question: Who is my neighbour? Receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be — persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the act or omissions which are called into question"

Preliminary question: does the case fall within previously recognized duty of care, either directly or by analogy? (Donoghue: categories not closed). If yes, proceed to the standard of care analysis. If no apply Anns-Cooper test.

Anns-Cooper TestSTEP 1: CAN A PRIMA FACIE DUTY OF CARE BE FOUND? Per Childs, burden is on plaintiff.

In Rankin the courts urge us to be specific & avoid open ended categories when establishing a duty of care.

Must consider:

1.Reasonable Foreseeability Per Rankin, this is the “fundamental moral glue of tort, shaping the legal obligations we owe to one another and defining the boundaries our individual liability”

Per Hill, this is the first question to ask when determining whether a duty of care owed: was reasonably foreseeable that the actions of the wrongdoer would cause harm to the victim

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Consider the following factors (NOT a test) Is the injury foreseeable?

o Objective standard do not evaluate based on particularities of specific defendant o This is a fact specific inquiry, per Moule & Amos. Ask: was the

sequence of events “beyond the range of foreseeable results which a reasonable person would anticipate as a probable consequence” (Moule)

o OR ask: has the plaintiff established that “the risk of the type of damage that occurred was reasonably foreseeable to the class of plaintiffs that was damaged?” (Rankin)

Is the plaintiff foreseeable? (Long Island Railway)o P must show a wrong actually happened to them – “proof of negligence in the air will

not do” Foreseeability must be framed in a way that links the act to the harm

suffered (Rankin) Distinguish between something being possible and being reasonably

foreseeable (Rankin) Must be situated in time and place, not looked at from hindsight (Rankin)

2.Proximity Go to either Cooper or Childs or both

CooperPer Cooper, proximity is a broad concept NOT a test.

Unlike foreseeability, which is generally straightforward, the hard work is done here (Hill)

Per Hill, the second question is whether the case discloses factors which show that the relationship between P & D was sufficiently close & direct to give rise to a legal duty of care

Ask: is there a close and direct relationship between the parties to justify imposing a duty of care? (Donoghue & Cooper)

Per Hill, we look at closeness and directness in terms of the how the defendant’s careless actions affected the plaintiff. NOT about physical intimacy

Factors to take into considerations (Hill):o Expectations o Representations o Reliance o Property o Contracts o Statuteso Other interests involved – economic, social, emotional

Bring up policy considerations relevant to the relationship between the

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parties at this stagePolicy must guide your proximity analysis in SOME WAY

Positive DutyIf facts give rise to a POSITIVE DUTY OF CARE, consider Childs “something more” criteria (per Kennedy v Coe). Namely:

Material implication o Was D materially implicated in the creation or control of a risk to which others have

been invited? Paternal relationship

Is the relationship between P&D a paternalistic relationship of supervision and control?

Public function o Does D exercise a public function or engage in a commercial enterprise that includes

responsibilities to the public at large?

Any intrusion onto personal autonomy = positive duty (Childs)

“Common law is a jealous guardian of personal autonomy” (Childs) THEREFORE it is only when “It is only when these third parties have a special relationship to the person in danger or a material role in the creation or management of the risk that the law may impinge on autonomy" (Kennedy v Coe)

Childs is authority for the proposition that personal autonomy is highly valued and we do not want to authorize intrusion onto personal autonomy

Positive obligations engage with personal autonomy because it is forcing someone to do something they would not have otherwise done

Kennedy v Coe quotes (citing Childs) = “The mere fact that a person faces danger, or has become a danger to others, does not itself

impose any kind of duty on those in a position to become involved” "The law does not impose a duty to eliminate risk.” “It accepts that competent people have the right to engage in risky activities.” “Conversely, it permits third parties witnessing risk to decide not to become rescuers or

otherwise intervene.” TAKEAWAYS:

o Law does not impose a duty to eliminate riskS. IF it does, a special relationship must exist

Only positive duty recognized in case law = Commercial hosts Doctors

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If both reasonable foreseeability and proximity are established, a prima facie duty of care will be found

PolicySTEP 2: ARE THERE ANY RESIDIUAL POLICY REASONS TO NEGATE PRIMA FACIE DUTY OF CARE? Burden on defendant, per Childs

The main question here is: what is the likely effect of recognizing a duty of care on other legal obligations, the legal system, and society at large?

o Is this a situation where a duty of care should be recognized? Consider the following questions (Cooper)

o Does the law already provide a remedy? o Would recognition of a duty create a specter of unlimited liability to

an unlimited class (i.e. open the floodgates)? Must address floodgates

o Are there other policy reasons to suggest a duty of care should not be recognized? Note the distinction between policy decisions and operations decisions per

Just & Coopero Only government operations are actionable, not policy decisions

Duty of Care CasesDonoghue snail in the ginger beer; negligence action found

Revolutionary case for tort law because it established negligence as a cause of action Key quote from Lord Atkins: "The rule that you are to love your neighbour becomes in law: you

must not injure your neighbour; and the lawyer’s question Who is my neighbour? Receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be — persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the act or omissions which are called into question"

Cooper Cooper invested with Eron Mortgage Corp. Hobart responsible for investigating complaints, freezing funds & suspending of license of brokers who had breached their statutory duty. Cooper sues Hobart for negligence, claiming had Hobart acted faster she would not have suffered the same magnitude of loss

Issues: did the defendant owe a duty of care? Ratio: established the Anns-Cooper test to determine if a duty is owed Important take aways for the residual policy analysis:

o Is there an existing remedy? What gave birth to the duty of care is giving wronged parties access to a remedy (this was the main concern in D&S). Therefore you can argue that if a duty of care is not recognized, an entire class would be left without access to a remedy, which is contrary to the entire spirit of negligence

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o If recognizing a duty would create indeterminacy, good argument for why it should not be recognized. This is the main argument of the dissent in D&S. A balance between providing remedies without creating an unlimited spectre of liability essential

Moule vs Amos in both, a kid climbs tree, hits a power line & is harmed In Moule the court found that it was not reasonably foreseeable because the kid climbed an

adjacent tree, crossed sketchy platform, happened to step on rotten branch, THEN came in contact with the powerline. Companies are not responsible for every accidental contact or permeation of every harmful outcome of the curiosity, agility and daring of active children

In Amos, the tree with the power line was right outside. It was found the electric company did not trim the tree enough to ensure it did not grow high enough to come in contact with the wire

Long Island Railway fireworks accidentally set off in train station, plaintiff was not foreseeable, no negligence

Facts: P happened to be standing on the platform when a train came into the station. Two men ran for the train, but one did not quite make it. A guard attempted to push him into the car, but in this accidentally pushed the package he was holding onto the tracks. Turns out the package had fireworks, which caused an explosion that injured the P

Ratio: negligence is not actionable unless it involves the violation of a legally protected right. This means that the P must show a wrong happened to her – the fact that a wrong merely occurred is NOT enough

o “Proof of negligence in the air is not enough” P must show a wrong happened to her. The fact a wrong merely occurred is NOT enough If no hazard is apparent to the ordinary vigilant person, an innocent and harmless act is not

enough to qualify as negligence

Rankin two young boys were drinking, decided to break into Rankin’s garage. Found an unlocked car & stole it. Car crashed, one boy sustained a catastrophic brain injury. Sued Rankin for negligence

"Foreseeability operates as the fundamental moral glue of torts, shaping the legal obligations we owe to one another and defining the boundaries our individual liability”

Court says it is not enough to simply determine if the theft was reasonably foreseeable – must ask if the personal injury to the boy reasonably foreseeable to someone in Rankin’s position. Demonstrates that you must be specific in defining a duty of care & avoid open ended categories

o “When determining whether reasonable foreseeability is established, the proper question to ask is whether the P has offered facts to persuade the court that the risk of the type of damage that occurred was reasonably foreseeable to the class of P that was damaged”

The fact that C & J were doing something illegal when the injury happens DOES NOT factor into the analysis — the notion that illegal or immoral don’t by the P precludes the existence of a duty has consistently been rejected

Courts analysis of whether a commercial garage have a duty to protect theft against minors? (Note how specific the duty is)

Analysis:o There is nothing about the circumstance of cars being stored in a garage that was

intended or known to attract minors

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o There was no specific circumstances to make it reasonably foreseeable that the stolen car might be driven in a way that would cause personal injury

o The fact that P was minor DOES NOT automatically create an obligation to act. Tort law does not make everyone responsible for the safety of minors at all times

o Aside from evidence that could establish a risk of theft in general, there was nothing in this case to connect the risk of theft of the car to the risk of someone being physical injured

o A business will only owe a duty to someone who is injured following the theft of the vehicle when, in additional to the theft, the unsafe operation of the stolen vehicle was reasonably foreseeable

Important difference between something being possible and reasonably foreseeable

Childs Desormeaux attends a NYE BYOB party. Becomes heavily intoxicated, drives home, gets in major accident that leaves 18 year old Zoe Childs a paraplegic.

