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Extra- Contractual Obligations Summary – April 2005
Kirk Shannon
ECO/Torts - SUMMARY 2005
Adaptation of Toby Moneit’s Summary
IV. THE APPROPRIATE SCOPE OF RESPONSIBILITY .............................................................................................. 3
A. Acts and Omissions ...................................................................................................................................................... 3
Crocker v. Sundance Northwest Resorts .......................................................................................................................................... 4
Muphy v. Little Memphis Cabaret Inc. ............................................................................................................................................ 4
T. Eaton Co. of Canada v. Moore .................................................................................................................................................... 5
How the Law encourages Rescue ............................................................................................................................................ 5
B: Delineating a Duty of Care ........................................................................................................................................ 6
Home Office v. Dorset Yacht ........................................................................................................................................................... 7
Anns Test ................................................................................................................................................................................. 8
Anns v. London Borough of Merton................................................................................................................................................. 8
City of Kamloops v. Nielson ............................................................................................................................................................ 9
Cooper v. Hobart ............................................................................................................................................................................. 9
Palsgraf v. Long Island Railway Co. ............................................................................................................................................. 10
C: Relational Loss – “secondary” victims – emotional Loss ......................................................................................... 11
Régent Taxi v. Congrégation des petits fréres de Marie ................................................................................................................ 12
Hôpital Notre Dame de l’Esperence .............................................................................................................................................. 13
Nervous Shock in the common law: ...................................................................................................................................... 13
Alcock v. Chief Constable of South Yorkshire Police .................................................................................................................... 14
D: Injury to Economic Interests ..................................................................................................................................... 14
D’Amato v. Badger ........................................................................................................................................................................ 15
André Elliot v. Entreprises Cote-Nord Ltée ................................................................................................................................... 16
Weller v. Foot in Mouth Disease Research Institute...................................................................................................................... 16
J. E. Construction inc. v. General Motors du Canada ................................................................................................................... 16
V: CAUSATION.................................................................................................................................................................. 17
A: Scope of Risk ............................................................................................................................................................. 17
Re Polemis and Furness Withy and Co.......................................................................................................................................... 19
Foreseeable manner/sequence/damage.......................................................................................................................... 20
Wagon Mound 1, Overseas Tankship v. Morts Dock & Engineering ............................................................................................ 20
B: Directness vs. Forseeability ...................................................................................................................................... 21
Brisson v. Potvin............................................................................................................................................................................ 21
Morrissette v. McQuat ................................................................................................................................................................... 22
Graziella Joly v. La Ferme Ré-mi Inc. ........................................................................................................................................... 23
Foreseeable type of damage ........................................................................................................................................... 23
Hughes v. Lord Advocate............................................................................................................................................................... 23
Thin Skull .............................................................................................................................................................................. 24
Smith v. Leech Brain & Co. Ltd. .................................................................................................................................................... 24
C: Multiple Wrongdoers and Multiple causes ............................................................................................................... 25
1) Plurality of Established Causes ......................................................................................................................................... 25
Q. et al v. Minto Management Ltd. ................................................................................................................................................ 26
Deguire Avenue Ltd v. Adler ......................................................................................................................................................... 27
Caneric Properties Inc. v. Allstate Compagnie D’assurance et Ville de Montréal........................................................................ 28
Price v. Milawski ........................................................................................................................................................................... 29
2) Subsequent Events and Aggravation of Injuries ................................................................................................................ 30
Athey v. Leonati ............................................................................................................................................................................. 30
D: Placing the Victim/PL under Scrutiny ...................................................................................................................... 31
i) Predisposition of the Victim and Thin Skull ...................................................................................................................... 31
Psychological susceptibility and particularities ................................................................................................................ 32
Marconato v. Franklin ................................................................................................................................................................... 32
ii) Victim’s Behaviour ........................................................................................................................................................... 33
Gaudet v. Lagacé ........................................................................................................................................................................... 33
Girard v. Hyrdo-Québec................................................................................................................................................................ 34
Crocker v. Sundance Northwest Resorts ........................................................................................................................................ 34
Waldick v. Malcolm ....................................................................................................................................................................... 34
VI: FUNDAMENTAL RIGHTS AND CIVIL RESPONSIBILITY ............................................................................... 35
Seneca College v. Pushpa Bhadauria ............................................................................................................................................ 36
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Extra- Contractual Obligations Summary – April 2005
Kirk Shannon
Béliveau St-Jacques v. FEESP....................................................................................................................................................... 37
VII: LIMITS OF THE PRIVATE LAW ........................................................................................................................... 39
A: The Responsibility of Public Authorities .................................................................................................................. 39
Prud’homme v. Prud’homme ......................................................................................................................................................... 39
B: Family and the Private Law ..................................................................................................................................... 40
Dobson v. Dobson ......................................................................................................................................................................... 41
Immunity of the family .......................................................................................................................................................... 42
J. v. J.............................................................................................................................................................................................. 42
VIII CONCLUSIONS .......................................................................................................................................................... 43
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IV. The Appropriate Scope of Responsibility
A. Acts and Omissions
The Duty to Assist/Rescue
- Liability in private law for failing to come to the aid of another? 
Language of Omission: Not just failure to take care (Dv.S, PvS). Not a failure in action. Here we are talking of non-action.
Non-feasence rather than malfeasance. Failure to act at all rather failure in one’s action.
o Misfeasance – doing something wrong = failing to take proper precautions.
o What is problematic is “pure omissions” or “nonfeasance.” The law is cautious about imposing such a duty.
We relegate this discussion to morality (charity, benevolence).
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Law is shy to impose duty in case of Pure Omission.
Difference b/n Civil and Common.  In CL, no duty. In Civil, one is liable.
Law prefers to put this into the box of the moral obligation. Look back to the parable of the good Samaritan.
There is very little case law. Hard to ID the person who is responsible for the harm.
So What’s the Problem
- Law limiting individual freedom. It is different to impose duty not to harm than to impose duty to look out for others.
It is not there in the actions of the D. In Economic terms (Posner) – inappropriate allocation of resources. This would
be too much invested in our responsibility to help others.
How far would the Duty Go?
- How much is enough? Are you responsible to charities, or to give certain amounts. How would that be said in law?
Idea of a slippery slope
Problem of Causation
- In what sense can we say that my failure to help is the cause of someone’s injury? In a sense, injury would have
happened anyway.
How do we fit this with FAULT?
- We can fit with reasonableness but is hard to fit with fault.
Major sources for the Law
- Art 1457
- Neighbour Principle  with an eye to Civil Law jurisdictions. Discussion of Van Gerven in Liability for mere
Omissions.
Reference is always made in legal writing on this topic to the parable of the Good Samaritan. Can we reflect the story of the
Good Samaritan in the law? Can the law impose liability if we don’t act like this (i.e. consequences for not doing it)? This can
be problematic because:
1) Political theory/philosophical perspective – Problem of imposing liability that limits individual freedom. It is
problematic to impose a relationship – to “mind someone else’s business”.
2) Economic perspective – This imposition would impose inappropriate allocation of resources – it would be wasteful to
always be watching out for each other and be trying to improve each other’s situations.
3) Slippery slope argument – Where do we stop imposing this obligation? Example: can we be forced by law to donate
to Oxfam?
4) Technical legal perspective – How do we find a causal link between failure to help and the injury?
5) Fault basis of the law – Even if we say there is an obligation, how can we say that there is a fault when we omit? Can
we introduce reasonableness? And then, what happens to the obligation? Must come to the aid of people in trouble but
must only act reasonably. As soon as we say this, we are dropping the idea of Good Samaritan since he didn’t act
reasonably – he went out of his way.
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Differences:

Civil law doesn’t make this distinction b/n misfeasance and nondeasance. Civil law assumes obligation and
looks at fault right away. 1457’s approach is that you should act because a reasonable person would help out
and in failing to do it, you have acted with fault.
Common Law

Common law insists on the difference between misfeasance and nonfeasance since nonfeasance is carved out
of responsibility. Common law examines obligation first. “Mind your own business” philosophy of the
common law – this isn’t a situation you created so you have no obligation to the person. So we never get to
question of reasonableness – no way to turn it into a tort.
o Mere Omission with no consequences has been narrowed.
Van Gerven’s essay outlines resistance of English CL to impose liability for mere omissions. He then outlines some of the
special relationships that will impose such liability.
- There has been an increase in the number of Special Relationships that bring with them a duty to act. Historically
comes from relationships always being defined in relation to another. Examples that require positive conduct for the
benefit of another:
o Parent and Child, Teacher and Student, Property owner and visitors….
- CL describes particular situations and creates Special Relationship that requires positive acts for the benefit of another.
o Running an event, creation of a danger, putting people at risk (see Sundance)
Crocker v. Sundance Northwest Resorts
Jurisdiction CL Canada [1988] SCC – Wilson J.
Facts
- Crocker gets drunk and insists on entering a tubing competition that was organised and promoted by
Sundance. Gets thrown off the tube and is paralysed.
Issues
Did Sundance owe a duty of care to Crocker. What was that duty?
Holding
Yes - Sundance did owe a duty of care to stop Crocker from tubing. Find for Crocker.
Ratio
When a ski resort establishes a competition in a highly dangerous sport and runs a competition for profit, it
owes a duty of care towards visibly intoxicated participants. It failed to meet its standard of care in allowing
Crocker to compete.
- Sundance pays, organises, supplies drink, has knowledge of drunk, does nothing
- Set up this inherently dangerous activity in order to promote its resort and they provided liquor.
- Fact that Crocker was irresponsible and voluntarily intoxicated was the very reason why Sundance was
legally obliged to take all reasonable steps. “The Pl’s inability to handle the situation in which he or she has
been placed – either through youth, intoxication or other incapacity – is an element in determining how
foreseeable the injury is.”
- Must look at these questions: (1) Did Sundance owe a duty of care to Crocker? (2) If a duty existed, what
standard of care was required and was the standard met? (3) Did a failure to meet the standard of care cause
the harm suffered? (4) Did Crocker voluntarily assume the risk? (5) Can Sundance rely on the waiver as a
contractual defense to the tort claim? (6) Was Crocker contributorily negligent?
Notes:
- Turned into a special relationship. No longer a simple bystander. It is so b/c of the knowledge brings with it
some control of the situation.
Van Praagh on Sundance
- How important is the fact that Sundance is getting profit? Not clear.
Muphy v. Little Memphis Cabaret Inc.
Jurisdiction Ont C. of Justice, Windsor [1996] – Zuber J.
Facts
Fight in a tavern b/n two groups. One group ejected through the back door and, at the same time, other
group ejected through the front door. Back door group went around front and beat front door group of
which PL was a member.
