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Torts Final Outline
Negligence
- Conduct that falls below the standard
- About defendant’s fault which is
objectively assessed.
- Bal risk of harm v. utility of D’s actions
- If you have done the wrong, you should
pay the cost (plaintiff compensated)
- There is a limit and control devises:
o (1) Duty of care, (2) Remoteness
- 3 Key elements:
o The negligent act, Causation,
Damage
4 Main Elements – Mustafa
- Duty of care – question of law
- Standard of care – question of fact
*need damage
- Causation – need a link
- Remoteness – liability won’t apply if the
damage is too remote (legal causation)
Duty of Care
Palsgraf  Negligence is about
relationships, not every relationship gives
rise to a DOC
- Only a DOC is owed to the people a
reasonable person would perceive to be
in the zone of danger.
D v. S  Neighbour principle: you must
take reasonable care to avoid acts or
omissions that would likely injure your
neighbour, have n in contemplation
- DOC must arise from some relationship
between the parties
- Created a standard of duty based on
foreseeability.
Preliminary Test: (1) MF or NF? (2)
Existing duty? (3) Analogous duty?
- If no to 2+3 = new duty analysis
Proximity vs. Foreseeability
Foreseeability  Is it predictable? Should
one be aware of it before it happens?
Proximity  Nearness in time, space, or
relationship; characterize the type of
relationship, need to be sufficiently close
Concerns  reasonable foreseeability
might be too broad, indeterminate
liability.
Cooper v. Hobart  Leading case on DOC
Test for establishing a new DOC:
1. There must be reasonable
foreseeability of harm plus more.
- Looking at RF for a person of ord fort
- Something more is the relationship,
which is proximity
- Consider the recognized categories/
analogous situation (see mf and nf)
- Consider foreseeability of the damage
and the pc over the relationship
(proximity):
o Expectations
o Representations
o Reliance (by P on D to avoid risk)
- **If meet step 1, prima facie DOC
2. Are there reasons, not withstanding
the first stage, that the tort liability
should not be recognized?
- Residual policy considerations:
o Floodgates, IL, effect on society
- What is the effect of recognizing the
duty? (D will argue to negate DOC
through PC; onus on D for step 2)
**If DOC is found, duty to class of people
Misfeasance and Nonfeasance
MisfeasanceSomebody who is not
acting appropriately, it is a + action
- Physical injury is enough to estab prox
NonfeasanceA failure to act, not doing
something. More policy look at - Childs
Commercial HostThere is a DOC
between a commercial host and patrons;
there is a special relationship that is
surrounded by commercial profit and
special skills.
Voluntary assumption of risk is
interpreted by the court very narrowly Sundance
Childs Case Nonfeasance, social host
- Social host is different than comm
- Hosting a party doesn’t establish the
degree of proxi required for a DOC.
- 3 relationships where a nonfeasance
will give rise to a DOC (find proxi):
o Invite to inherent risk/dangerous
activity, that the defendant controls
or creates (boat captain – Horsley)
o Paternalistic relationship – control
and supervision
o Public function/commercial
enterprise that implies
responsibility to the public (bar)
o *Catchall: creation/control of risk;
categories to closed (Fullowka)
- Social host doesn’t fit into any of these
- Short of enhancement of risk need to
respect autonomy of guests, no reliance
Standard of Care
- The nature of the duty
- Foreseeable harm is not enough to find
a breach of SOC, D must create an UR
- What a reasonable and prudent person
would do in the same circumstances
- Some def may be held to a lower stand:
o Kids, hearing imprd, mental defect
- What is standard to be applied? –QoL
- Did person meet the standard? – QoF
Unreasonable Risk
- Should be held liable if you created an
UR (you breach SOC, if you create UR)
- Bolton v. Stone: risk and probability:
o Probability of injury/harm
o Seriousness of the injury/loss
o Remedial $/preventative measures
o Utility of the object/activity
- Would the reasonable person have
taken precautions against it?
- The more serious the risk/gravity of the
harm, the more reasonable it is to have
D absorb it (SOC is higher) – Paris
Stewart v. Pettie A commercial host is
only liable for foreseeable risks and has
to do what it can to ensure that an
intoxicated patron does not drive. Fault is
failing to take affirmative action in
preventing them to drive
Learned Hand If cost of preventing the
damage is less than the cost of the
damage, you should have prevented the
damages – D will be liable.
- Rentway Canada: risk utility balance; if
risk of harm > utility, D is liable
Good Sam Act  SOC for someone who
stops to help is lower, unless gross neg
Modified Standard for Children
- Mixed Obj Test standard is that of a
child of a similar age, intelligence, and
experience.
- Heisler Intelligence and experiences
requires careful evaluation of the child’s
situation.