Important factors considered by court:o The hosts knew Desormeaux was an alcoholic and had several convictions of drunk

drivingo He was obliviously and severely intoxicated at party, but hosts did not take any steps to

prevent him from driving Question in this case is whether the hosts of the party can be held liable for Childs injuries

o Do social hosts who invite guests to an event where alcohol is served owe a legal duty of care to 3rd parties who may be injured by intoxicated guests? NO

o Why is this a positive duty? Requires private citizens to go out of their way to do something more monitoring alcohol consumption and taking away keys

Ratio: social hosts do not owe a duty of care to a person injured by a drunk guest because harm is not reasonably foreseeable

o This doesn’t mean that social hosts will NEVER be liable, only that they were not liable in this case

Social hosts are different than commercial hosts (which do owe 3rd parties injured by intoxicated guests a duty of care)

o Profit: commercial hosts are being paid for their service so have an incentive to monitor o Regulations: extensive legislations regulation commercial sale of alcohol – commercial

hosts operate in a very different context than social hosts Regulations exists because govt wants to impose responsibilities on those who

profit from over consumption of alcohol Regulations indicate a public expectation of a duty of care on commercial hosts

o Commercial hosts better able to monitor: nature of relationship bw host & guest is very different in social vs commercial setting

Drinks must be order through the waiters or bartender which makes it easier to monitor

it is only when third parties have a special relationship with the party in danger or a material role in managing the risk that the law may impinge on their autonomy and demand a positive duty of care. These special relationships are:

o Material creation of risk: when a defendant intentionally attracts and invites third parties to an inherent and obvious risk that they have created or control (think Crocker)

This is because the D is creating a risky situation and inviting others to it failure to act does not immunize the D from the consequences of its actions

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o Paternalistic relationships: duty rests on the special vulnerability of the P and formal position of the D

Was it a relationship of paternalism, supervision or control o Public function: defendants who either exercise a public function or engaged in a

commercial enterprise that includes implied responsibilities to the public at large Ex. Duty of a commercial hosts who serves alcohol to guests to act to prevent

foreseeable harm to third party users of the highway Social hosts did not easily map onto any of these categories

o The social hosts did create danger by arranging the party, but this did not rise to the level of material creation of risk

o Inviting adults to a party does not put the social hosts in a paternalistic relationship with the guests a person who accepts an invitation to attend a private party does not park his autonomy at the door. The guest remains responsible for his or her conduct

o Private party does not have a public function “Common law is a jealous guardian of personal autonomy”

From Childs: “the law does not impose a duty to eliminate risk. It accepts that competent people have the right to engage in risky activities. Conversely, it permits third parties witnessing risk to decide not to become rescuers or otherwise intervene. It is only when these third parties have a special relationship to the person in danger or a material role in the creation or management of the risk that the law may impinge on autonomy”

Sundance tubing competition held at Sundance, Crocker & friend entered. Got visibly drunk before racing, resulted in a serious neck injury leaving Crocker a quadriplegic

Issue: did the ski resort have a positive duty at law to take certain steps to prevent a visibly intoxicated person from competing in the resorts dangerous tubing competition? YES

o In general, when someone is injured in a sporting accident, the law does not hold anyone responsible. So is there something to distinguish this situation from a run of the mill sports accident?

If someone creates a particularly dangerous situation, the owe a duty of care towards visibly intoxicated participants

o Sundance must take responsibility as the promoter of a dangerous sport for taking all the reasonable steps to prevent a visibly incapacitated person form participating

None of the measures Sundance could have taken (disqualify Crocker, not getting him a new tube after the 1st one fell down the hill, attempt to make Crocker realize the danger of the competing while that drunk) were a serious burden on the resort

The P’s inability to handle the situation in which he or she has been placed (because of youth, intoxication, or other incapacity) is an element in determining how foreseeable the injury is

o An injury from a drunk dude participating in a dangerous sport is even more foreseeable than a drunk patron being hit by a car

Defence of voluntary assumption of risk was not available in the facts of this case (Crocker was drunk and did not read the waiver)

Kennedy v Coe Kennedy & Coe paired as ski buddies on a heli-skiing trip. Kennedy had a fatal accident on a run that did not require buddy supervisions. Once Coe realized Kennedy was missing, he alerted the group, but it was too late.

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Kennedy essentially arguing that the duty is to take care to prevent potential harm that arises from voluntarily participating in a risky sport

No duty of care between Kennedy and Coe failed on proximity Factors the court considered in making this decision:

o Kennedy & Coe had never met before o They were paired by mountain (not voluntary)o Accident occurred during run that did not require buddy supervision o Heli skiing is an inherently risky sport o Citing childs: the mere fact that a person faces danger, or has become a danger to

others, does not itself impose any kind of duty on those in a position to become involved”

o Coe was not materially implicated in the creation of the risk — he participated in it, but the court does not see it fit to impose a positive obligation on him because he simply participated in a dangerous sport

o From Childs: the law does not impose a duty to eliminate risk If it does, third parties have a special relationship to the person in danger or

material role in the creation/management of that danger In all three categories that a positive duty arises there is reasonable reliance

between the parties

Common law duty to control the conduct of intoxicated people

Picka v Porter – alcohol provider held liable even though it did not have actual knowledge of the patron’s intoxication

Huage v Billings – once staff realize that a patron is intoxicated and intending to drive, they have a legal duty to take all reasonable steps to stop them, IF they fail, they then have a legal duty to call police

Ontario High Court also held Billings drinking buddies equally liable for the accident because all three had agreed in advance to go drinking & driving

Donaldson v John Doe – organizers of an alcoholic event (Oktoberfest in this case) owe a duty of care to people who might be foreseeably injured by intoxicated attendees.

In this case P suffered facial injures when an intoxicated man struck him in the face with a souvenir glass that had been distributed to attendees.

Steward v Pettie – is a check on the broadening of the alcohol related liability. Serving patrons past the point of intoxication does not, in itself, pose a foreseeable risk. There must be some additional risk factor

In this case the intoxicated P was accompanied by 3 sober adults – court held it was ~ foreseeable he would drive

Calliou Estate v Calliou – like Steward, example of restraint. The defendant team hosted a hockey tournament. In exchange for an entry fee, players were provided with beer. A number of people died as the result of an automobile accident that was caused by an intoxicated player.

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Running through both the commercial host and social host cases is the focus on knowledge of a state of intoxication of the guest who drives and injures himself or a 3rd party

Duty to Prevent Crime & Protect OthersJane Doe P sued police after she was attacked by a serial rapist. P was part of a narrow and distinct group of possible victims

Police claim they did not issue warning bc worried hysteria would jeopardize the investigation Police are statutorily obligated to prevent crime and at common law they owe a duty to protect

life and property. Issue: do police owe a duty to warn potential victims/targets? YES Why a duty was owed:

o It was eminently foreseeable the serial rapist would strike again o D knew or ought to have known she was part of a narrow and distinct group of potential

victims — this demonstrates proximity Rapist targeted: single, white woman, living on the 2nd or 3rd floor apartments I

the Church-Wellesley area Why police’s reason for not warning ~ accepted:

o There was no precedent for not warning in another similar serial rapist case, the potential victims had been warned

o Police could have warned potential victims without creating hysteria and panic o Had P been warned, she likely would have taken steps to protect herself instead

police used Jane Doe as “bait” to apprehend suspect Duties recognized:

o Police have duty to warn citizens of foreseeable harm meaningful warnings must be given to segments of population who are at a particular risk

Different from hill because: Hill was already under the care of the police as a suspect whereas Jane Doe was a potential target (did not have interactions with the police yet)

Hill Hill = Aboriginal man who was arrested, tried & wrongfully convicted. Police owe a duty of care to suspects being investigated. Important take aways:

Emphasizes importance of pinpointing a very particularized duty of care. Proximity is about impact of actions & generally a harder threshold than foreseeability. Proximity = impact of actions

o This means it is not enough for two people to know each other or be in contact with each other

Anns-Cooper test applied to this case. Step 1: Foreseeability – it was reasonably foreseeable that a negligent police investigation may

cause harm to the suspect Proximity – Hill was a particularized suspect (he was singled out) and this created a close

and direct relationship between the police and Hillo This only case only passed Step 1 because police are considering a specific suspect

if Hill had not been singled out, it wouldn’t work because police owing a duty to care to every potential suspect would undermine their ability to their job

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Step 2: residual policy considerations o Policy considerations SUPPORT the recognition of a duty of care. o Policy concerns raised against imposing a duty of care must be more than

speculative there MUST be a real potential for negative consequences if a duty is recognized

o Recognizing a duty of care owed by a police officer to a suspect does not conflict with the police officer’s duty to the public to prevent crime

Professional Duties

POLICE General duty: serve and protect HILL: duty to specific suspects to take care during investigations  JANE DOE: duty to warn potential victims when there is a pattern

MEDICAL PROFFESIONALS General duty: any medical profession MUST get informed consent (aware of procedure, risks

& alternatives) Affirmative duty to inform of all material risks (REIBEL, TREMBLAY). For

this duty to be invoked, a patient must prove that the failure to inform was a cause of their loss — i.e. that they would not have proceeded with the treatment had they known of the risks 

PAINE: provide patent with sufficient info to make an informed decision — this includes info about risks, alternatives, and anything else that might be relevant (easily maps onto informed consent)

CURRIE: must inform if someone other than the specialist will be preforming the procedure or a major part of it. But does not have to inform if they will be assisted by a resident 

SINCLAIR: a health professional must answer a patient’s questions fully, even if they relate to minor aspects of the procedure

MARTIN:  a health care professional must explain the material risks of a proposed treatment in language that a patient can understand. It appears it is more important for the patient to understand the substance of the risks than the precise medical terminology

MANUFACTURERS General: ?? HOLLIS: Learned intermediary principle  COMINCO LTD: held that a manufacturer who hears of a new risk after its

product is distrusted has a duty to warn users ASAP. P does not have prove the manufacturer has actual knowledge, provided that manufacture out to have been aware of the risks

BUCAHN: In determining if consumers have been adequately informed, the courts will examine the totality of the manufactures marketing and

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promotional materials. A manufacturer may be held liable, despite providing an adequate warning if that warning had be obscured or undermined by marketing 

LAMBERT: It is well established that a manufacturer of a product as a duty of care to warn consumers of dangers inherent in the use of the product

Note: only manufactures are bound by these high standards, not suppliers

LAWYERS DEMARCO v UNAGARO, ONCA: mere errors in judgement by a lawyer is

not enough to hold them liable. Policy reasons: don’t want to incentivize lawyers to drag out cases to make more money, don’t want to incentivize lawyers to relitigate, want to incentivize lawyers to settle. Big takeaway from the case: lawyers can be held negligent, but in a constrained way. You won’t be held negligent for making a poor decision or being a poor lawyer, only if you make an egregious error 

An attorney must exercise reasonable care, skill and knowledge and must be properly diligent in the execution of case

Case law substrates that as you must meet deadlines (i.e. filing deadlines), account for the law thoroughly and honestly, have to advance your clients interest, can’t breach client privilege

Hollis v Dow Corning Facts: Woman gets breast implants, after 17 months one ruptures. Sues both the surgeon and

manufacturer. The literature accompanying the product warned of rupture during surgery, but not after.

o Surgeon not found liable because risk of rupture post-surgery was not well known among surgeons

This is similar to D&S because the doctor and other medical staff did their job properly the person/entity that caused injury to the P never came in contact with them

o Again, problem is that if you go through the normal duty of care analysis, there is not enough to connect the manufacturer with Hollis

o However, unlike in D&S, where the consumer can directly consume the product, in this case the patient cannot directly consume the product. Need a medical professional to put in the breast implants.