Issues
Did tavern owe a duty of care?
Holding
Yes – Little Memphis Cabaret failed in their duty of care. Exposed patron to unreasonable risk of harm.
Ratio
The tavern-keeper had a duty to exercise reasonable care in expelling a patron where the danger that
awaits is imminent and originated with the tavern.
- Tavern owed Murphy a duty of care to not send both fighting groups out at the same time. Duty of care
would extend to next destination or home. Should have kept them in the bar, called a cab or police.
They knew they could have prevented the harm.
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Van Praagh on Murphy
- If you know and you can prevent the harm then this changes a lot. Ability to prevent the harm is important.
- One might argue that the CL is moving towards more civilian approach…or not…
Civil Law
Imposition of a duty through an explicit rule. Art 2 of the Quebec Charter  Right to assistance when life is in peril.
Art 2 of Quebec
Every person whose life is in peril has the right to assistance
Charter
Every person must come to the aid of anyone whose life is in peril, either personally or by calling
for aid, by giving him the necessary and immediate physical assistance, unless it involves danger to
himself or to a third person, or he has another valid reason.
Calling for help might be appropriate or enough. A violation of this article would be a violation of Art 1457
- Other CL jurisdictions have similar, eg. Vermont.
- Would 1457 cover it on its own? Note in Eaton v. Moore, no question of life in danger, but 1053 does include some
obligation to assist.
T. Eaton Co. of Canada v. Moore
Jurisdiction SCC  Que [1951] Rinfret CJ, Taschereua J.
Facts
- Pl slips on lotion that was on the floor of Eatons which was there b/c another customer had dropped a bottle
of lotion on the floor a minute before.
- Employee acted quickly to alert maintenance but stayed behind his counter.
- PL states she was forced to retire early b/c of injury even though she did not have to go to hospital
Issues
Is Eaton’s/employee responsible for failure to act? Was there a duty to act which was neglected
Holding
NO – Find for Eaton’s. Appropriate diligence was done. System of protection was adequate.
Ratio
- Duty to act exists only if the accident is foreseeable
- Moral obligation is not enough. Legal ob is different,
- System of notification of emergencies was adequate and reasonable.
Dissent:
Estey and Cartwright:
- Focus on special relationship as owner of department store and patron. Clerk should have done more. He
had a duty to warn the PL
- Vicarious liability for lack of proper training would be held otherwise.
Van Praagh on Eaton
- Estey and Cartwright take somewhat of a CL approach as they emphasise the relationship of running a store. This is
not a Civil idea. Both say, you owe patrons an obligation to assist them to avoid harm. “Easy to do something”
- Majority says the employee did nothing wrong b/c he followed Eaton’s rules – this is actually not the point.
How the Law encourages Rescue
A) Narrowing of the “pure omission” category – i.e. expand situations in which one owes a duty of care. This is done in the
common law.
1) Status of relationship of Pl and D – example: parent-child relationship, parent has positive duty to assist and make
the question better. The common law has increased the list of “special relationships.” Ogo Pogo (1971, SCC):
passenger jumps off boat. Since the Captain invited those people onto the boat, he owes duty to them – special
relationship. The common law does not characterize this as a pure omission.
2) Situations in which special relationships arise
a) controls and supervises situation (as in Crocker, encouraging people to do the competition and to get
drunk),
b) creation of situation (also Crocker),
c) profits from it economically, there is a special relationship and there is a duty (Crocker, Murphy).
d) knowledge (as in Murphy where, although there was no control or creation, the tavern-owner had knowledge
of the severe antagonism and the risk of danger)
Special relationship requires awareness of the person’s condition and that they’ve encouraged in some way (see Crocker). This
is an example of how we do not always jump to fault.
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B) Explicit law or rule – Quebec Charter of Human Rights and Freedoms article 2 – idea of “vie est en peril” and must help
unless there is a good reason not to. I.e. very narrow.
o If in breach, you are against 1457 and are liable.
o Isn’t 1457 enough to show that you have an obligation? It seems that we feel that 1457 needs a boost by using the
Charter.
o Does the “vie est en peril” carve this situation out of 1457? We don’t have cases to figure this out. In theory, 1457
covers the cases where there is no life threatening situation.
(This is an area of ECO where the general ECO regime of 1457 works with another area of the law – namely the Charter in
order to enhance, explain, increase, expand, or confuse the general ECO. Another area where we see this is in fundamental
rights and civil liability.)
C) Other
Compensating the rescuer by Statute – like: An Act to Promote Good Citizenship of Quebec.  (CBp. 27)  State
compensation for the rescuer should he sustain injury.
Common law – makes sure that whoever set up the situation that makes a rescue necessary owes compensation to the
rescuer if that person is hurt  common law understands that people will naturally rescue (for moral reasons) so it
deals with compensation and liability even though people aren’t obliged to rescue.
o Quote from Cardozo J.  “Danger invites rescue.” In dangerous situations people try to do things that
maybe they shouldn’t to rescue. Wrong doer is responsible for the injury to a rescuer. It is within his orb of
risk’
o As well, should rescuer make the situation worse and there is another injury of another, rescuer would
probably not be considered a novus Actus.
o Example: Doctor that created the situation that demanded moral rescue owes compensation to the rescuer
father who gave kidney to his daughter because hers don’t work because of failure of doctor.
Rules that specify no liability in case of failed rescue – targeted primarily at doctors to encourage fearless rescue.
Art 1471
Where a person comes to the assistance of another person or, for an unselfish motive, disposes, free of
charge, of property for the benefit of another person, he is exempt from all liability for injury that may result
from it, unless the injury is due to his intentional or gross fault
(I.e. there are ways that the law deals with this even when people aren’t obliged to be rescuers by law. The law is focused on
how not to be at fault. It can’t incorporate the parable of the Good Samaritan (Does not look at biblical take of doing right,
doing charity, moral).
W. Van Gerven, Tort Law, Scope of Protection
Common law has a general reluctance to accept unrestricted liability for “mere omissions” as opposed to “omissions in
action.” The basis of this distinction is that while it is logical that I should be held responsible for the consequences of
events that I have initiated, the same cannot be said of harm which results from a chain of events I have not unless special
circumstances arise.
Summary Questions
1) Do you have a duty of care to this person (situation of control, knowledge, etc)?
2) What is the standard of care owed?
3) Did you meet the standard of care? If not (by omitting), you are at fault
B: Delineating a Duty of Care
Is the obligation to act appropriately to another person a normative commandment….or….is it relational. Does it depend who
the “other” is? Is it said how one should act to further one’s own ends so as not to harm another – but – only in particular
situations is the breach of the obligation a ground for imposing a debt.
Is the obligation best understood as prescriptive or is it relational?
Civil Law
Art 1457  sounds very prescriptive. “Other” is not based on who the “other” is.
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Common Law
There won’t necessarily be responsibility of the D vis à vis the Pl. There must be an obligation/duty of care to the Pl to find
responsibility. Even if D did something wrong that caused an injury, there may not be responsibility of the D if the result was
too crazy or there was an intervener or the Pl acted in a particular way.
Neighbour  You must take reasonable care to avoid acts which could reasonably foresee to be likely to injure another…..
 Discussion of likelihood which brings back to Bolton v. Stone iterated by Lord Reid
 Neighbour (according to Atkin) is persons so closely related to my act that I should reasonably have……
 D v. S. stands for neighbour princ…but also stands for….. Manufacturer owes an obligation to take care in the
manufacturing of products to the consumer not in a contractual relationship. Thus D.v.S is significant w/out neighbour
principle.
 In effect it is a relationship (consumer and manufacturer) that is the focus of this case.
Don v. Steve, 1932 – Ratio: Manufacturer owes duty to take care with respect of products vis à vis the consumer. Broadly
read it stands for the neighbour principle.
o He says that the various relationships are just examples, he wants to open it up and articulate a rule.
o He then translates the Biblical rule of loving the neighbour into law as not injuring the neighbour. “Who is my
neighbour?”
o Lord Atkin limits the ground of the moral imperative – limits potential scope of individual obligation. And left
questions open like “closely and directly”, “contemplation,” etc. Hedley Byrne and Dorset Yacht reform Donoghue
v. Stevenson
 Duty of care shaping liability. These tools DO NOT exist in Civil Law….but you have other tools that will do this.
Home Office v. Dorset Yacht
Jurisdiction England, House of Lords -- Lord Reid, Lord Diplock [1970]
Facts
- Borstal trainees escaped at night and took over a yacht and rammed the yacht.
- Officers of the Borstal instit were supposed to supervise and keep control of trainees (all of whom had
criminal records) but went to bed instead.
Issues
Did officers in control of delinquents owe a duty of care to the owners of the other yacht which would make
the Home Office vicariously liable?
o i.e. do the officers owe duty of care to have taken precautions and does it extend to the boat owner?
Holding
Officers owe a duty of care to the PL
Ratio
Two possible questions asked:
(1) As Borstal Officers, can you predict that the Boys would do this sort of thing? Reid: Do we characterize
as likely/foreseeable/probable that this kind of thing would happen when a Borstal Officer is careless and the
Boys escape? or
(2) Is it foreseeable that the Pls would be the kind of people affected? (I.e. is the duty relational – obligation
to behave properly in relation to someone else – or “prescriptive” – obligation to behave properly) Diplock:
Is any duty of care owed by the Home Office to persons whose property would be likely be damaged if the
Boys would escape.
Reid
- Yes, they owe a prima facie duty to the other boat. But…concern is that court’s role is not to shape the
rehab system through the private law.
- Standard in this case of Natural or probable and not just foreseeable. Institution could not be held liable
for crimes committed by a parolee unless his release was so unreasonable and the crime was natural or
probable consequence (not merely foreseeable) (Slippage here where Lord Reid is sloppy about duty of
care – confuses damage with who this plaintiff is by using natural and probable. Natural and Prob seems
more objective that looking at Def’s point of view (foreseeable). Trying to tighten up the test)
- Argument that cannot hold officers liable for public policy reasons – officers would then be dissuaded
from doing duty for fear of liability rejected: “Her Majesty’s servants are made of sterner stuff”.
- Proximity b/n home office and the PL. Relationship is “close enough” according to Khoury.
- Public policy is dealt with at(CBp.35 para3). No ground in public policy to give immunity to the gov’tal
office.
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Diplock
Focus on features of relationships and conduct – neighbour principle is not a general imperative about how
to act. It is to be used as a guide as we consider which characteristics of a particular relationship are
necessary to give rise to a duty of care.
- Have to be able to convince that this PL as a boat owner is someone to whom an obligationis owed.
Precise statement of the duty. Specific and concrete. Seizes on D. v. S. which is a careful tradition
looking at the facts to show there is a duty of care.
