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 MisfeasanceSomebody who is not acting appropriately, it is a + action - Physical injury is enough to estab prox NonfeasanceA failure to act, not doing something. More policy look at - Childs Commercial HostThere 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 - Concernscreating 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 causationEngages 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 - BradleyIndivisible 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 - MustaphaIf 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 PolemisInterpreted 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 1Argues 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. - Assiniboinethe 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 Skullyou 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 Skullcan’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) - IllegalityP 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 Operationalhow 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 Justmanner and quality of an inspection decision is operational Brownmaintaining summer schedule was a policy decision (finance restraint) Lewisusing a contractor doesn’t exempt govt from liability (operational) PoliceFound a DOC between police and suspect/investigation (Hill) FullowkaFound 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.