The manufacturer ~ able to warn the consumer of risks, but the court still wants to impose a duty. Court created learned intermediary to deal with the issue

o Connected the manufacturer to the patient through the LI the manufacturer has a duty to the LI the LI has a duty to the patient

So long as the doctor discloses the info given to them by the manufacturer to the patient, the patient can sue the manufacturer

o The doctor could be sued if they did not inform the patient of all the risks they were told by the manufacturer

Ratio: duty to warn is a continuing dutyo This means must warn of dangers known at the time of sale AND those discovered

AFTER the product has been sold and delivered Why:

o There is a knowledge imbalance between manufacturers and consumers

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o The more danger involved in a product, the higher the duty to warn o Given the intimate relationship between medical products and the consumers body (i.e.

often made for implantation or ingestion) the potential risk is very high o There will always be a heavy onus on manufacturers to provide clear, complete &

current information regarding the dangers Principles of LI:

o In some circumstances, the manufacturer can satisfy its duty to the consumer by providing a warning to a learned intermediary

o Learned intermediary’s knowledge must be approximately equal that of the manufacturer

o Generally applicable when a product is highly technical and only intended to be used under expert supervision OR the nature of the product is that the consumer would not realistically receive a direct warning from the manufacture before using the product

How court used D&S to justify its decision o References neighbour principle to justify creating of LI principle

Conclusion: manufacturer was found liable. NOT on the basis the implant had bee negligently manufactured, but because it failed to warn of the risk of rupture even though it had received reports of 50 repeaters by 1983

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Standard of CareGeneral principles:

SoC = statement of the kind of conduct we expect from each other as we move through our day-to-day lives (Andrew Gay)

o This means that NOT all wrong or imperfect actions are negligent. Only conduct that falls below the expected standard

Not a standard of perfection, but of reasonableness (Perilli) THE REASONABLE MAN (PER ARLAND): "he is not an extraordinary creature, not superhuman,

not required to display the highest skill, not a genius, nor are they possessed of unusual powers of foresight. A person of normal intelligence who puts prudence and employs good conduct."

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STEP 1: WHAT IS REASAONBLE IN THE CIRCUMSTANCES? Objective standard & question of law Reasonableness is the ONLY test for SoC – you MUST address it

How do you establish a standard of care? Ask: what would a reasonable person have done in the

circumstances? THIS IS MANDATORY o Per Arland the reasonable man is not extortionary or superhuman.

He is not required to display the highest skill nor is he a genius. He has normal intelligence who uses prudence to guide him

o It is left to the judge to determine what in the circumstances the reasonable man would have had in contemplation and what accordingly the party sought to be made liable ought to have foreseen (Arland v Taylor)

Room for diversity of view Factual standard changes from time to time and place to place

NOT mandatory, but can also consider o Probability of injury (Bolton)o Severity of harm (Paris)o Cost of risk avoidance (Halifax)o Social Utility (Watt)

External indicators of reasonable conduct, such as customary, community, industry, or statutory/regulatory standards can also help identify what the SoC is

o However, statutory or regulatory doesn't automatically equate with negligence

o Ask: what is the conduct of other similar entities/professionals? Ryan v Victoria the court summarizes SoC as:

o Conduct is careless if it creates an objectively unreasonable risk of harmo To avoid liability, a person must exercise the SoC that would be expected of an

ordinary, reasonable, and prudent person in the same circumstances. o The measure of what is reasonable depends on the facts of each case, including the

likelihood of a known or foreseeable harm, the gravity of that harm, and the burden or cost which would be incurred to prevent the injury.

In addition, one may look to external indicators of reasonable conduct, such a custom, industry practice, and stat or regulatory standards 

STEP 2: WAS THERE A BREACH? Question of fact Did the defendant fail to comply with the standard of care, as formulated in step one?

o Look to the facts The governing principles when assessing a breach = robust & common

sense application

Duty of Care vs Standard of CareDuty of Care Standard of Care

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Gatekeeping function and establishes where duties can be found

The legal relationship has already been established – these people should be within one another’s legal contemplation.

Analysis based around foreseeability, proximity & policy

Analysis based around reasonableness

Asks who is your neighbor Asks how you should act towards your neighbor Question of law and policy Question of law when asking about the standard

and question of fact when asking if the standard was breached

Standard of Care CasesProbability of Injury Bolton v Stone P was walking on a road adjacent to a cricket ground when she was struck and injured by a ball that had been hit out of the ground

All about degree of risk o The greater the risk, the higher the standard

High probability of injury = higher standard of care Low probability of injury = lower standard of care

Conduct breaches SoC if it creates an objectively unreasonable risk of harm Simple foreseeability of risk occurring is not enough to spur the reasonable person to take

action to avoid risk. The law recognizes that a reasonable person only responds to probable risks.

Reasonableness standard is a modified objective standard (i.e. context specific) o What is the context in which these people are operating and what are the general

principles by which they should be bound?o Context specific, but not quite fact specific

Must assess the probability of injury at the time of the breach – do not use hindsight

Severity of Harm Paris v Stepney Borough Council Paris, who had one eye, served as a garage-hand. He was hitting bolts and a piece of metal pierced his good eye, rendering him completely blind.

The severity of harm in the case is very extreme because you must take your P as your find them – the company should have taken greater concern to ensure he did not lose his good eye

o The severity of the harm caused by one injury but directed toward different people will be dramatically different and require different standards of care

The extent and severity of the damage have to be weighed and assessed in the specific circumstances of the case

o This means the particularities of the P must be taken into consideration when determining the severity of harm

o It is relevant to consider the individual circumstances when assessing the gravity of any risk

Cost of Risk AvoidanceVaughn v Halifax bridge operated & maintained by D was painted. Flecks of paint were blown onto nearby cars

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If the cost of risk avoidance is small, a reasonable person would take those preventative measures

o If the cost is extreme, the law will not compel you do it if the circumstance is justifiedo If the cost is manageable, the law will compel you do it if the circumstances warrant it

If you can avoid risk without a significant cost, that is the reasonable thing to do

Law Estate v Simice P claimed that her husband died bc of their failure to provide timely, appropriate and skillful emergency care

If the severity of the harm is extremely high, the cost of risk avoidance won’t be something that needs to be considered

If it is a choice between a physician’s responsibility to their individual patient and their responsibility to the medical system overall, the former must take precedence

This is because the severity of the harm that may occur to the patient who goes undiagnosed bc doctors do not order proper tests is far greater than the harm to the medicare system if one more CT scan is ordered

Social Utility Watt v Hertfordshire County Council firefighter sues employer bc he was injured by a jack that was not properly fitted to truck while trying to save someone.

What is reasonable is different if the activity has a high social utility Must balance means (the risk) against the ends (the reason why the risk was taken)

o In this case that means the risk of using a fire truck without properly fitted equipment must be balanced against saving someone

Saving a life or limb, which the firemen were doing, justifies the considerable risk taken by fire deaprment

Economic Analysis of SoCUS v Carroll Towing Co boat become unmoored and crashes into other boats

Probability of injury = P, injury = L, burden of taking adequate precautions = B o Liability depends on if B is less than L x P

Special Cases in SoCMental illness Fiala v Cechmanek Man goes on run & experiences a severe manic episode. Tries to strangle C through sun rough, caused her to crash into F’s car

Ratio: a person with a serious mental illness is not subject to the reasonable person test Fault is still an essential element of tort law (not only about compensating victim) Capacity test: is the D capable of being at fault? Must show either of the following on a BoP to

be relieved of liability: o As a result of mental illness, the defendant had no capacity to understand or appreciate

the duty of care owed at the relevant time

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o As a result of mental illness, the defendant was unable to discharge his duty of care because he had no meaningful control over his actions at the time the relevant conduct fell below the objective standard of care

We can’t expect someone who has never experienced or been diagnosed with a manic episode to act reasonably.

By not requiring standards of perfection, we are not requiring people to foresee every possible situation

Can use as authority that the analysis can be adjusted to account for super tricky situations like this

Conclusion: MacDonald had not reason to foresee this manic episode, he is relieved of liability o This is compared to cases where a mentally ill person was found liable because they had

already been diagnosed and warned of the dangers associated with their diagnosis

Children Joyal v Barbsy Child runs across highway and collides with oncoming car

Where age does make a discussion of contributory negligence absurd, it is a question of whether the child exercised the care to be expected from a child of like age, intelligence, and experience

In this case 6 year old found 40% negligent because she had been thoroughly trained on the dangers of highways, had experience with the highway since their house was right beside it, and crossed without looking

Perilli v Marlow Girls biking on street and accidentally hit runner as he attempted to pass them from behind

Duty had already been established by Motor Vehicle Act Reasonable standard for children is not the same as an adult. Must ask what is reasonable for

another child of similar age, intelligence, and experience SoC = reasonableness NOT perfection Court found that checking twice behind her was reasonable and prudent for the circumstance

o Checking more than twice would have put people coming towards her in danger because she would never be looking forward

STANDARD IS NOT PERFECTION, BUT REASONABLENESS!!