- We are not telling the correctional officers to make sure that nothing ever goes wrong. Just to take all
reasonable precautions. Intentional release or intentional relaxed supervision could not give way to civil
liability unless done in manner which is so unreasonable.
- Worried about how far this responsibility will go in terms of responsibility for the community when excons are paroled. Scope of obligation is narrow  extends to the owner of boat that would be used in
the escape from an island. Limitation
- Public Policy issue: Much greater emphasis on policy. Uses policy to distinguish b/n relationships that
are “close enough”.  p.1059  policy decision as to whether duty of care should exist. He makes the
distinction b/n the all members of the public and the PL. Must be some relationship b/n the PL and the
Home Office – in the course, in the vicinity, and at the time of the escape.
What Diplock wants to do: Resist universalizing appeal of neighbour principle – careful before we say that
there is an obligation to act with care. Must look to see if there is an obligation before we look at fault.
Reid: What kinds of damage are we thinking about when we impose liability on someone? What if they
made a bomb on the boat – would we hold the Officers responsible for that or is it too way out?
- Problem as there is a step b/n the officers fault (going to sleep) and the damage. Is there the requisite
relationship.
- Reid followed in Anns.
Van Praagh
- NB – it is an additional question – Must establish fault, causation, injury AND….. Whether there is the requisite
relationship to impose an obligation to repair on the wrongdoer.
- New relationship b/n PL and D. What was different or special about that relationship?
- A duty of care which involves control of third parties to stop them from doing damage
- Considerations are not strictly legal – policy considerations come into play. Ried and Diplock’s judgement
Common law dwells on duty but civil law doesn’t – assumes obligation and gets right into fault. The focus on duty happens in
the common law when there is a particular concern: nervous shock, economic loss, pure omissions, responsibility for acts of
others.
Anns Test
Anns v. London Borough of Merton
Jurisdiction H of L, England, [1977] – Lord Wilberforce
Facts
Municipality failed to inspect the foundation of a building properly. Pure economic loss is the result.
Money must be spent to fix foundations
Issues
Does the city owe a duty of care?
Holding
Yep..I think
Ratio
Stage one – Principle - Sufficient proximity or neighbourhood (or close relationship) to make it reasonable
to contemplate that carelessness on D’s part could cause injury, a prima facie duty of care arises. 
Sufficient Proximity to make the PL reasonably foreseeable
Notes
Stage two – Policy – Are there any policy considerations which ought to reduce or negative or limit the
scope of the duty
- neighbourhood and proximity makes us think of spatial or physical. Invites limited reading of the
neighbour and a concept of closeness.
- Cites Weller v. Foot and Mouth as a limitation under stage 2.
Van Praagh
- House of Lords does not like this. Has backtracked to D.v.S. and take it on a case by case basis
- Clearly recognised the role that policy plays. It is brought into Cdn Law in Kamloops.
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Landmark as policy is overtly brought into consideration. Prior to this, policy discussions might be couched in other
language. Decisions can now be not simply legal but incorporate policy
This test was moved away from in the UK in Murphy which came later. The reasonably foreseeable is too large and
the policy step was not very restrictive – did not serve to limit liability. Future cases wanted a test that was more
restrictive.
Lord Wilberforce on requisite relationship
Why does he do this? There is a tension b/n the H of L when dealing with how far will this duty of care extend (which it
eventually pulled back from)
City of Kamloops v. Nielson
Jurisdiction SCC [1984] CL Mjor J
Ratio
Refers to two stages in Anns and states that acts and omissions in statutory duties can give rise to civil liability
while statutory powers cannot.
Notes
SCC adoption of Lord Wilberforce’s two stage rule.
Khoury on Kamloops
- This test has been kept in Canada.
- Again, making non-legal principles clear to the public.
- Model allows you have more broad discussion as to whether you want law to enter into certain parts of society
(policy).
Cooper v. Hobart
Jurisdiction SCC [2001] CL
Facts
- Mortgage co. was acting inappropriately and eventually had its licence taken away by the Statutory Registrar
(Hobart – D) but only after co. had taken money from investors which was lost.
- Cooper (PL) claims D owed duty to inform investors of investigation and suspend licence sooner.
Issues
Did D owe duty of care to the members of the investing public for negligence in failing to properly oversee the
conduct of an investment co. licensed by the regulator?
Holding
For D  no duty of care owed to investors.
Ratio
- Uses Anns test and says that there is no proximity in the relationship b/n D and investors such as PL.
D’s duty is to general public and to imply duty to investors could potentially be a conflict.
- Proximity in step one of Anns refers to close and direct relationships
- Places policy considerations in both the first and second steps of the Anns test.
Van Praagh on Cooper v. Hobart
 Asks if there is more to proximity that just reasonable foreseeability. Encompasses policy matters as to relationship
b/n D and PL that are not legal concept
 Residual policy concerns w/ nothing to do with relationship (eg. floodgates argument, etc…)
Van Praagh thinks this decision is sloppy. We seem to answer the question of proximity by explicitly referring to policy that is
internal. Proximity here is considered a conclusion (which is right). Then you look external to private law for the second step.
How is one supposed to differentiate b/n the two types of policy.
Wrongs of Tort, “The Duty of Care in Negligence,” Pages 11-21
Basic principles negligence are informed by the assumption that individuals should, in general, bear their misfortunes alone unless
there is some good reason for shifting the loss to someone else. From this assertion it follows that there is no injustice in allowing
an innocent victim of life’s vicissitudes to shoulder the burden alone, while there is a considerable risk of injustice, in the absence
of good reason, in shifting such a burden on to someone else. Without duty, carelessness does not equal fault, i.e. no liability.
Morally reprehensible behaviour can lead to no legal culpability because of the absence of a duty.
Because of the operation of insurance, the plaintiff’s loss is distributed, not to the careless defendant but, through insurance
premiums to all those who were not careless but who had insured against the possibility of being so. This fundamentally
undermines the traditional assertion that negligence is just in delineating the range of circumstances in which a loss should be
shifted from one person to another, because it is clear that, in practice, through liability insurance, negligence operates as a
mechanism whereby losses are spread, not shifted. This is the basis of the philosophy of the welfare state yet the notion of
culpability implicit in the concept of fault ensures that loss-shifting not loss-spreading remains the primary rhetorical focus of
negligence.
[If we are spreading loss anyway, despite our rhetoric of shifting it, why don’t we just call a spade a spade and develop a no-fault
compensation scheme for all “accidents.”]
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Palsgraf v. Long Island Railway Co.
Jurisdiction N.Y. C.A. [1928] – Cardozo C.J.
Facts
- Man jumps on a train leaving a station, guards push him in the train - drops package which is filled with
fireworks. Package falls on rails and explodes, hits scales which fall over and injure PL. The guards’ action is
wrongful.
Issues
Is the railway co. liable for the injuries suffered by the PL? Did they owe a duty of care to the PL?
Holding
For the D – no duty owed to PL. She is not in the orbit of responsibility. She is not the foreseeable PL.
Ratio
CARDOZO
- The conduct of the D’s guard, a wrong in its relation to the holder of the package, was not a wrong in its
relation to the Pl, standing far away. Relatively to her it was not negligent at all.
- PL is not the kind of person nor is her injury the kind of injury that should be compensated  Obligation was
only to those who obviously would be interested parties (person who owned the package, etc.)
- The risk reasonably to be perceived defines the duty to be obeyed and risk imports relation; it is risk to
another or to others within the range of apprehension.
- Must show there is a right in the relationship b/n the PL and D in order to show effect of negligence.
Negligence is all about the relationship – w/out such a relationship, no need to discuss causation. “Causation,
remote or proximate, is thus foreign to the case before us.”
Dissent
Andrews J.
- Like 1607 when uses foreseeability of this happening (not clear whether damage or injury or…what).
Foreseeability is only a factor whether this plaintiff’s claim of injury can be attributed to the wrongdoer. No
discussion of foreseeable PL – this is not the proper question. Proximity is the question that needs to be asked.
This won the day eventually.
- Negligence is an unreasonable act or omission that infringes on another’s right.
- A duty of care is imposed on each of us to protect ordinary society from unnecessary danger – not to protect
A, B or C alone.
- When injured from unlawful actions, we are liable – does not matter if the injury was unusual, unexpected,
unforeseeable…but…danger must be so connected to the negligence that it can be said to be the proximate
cause of the injury.
- Attempts define proximate cause or relationship that allows for recovery. Closeness of neighbour, if you will.
- Proximity in this case  but for the act of the agent, PL would not have been injured
- This is rhetoric rather than law. It is common sense. This is not logic. It is practical politics.
Van Praagh on Palsgraf
- Cardozo tries to minimize wrong  should not exist as in the law if it is wrong, it is wrong.
- How far do we extend liability? According to Cardozo, PL is too remote.
- For causation later on, see CB. 52 far right.
- Andrews’s approach is the approach that is used today in most of the US.
Cardozo is lesson to all of us – Negligence is grounded in relationship  This is the principle which he then focuses on for the
rest of the judgment. He does not focus on precedent. (in this way was more civilian).
Two ways of understanding how the obligation on each of us should be delineated. Andrews and Cardozo JJ.
1. Cardozo J’s approach: He is framing the issue in the way he wants it framed – shift away from whether the wrongful
behaviour is the proximate cause of the injury. This is a case about the foreseeability by the D of the PL. His aim is to
circumscribe the duty of care and not have it be general.
This judgment (in the life of Cordozo): Offers a rule when there isn’t certainty.
 Set up the notion of risk and foreseeability as terms that are supposed to guide judges and there is a moral basis in
understanding relationship between victim and defendant. This relationship is from natural justice – notion of right.
Unless the Pl exists for the D as he acts, there is no relationship and there is no violation of right that the Pl can claim.
He wants to give readers basic truths about the law of torts. Therefore, he this statements that are completely
rhetorical. His judgment is a set of assertions.
o One could put Atkin’s neighbour principle next to Cardozo’s relationship and they look very happy together.
Cardozo had some influence on Atkin’s neighbour principle.
Question: Why should relationship be important in civil liability – things that happen between strangers? Why does it have to
be that the right of Pl be cast in terms of relationship – why not say (like Andrews J. and Civil Law) that obligation is imposed
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with respect to society at large and not based on whether I can see that that person within the little orb of risk I have created
with my actions.
Note: Physical distance is not important at all for duty. But, in telling the story in this way, Cordozo hopes that we will see that
her being really far away is also theoretically far. It is also not the type of injury that is important. Once you owe the obligation
to a person, you are responsible for everything that happens to that person (thin skull).