- If you are involved as a child in an adult
activity, then you will be held to the
same standard as adult; Drive, golf
- Nespolon look to particular activity
giving rise to the allegation, not overall
Mental Illness
- Lower standard for mental disabilities
- Concern is that they would be liable
without fault, don’t want strict liability
o Fault is essential element in tort
- Fiala  Considered involuntariness
(unable to discharge DOC, no control)
and lack of capacity (didnt understand
DOC owed at relevant time)
o To be relieved of liability, no fault,
D must show either on BOP
Custom/Industry Standards
- Courts do not automatically accept
custom as a measure of SOC, is only evi
- Onus is on the defendant to raise the
issue of custom and prove that it is
reasonable (the party relying on cust)
- Consider What it is, how long,
universality, reputation of profession
- Higher SOC for people w/ special skills
R, P, competent member of profession
Warren v. Camrose  Uniform practice is
not determinative, only strong evi
Waldick v. Malcom Just because there is
a custom, doesn’t mean that it is
reasonable (D needs to prove it is R)
Statutory Standards
- Purpose of statute is to prevent
accidents happening; wide application
- Breach of statute is not determinative,
only evidence (can’t auto sue in tort)
o No tort just for statutory breach
- Complying with statute does not mean
that you are not negligent; it depends
- Concernscreating a nominate tort of
statutory breach is creating a strict
liability scenario; if legislature wanted
to do so, they would have
Sask Wheat Pool  Breach of statutory
standard does not directly give rise to
civil liability, consider purpose of statute
(breached statute but met SOC)
Gorris v. Scott For SS to apply, D’s act
must be in violation of the statute whose
purpose is to protect the P against the
type of loss/accident that occurred.
(breach S, but it wasnt relevant, met SOC)
Ryan v. Victoria Just because you have
met the SS doesn’t mean that you have
met your SOC. (met statute, but not CL
SOC, def was liable)
- Consider how specific statute is, does it
give discretion? More likely to meet CL
standard if it is more specific.
Causation
- The link between the def’s negligent act
and the plaintiff’s harm
- Corrective justice underpinning to
negligence; it is an attempt to ensure
that the person who actually committed
the deed will be responsible; need
probable connection
- Two types of causation:
o Factual causation the fact that X
caused Y
o Legal causationEngages
remoteness
- To prove causation is on a BOP
“But For” Test
- The plaintiff must show on a BOP that
“but for” the def’s negligence act, the
injury would not have occurred
o Onus then shifts to D to rebut this
- Factual inquiry; inherent in this is that
def’s conduct was necessary to bring
about the injury, substantial cause
- Athey Not necessary for the def’s act
to be sole cause (just need to be a part)
o Even though there are other causes,
the tortfeasor will be responsible for
the entire damage
Snell Having the burden of proof on the
plaintiff is adequate and fair; the
legal/ultimate burden remains with
plaintiff, but in the absence of evidence to
the contrary adduced by the def, an
inference of causation may be drawn
(scientific proof not necessary)
- In cases where P will have difficulty
proving causation due to lack of
knowledge, courts will relax test – only
require some evi that allows inference
Cook v. Lewis once causation is proven
on BOP, if there are JTs, and can’t prove
which 1 did it, presumption of fault
against both JTs; up to them to exculpate
Clements Material contribution to risk:
- Only go to MCR, if but for doesn’t work
- Removes the requirement for “but for”
and subs MCR
- A policy driven rule, permits P to jump
evidentiary gap
o Allow recovery even though they
can’t prove but for (favours P)
- Not a test for proving factual causation,
but a basis for finding “legal” causation
- Only arises in specific circumstances:
o Multiple tortfeasors, impossibility
(point finger)
o P not injured “but for” global
negligence
o Clear that def breached their DOC
- Has never actually been applied in
Canadian court
(This case applied a robust, common
sense, BF test)
Indivisible Harm
- Unable to tell which tortfeasor caused
which injury/part
- Separate tortfeasors that cause an
indivisible injury are jointly and
severally liable
- Athey presence of other non-tortious
contributing causes does not reduce
extent of the def’s liability
- BradleyIndivisible injuries, whether
caused by a combination of non-t and
tortuous causes or solely by tortuous
causes, results in joint liability for the
tortfeasors
Remoteness
- Not liable for every consequence from a
breach of DOC; is harm too unrelated
- R contains liability within a fair and
reasonable boundary
- MustaphaIf the damage is somewhat
RF as a result of the negligent act, you
will not have a remoteness argument
o Q: is what a person of ordinary
fortitude would suffer
PolemisInterpreted as a general
damage, concerned with directness (this
has been since overturned)
Cameron gate crashing cow is too
remote to give rise to L (so bizarre)
Wagon Mound 1Argues that
reasonableness should be the standard –
only liable for damage that is RF
Hughes v. Lord Advocate Injury view
- Can only escape liability if the damage
can be regarded as differing in kind
from what was foreseeable.
- L is not escaped because the danger
actually materializing is not identical
with the danger RF and guarded
against; exact consequences need not
be foreseeable (just type of harm F)
- *Canadian courts have adopted this
approach – recognize L where the harm
that the P suffered is of a general kind
that can foreseeably result from the
def’s negligence.