ProfessionalsWhite v Turner White received a breast reduction surgery from Dr. Turner. White suffered serval post-op complications, including scarring and poorly shaped breasts

A poor result does not mean that there has been negligence. In order to succeed in an action against a professional person, a P must prove on the BoP that a bad result was brought about bc D’s conduct fell below the SoC

o White must prove that Dr. Turner performed the surgery in a way that reasonable plastic surgeon would consider less than satisfactory

o Dr. Turner found negligent bc he performed the surgery in 1 hour 3 min when two expert witnesses (other plastic surgeons) estimated it would take 2.5-4 hours

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Ter Nuezen v Korn P contracted HIV as result of acritical insemination, risk of HIV not well known at time of procedure & expert evidence corroborated that doctor had adopted standard medical practices

In the case of a specialist, the SoC is not assessed the average specialists in that field, NOT all doctors generally

o “Physicians have a duty to conduct their practice in accordance with the conduct of a prudent and diligent doctor in the same circumstance”

Generally speaking, courts will not evaluate the reasonableness of a set practice/standard o Courts do not have the jurisdiction to settle scientific disputes or choose among

divergent opinions that require expertise o This means when a procedure involves difficult or complex matters, it will NOT be open

to find a standard medical practice negligence Only exception: if a practice/custom fails to adopt obvious reasonable precautions which hare

readily apparent to the ordinary tier of fact o Essentially, if practice/custom must be so deeply fraught with obvious risks, reliance on

it is not an excuse If the custom isn’t perfect but still reasonable, that is what is reasonable in the circumstance If there are already other alternatives that similar entities are using, not an excuse to rely on

traditional customs

Layden v Cope gout misdiagnosed by two general practitioners in a small town, leg had to be amputated

The standard of care expected of a general practitioner in a small town is not significantly different from general practitioners in the city

They should have considered other diagnoses when the P’s condition did not improve Professionals often subject to codes of ethical conduct.

o These codes can be relevant to determine the duties owed in a professional relationship and identifying the what the professional is required to do or refrain from doing

o However, violation of code does not automatically mean a breach of the standard of care

Degrees of Negligence Usually there is only one standard of care in negligence: that of a reasonable person HOWEVER, statutes occasionally restrict the scope of liability to injuries caused as a result of

gross negligence o Gross negligence = something less blameworthy than criminal negligence but worse

than ordinary tort negligence In McCULLOCH v MURRAY SCC defined gross negligence as involving “a very marked departure

from the standards by which responsible and competent people habitually govern themselves”

Statues that invoke standard of gross negligence:o Liability of a municipality for injuries caused by snow or ice on sidewalks o Liability of medical professional who provide medical assistance during emergencies o Liability of police o Lability of trustees in bankruptcy

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CausationSee causation hand out for quotes from what court about what Edinger & Clemence actually say

General Principles Requires the plaintiff to establish that the defendant's breach (of SoC) caused the injury or loss

suffered (Clements) Test = but-for

The plaintiff must show on a balance of probabilities that "but for" the defendant's negligent act, the injury would not have occurred (Clements, Kauffman)

Apply but-for test whenever possible (Ediger) The but-for test must be applied in a robust, pragmatic, common sense fashion (Snell,

Clements) DO NOT need 100% certainty or scientific precision to meet but-for test (Snell, Ediger,

Germain) The casual link between negligence & injury must be supported by evidence, however law

allows inferences to be drawn if possible (Ediger) Causation may be established on the basis of an evidentiary inference (Athey)

This means that some evidence connecting the breach of duty to the injury suffered may permit the judge to infer that the defendant's negligence caused the loss (Snell, Athey)

Germain confirms this is an appropriate application of the but-for test It is not necessary for the plaintiff to establish that the defendant’s negligence was the sole

cause of the injury As long as a defendant’s actions were part of the cause of an injury, the defendant may

be found liable to the plaintiff for the whole of the losses flowing from the injury, even though their act alone was not enough to create the injury (Athey)

In cases of causal uncertainty, balance these 2 considerations in your analysis: 1: ensuring that defendants are held liable for injuries only where the is a substantial

connection between the injuries and their fault 2: preventing defendants from benefitting from the uncertainty created by their own

negligence, on the other” (Germain) If causation cannot be established on the evidence, the trial judge need not draw an evidentiary

inference. One can simply find that causation has not been established (St Germain) Burden of proof is not immutable – it can be shifted between P & D As Canadian courts have long noted, “much judicial ink has been spilled on the question of how

causation is determined in negligence cases” (Hoy v Williams, 2014 BCSC). However, apply but-for-test WHENEVER possible

SUMMARY: Apply but-for-test whenever possible (Ediger) Do not need 100% certainty to meet but-for-test (Snell, Ediger) Law permits an to be inference drawn (Athey, Snell) Causation = robust and pragmatic approach the facts (Snell, Clemence) Breach need not be the sole cause, as long as it is a central/significant

cause (Athey)

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Causation for a single defendant(1) Apply but-for test (Ediger & Clemence)(2) If not possible, can draw an inference (per Athey)

D is found not liable if not possible to draw an inference.

Causation for multiple defendants(1) Apply but-for test (Ediger & Clemence)(2) If not possible, can draw an inference (per Athey(3) If inference is not possible, apply the Cook v Lewis rue

a. Cook v Lewis rule: usually the P bears the onus of proof at this stage, but this rule reverse onus to put burden on D

b. This gives the defendant an opportunity to find more evidence to absolve themselves of liability.

c. The goal of this principle is to balance between not leaving an injured party uncompensated & not punishing someone who is not liable

d. Cook v Lewis ONLY applied when there are multiple negligent defendants (4) If Cook v Lewis rule not successful, apply material contribution

a. Material contribution = cannot prove which party is more liable, so hold everyone involved liable

b. Per Clemence, urged to avoid applying material contribution c. SCC does not like material contribution because it is very rare that the multiple

parties are equally liable, but this is the outcome when material contribution is applied

d. Justification = everyone contributed in someway & do not want to leave the P without compensation

e. ONLY apply if tried above 3 and failed

Causation CasesKaufman v Toronto Transit P was riding up escalator in St. Clair station, 3 people fell on top of her. She sustained significant permanent injuries

Suing Toronto transit for failing to test the handrail Evidence showed that TTC did not test handrails properly, so TTC did breach the SoC owed Issue: was toronto transit negligent by failing to test? NO

o This case failed at causation bc no one, including the P, reached for the handrail so it would not have made a difference

o This case illustrates the importance of how the standard is framed had SoC been framed in a different matter TTC may have been found liable

Ratio: the causal relation between the alleged negligence and injury must be made out by the evidence — in this case there was not evidence to support the “but for” test

Cite this case for the principle that “but-for” test must be backed up by evidence

Barnett v Chelsea & Kensington Hospital Management Committee P’s husband dies of arsenic poisoning

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He showed up at hospital complaining of vomiting but was dismissed. Weren’t treated or admitted & told to go home

Breach in SoC in this case = not admitting the mano Question is: but for the decision not to admit them would the loss have occurred? NOPE

THE hospital did not have the antidote available at the hospital anyways

Richard v CNR dude drives car off ferry before ferry had docked P was asleep in his car aboard a ferry & thought he heard someone shouting “we are here.” Believing that an attendant had made the statement, the P started his car and backed it off the

ferry. Unfortunately, the ferry had not docked and the car landed in the gulf. P sued ferry company for

negligently untying the ropes on the ferry before it had docked Ratio: fails but-for test bc the sole cause of the accident was the P’s rash act of backing off the

boat, contrary to the warning signs and crews attempts to stops him

Ediger v Johnston, 2013 SCC complicated delivery leads to life-long disability Cassidy suing Dr. Johnston (the obstetrician who delivered her) She alleges that her injury resulted from negligence associated with an attempt to deliver her

using a mid-level forceps procedure SoC in this case = ensuring back up staff were ready to preform emergency C-section if forceps

procedure not possible & informing Cassidy’s mother about the risks Issue Issue: did Johnston’s breach of the SoC cause Cassidy’s injury? YES Ratio: Causation is a factual inquiry based on evidence, however law allows you to draw

inferences when possible Court rejects the unduly narrow interpretation of causation. Certainty is not required to prove

causation, however there must be a factual link. o Causation NOT about scientific proof only need to prove on a BoP,

not absolute certaintyo Even if the doctor had the surgical team ready, the injury may still have

occurred. However, on a BoP it is more likely than not that the failure to have the OR ready caused the injury

o Court says that you must show that the injury would not have occurred without the breach of SoC

Stick with the but-for test whenever possible o If an inference allows you to use the but-for test, do that instead of applying material

contribution

Causation & factual inference Snell v Farell Snell gets eye surgery, optic nerve permanently damaged & results in blindness

Not clear if it the cause was from Dr.Farell continuing surgery after noticing discolouration or happened naturally

TJ found that Mrs. Snell had established a prima facie case regarding causation and that the burden shifted to Dr. Farrell to disprove causation.