2. Andrews’ Approach:
Figuring out if duty of care exists shouldn’t be the first question in establishing negligence. We all have the duty. In law we
have to grapple with the limits (causation in law). Does it make sense to say that responsibility extends to Mrs. Palsgraf – based
on convenience, public policy, rough sense of justice. I.e. not a question of logic but rather practical politics. He sees it as
ripples in the lake – how far does the responsibility extend? There is no principled way of doing it. There is just a series of
questions that we ask. Practical sense of where it is appropriate to delineate responsibility – there is never a right answer.
 We have a duty to the world at large with limits on the extent of liability – based on whether the consequences are
proximate to the wrongdoing or negligence. Relationship b/n people is implicit in this discussion. No discussion of
foreseeable Pl but rather whether the damage can be attributed to the wrongdoing
Conclusion:
Cardozo: relationship, foreseeability and risk in establishing duty of care.
Andrews: Policy – honest but vague politics based idea of limiting responsibility. Discussion of ripples.
Prosser: Cardozo is right but there is a duty since she bought a ticket – she is foreseeable. She is explicitly in a K’ual
relationship. But, there shouldn’t be liability simply because it is too freakish – it is the ripple where we stop.
The Common Law Approach to Cases:
 Civil law general pre-existing obligation. So start with fault and causation.
 In common law, we look at duty of care and foreseeable plaintiff (Palsgraf) first before looking at civil liability.
There is no point of talking about the fault until there is a duty.
 Foreseeability of plaintiff – risk is causing harm to the foreseeable group of potential plaintiffs and the plaintiff
belongs to that group of people. The group must be in the defendant’s contemplation. This becomes more clear in
cases of nervous shock and pure economic loss. MUST be in a recognised group of PL’s. Per Cardozo, one must
insist on looking at the particular duty to the PL
 Proximate Cause (not just factual) per Andrews and Art 1607.
C: Relational Loss – “secondary” victims – emotional Loss
Relational victims that have been affected emotionally or psychiatrically. What do we mean by victims within the orbit of
danger or foreseeable plaintiffs? What do we mean by “secondary/indirect/recoché” plaintiffs?
1) General guiding principles
To whom is the duty owed? Are you the kind of person in the scope of the risk to whom an obligation is owed?
 Bourhill v. Young: Pregnant woman stepped off tram and motorcyclist gets hit by car in front of her. She is shaken up
and suffers “nervous shock” (miscarriage) and is unsuccessful in her claim because the court says, following idea in
Palsgraf, that she is not the one to whom a duty is owed by the speeding driver. The person in the scope of the risk is
the one hit, not the bystander. In situations like this, the common law is extremely hesitant to find an obligation.
 Compare this to Regent Taxi in the civil law context. This debate happens in this case (same time as Palsgraf).
Mignault (father of civil law) argues that “autrui” should have some limiting meaning as opposed to meaning
“anyone”.
After Regent, civil law doesn’t ask “to whom?” anymore, doesn’t use foreseeability of the victim as a limiting factor.
 Relational personal loss  could be pecuniary or non-pecuniary (mostly the latter).
If witness scene of gore and massive bodily injury through wrongdoing, can psychological injury be compensated? Is this
defined by relationship that this witness has to those physically injured? How far to do we go with how many people qualify as
Pl’s? People watching on T.V., etc…..
 Question that must be asked is, is there link with PL2 and the wrongdoing?
 What is the nature of the injury?
 What made PL2 suffer as the result of the suffering of PL1.
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Civil Law:
There would not be a separation b/n primary and 2nd’ary victims. Might be called victim by “ricochet” – both are “another”.
As long as show cause and injury (which is less of a problem in the civil law). Both are equally recognisable victims. No such
thing as a secondary victim in the Civil Law!!! However, look to Augustus v. Gossett below for example of how
relationship still enters the discussion.
 Historically in Quebec  Open approach to obligation owed but was an implant from the CL….Art 1056 of CCLC
which is Lord Cambell’s Act  “in all cases where the person injured dies in consequence, his consort (ie spouse) and
decent relations have a right to claim in the year following the act. Odd juxtaposition with Art 1053 which is quite
generous (another).
 Now, only limited to another 1457 and showing how one has been injured and that there is causation.
Régent Taxi v. Congrégation des petits fréres de Marie
Jurisdiction
Facts
Issues
Holding
Ratio
Note
1929, SCC (from QCA)
The seminary is claiming for medical expenses and the loss (through serious injury) of the brother’s services
for which they provide him with shelter and food. The indirect victim owns everything about the individual
direct victim. (claim costs of his labour, cost of his clothes, medical expenses…)
Does the seminary count as “another”? Do they get to claim on their own? Does the religious community have
a right of action?
Religious community can claim as it is “another” as per art 1053
(Anglin): “Autrui” is broad and not limiting here. Once been determined that there is evidence of negligence,
the person guilty of it is equally liable for the consequences, whether he could have foreseen them or not.
 For someone who is not the immediate victim to recover it is sufficient that that person has an actual
interest whether it is moral or material. There is nothing in 1056 that suggests intent to narrow the
scope of 1053. The grammatical and ordinary sense of plain and unambiguous terms is not to be
modified to a greater extent than is necessary to avoid absurdity, repugnance or inconsistency.
 1056 CCLC – who can claim on wrongful death of direct victim. One year to claim and must be a
direct linear relative or spouse. Limited possible PLs
 In 1053, we have the direct victim and that is what we mean by “another” – those directly hurt by the
actions. In 1056, the direct victim is dead. Anglin says that it is dangerous to narrow the prima facie
scope of article 1053 since meritorious claims may end up being rejected.
 If the immediate victim survives, there is not such inconsistency, repugnance or absurdity as requires
the courts to deny their plain meaning and affect to the words of article 1053.
After this, 1056 just sits there because it doesn’t fit with the philosophy of 1053 as being generous and open
and not cutting off of the obligation depending on who you are.
Van Praagh
 Anglin’s response is a little odd  provides for recovery with death under 1056 as being limited but, as is the case
here, there is no death and therefore fits under “another”. Odd b/c would recover less if had died (limited by 1056)
 CCQ solves this and gets rid of 1056 and now we just have Art 1457. 1056 was a very difficult article to reconcile
with the civil law approach
Augustus v. Gosset – no question as to whether she can claim as a plaintiff and the type of injury but yet this is a case of
mother and son and therefore the relationship is still the same as the paradigmatic case in the common law. There are no
other valid claims of this type in the civil law. So, the quality of the relationship at stake does implicitly play a significant
role in assessing liability.
In Common law clearly – more restricted in common law and only more generous by statute (stemming from Lord Campbell’s
Act). The civil law is more generous and can extend out.
It must be your losses – whatever kind of losses they are. So, in the common law, if you don’t recover because you are
secondary, the primary plaintiff cannot claim for the expenses because if they didn’t pay those expenses, the expenses are
not their loss.
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Hôpital Notre Dame de l’Esperence
Jurisdiction
Facts
[1977] SCC from QCA
After and accident, Pl’s wife taken to hospital and misdiagnosed. Partial permanent disability resulted.
Husband suing for medical fees and “loss of consortium.”
Issues
Can the husband claim for loss as a secondary victim?
Holding
Yes
Ratio
Because of mandated relationship (in civil code), you can be a recognized plaintiff when the person you
are married to is out of action. There are assumptions about what this relationship is. Less restrictive than
common law – wife can claim for husband.
- A husband who is deprived of the succor and assistance his spouse owes him under article 173 CCLC
had the right to claim it.
Note
Example that the civil law has no problem with a secondary victim (husband) who has losses as a result
of the wife’s injury. They have obligation to each other. The losses can be real losses because the wife is
obliged to the husband.
This also discusses the “proximate relationship” issue
Common Law recovery for injury/death for secondary victim
Focus on the relationship b/n the PL1 and PL2. Only under certain circumstances and in certain relationships could a person
claim for injury to another PL. General rule was still no claiming for secondary victims.
Historic CL rules, the claim dies with the person – no claim for close relations. That was changed eventually. Still, meant that
any claims by 2nd’ary victims went nowhere.
 Changed for pecuniary losses only by Lord Cambell’s Act (1846) – ie by statute. Only dealt with certain relations –
e.g. spouse, etc.
 W/ regards to injury, only two people could claim  those were husband (not wife) and employer. In time, generally,
this was altogether taken out and then there was no possibility of claiming for injury.
 CANADA CL: No recog of 2nd’ary PL (or PL.2) subject to certain relationships. Each province now has it’s own
version of the Lord Cambell’s Act.
o List of specific people could recover pecuniary losses. Some provinces include same-sex couples (Ontario),
co-habitants, siblings, adopted children, some say no.
o Some provinces, you could claim for the injury to another.
o No grief.
o Marine Liability Act is now the most expansive legislation in CL (not grief though) – broadest
acknowledgment of care, guidance, relationships…etc.
STILL…just a list of categories rather than asking how close people were, what are people’s needs, etc. If you fit in the
“status” list, you recover. All done only through legislation. Common law of the CL is still very closed….but….
Nervous Shock in the common law:
Nervous shock is psychiatric problems translated into law.
Exception to general rule of no recovery of secondary victims. This is nervous shock of secondary victims. The civil law
doesn’t concern itself with calling things nervous shock in order to compensate for moral injury.
Nervous shock of these victims is a problem in the common law because it is not just about the “who” (secondary victims) but
also the type of injury – floodgates arguments, conflicting medical opinions, etc. We expect sadness when people close to us are
hurt – where do we draw the line between human nature and actual injury? (Also see Bourhill v. Young above)
1) Proximity – for purpose of duty owed from D to indirect victim
a) Emotional closeness between direct and indirect plaintiffs (the class of persons whose claim should be
recognised – McLoughlin v. O’Brian (1982) says parent-child and particularly mother and child relationship
(mother who rushes to morgue upon hearing that kids and husband killed in car accident and sees body and
the blood and is successful) as well as spousal relationship. The common law is making assumptions about
closeness. This is juxtaposed by Bourhill v. Young where woman having miscarriage is not enough. Alcock
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says they need more evidence about how close the brothers are - just being brothers isn’t good enough. The
closer you can be to parent-child or spousal the better.
b) Physical proximity (spatial and temporal)– where is the plaintiff located in terms of time and space in
relation to where the direct victim was hurt. Are you at the scene? When do you find out about it? Did you
see it? In Alcock, the first plaintiff at the morgue was there after 8 hours and faced with the reality of death
only then. This is a focus on the tangible.
c) Means/Immediate Aftermath – How did you find out? See it with own eyes? Hear it with own ears?
Alcock v. Chief Constable of South Yorkshire Police
Jurisdiction
Facts
Issues
Holding
Ratio
1991, HofL
At a soccer match, people are trampled to death due to bad crowd control on the part of the D. The Pls are all
secondary victims claiming for nervous shock after watching the others be killed either on TV or at the game
or hearing about it afterward.