- Assiniboinethe extent of the D and its
manner of incidence need not be
foreseeable; took a s-by-s approach,
precise type of events not important
Thin Skullyou take the victim as they
come; this is contradictory to the
remoteness argument (Bishops)
- Once the harm is foreseeable, D is L for
all consequences even if injury is
unexpectedly severe
Crumbling Skullcan’t put P back in a
better position, only L for additional D
Intervening Acts act between def’s
conduct and the injury
- For D to be held L after an IA, the IA has
to be a RF conseque of D neg (Stansbie)
- If the IA is not within the risk, then it
is a true IA and severs the causal
connection, D not liable (Bradford).
- If IA is common practice, it is
reasonably foreseeable (Smith)
Subsequent Injury D is neg for the
damage, P is recovering and something
else happens (no neg in 2nd act).
- If subsequent act which extends the
injury is within the realm of risk set in
motion by D’s neg, D is L (Larsen)
- Only L for SI if P was acting reasonably
Defences to Negligence Actions
- Contributory Neg  a partial D if P is
partially responsible for harm
- Voluntary Assumption R P must
agree to both physical risk of injury
(danger) and legal risk (waiver)
- IllegalityP denied compensation if
involved in an illegal activity
Manufacturers
- Duty to warn corrects imbalance
o Relationship of reliance
- Duty to warn is a continuing duty
- Nature/scope of duty varies with the
level of danger entailed by regular use
o High standard for things in body
o Warnings aimed at hidden dangers
o Expected to anticipate common
misuse (still a duty)
- Strict standard since it is easy for them
to give an adequate warning (PC)
- Learned Intermediary  duty to warn
can be discharged if there is sufficient
information given to an intermediary.
Hollis  Applied a subj test, but dissent
said obj test since they used expert evi
Medical Cases
- Material risks require disclosure (part
of duty to w), courts decide what is MR
o Decide on a subjective basis (the
particular patient’s concerns)
o MR need to be communicate in
terms that the patient understands
o DTW is absolute in elective surgery
- It must be proven on a BOP that the
patient wouldn’t have consented if they
properly knew the risks (causation)
o Use modified objective test –Martin
o Urgency and specific info relevant
- Temporal: doesn’t matter if P would
have done the surgery in future
Reibl P has to prove that the duty to
warn was breached; that the physician
did not adequately inform them of risks
- If risk is small but severe there is a DTW
- Exp evi helps determine SOC (not deter)
Videto Doc cannot take patient’s
concerns into account if they aren’t
communicated to him (scar)
- Dangers part of any surgery no DTW
Government Liability
- Govt doesn’t owe a DOC if it is a policy
decision, owe DOC if operational
- Courts are reluctant to have tort
liability resting on the govt (b4 no L)
Policy Decisions  threshold/initial
decisions, made by high ranking official.
- Directed by financial, economic, social
or political factors/constraints
- Can be challenged on the basis that it is
not made in the bona exercise of
discretion
Operationalhow to implement policy, a
service, carrying out a decision
Test  (1) Whether the parties are in a
relationship of sufficient proximity to
warrant the imposition of such a duty
- Can be exempt from statute (explicit)
o Does S provide a private law DOC?
- Exempt if policy decision
(2) Traditional tort analysis, (3) SOC
consider surrounding circumstances:
budget/personnel restraints
- *Concern about court second guessing
leg, who are making decisions for pub ben
Justmanner and quality of an inspection
decision is operational
Brownmaintaining summer schedule
was a policy decision (finance restraint)
Lewisusing a contractor doesn’t exempt
govt from liability (operational)
PoliceFound a DOC between police and
suspect/investigation (Hill)
FullowkaFound proximity for DOC, 3
factors: defined group, personal dealings,
possibility of direct control
Joint Tortfeasors
- 2 individuals who agree on common
action, in the course of, and to further
which, one commits a tort(act); need
common design/concerted action (SS)
- “So involved, makes act their own”
- Jointly and severally liable
- P only needs to prove one tort (sue 1)
Vicarious Liability
- Form of strict liability (responsible for
the torts of another - Sagaz)
o Driven by PC (fairness to P)
- Ex.) Employers liable for ee wrongdoing
- Test: (1) Requisite Relationship? (IC –
control, Non-delegable duty); (2) Act in
course of employment  authorized by
er/unauthorized but so connected
(Salmond); (3) enterprise risk (creation
of risk+ connection w/ tort)
- Not every connection between work +
act is within scope of employ (Danicek)
- Unauthorized Act: act that furthered er
aim, er created a situation of friction,
dishonest ee (stealing from er)
- PC er chooses who to hire, has
control, spread out loss, deterrence
- Hospitals May be VL for the torts of
staff, but not for “doctors with
privileges”. Major PC concerns.
Joint and Several Liability
- S.4(2) Negligence Act If 2 or more
persons are found at fault, can sue in
one go (1 pay all - they then indemnify)
- Does not apply if P contributory neg
o Then TF are just severally liable.
Recognized DOC Relationships (MF)
- Commercial hosts/patrons (and to a 3rd
party who is injured – if RF) – Jordanh
o Social no DOC unless their conduct
implicated them in creating the risks
o CH can meet standard if there were
sober people and R for them to drive
- Driver owes DOC to other users on road
- Police/suspect under investigation - Hill
- Manufacturers/consumers – D v. S.