Since Dr. Farell could not discharge this burden, he was held liable

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Ratio: Burden of poor is not immutable (i.e. can be shifted between P & D depending on the circumstances)

In civil cases, the two broad principles that apply to burden are:o The onus is on the party who asserts a proposition, usually the Po Where the subject matter of the allegation lies particularly within the knowledge of one

party, that party may be required to prove it The ultimate burden still lies with the P, but in the absence of evidence to the contrary adduced

by the defendant, an inference of causation may be drawn o Medical experts ~ need to provide a firm opinion supporting the plaintiff’s theory of

causation for the court to side with the P A “robust and pragmatic” approach should be taken Scientific proof of causation not required common sense to apply the facts Why the burden would shift in medical cases of negligence: proof of medical malpractice is

difficult for patients to prove because the physician is usually in a better position to know the cause of the injury (knowledge imbalance

BENHAIM v GERMAIN, SCC 2016 P’s husband dies of cancer bc of undiagnosed lesion on X ray This case deals with what you do when the evidence is unclear this often happens in medical

negligence because the knowledge lies with the D courts tell us to draw an inference if possible!

Benhaim = wife of Mr. Emond Suing her husband’s GP and radiologist for failing to inform the husband of the opacity on his X

ray in 2005 could be cancerous & failing to conduct further tests o Radiologist had suggested comparison with old X ray or cat scan, but neither of these

happened The next year he went in for annual check up and again X ray showed a lesion diagnosed as

stage 4 cancer Mr. Edmond dies in 2008 Benhaim’s expert witness says cancer only at stage 1/2 in 2005, Germain’s expert witness says it

was already at stage 3/4 and early diagnosis would not have changed outcome Did the trial J err in law by failing to draw an adverse inference of causation?

o Per the Snell rule the trier of fact can draw an inference of causation against D when D’s negligent conduct undermines P’s ability to prove causation & where P adduces at least some evidence of causation

Ratio: do NOT have to draw an inference – this is determined on a case by case basis in reference to evidence adduced

When there is negligently created casual uncertainty, must balance: o Ensuring that defendants are held liable only when there is a substantial connection

between injury and their fault o Preventing defendants from benefiting from the uncertainty created by their own

negligence o These are the two D&S principles

Can still meet the legal requirements of the but-for test with out 100% certainty Cannot compel the TJ to go through the causation flow chart

o If the TJ can make a decision based on the but-for test & facts they are allowed to do that

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Causation & Multiple Causes  ATHEY v LEONATI P is in car accident. Had pre-existing back problem. While stretching he herniated a disc. (this is ~ a normal outcome of stretching)

Was the disc herniation caused by the injuries sustained in the car accidents (D’s negligent act), or was it attributable to P’s pre-existing back problems?

General rule of thumb = D only liable for injuries caused by their negligent acts, however do not need to be sole cause

For causation to be found, the breach need not be the sole cause as long as it is a significant cause of loss

Note that sometimes courts will use contributing or partial instead to ensure they can stay within the but-for test. Not a hard & fast rule that it must be significant

Very important principle because opens but-for-test but-for the accident the herniated disk would not have occurred while stretching. Therefore, although drivers not solely responsible for herniated disk, still liable

CLEMENTS v CLEMENTS, SCC 2012 wife riding on back of husband’s overloaded motorbike. Unknown to husband, nail had punctured wheel. When he accelerated to pass a car the tire deflated. Husband lost control of motorbike, Mrs. Clements to be thrown, suffered traumatic brain injury as a result

Wife sues husband for negligence Husbands negligence in driving an overloaded motorbike not in question Issue = Is the “but for” test appropriate for this case or material contribution test? Ratio: where "but for" causation is established by inference only, it is open to the defendant to

argue or that the accident would have happened without the D’s negligence o Burden still rests with P to prove causation, but D can raise evidence that rebuts P’s

evidence. o Trier of facts must then take all evidence into account to decide if causation exists (this

is the robust and pragmatic approach) Material contribution to risk = substitute for but-for test in cases where it is impossible to

determine which negligent acts by multiple actors caused the injury, but it is established at least one caused the injury

o Based on policy of the goal of tort law & underlying theory of corrective justice requiring the D to not escape liability by pointing the finger at another wrongdoer

o Only justified where it is required by fairness

Summary in this case of the present state of causation law in Canada: As a general rule, P ~ succeed unless she shows as a matter of fact, that she would not have

suffered the loss but-for the negligent act of the D Exception = a P may succeed by showing that the D’s conduct materially contributed to risk of

the P injuries where:o The P has established her loss wouldn’t to have occurred but-for the negligence of 2 or

more tortfeasorso The P, through no fault of her own, is unable to show that any one of the possible

tortfeasors was the cause of her injury because each can point to another, defeating a finding of causation BoP against anyone

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o Essentially: material contribution is applicable when the P establishes that the but-for test has been met globally, but breaks down when applied individually to each D because there is not enough evidence to pinpoint which D actually launched the event that led to injury

TJ must take a robust and pragmatic approach to determining if a P has established that D’s negligence caused her loss

Scientific proof of causation ~ required

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RemotenessGeneral principles

By this stage, the analysis has established that the defendant’s actions factually caused the harm, BUT must ask if we want to impose liability

o This finding “cause in law”o Remoteness = rule of fairness & concerned with palpable injustices (Wagon Mound

#1)o Analysis is grounded in current ideas of justice, morality & fairness

By nature of being rooted in policy, the remoteness analysis is purposefully broad and open ended

3 tenants of remoteness:o Policy

Do we want to order the world in this way? This is a gut decision based on the broader equities of society

o Foreseeability Could the defendant have reasonably foreseen the injury/damage

o Reasonableness Policy concerns in remoteness focused on individual defendant. Would it be fair to hold that

specific person liable? MUST BE GUIDED BY D&S Wagon Mound #1 emphasised the moral wrongdoing by the D, for

which they must pay

Wagon Mound 1 establishes the foreseeability test = only damage that is reasonably foreseeable attracts liability

Modified by Wagon Mound 2 = was there a real risk o This lowers the standard from probability possibility. HOWEVER, possibility of

injury alone ~ enough. The standard is still a real risk o D must not only foresee the harm, but reasonable foresee there was a real risk of

the harm occurring from their action Per Hughes, the exact sequence of events does not need to be

foreseeable. Only that there was a real risk of the kind/type of injury occurring

o Foreseeability of type of injury > foreseeability of sequence of events o Even if D did not foresee the severity of loss, will still be liable for all of it

Per Mustapha, apply an objective standard UNLESS you already know the person you are interacting with is not of ordinary fortitude then you apply a modified objective standard that takes into account particularities

o Remoteness is concerned with what the defendant could have reasonably foreseen. o Thin skull/crumbling skull are dealt with in causation (Athey)

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Remoteness CasesWagon Mound #1 D negligently let oil spill in Sydney harbour. Caused explosion, which damaged wharf and ships.

Clearly there was negligence, beach of SoC & a factual link bw the oil and ultimate damage to warf. However, do we want to impose liability?

Ratio: the test for remoteness is foreseeability. o The question is whether P’s loss was a foreseeable consequence of D’s negligence

“It is the foresight of the reasonable man which alone can determine responsibility”

Wagon Mound #1 interpreted to require the damage be foreseeable as to a probability o This standard seems to favour D as it is harder for P to establish that a loss is

foreseeable as to a probability, than to prove it is a direct consequence of negligence Guided by two D&S principles:

o Wagon Mound #1 emphasised the moral wrongdoing by the D, for which they must pay BUT also instructed that injustice must be avoided – individuals should not have

to shoulder liability if they are not at fault This stage is rooted entirely in policy analysis grounded by current ideas of justice and

morality Court gives clear authority that we are concerned with palpable injustice in remoteness

Huges v Lord Advocate Some boys began playing near city construction zone of a manhole. In an unlikely sequence of events, one of the paraffin lamps exploded injuring the boys.

The municipal employees had put a fence around the hole and cover over top. However, they were using 4 paraffin lamps to light the hole they were on break when the kids starting playing in the hole

Ratio: do not need to foresee with precision the exact sequence of events as long as the kind of injury/harm is foreseeable

o This means the question in this case = is it reasonably foreseeable that if a kid jumped into a man hole and played with fire, an injury occurred? YES

Foreseeability of the kind of injury more important that foreseeability of sequence of event that led to injury

Foreseeability inquiry can be complicated here because a reasonable person couldn’t foresee these exact same events. However, in this case the courts hold this is not a barrier analyize type of injury NOT sequence of events

Once you have. found that the injury is not too remote, it doesn’t matter that you didn’t see the full extent of the injury/damage. Still liable for everything

o This means even if you cannot foresee the severity of harm, you are still liable for all of it

Wagon Mound #2 same fire as Wagon Mound #1, but different claimant. Claimant owned a ship where the explosion occurred

This case was more difficult for the claimant to prove because evidence showed that fire was not probable, only possible

Court forced to deal with possible, BUT NOT PROBABLE, damage Ratio: new standard for foreseeability = possibility. However, this alone is not enough. The

standard = harm was a real risk and that a reasonable person would not see it as far-fetched

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Combined effects of Wagon Mound #1 & #2o Frist ask whether the D could have reasonable foreseen the harm as a consequence of

their actions Must still draw a link between the breach and the loss could the D have

reasonably foreseen that the breach would cause the loss o Second ask was it reasonably foreseeable that the harm was a possible consequence of

the breach Is the possibility of damage is a real risk? If there was a real risk of harm because of the breach, then it was a possible

consequence

Assiniboine South School Division v Greater Winnipeg Gas Dad gives son an electric toboggan. Son loses control & hits school, which causes gas leak. The flames from the gas leak cause explosion

Again duty, breach of SoC & causation all proven, but was the damage too remote? Court decides liability should be imposed policy (on both the gas company and the Dad) for the

following policy reasons o Remoteness only requires foreseeability of damage in a general way. Not extent of

damage or manner of accident Applies to this case: is it reasonably foreseeable that using a toboggan near gas

pipes will lead to a loss? YES o Foreseeability is a very broad concept therefore it is improper to apply it in a super

specific away It is not the right question to ask whether it is reasonably foreseeable/a real risk

that if you give your kid a power toboggan they will crash into a school, hit a gas pipe, and cause an explosion

o Law doesn’t excuse D from liability merely because there were other factors causing the harm

This means like in causation, do not have to be the ONLY cause for remoteness to be found

Court applies same test as Athey (from Casuation)

Mustapha v Cullingan of Cad Mustapha sees a dead fly in bottle of water & experiences major depressive disorder with associated phobia and anxiety

Seeing the fly had a devastating effect on Mustapha’s personal life, ability to work, ability to function, ect

No question that there was a duty (established in D&S), the SoC was breached and there was causation.