Can these secondary plaintiffs claim for nervous shock?
No
Reminder of “rules” of nervous shock: (1) Even though the risk of psychiatric damage is reasonably
foreseeable, the law gives no damages if the injury was not induced by shock. (2) Even where the nervous
shock and subsequent psychiatric illness caused by both have been reasonably foreseen, it has been generally
accepted that damages for merely being informed of, or reading, or hearing about the accident are not
recoverable. (3) Mere mental suffering is not a basis for a claim (4) “Shock” involves the sudden appreciation
by sight or sound of a horrifying event which violently agitates the mind
It is accepted that proximity to the accident must be direct and immediate both in time and space. (NB different
meaning for proximity).
The three factors were not all present for any of the plaintiffs (see above).
Alcock (Lord Ackner) is understood to push open the possibilities of nervous shock. This is because the judge says you could
be a bystander and it is possible to not be right there at the time and have a valid claim. There is no reason to say that you
wouldn’t be immediately affected just because you saw it on television and not at the site. Yet, no one won their claims. The
factors don’t all come together. In fact the only paradigm case where the plaintiff wins is the McLoughlin type case.
Van Praagh
1. Relationships – per Alcock – can possibly extend beyond parent/child/guardian, spousal – to other associations involving
intimate associations.
2. Time
3. Space (were you there)
4. Immediate Aftermath  your suffering must be characterised as part of the immediate aftermath.
NOTE centrality of relationship in both Common and Civil law. Note that grief in Quebec Civil law is recognised in the
situation of a mother and child. CL asks who are you? CVL asks how did this happen to you and what are you claiming?
D: Injury to Economic Interests
 Contractual Economic loss. There is a contract b/n PL1 and PL2
Common law has problems with this
“Pure” economic loss (of money, profits not property) on its own – not tied to some kind of physical injury (there can be
economic losses associated with physical injury like breaking leg and not being able to go into work) and there is no property
damage. I.e. not consequential economic loss.
 In general, there is no problem recovering for pure economic loss. Relational pure economic loss is a subset of pure
economic loss. Other categories are negligent misrepresentation (Hedley Burns case about the Pl who got bad info
from a bank) resulting in pure economic loss and defective products/premises.
 Much like Page v. Smith where he had no physical injury. Instead the court tried to push it into a category that we
recognise.
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Why is this a problem?
1. Justice Cardozo in Ultramanes: Indeterminate amount, for an indeterminate time to an indeterminate class.  Who
can claim, how long do we trace economic loss back to the negligently caused event, for how much (cost of
employees, replacing, lost estimated profits)? How do we quantify? Policy is informing our approach to the proximity
question. (example  mad cow disease and the effects on)
2. Historically belongs in the realms of contract. You usually plan for you economic interests. May be inappropriate.
Civil Law is not concerned a priori with types of loss. This is a real loss. Nothing in theory prevents the secondary Pl from
recovering. Look at causation – are these losses the direct or immediate consequence of the D’s wrongdoing? Victim par
ricoché.
Common law, because of its concern with floodgates, puts up a barrier and turns to duty related rules. When the loss
complained of can be characterized as pure economic loss, we apply a set of rules to see if there is a duty there.
 Loss of PL2 must have injury that is derivative of PL1. PL1’s injury could be personal, property etc. PL2’s loss is the
result of a K with PL1.
 Before Anns, common law did do something about pure (not relational) economic loss (e.g Hedley Burns).
 Anns said that the test for pure economic loss should be the same. Proximity and policy.
 H of L has gone back on everything except Hedley Burns and negligent misrepresentation. They have gone back on
Anns. Pulling back from this highwater mark.
Supreme Court of Canada
 Pivotal case is the CNR v. Norsk  Ship hits bridge which is owned by Public Works Canada which has a contract
with CNR. Other little railways do not have as good a claim - they do not have what McLachlin calls a joint venture
idea from.
o LaForest (with 3) in dissent argues a policy packed approach. CNR was in a position to absorb and anticipate
the loss. It had insurance. No obligation owed in tort. PL1 will claim. CNR could have had a K with PWC
which guaranteed their use of the bridge. This has nothing to do with tort. He would deny all recovery in tort
for pure economic loss.
o McLachlin  proximity and foreseeability. Closeness of PL1 and PL2. CNR and PWC are essentially the
same. They share some costs in the bridge. Joint venture of sorts.
Examples of bagels and cream cheese and cream cheese and cheesecake  the effects of the destruction or damage to the
cream cheese factory such that it hurts the other to businesses. But….what about the foreseeability of risk by the defendant.
Could the snowplow driver foresee the risk of pure economic loss.
D’Amato v. Badger
Jurisdiction SCC from B.C. [1996], by Major J.
Facts
PL owned 50% of autobody repair shop. Was unjured by automobile of D operated negligently by other D.
Loss of ability to work – could only perform minor contributions. Corporate PL for pure econo loss.
Issues
Can the Pl claim for pure economic loss?
Holding
PL cannot recover.
Ratio
- Per CNR v. Norsk “question is whether there is sufficient proximity b/n the negligent act and the loss.”
- Corporate Appellant suffered no property damage nor physical injury. Cannot consider this a joint venture –
not sufficient proximity.
- PL would not succeed with either test from CNR v. Norsk . Could look at proximity, or could say there is a
bright line rule and can never have any recovery for pure economic loss. Either way it does not matter.
- Policy: If an employee is allowed to recover for pure economic loss, problem of indeterminacy arises.
(what? no possibility of indeterminacy. There is only one employee. Not much ripple effect here)
Van Praagh
 Sets out two approaches from CNR v. Norsk and then concludes. No argumentation.
Shows that the jury is still out as to what happens with pure economic loss in the SCC. D’Amato suggests that the opening for
recovery for pure economic loss is closing.
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André Elliot v. Entreprises Cote-Nord Ltée
Jurisdiction C.A. Que Civil, [1976]
Facts
- Employee hurt by D in car accident. Pl/employer (ECN) claims loss of employee’s services from D.
- At trial, Pl is awarded dollar difference between salary of replacement foremen and salary employer would
have paid to injured employee.
Issues
Can the er recover for the loss of his ee’s services due to physical injury caused by the D to the ee in the car
accident?
Holding
He can if causation is shown, here it’s not
Ratio
In order for secondary victims to recover, the loss must be shown to be the direct and immediate consequence
of the negligence of the D.
- The word “other” in 1053 should be interpreted broadly such that in principle there is no reason that a Pl
like this employer could not recover for the services of the employee. But, being deprived of services isn’t
enough per se. The economic loss is not the direct consequence of the wrongdoing.
- At the time of the accident, employee was the only foreman but ECN’s business was growing and more
foremen would have been hired anyway. Therefore, the increased cost to ECN was not as a result of the
accident but rather as a result of the growth of the business.
- Loss cannot be recovered as the cost would have been incurred regardless.
Van Praagh
 This direct and immediate link in the Civil Law, is this arbitrary?
Weller v. Foot in Mouth Disease Research Institute
Jurisdiction 1966, QB Div, Eng
Facts
Scientific studies were being done in the area on the disease and it was negligently let out reaching the cattle
near the premises. Because of this, cattle markets were closed. The Pl here is the auctioneer. He does not own
any cattle but his business is related to the cattle that die because of the foot in mouth disease. He is therefore
not tangibly physically affected by the foot in mouth disease.
Issues
Is the Pl owed a duty of care? Can he recover
Holding
NO
Ratio
Indirect victims suffering economic loss because of damage to direct victims cannot recover in negligence
- There isn’t much reasoning given, mainly the old rule is upheld. One of reasons given is the indeterminacy
of who can be affected as opposed to a one-time affect. Even though it was foreseeable that everyone in the
area would be affected (since this is an agricultural community), there is a ripple effect where more and more
people can become plaintiffs. Only the cattle owners are owed the duty of care.
Notes
Cattle 1875 rule in common law was that there was no recovery for relational economic loss because it would
always be too remote. This is not duty language but is rather causation language. This is the position in civil
law now and gets rolled into duty of care question in current common law. This is a bright line no recovery
rule.
See also discussion on Causation about these two cases below
J. E. Construction inc. v. General Motors du Canada
Jurisdiction
Facts
Issues
Holding
Ratio
Q.C.A. [1985]
- JE Construction (D) broke water pipe belonging to the municipality. Work was stopped at the Pl’s (GM)
factory but because of collective agreement provisions, the er had to pay ees for time they were not working.
- Pl says that this payment is a direct consequence of the negligent act of the D. D says that the payment of
wages is the result of the collective agreement. Without that provision, GM could have sent the ees home and
not paid their wages for the idle time.
Can GM recover the wages paid while the employees were unable to work? Was the loss suffered by GM a
direct and immediate consequence of D’s actions?
Yes
Direct and immediate does not refer to time and space but is meant, rather, to exclude intermediary causes
and loss due to a more weighty cause.
- The civil law has no problem with recovery for relational pure economic loss. This issue is with causation.
The Pl was claiming for lost production. Claiming the wages is just a way of monetizing the loss and is
similar to fixed costs or lost profit. Therefore, it is irrelevant to talk about the collective agreement as the
cause of the loss.
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Summary and evolution of duty of care up to this point… (Common Law)
Donoghue (UK)  Anns (UK) + Kamloops (SCC)  Murphy + Caparo (UK)  Cooper (SCC)
(1) Donoghue v. Stevenson [1932]
“Neighbour principle” = I owe a duty of care to those who I can reasonably foresee will be injured by my actions
(2) Anns v. Merton [1977] + Kamloops v. Nielsen (1984)
Two-stage test in Anns:
1. Proximity – shown through reasonable foreseeability – prima facie duty of care
2. Policy (e.g. floodgates argument)
(3) Murphy v. Brentwood District Council + Caparo (1990) (UK only)
Three-stage test in Murphy: (separates reasonable foreseeability and proximity)
1. Reasonable foreseeability
2. Proximity (but, unclear what “proximity” means – work on a case-by-case basis since there is no fixed definition) 
proximity will be more than reasonable foreseeability (the point is to be more restrictive than the test in Anns)
3. Is it just and reasonable to impose a duty of care?
(4) Cooper v. Hobart (2001)
Reformulation of the two-stage test (from Anns):
1. Proximity:
a. Reasonable foreseeability
b. Policy (recognition that proximity is not only about reasonable foreseeability) – every policy consideration
that deals with the relationship between the parties is part of proximity
2. Policy – all other policy considerations (e.g. floodgates)
 Some have argued that Cooper represents a movement towards the English adoption of Murphy (i.e. the idea is that the
policy aspect of proximity represents a separate proximity step as in Murphy) Van Praagh does not like this case as she finds it
impossible to differentiate b/n the two types of policy.
Duty of care is not a problem when there is property damage or bodily injury – do not need to go through this process because
there is precedence that recognizes duty of care in these cases
Problems with duty of care arise in circumstances where there is no precedence:
 Pure economic loss
 Psychiatric injury suffered by secondary victims
 Liability of state bodies
 Omissions
V: Causation
A: Scope of Risk
It is not enough to establish the factual link to prove causation. The law may limit or expand liability based on a sense of
whether it is appropriate to hold the defendant responsible for the outcome of the wrongdoing. Thus, liability can be shaped
by the nature of the harm caused.
Review:
Last term, this is how we viewed the model.
Factual Connection
Fault
Injury
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Now we have added Limiting language/Devices:
Foreseeability of Pl (Duty)
Fault
Injury
Cardozo J. and, a little, D. v. S.
Using the “who” question of the foreseeable Pl leads to a split between primary and secondary victims. We also exclude people
whose misfortunes don’t stem from your behaviour. If we think about it in a general sense like 1457 CCQ, we don’t have to
ask about duty. Failing to come to aid of another doesn’t make you primary causal factor. The D and Pl are not brought
together.
Significance of relational way of understanding the obligation rather than understanding it as a prescription (like 1457 CCQ):
Consequences come to light in psychiatric injury when not also physically hurt. Matters where there are monetary losses.
Matters also in establishing a line between misfeasance and nonfeasance.
History in Common Law
The notion of relational loss is related to the history of the common law. Negligence evolved in England in the 17 th-19th
centuries relationship by relationship (see article by Baker). Driving a car, you are in relationship with all other people driving
and using the road way. How do we tell this story so that there is the requisite closeness between the individuals – describing
the link between the wrongdoing and the consequences? When is it appropriate, when is it unjust?
Elliot v. Entreprise Cote Nord and JE Construction
Rejection of duty of care language. No concern that the Pl isn’t owed an obligation. Mayrand takes this on – victime par
ricochet is still owed a duty. The question becomes: are the losses (economic) the appropriate consequences of the D’s
wrongdoing? Should we allocate the losses to the D?
In Elliot, the real cause is something other than the D’s wrongdoing. There is no causation link found because there is another
more important cause (the rapid expansion of the business). In JE Construction, the cost of the wages is understood to be rolled
into production cause and when production is stalled, they are lost. The collective agreement is not the real cause – it does not
take away from the appropriate causal link of Pl and D.
Common law looks for connection between the Pl and the D. Civil law looks for connection to the wrongdoing.
Civil  Obligation is owed to another. Is the injury a direct and immediate result or consequences of the D – connection to the
wrongdoing
Art 1607
The creditor is entitled to damages for bodily, moral or material injury which is an immediate and direct
consequence of the debtor’s default.
 “immediate and direct consequence” – this is limiting language. Causation incorporates some search for
just/appropriate/fair link between Pl and D and giving contours to scope of responsibility. The common law also uses
causation as a limiting mechanism (as well as this idea of duty to another….who is another? Issue).
1) Palsgraf
Limiting line: Proximate Cause
Fault

Injury
 Andrews J., Art 1607
More accurately characterises Art 1607.
Andrews (in Palsgraf) articulates particular questions in figuring out if we have proximate cause. “The court must ask
itself:
1) whether there was a natural and continuous sequence between cause and effect (factual link – “but for”)
2) Was the one a substantial factor in producing the other?
3) Was there a direct connection between them, without too many intervening causes?
4) Is the effect of cause on result not too attenuated?
5) Is the cause likely, in the usual judgment of mankind, to produce the result?
6) Or, by the exercise of prudent foresight, could the result be foreseen?
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7) Is the result too remote from the cause, and here we consider remoteness in time and space?”
“[...] for the greater the distance either in time or space, the more surely do other causes intervene to affect the result.”
These questions are packed into discussion of proximity (injury is proximate or not remote to the wrongdoing). Andrews’
questions are the ones that are worried about in dealing with the meaning of Art 1607 even though on its face, it looks like it is
only concerned with “direct causation”. Thus, Art 1607 is very similar to all of these questions.
Andrews and Foreseeability
 Does not explain how he gets from wrongdoing to injury. Instead he connects the injury with the explosion. This is
not the right question. Must not be connected to the explosion but rather to the negligence (pushing and pulling of
passenger)  Fails to grapple with this properly
Both COMMON AND CIVIL LAW
Principles behind the discussion:
1) Wanting to compensate the victims of wrongdoing – don’t want to deprive victims of recovery caused by negligent D.
2) Don’t want to put disproportionate responsibility on the D from what one individual should be saddled with.
Proximate Cause à la Andrews: The court must ask itself whether there was a natural and continuous sequence b/n the
cause and effect. Was one a substantial factor in producing the other? Was there a direct connection b/n them, without too
many intervening causes. …Is the result too remote from the cause considering remoteness in time and space.
Nova Scotia case: (Falkin ham v. Swiker….or something)
Facts: Car driving too fast in rain, breaks suddenly, swerves into fence of farm. Staples come off. Later, cows eat staples
and die.
Issue: Is the driver responsible for the death of the livestock? Why should the farmer bear the cost of the loss he suffers? Is
it good luck for the driver to have had this wrongdoing?
Class Discussion: Hitting the fence could have killed the cows but she gets off because no cows happened to be near the
fence. If the car had hit the cows, the farmer would have been luckier. We have no problem with factual causation but we
are concerned more with fairness. Do we care about if there was time for someone else to interfere in the chain of events?
Is it important when the cows ate the staples? If it happened right away, even though the eating of the staples is a weird
injury, it can be seen as the same situation all rolled in together. Do we care about the type of injury? We want to fill out
the story between the hitting and the eating. The more factors between, it seems as though the fault decreases? We have to
remember that the wrongdoing is driving too fast, not hitting the fence.
Held: In the actual case, the driver is responsible. It is foreseeable that you would kill livestock, you killed livestock.
Mode and extent of damage does not matter in terms of foreseeable.
2) Polemis
Direct Causation/ Traceability
Fault
Injury
Polemis, Art 1607
On its face, Art 1607 says there must be direct causation but not sure that language means the same thing.
 Is this just another articulation of the “but for” test? No, seems to suggest more than this factual connection as if there
had been intervening thing this would make it indirect.
Re Polemis and Furness Withy and Co.
Jurisdiction CA, Kings Bench, England [1921]
Facts
Ship, benzene stored below. Stevedore carries plank, drops it. What is the foreseeable damage? Damage to
the deck, hit someone, etc. We do not expect that a spark will happen as the plank goes below the deck and
there will be a big explosion and destroy the boat.
Issues
Does it matter that it is not foreseeable that this would be the damage from dropping the plank?
Holding
NO, does not matter. – barring intervening factors, as long as directly traceable to the negligent act
Ratio
(Scrutton LJ): “[I]f the act would or might probably cause damage, the fact that the damage it in fact causes
is not the exact kind of damage one would expect is immaterial, so long as the damage is in fact directly
traceably to the negligent act, and not due to the operation of independent causes having no connection with
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the negligent act, except that they could not avoid its results. Once the act is negligent, the fact that its exact
operation was not foreseen is immaterial.”
Rule  Responsible for damage D directly cause, doesn’t matter if type of damage is foreseeable.
Notes
D’s lawyer: if you make a hole in the deck and the ship sinks the stevedore would be liable. But, shouldn’t
be liable for explosion because when you take care in carrying a plank, you are not guarding against the
possibility of an explosion. It is okay to hold the D responsible for the entire damage if the ship had sunk but
not okay to hold him responsible for unforeseeable damage.
Van Praagh on Polemis
 See Lawyer’s comment above  Note that it causation is not about what was in the D’s mind. That only deals with
fault. But cannot possibily, in the shoes of the D, anticipate everything. With property damage you would be held
responsible.
 The foreseeable damage is not what happens. Ship is lost. Fire risk is clearly unforeseeable to the stevedore. Does
that matter? Do we care?
 NO, we look to see if the damage is directly tracable to the negligent act. Language of “directly caused” - link b/n the D’s
actions and the injury is clear.
NB. Scrutton L.J. explicitly mentions that intervening factors might change the characterisation of the link from direct to no
responsibility.
Might it be said that Polemis is setting out a “thin skull” for property rule? This boat has benzene under the deck, others
wouldn’t but you are responsible for what happens in the context of this boat.
3) Wagon Mound 1
Foreseeable manner/sequence/damage
Fault
Injury
Wagon Mound 1
Wagon Mound 1, Overseas Tankship v. Morts Dock & Engineering
Jurisdiction 1961, HoL
Facts
Oil spills into wharf because of negligence of the D. A fire starts because of the PL Dock owner’s work.
As a finding of fact, it was not foreseeable for the D that the oil will catch fire on the water. Pl never
makes an argument that this D could have foreseen that oil would burn on water. (In Wagon Mound 2, it
was foreseeable that oil can burn on water. It was foreseeable but not substantial.)
Issues
Is Overseas Tankship liable for the fire damage to the dock?
Holding
NO
Ratio
The D is only liable if the Pl was foreseeable (duty of care) and the damage was foreseeable to that Pl
(causation).
- It is unfair to hold the D responsible for unforeseeable consequences. Viscount Simonds simply says
that Polemis is no longer good law.
- It stretches the D’s liability too far (“does not seem consonant with current ideas of justice or morality
that for an act of negligence, however slight or venial, which results in some trivial foreseeable
damage, the actor should be liable for all the consequences however unforeseeable and however
grave, so long as they can be said to be ‘direct’.”)
- More just to impose responsibility that is limited to the damage that foreseeably could occur in a
foreseeable way

In Wagon Mound 1, the Pl is welding. If it was foreseeable to the D that oil can light on fire in water, it would also have to
be foreseeable to the Pl. I.e., the Pl would have had to admit that it was foreseeable to them. This was not in their interest
because at the time in the common law, contributory negligence was a 100% defence and the Ds would not have had to pay
anything. In Wagon Mound 2, this wasn’t a problem.

In this case, there were 2 kinds of injury suffered by the wharf owner. The first was the huge fire (with which there was a
problem). The other was that the oil congealed and it is hard to move the boats. This injury was foreseeable. This is Pl A
(the other boat owners). Argument is made that because the foreseeable damage has happened, the D should also be liable
for the unforeseeable damage. Viscount Simonds rejects this.
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Foreseeability as the test for legal causation – connection in law between Pl’s injury and the D’s fault. Two pronged view of
causation (factual and legal). Forseeable extent of damage, foreseeable mode of damage….everything must be foreseeable.