However, this case turns on the question of if we want to order the world in a way where a manufacturer is held accountable for the injuries occurred

Issue: is the D liable for damages of psychiatric injury, where the injury by an objective measure, is an exaggerated reaction by an obsessive person of a particular sensibility to what, in reality is a relatively minor/trivial incident?

Ratio: remoteness is still an objective standard (hence the requirement of reasonably foreseeable) UNLESS the D already knows the P is not of ordinary fortitude

o In that case, apply a modified objective standard to account for P’s particularities

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In this case, court concluded it the injury was not reasonably foreseeable because Mustapha’s reaction to the fly in the bottle was so abnormal & a product of his hypersensitivity

o His reaction was “objectively bizarre.” It was not the response of an average person with reasonable fortitude

Again, court confirms that possibility is not enough for remoteness since an injury occurred it is obviously possible. Must have been a real risk to the ordinary person

o Court is concerned with what the reasonable person (per Arland) would have foreseen Mustapha’s reaction is too extreme to be reasonable

o BUT if you know your neighbour is not of ordinary fortitude, then you can foresee the more extreme reactions

o If you DON’T know then you are only held to be liable for reasonable person would react.

Arbel thinks this decision is very unsatisfactory because the court does not deal with mental fragility well

Mustapha tells us to answer the question of foreseeability from an objective reasonable standard

Intervening Causes Intervening causes = cases in which the P’s loss was caused by the D’s breach and a subsequent

intervening act Test for if an intervening cause breaks the chain of causation = was the intervening act within

the scope of the risk set into motion by the defendant? (Bradford)o Helps answer when an intervening cause should break the chain of causation o If an intervening act is the outcome of D’s action, they are still liable

A person who was negligent may be held liable for future damages arising from the subsequent negligent act of another where the subsequent negligence & damages were reasonably foreseeable result of his own negligence (Price)

o If later negligence compounds consequences of 1st negligence rather than halting the consequences, it will not be an intervening event

o This means you can be held liable for future harm even if you are not the sole cause of it Chunsang v Birdson – clarifies Mustapha

o In Mustapha the SCC found that remoteness depends on two factors: (1) the degree of probability required to meet the reasonable foreseeability test

= real risk (i.e. one which would occur to a reasonable man in the position of the defendant)

(2) is the plaintiff is considered on an objective or subjective test? Objective test: is it foreseeable that a person of ordinary fortitude

would have sustained the kind of injuries suffered by this plaintiff?o In this case, found that a mild head trauma is a real risk of a car crash & cognitive

defects flowed directly from the head trauma There was expert evidence adduced that cognitive defects were unusual but not

uncommon results of head traumao “It is sufficient if one can foresee in a general way the class or character of injury which

occurred The brain injury, cognitive deficits and resulting partial disability in this case were foreseeable. The extent and exact nature of the partial disability from the

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plaintiff’s right hemisphere brain injury, though unusual, is reasonably foreseeable as a real risk from the head trauma.”

Key = mental disorders NOT pre-existing

Intervening Causes CasesBRADFORD v KANELLOS Mrs. Bradford injured in panic caused from mistaken fire

A flash fire occurred in restaurant where Bradfords were dining. One patron mistook the sound of a fire extinguisher for a gas leak, yelled that there was going to be an explosion. Panic ensued as everyone attempted to run out of restaurant . Mrs. Bradford pushed off seat, sustained injury

Issue: can the consequence of the customer yelling “explosion” be regarded as within the risk created by the respondent’s negligence in permitting an undue quantity of grease to accumulate on the grill

TJ found that there had been negligence involved in the OG fire because grill had not been cleaned as efficiently as it should, which caused the fire. Moreover TJ found that panic from mistaken fire could have been foreseen

Appeal court overturned this decision & SCC agreed SoC in this case was to have a proper fire extinguished on hand, which the restaurant did Held that the person guilty of the OG negligence that caused the flash fire on the grill ought to

reasonably foresee that the subsequent event of someone mistaking the flash fire for a gas leak and a panic ensuing in the restaurant intervening act found to sever the chain of causation

Although it is foreseeable that people panic when they think there will be an explosion, we do not want to order the world in this way. SCC deemed the hysteria in the restaurant as an intervening cause sufficient to severe chain of causation

Dissent o Any reasonable person knows that a greasy grill might catch on fire ,and in such event a

CO2 fire extinguisher makes a hissing and popping sound the reasonable person would not fail anticipate that panic might result

o Of the opinion that someone yelling that an explosion was going to occur after hearing popping/hissing noises ~ negligent, but acting in a very normal way that is foreseeable

Arbel thinks on the facts this case could have gone either way could argue based on policy that hysteria is completely reasonably foreseeable and we want to ensure restaurant are held to high standard in keeping patrons safe, therefore not an intervening act

PRICE v MILAWSKI hurt ankle that was misdiagnosed twice. Facts: Price hurt his ankle playing soccer. Doctor ordered x-rays of foot instead of ankle,

concluded from these x-rays that there was no break. After a series of visits to family doctor because of no improvement, Price was referred to an orthopaedic surgeon. Did not take new x-rays, instead diagnosed it as a strained ligament and applied a cast. 4 weeks later, cast came off and ankle was still v swollen

Because of the delay in proper treatment, P suffered some permanent disabilities At trial both doctors were found liable in negligence and held equally at fault Both doctors appealed this, CA affirmed trial decision Issue: was the orthopaedic surgeon’s failure to re x-ray the ankle an intervening act that

absolved the OG doctor of negligence? NOPE

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Ratio: a person who was negligent may be held liable for future damages arising from the subsequent negligent act of another where the subsequent negligence & damages were reasonably foreseeable result of his own negligence

Court held it was reasonably foreseeable by OG doctor that once the information generated by his negligent error got into the hospital records, other doctors subsequently treating Price would rely on the accuracy of that information (i.e. that x-ray did not show a fracture)

o Also foreseeable that a doctor would rely on this info without verifying its accuracy, even tho that is a negligence act

This outcome is not “far fetched” Later negligence by ortho surgeon compounded the effects of the earlier negligence it did

not put a halt to the consequences of the first acto Therefore 1st doctors actions attracted liability for all damages from that point forward

This case illuminates that you can be liable for future harm even if you are not the sole cause of it.

TONG v BEDWELL Bedwell was stopped at an intersection when a hoodlum smashed the windshield of his car. Bedwell ran after the hoodlum, leaving his keys in the car. Betwell returned to find that his car had been stolen. The thief crashed his car into Tong’s vehicle. Tong sued the Bedwell

Issue: should a driver who leaves the keys of their car be held liable if the car is stolen and thief negligently causes a car accident?

o Would police be able to recover against the driver if they were injured while attempting to catch the thief?

Ratio: Court held that while it was reasonably foreseeable that Bedwell’s car would be stolen if he left keys in it, it was not reasonably foreseeable that the thief would drive in such a manner as to cause damage.

o The court stressed that there were apparently no witnesses to the theft, whose presence would have made the thief drive in a nervous/panicky matter

All three of the above cases say that if the intervening act was the outcome or consequence of the D’s action, they are still 100% liable. If the intervening act is completely out of the blue, then it limits the D’s liability

CHUNSANG v BRIDSON, 2008 ONSC this case is a really good clarification of Mustapha — facts don’t really matter, more important for what it says about Mustapha

Facts: Bridson & Chinsang in a car accident. Chinsang suffered a mild trauma that led to schizophrenia (fairly severe outcome from a not that severe injury. Bridson argued that mental disorder was pre-existing the car accident

Issue: was the injury of the mental disorder too remote? o Note: this is not asking about the mild head trauma, but the mental disorder that

resulted Per Mustapha, SCC found that remoteness depended on 2 things:

o (1) Degree of probability required to meet the reasonable foreseeability requirement = Per Wagon mound 1 = damage must be reasonably foreseeable Per Wagon mount 2 = possibility of damage = real risk

o (2) Plaintiff considered on an objective test: is it foreseeable that a person of ordinary fortitude would have sustained the kind of mental injuries suffered by this plaintiff?