 Rests on the D’s vantage point from which must be able to foresee what happened.
Viscount Simond’s justification for getting rid of rule of Polemis
1) Clarity, efficiency argument – provide more predictable results if we use foreseeability
2) Justice – more just to assess scope of responsibility on basis of what is foreseeable to the D. This is in keeping “with
the common conscience of mankind” (like Andrews in Palsgraf). Interesting to say that law should follow conscience
of society. Not just that D would be responsible for all consequences however unforeseeable and however grave.
THERE IS NO EXACT ANSWER AS TO WHERE YOU DRAW THE LINE! Not even a clear answer as to how you
articulate the injury.
Viscount Simond’s Example in WM1
 B causes Unforseeable damage to A (Forseeable Pl) and C(Unforseeable PL) and foreseeable damage to A
 Combine Polemis and D. v. S.:
 B is not responsible to C b/c he is an unforeseeable PL (per D.v.S.)
 B is responsible to A for both foreseeable and unforeseeable damage
 Per and D.v.S. Wagon Mound 1:
 B is only responsible to A for foreseeable damage (NOT for unforeseeable damage)
 What if foreseeable damage does not happen
 B is not responsible for its consequences as they were unforeseeable.
Is it possible to come to same result as Simonds in MW1 using the Polemis test? Did he have to overturn the Polemis test? You
can tell the story in WM1 to say that the fire was not the direct consequence of the wrongdoing. It required welding and the rag
floating around. These are the kinds of things referred to in Polemis that might make the connection indirect.
Therefore, Simonds was not changing the law because of a different result on the fact. He doesn’t need to say that Polemis is no
longer good law to get the result he wanted. He wants to change the law and specify a principle. We shape the scope of
responsibility by figuring out whether what happened is foreseeable to the D. Not subjectively foreseeable (what D had in
head), but objectively and reasonably foreseeable from perspective of D.
Use Polemis in WMI: Would be possible to use directness test in WMI by saying there was no directness of causation saying
that the welders were the novis actus intervenes. Would therefore be possible to come up with the same outcome.
Use foreseeable damage in Polemis: Could define the damage as property damage which would be foreseeable when loading
planks in which case it is foreseeable.
B: Directness vs. Forseeability
Direct Cause, as defined by “Obligations: Résponsabilité Délictuelle” by Roland and Boyer, must be the dominant solution to
the damage  One main thing counts: demonstrate that it is the fact of the defendant that put the victim in the state he now
finds himself.
 Continues by suggesting that causation will be found to be indirect when fault is not “grave” and will be direct when
the judge sees the fault as “grave” and wishes to proclaim the responsibility of the D.
Civil Law; No distinction b/n types of injury. Remember this.
Brisson v. Potvin
Jurisdiction
Facts
Issues
[1947] QCA
Big truck parked into middle of street with people unloading wood. Cars have to go around truck. Girl
walking on sidewalk has to walk around truck (why she was doing it really doesn’t matter although the court
discusses it) and is hit by car
Is the truck driver responsible for the injury to the girl? “si l’accident a été la suite normale, prévisible, de la
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Holding
Ratio
Dissent
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présence du camion en travers de la rue et du trottoir, ou de l’absence d’une personne pour assurer la sécurité
des piétons.”
No.
Note: 1075 CCLC requires that the injury is an immediate and direct consequence of the wrongdoing.
S’il intervient entre une premiére faute et un dommage, une autre faute commise par un tiers, ayant un
rapport plus direct avec le dommage, et normalement imprévisible par le premier agent, cette dernière faute
empêcher la première d’être la cause directe du dommage.”
PratteJ.A.: Assuming there is fault (which we don’t have to look at), there is no responsibility since what
happens has to be the immediate and direct consequence – this is the question (la consequence logique).
Directness is determined by foreseeability: “la consequence logique d’un fait, ou d’une omission, c’est celle
qui est normalement prévisible.” (Unlike Viscount Simonds who sees directness and foreseeability as being
separate). Directness may not be satisfied if there is an intervening factor. He combines that with
foreseeability.
 Directness would be no intervening and independent causes. Uses foreseeability to determine directness.
Here, they would have to know that there were little girls in the area. This is subjective and seems odd.
 Point: Foreseeability is the guiding question in determining if the direct link is made. This
argument of Pratte’s is hard to sustain on a foreseeability basis but Pratte says you have to. (Isn’t it
foreseeable that when you block a sidewalk, people have no choice but to go around the truck and
this isn’t safe no matter what age you are?)
 Pratte characterizing the accident as being because of the girl - unforeseeable and independent
cause.  she is the force majeur under art 1470.
Galipeault J.A: Agrees with Pratte but just says there is no immediate and direct link – no analysis of
foreseeability.
 Child was negligent, not clear that she was just going around the truck – could have been skipping
in the street. Lots of open questions that make her seem like she might be at fault.
 Truck being there was just the background of the accident.
St. Germain J.A.: Talks about foreseeability saying that it is sufficient that the D could have foreseen what
happened, not that he should have seen. More open test: whether the D could foresee that something would
happen whereas Pratte says that the D had to have foreseen. Is he asking foresseability for the same reason?
 He is not talking about causation but rather about fault – the 3 guys did not take the proper
precautions (one guy standing in front of the truck) – they would have foreseen that there was a
substantial risk of injury to someone.
 Discussion of objective nature – goes to fault and whether there is wrongdoing. Not worried about
“immediate and direct.” This implies that once you have fault, and there is some factual causation
(“but for”), there is liability. Pratte says there was factual causation and we knew this all along. The
analysis takes place at a deeper level.
 Judges are talking about two different things. One causation and one fault.
This mirrors the state of Quebec civil law. We know that we must satisfy “direct and immediate” but we don’t know if we
have to use foreseeability in the analysis of this. Sometimes it does but it doesn’t have to. It is criticized in saying that we
have already used foreseeability in the analysis of fault and that is the right place to use it and it should not come up again
an a discussion of causation. Some say it must or should play a role in causation.  See Baudouin in Caneric where he
says foreseeability does come into the discussion of causation.
So foreseeability can be the right tool or a tool – useful for figuring out how to delineate responsibility. In Quebec, it is
acknowledged as a question that can be used. This looks like the list of questions in Palsgraf articulated by Andrews.
Morrissette v. McQuat
Jurisdiction [1958] QCA – Bissonnette J.
Facts
Truck driver falls off back of truck while securing propane tanks with a chain – the chain gives way and he
falls onto a platform whereon a spike impales him in his……ass.
Issues
Is there causation between the placing of a dangerous object (the spike on the platform) and the injury of
the truck driver?
Holding
NO
Ratio
It must be the intervention (intervention active) of this thing that really produced the damage – must be the
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generating cause.
- The giving-way of the chain was the direct cause and not the placing of a spike on the platform. Here
there is an intervening cause.
Graziella Joly v. La Ferme Ré-mi Inc.
Jurisdiction [1974] QCA – Kaufman J.
Facts
D hits a electricity poll with his car. It falls and the electricity to a chicken farm is stopped. 22,500
chickens suffocate b/c the ventilation system stops. Had no alarm system to notify of the breakdown.
Issues
Is the D’s hitting a hydro poll the immediate and direct cause of the damages suffered by the Pl?
Holding
Yes
Ratio
- Accident caused the break in the current which was followed by the deaths of the chickens.
- Hydro did what was reasonable to get there in time. Hydro getting there after 9 hours could have been
considered a novus actus intervenies.
- But….court finds no other wrongdoer.
- Gagnon J says that the PL did no accept the risks as he didn’t put in generators to protect his chickens.
(this seems odd.)
- Also says the foreseeability cannot interrupt causation.
Common Law Finale
Foreseeable type of damage
Fault
Injury
Hughes v. Lord Advocate
Modification of WMI
Hughes v. Lord Advocate
Jurisdiction [1960’s] House of Lords
Facts
Two boys go into manhole left unattended. Something happens with the paraffin lamp and it explodes.
Severe burns sustained.
Issues
Does it have to have been foreseeable to the D that kids would come and take lamp, lamp would spill,
flame comes into contact with paraffin and there would be an explosion? I.e. does the sequence have to be
foreseeable?
Holding
No. Accident was caused by a known source of danger. Even though the way it happened was not
foreseeable, this is no defense.
Ratio
It was foreseeable that kids would come along and that maybe even that they would get burned from
touching the lamp.
Lord Guest: Explosion is only one way in which burning can be caused. We could foresee burning, even
if not explosion. What really happened isn’t important. It was foreseeable that someone would be burned
and that is exactly what happened – foreseeability of burning injury (how it happened and extent of burn
doesn’t matter).
Ratio (Lord Reid): Identify source of injury and the classical injury is one associated with this source of
danger (unpredictably behaving lamp-related injury). “A defender is liable, although the damage may be a
good deal greater in extent than was foreseeable. He can only escape liability if the damage can be
regarded as differing in kind from what was foreseeable.”
 The TYPE of damage must be foreseeable
 The gravity of the damage does not need to be foreseeable.
If you characterize foreseeability as being an accident happening, foreseeability has little meaning. Once you did something
wrong and risked some injury, then once the injury happened, you are liable.
Problem: If this situation happened but kid lost hearing, Pl cannot recover on Lord Guest’s test of burning injury. Arguable,
Lord Reid has tweaked the test to deal with this to identify it with the source of the danger. This is why the farmer was able to
recover for cows dying from eating staples since the injury was characterized as an injury to livestock on the farm where the
driver hit the fence. Because of this, it doesn’t matter that the eating was one month later.
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The test has come to be seen as: Could D foresee, in a general way, that this sort of thing would happen? Compare Hughes
with Doughty where instead of a splash that would cause some harm there was an explosion because of a chemical reaction.
Why don’t we use Lord Reid’s language in Hughes in Doughty?
WM2 (Lord Reid) tells us where “foreseeable” lies on continuum of adjectives. Less than substantial and more than merely
possible. Therefore, it seems quite easy to get to foreseeable since you only have to take precautions for substantial risks.
Foreseeable is easier to get to. Therefore, the test in causation is less limiting than the test in figuring out if there was fault (as in
WM2).
The current causation test in the common law is modified WM1 so we ask about the type of the injury NOT the sequence or
the extent (Hughes – is the type of injury one that you may expect from the known source of danger). This rule is clearer in
the common law because in civil law we are not sure of the role of “foreseeability.”
 Must have a foreseeable type of injury
 Also, incorporated into this is the Palsgraf idea of Cardozo  Must also have a foreseeable Plaintiff.
 Contrary to the plans of Simond who wanted to curtail the responsibility of D, foreseeability conceivably could open up
responsibility more. In Canada per Dickson CJ  “Must foresee in a general way what happened.” Very broad.