In this case yes. The judge concluded that a person of ordinary fortitude has a real risk of suffering the same injury as a result of a mild head trauma

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Conclusion: injures not too remote

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DefencesAt common law, there are four defences to negligence:

(1) Contributory negligence: P was also negligent and partly at fault for the loss(2) Voluntary assumption of risk: Loss occurred while P knowingly engaged in risky activity,

consented(3) Illegality: Loss occurred while plaintiff was engaged in illegal activity (NOT ON EXAM)(4) Inevitable accident: Loss was the result of accident beyond D’s control (NOT ON EXAM)

When deciding what defences should apply (if any) pick what will give effect to the Donoghue principles of ensuring plaintiffs receive compensation without unfairly imposing liability on defendants who are not morally blameworthy

Contributory negligence (partial) Partial defense, burden on D to show BoP that P failed to take reasonable care & that lack of

care contributed to P’s loss This is a modified objective standard (Walls)

o Modified by: (1) age (2) capacity (3) profession (4) realities of the moment (5) particularities of the duty of care (i.e how the parties are related to each other)

Does NOT take into account frailties of the parties This is the main defence in Canadian negligence & governed by the BC Negligence Act sets

out rules on apportionment Doctrine of last clear chance – permits the P to recover damages, despite their contributory

negligence, if the D had the last clear chance to avoid the accident and negligently failed to take it

Failure to adhere to safety standards (such as wearing a seatbelt) may constitute contributory negligence (Gagnon)

Walls v Mussens Ltd Facts - Fire at gas station, owner got there after fire already started. The workers were trying to put it out by shoveling snow onto it Issue - Was the owner contributorily negligent for not using the fire extinguisher?Decision - No, owner was doing what a reasonable person would have done. Not contributorily negligent. Ratio: agony of the moment requires a modified objective standard

This is important because it's not just what was reasonable, but what was reasonable in the circumstances

Test= is whether an ordinary prudent man might reasonably have done under the stress of an emergency

Anaylsis: In this case, the owner did not and ought not to have known that the snow would not work and maybe even increase the fire. The fire extinguishers were not on the forefront of the minds of anyone. This leads to the conclusion that a reasonable person would not have used them

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Gagnon v BeaulieuFacts: Terrible car accident. Gagnon wasn’t wearing a seatbelt. Issue -- If P does not wear a seatbelt, is he/she contributory negligent for injuries suffered from an accident? Ratio: plaintiffs can contribute to loss through positive action or omission.

If an occupant of a motor vehicle fails to wear seatbelt, they are negligent for not taking reasonably precautions for their own safety.

A failure to wear a seatbelt in accordance with safety standards is a failure to take a step which a person ought to have known is necessary for their own safety

Onus on D to prove(1) P was not wearing seatbelt; and(2) Failure to wear a belt contributed to P’s loss (expert evidence required) A failure to wear a seatbelt is negligence per se

This means if it appears from the evidence that the seat belt would not have made a difference, then the failure to wear it, while negligent in itself, does not constitute negligence contributing to injuries

Now, s 220(4) of the Motor Vehicle Act, RSBC 1996, c 318 requires the use of seat belts usually see apportionment of 25% to P’s that do not wear seatbelts

Cite this case for the principle that failure to adhere to safety standard may result in contributory negligence

Apportionment of Loss Requires D to pay a percentage of the loss, based on the degree to which D was at fault

o Not really a defence it is a way of limiting the scope of liability Happens after you have determined contributory negligence

o Once you have found the P contributed to their loss, you apportionment the damages Also connected to VL Heavily regulated by statute BC Negligence Act

o General principle = look at the facts. If the facts don’t give you an answer split it 50-50 If the court cannot determine the degrees of fault with precision, the parties

are deemed to be equally at faulty o Sections 1 and 2 deal specifically with contributory negligence of a plaintiff

Section 1 says that liability is divided between P and D “in proportion to the DEGREE to which each person was at FAULT” (fault refers to standard of care, not causation!)

Section 1(2): if it is impossible to determine degree of fault split 50/50o Section 4 deals with apportionment of loss between two or more defendants who have

negligently contributed to P’s injuries

Mortimer v. Cameron (1994) (CA) Facts: Friends drinking at a party, fall down hallway stairs after friendly “horseplay.” Fall through poorly constructed wall and fall 10 feet. P becomes quadriplegic. City and building company come back and argue that the kids contributed to their own loss — they were acting unreasonably by drinking/ rough housing/ goofing off Issue: Can P be found contributorily negligent?

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Decision: NO. They should be able to rely on the stability of the wall - reasonably foreseeable that it wouldn’t break Reasoning: The conduct (horseplay) was not a proximate cause of P’s injuries. The accident was not within the realm of reasonable foreseeability.

Loss was too remote – not reasonable to foresee that a wall would collapse given a small amount of force applied example of mini negligence at work

Apportionment of losses - 60% Stingray (building company), 40% City - failure to uphold building by-laws. Other:

Whatever company builds the building, bears liability for the lifetime of that building Appellant courts are not unlikely to disrupt the finding of contributory negligence, but can

change the appointment

Voluntary Assumption of Risk (Complete) Underlying principle of this defence = volenti non fit injuria - “to one who is willing, no harm is

done”

When P consents to risk of harm generated by D’s conduct and voluntarily assumes risk, P cannot sue D

Burden on D to prove three things (Dube)

o (1) Express or implied consent between parties

o (2) P consented to the physical risk of the activity/injury

o (3) P consented to the legal risk (i.e. waiving their right to sue)

Complete defence!! This is why courts reluctant to apply it o This inflexibility/all-or-nothing approach can lead to injustice o Also ,with introduction of modern apportionment legislation, Canadian courts more

likely to apply apportionment Could apply to all situations, but tends to be confined to certain situations

o Example = involvement in sportso Example = when sober parties agree in a sober state to do something while drunk

Consent can be established by implied conduct or express agreement (i.e signing a waiver) o However, in Sundance the court held that the wavier was invalid bc P was too drunk to

have consented

Dube v Labar Facts: P and D both drinking & drinking together. Although P & D had taken turns driving, P was driving when they got in the accident. Issue: Was P negligent because he voluntarily assumed risk? YESFinding: P had voluntarily assumed risk because there was express or implied consent to physical and legal risk

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Usually it is very hard to prove consent in motor vehicle accidents cases unusual finding Also unusual for this defence to be applied to drunk driving – usually does not apply

Voluntary assumption will only arise where the circumstances are such that it is clear that P, knowing of the virtual certain risk of harm, bargained away his right to sue (expressly or by necessarily implication)

Common sense dictates that only rarely with a P genuinely consent to accept the risk of D’s negligence

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Damages The basic principles of tort law

o Defendant must put the plaintiff back in the position she would have been in had the defendant's tortious act not occurred (Athey)

o The corollary of this principle is that the defendant need not compensate the plaintiff for any loss not caused by his/her negligence or for "debilitating effects of [a] pre-existing condition which the plaintiff would have experienced anyway" (Athey)

General rule of thumb = usually punitive and aggravated damages are NOT awarded because injury arises from careless conduct

Two additional principles may be relevant to the assessment of damages = thin skull crumbling skull (Athey)

o Both rules prescribe the same legal principle: you take your victim as you find them. Therefore, the plaintiff’s pre-existing condition is part of his/her original position (T.W.N.A. v Clarke)

o Thin skull rule accounts for conditions that are latent or fixedo The crumbling skull rule accounts for deteriorating or active conditions

While the factual scenarios these two rules describe differ slightly, there is no difference between the two situations in terms of tort liability (T.W.N.A. v Clarke)

Note: that the application of thin skull and crumbling skull principles really should come into play in the damages assessment, though sometimes bleeds into causation (and remoteness).

Thin skull vs Crumbling skullThin Skull Crumbling SkullD liable for P’s injuries even if the injuries were unexpectedly serve bc of a pre-existing condition

Should D be held responsible for careless cracking a skull, that while weak, may have otherwise survived?

Smith v Leech Brain & Co – Employee burns lip at work. Was

susceptible to cancer bc of long-term exposure to tar vapours. Burn caused cancer. Employer found negligent

Question is NOT if the employer could have reasonably forseen that a burn would cause cancer & P would die. Question is whether the employer reasonably foresaw the burn.

Marconato v Franklin P suffered minor injuries from car

Should D be held responsible for hastening the ones of an injury that would have occurred in any event? 

YES, but only to the extent that D worsened P’s condition

Recognizes that the pre-existing condition was the P’s OG position

Not expected to put P back in a better position

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accident. Following the accident, she developed unexplainable symptoms of pain and stiffness. She became depressed, hostile and anxious. Evidence indicated she had paranoid tendencies before accident, the accident triggered a major personality change

D found liable bc of thin skull rule

Types of Damages Two types of losses

o General (non-pecuniary): These are damages for non-monetary harms that aim to compensate the claimant for such things as pain, suffering and loss of amenity arising from the tort (e.g. physical or emotional pain, disfigurement, loss of reputation, loss of enjoyment of life, loss or impairment or physical/mental capacity, etc.)

o Special / Specific (pecuniary): These are damages for monetary losses, that aim to compensate the plaintiff for quantifiable monetary losses suffered as a result of the tort, e.g. lost earnings, repairing or replacing goods, hospital bills.

Four categories of damages;o Nominal – not applicable bc awarded when there is not real loss, but a legal right has been

violatedo Compensatory – awarded to bring financial redress to the plaintiff for actual loss suffered.

The general principle for assessing compensatory damages is, so far as is possible, to place the plaintiff in the position which he would have occupied if he had not suffered the wrong (Dodd Properties)

Can be awarded from general and special losses The monetary evaluation of general losses can be difficult to asses. Per Grand Toy, it is a

philosophical and policy exercise moer than a legal or logical one o Aggravated – generally not awarded because negligent conduct is often careless, not

reprehensible o Punitive – also usually not awarded, again for same reason as aggravated. Conduct is careless,

therefore does not constitute additional punishment

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Vicarious Liability VL is a clear policy tool

o The idea is to find someone with deep enough pockets to pay to ensure the injured partied is not left uncompensated

o In VL, already figged out that D is liable, but will extend liability to ensure damages are payed out

o This is part of the normative function of tort law If we only hold individuals accountable, we may not change behaviour Normative = change norms VL pulls in the organizations/actors that can actually affect change

Want to find the defendant that can actually institute change Want to avoid the repetition of careless conduct in the future so tort law

purposefully targets defendants that have a greater scope of control — want to actually change the way society works

Tort laws make people panic because they often result in large damages and large organizational change

Two categories: principal-agent & master-servant

Principal agent Principal authorizes agent to act on their behalf For the principal to be found liable for actions of agent, the agent must act within the scope

of prescribed agency (Kerr)o This means negligence must occur in the course of the agency (Kerr)

Policy behind this: it is not unfair for someone who had the choice to select their agent to bear the risk of negligence (Kerr)

Usually in principal-agent relationships, the principal will clearly delineate what the terms of agency are master servant relationships often not as clear

T.G Bright & Co v Kerr, 1939 SCC Issue: was the defendant, a wine dealer, vicariously liable for the

negligence of its motorcycle deliveryman? Key principle: For the principal to be found liable for actions of agent, the agent must

act within the scope of prescribed agency. Negligence must occur in the course of the agency

Majority held there was no BL because there the negligent act was found to be outside the agent’s responsibilities

Court used a fairly strict test for Vl in this case (i.e. whether an individual’s work is necessary and integral part of business operations or merely accessory)

o The subsequent case law focused on the total relationship between parties

Dissent outlines the general considerations that the court uses to assess a principal-agent relationship:

o Was the agent’s act committed within the scope of the agency?

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If NO did the principal expressly authorize the acts or did the principal subsequently adopt them for their own use or benefit?

o Was the offence incidental to, or of the same general nature as the responsibilities the agent is authorized to preform?

If yes to both questions, likely VL will be found

Master Servant Covers employer-employee relationships if not in an employer-employee relationship go to

principal-agent Employer may be held strictly liable for the actions of its employee, even though the employer is

not at fault when employee creates the risk that produced the tortious act Courts impose vicarious liability because the employer is seen to have control over the activities

of the employee Two conditions must be met for vicarious liability for an employer

o An employer-employee relationship must be established, and Most of the time easy to establish there will be an employment contract or

both sides concede o The employee must have committed the tort “in the course of” employment

More difficult to establish Generally, the conduct has to have been authorized or endorsed by employer If the conduct is unauthorized, then employee has NOT acted within the scope

of his employment and employer will NOT be liable If however, the conduct was authorized, vicarious liability will be imposed if the

conduct was done in an unauthorized manner Salmond test summary: the test for vicarious liability for an employee’s [wrongful act] should

focus on whether the employer’s enterprise and empowerment of the employee materially increased the risk of the harm

o Question 2 essentially says person is acting in a way that is not authorized but is so connected to the authority that the difference is immaterial, then employer liable

Example = Arbel hosts a review session @ her house and negligently supplies us with alcohol that leads to harm doesn’t matter if the Dean not explicitly sign off because Arbel is acting in a way that is an extension of her employment school would still be liable

o Can think of the two questions in the Salmond test as form vs substance Did you formally authorize? If you did not formally authorize, did you in substance authorize the actions?

o See Curry case brief for more detail

Baziely v Curry, 1999 SCC Facts

Children’s foundation carries out background check prior to hiring Curry, but somehow missed that he was a sexual predator

As soon as they found out, they fired him Decision

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Foundation is VL for the sexual assaults by Curry Why: they created a high risk circumstance by allowing the employees long periods of

unsupervised time with his victims in intimate situations Court applies Salmond Test:

1. Was the employee’s act authorized by the employer?a. If YES liable

2. If NO (as was the case here) were the unauthorized acts so connected with authorized acts that they can be regard as modes (although improper modes) of doing an authorized act?

a. Look at existing precedent what have courts done in similar relationships? Have other cases recognized VL in similar situations?

b. Look to policy i. Did the employer give the employee opportunity to abuse power

ii. Did the wrongful act further the employee aims iii. Was the wrongful act related to friction, confrontation or intimacy inherent in

the employers enterprise?1. This is just trying to capture the nature of employer

and work 2. If the employer opens up the opportunity for these types

of encounters, they need to better regulate/monitor them iv. Power dynamic bw employee and victim what was the vulnerability of the

victim?

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Liability of Public Authority Public authorities can be vicariously liable or directly liable

Cooper reflects a restrictive attitude toward public authority liability in Canada

Government immunity for “policy” functions falls within the second stage of the Cooper analysis involving residual policy considerations

This means even if harm was foreseeable and the parties were in a relationship of proximity, a court could still decline to find a duty of care because the public authority was exercising its policy, rather than an operational function

Statutory framework has now become the primary consideration in negligence claims against public authorities

Basic idea = if you are dealing with public authorities you are asking the public to pay o One the one hand want to hold public authorities accountable BUT it is tax payers

dollars that will pay out a negligence suit o Also do not want to cripple the ability of government to govern

Don’t want people just to sue the government bc they didn’t vote for them/don’t agree with their policies

Need some areas of the government that are immune o Example = can’t sue courts if you don’t like the outcomeo There are a ton of statutes governing who can or cannot be sued

Main principle = we balance the above concerns through the distinction of policy vs operations

o Policy = framework & actual decisions govt makes Government needs to govern. If you don’t like their decisions then vote them

out o Operation = the way decisions are executed

Two schools of thought on whether public officials should be held accountable o Public officials should be subject to the same rules as private actors & the financial

burden should be born by society as a whole (i.e. tax payers)o Modern government by nature is exposed to tremendous liability & should have special

exemption o How should the legal system resolve this debate? If/when judges should second guess

decisions made by elected officials and their delegates

Just v BC Facts: Just and his daughter driving on the sea to sky highway to Whistler. Boulder falls on car, killing daughter and severely injuring Just. Just sues BC for negligently failing to maintain the highway properly

D&S says that when you have an incredibly horrific loss like this one, you don’t want to leave

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the parties uncompensated This is the guiding principle for how this case is decided

Issue: Was the decision as to the quantity and quality of the highway inspections a policy dimension exempting BC from liability? NO Decision: this was not outside the scope of operations Ratio: when it comes to government agencies, they may be exempted from a duty of care:

1. If there is an explicit statutory exemption; or2. If the government agency is making a pure policy decision (i.e. can’t inspect lighthouses

because not enough funding)Factors we can look for that will reveal whether we are in policy or operations

How high level is the decision making o High level decision = more likely to be policy o Example of high-level decision = how all potholes on highways are dealt with o Example of high-level decision = how do we keep the sea to sky highway safe

Discretionary decisions = public authority has been given broad discretion by statutes o Usually the statutes will say that the person holding the position o Discretionary authority = usually in policy

Operations = mechanics of how the high-level decision or discretionary authority o The more specific you get, the more likely you are to be in the operations realm

Surrounding circumstances, equipment, and budgetary constraints = more likely to be in operations

Important takeaways from this case: "The line bw policy and operations is not easily fixed"

o This is a good authority to cite for if you are confused whether something is policy or operations 

"Government role = protect the public. It is unworkable to have govt entirely immune from liability"

o If the govt has failed to protect the public, you are leaning more towards operations bc the law should guide the government to protect the public

Imperial Tobacco v Canada, SCC – critical of Just, attempts to clarify it. Facts: Imperial Tobacco brings claim against Canada alleging duty of care to consumers and tobacco companies re: misrepresenting the health attributes of light/mild cigarettes Issue: does Canada owed a duty of care to consumers and/or to tobacco companies? Was Canada liable for negligently misrepresenting the health attributes of “light cigarettes” Ratio: policy decisions protected from suit include decisions as to a course or principle of action that are based on public policy considerations, such as economic, social & political factors, provided that they are neither irrational nor taken in bad faith.

This is the policy/operational test Operational decisions = carry out or implement policy Where it is plain and obvious that an impugned government decision is a

policy decision, the claim may properly be struck and cannot ground an action in tort

Two main bases for proximity between the government and a plaintiff:

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(1) Found in legislation, explicitly or implicitly(2) Series of specific interactions bw govt sufficient to establish the necessary proximity for duty

of care Conclusion: In this case, SCC found Canada had a prima facie duty of care to the companies, but negated based on policy considerationsImportant takeaways:

Distinction bw policy & operations is good law Anything that is economic, contract, social or political will likely be in the policy camp

o However, if these core decisions are made irrationally or in bad faith, then they can be attacked

People of authority need to be able to govern if a statute gives someone a discretionary authority, then they will be in the policy world & immune. Only time liability will be found:

o If they are exercising this authority in an irrational or bad faith way OR o If their discretionary authority is so narrow it is only about executing decisions

(rather than making them) Bad faith = bribery, deceit, fraud, ect 

Duties found: Manufacturer to final purchaser where there was no intermediate inspection (Donoghue) Commercial host to patron Resort establishing highly dangerous sport for profit (Crocker v. Sundance) Police to public, they may have a duty to warn (Jane Doe v. Toronto) Motorists to others on highway (Marconto; Clements to own passenger) Doctor/patient (Reibl) Solicitor/client (Demarco) Police to suspect (Hill) Police to warn (Jane Doe) Manufactures = through learned intermediaries Manufactures to warn of customers of dangers known at time of sale and those that become

known after purchase & delivery (Hollis) Government for operational decisions – incl. failure to maintain roads (Just) Transit authorities to passengers (Kauffman) People working at a harbour to boat owners (Wagon Mound 2) Child care facilities and their charges (Bazley v. Currey) Prison officials to take care and provide a secure environment Construction companies to build secure walls (Mortimer)

Duties NOT found: Social hosts and intoxicated guests (Childs) Power companies and children where injuries not foreseeable (Moule) Person causing fireworks to be set off where the person injured is far away (Palsgraf) Ski buddies where they’ve only just met and individually decided to sign up (Kennedy) Registrar to investors (Cooper) Garage owner does NOT own a duty of care to subsequent harm arising from theft (Rankin) Owner of car if thief steals car and injures someone (Tong)

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