Thin Skull
Smith v. Leech Brain & Co. Ltd.
Jurisdiction England [ 1955] - Lord Parker CJ.
Facts
Pl is widow of deceased who worked for the Ds in molten metal. The machine operators could not see what
they were doing. As Smith was dipping a piece of metal, he turned his head to look at the man giving him
instructions and his head was outside the shield intended to protect him from splashing. He sustained a burn on
his lip from the spitting molten metal. It didn’t heal and he got cancer and died. Because he had worked in the
gas industry for a long time, he was prone to cancer and might have had a pre-malignant condition.
Issues
Is the employer liable and to what extent? Is there causation between the employer’s negligence and the
employee’s cancer? What should the damages be? (I.e. – fault, causation, injury).
Holding
There is causation.
Ratio
The question to ask in these cases is whether the D could reasonably foresee the type of injury suffered by the
Pl (burns). The amount of damages is to be determined in the case of an injury of that type based on the
“characteristics and constitution of the victim.”
- There was a clear and known danger of molten metal spitting. It was foreseeable by the reasonable employer
that this could cause serious damage. There is, therefore, clearly negligence on the part of the employer
(especially since other employers in the same industry were providing better protection for their employees
by that time).
- But, there are many views as to what caused the cancer including: pre-malignant condition and pre-existing
malignancy. On the balance of probabilities, the court held that while the employee was probably suffering
from pre-malignancy, the burn was the promoting agent (trigger) that made the cancer develop. But for the
burn, he might not have developed cancer. Even if there is a chance that over his lifetime he would have
been exposed to some other promoting agent, the burn materially contributed to the cancer and death. The
tortfeasor takes his victim as he finds him (in this case, pre-disposed).
- Does not deal with foreseeability as in WMI. Reason – must take into account thin skull.
Note
See More on Smith v. Leech Brain below at p. 23
Thin Skull in both traditions:
The question to be asked with respect to the thin skull idea (D takes the Pl as he is) is: Can that rule co-exist with the modified
test of foreseeability? When we say that someone who is burned and develops cancer and that the cancer is the responsibility of
the person who causes the burn, is this working with the foreseeability test? The thin skull doctrine, in both systems, is an
uneasy fit with foreseeability (fits a bit better with “direct and immediate” consequences). The cancer was not foreseeable, it
was not the same type of injury as a burn. This doesn’t seem to fit with the notion of justice in foreseeability.
 Could be contorted into foreseeable type of injury and twist it. Case here would be “bodily injury” and this could
include cancer…..but this is a really crappy argument.
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G. Viney, Les conditions de la responsabilité
 “Le responsable doit indemniser totalement la victime, mais it ne doit réparer que le dommage qu’il a causé.
 L’auteur doit prendre la victime comme il la trouve.
 Predispositions do not break the chain of causation – they are not like exonerating “forces majeures”
 There are differing opinions as to whether predispositions are partially exonerating. Civil jurisdictions “[...] restent
nettement hostiles au partage de responsabilité, notamment en cas d’accident mortel.”
 “Les ârrets reproduisent alors souvent le motif selon lequel le droit à réparation ne saurait être réduit par des
prédispositions lorsque l’affectation qui en résultait n’avait été révélée ou provoquée que par le fait de l’accident ou de
l’infraction.” In other words, the court takes note not to charge a D for the anterior injuries of the Pl. However, if
the negligence radically transformed the nature of the existing injury, the D indemnifies the victim for “son entier
dommage tel qu’il résulte de la nouvelle incapacité.”
 “Il serait très dangereux de laisser aux assureurs de responsabilité la liberté de démontrer, pour obtenir une réduction
de l’indemnisation, que la victime s’est révélée anormalement fragile et qu’une autre, dans la même situation, aurait
mieux résisté” since in opening a discussion like this, we will end up “à faire supporter par les plus faible les
conséquences de leur faiblesse.”
C: Multiple Wrongdoers and Multiple causes
1) Plurality of Established Causes
Remember, you are always asking if F1 is responsible….
Legend: Fault = F, damage = d
Issue: More than one D. Start with  What do we do with D1 given the existence of D2, D3, etc? The way in which
intervening acts /faults are characterized has significant implications for the extent of a D’s responsibility. Two levels of inquiry
for this issue (they are related):
A) D1’s responsibility – Characterization of F2 (between D1’s fault and the injury). Do we say there is equal
responsibility of D1 and D2, that the F2 was novus actus intervienes (NAI)?
B) D1’s $ burden – Pl has suffered 100%, what will D1 have to pay (keeping in mind the principle of RII).
Consequences are:
1) solidary liability (Joint and Several) (1523 and 1526 CCQ, statutes in common law)
Art
The obligation to make reparations for injury caused to another through the fault of two or more persons is
1526
solidary where the obligation is extra-contractual.
Art
An obligation is solidary between the debtors where they are obligated to the creditor for the same thing in such a
1523
way that each of them may be compelled separately to perform the whole obligation and where performance by a
single debtor releases the others toward the creditor.
Art
1478

2) apportionment law (1478 CCQ, statutes in common law jurisdictions)
Where an injury has been caused by several persons, liability is shared by them in proportion to the seriousness of
the fault of each.
Common Law has borrowed this principle from Civil Law through statute.
Novus Actus Interviens: D1 remains a cause in fact of the injury. And the intervention is such that responsibility no longer
extends to D1.
Situation 1 – F1 leads to damage but there is F2 in between (Distinct and successive faults)
F1
damage
F2
(On its own, F1 does not equal D)
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F1 would never have led to the damage on its own. Minto Management – failure of Minto on its own doesn’t lead to the rape.
Need the assailant’s behaviour in between (F2). F2 has the immediate impact and produces the injury. What is the scope of the
responsibility of D1?
Creation of hazard/risk: If the second fault is precisely the kind of thing being risked by D1’s behaviour, it is not an NAI. It is
a fault not to lock the door because you are risking someone coming in a stealing. When someone walks in and steals, this is
precisely what you risked by not leaving the door locked. Therefore, it is not NAI. If F1 is the creation of a hazard and that
hazard is precisely what F2 is, F1 created the possibility for this damage happening and D1 is not off the hook.
Characterizing something as NAI means that D1 is not responsible at all – “breaking chain of [legal] causation”. This is a
problematic expression because the factual link is still there! It really just breaks the responsibility link between F1 and the
damage. According to Pratte, the victim in Potvin is a NAI since her act cuts off the driver’s responsibility.
NAI: NAI is a “fresh independent cause” – not related to F1. There are few real NAI cases especially since if this arises, we
would not really be looking at F1 since we would see it only an F2 leading to damage problem, F1 taken out of picture.
 Does not matter if F2 is responsible civily, criminally.
Civil law: If F2 is of a more substantial quality – i.e. is more severe comparatively – it might constitute a NAI.
Q. et al v. Minto Management Ltd.
Jurisdiction [1980’s or later] Ont high court of justice – Gray J.
Facts
Pl raped in her apartment by employee of her landlord who gained access with a master key. Another rape
had taken place sometime earlier and Landlord knew it was likely the same person and knew that he had
gained access by a master key but did not warn tenants.
Issues
Is there a causal link b/n the omission of the landlord and the rape?
Holding
Yes
Ratio
The injury was not too remote. By failing to provide proper locks, the landlord increased the likelihood of
criminal activity. This is not NAI since the rape was not a fresh and independent act. Minto is still the
effective cause since it ought reasonably to have foreseen such interventions.
 Should have taken precautions.
Note
Different from Dorset Yacht b/c of the different level of knowledge. Employee’s there knew the Borstal
boys whereas Landlord did not know that the employee was the rapest.
In Minto, the D’s behaviour is not characterized as quite the same as creation of hazard. Minto didn’t create the situation where
one of its employees sexually assaults tenants. But, the judge analogizes and says:
1) A duty is owed (Minto is the landlord – not like Jane Doe)
2) Knowledge of the behaviour and the risk
3) This D has some control over the situation – can cut off accessibility to the master keys by employees.
This distinction is in the facts. There is knowledge and control.
Note the language of foreseeability. What is foreseeable to Minto is exactly what happened (foreseeability of the subsequent
attack). This is foreseeable because it has happened once already and Minto knows about it and fails to do anything about it. If
this were the first assault under these facts, it would be harder to show foreseeability.
Situation 2 – F1 and F2 come together to create one damage:
F1
damage
F2
This is the situation in Deguire – one explosion, more than one cause. F2 is not a new kind of cause. The result is that F1 and
F2 are solidarily liable since they come together in harmony.
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Two faults and one injury: When do we say that D1 is fully responsible?
1) Joint/common fault: When F1 and F2 are joint faults (like joint venture), work together to combine to be one big fault
leading to one injury, either D is fully responsible. The Pl gets compensated by D1 and can no longer go after D2.
D1 can work it out with D2. 1526 and 1523 CCQ – solidary.
F1/F2 =
damage
F
2) Indivisible injury: F1 and F2 are similar or identical as in Degiure. They happen together and result in one damage.
But, they are not acting together. Each one is in a causal process that is identical to the other. Pl can go after either D
completely even though D1 can say that but for my actions, this would have happened anyway. I.e., this rule stops Ds
from being able to get off from responsibility. (Cook v. Lewis is a policy decision to treat it as though it was like this).
Art 1480.
F1
“
F2
damage
Not the case where
F1 is responsible for damage1
F2 is responsible for damage2
What if F1 and F2 are distinct – not the exact same kind of fault but they operate at the same time (consequences come
together)? Successive not simultaneous. The court doesn’t care.
Deguire Avenue Ltd v. Adler
Jurisdiction QCA [1962]
In Deguire, there is one indivisible injury but neither of the faults is sufficient on its own to cause the explosion.
Facts
Deguire owned the building. Adler administrated it under contract and repair work was done on it by his own
employees. Painters (employees of Adler) who paint the apartment next to the one blown up cut off the gas but
don’t block the pipe (F1). Nothing would have happened if the concierge (Deguire’s employee) hadn’t turned
on the gas a week later in that apartment (wasn’t being careful; not to turn it on in that apartment) (F2) and
someone was smoking so there was a spark and an explosion in the adjacent apartment. Prospective tenants
were being shown the apartment by the concierge and notice gas. Explosion 15 mins later where people in
adjacent apartment were hurt. Three cases came from this – one by the person hurt against Adler, one by that
person against Deguire and one by Adler against Deguire.
Issues
Who is responsible for injuries caused by the explosion?
Holding
The painters and the janitors are solidarily liable – 100% liable for the purposes of the theory. The discussion
of level of liability takes place only in relation to their case against each other.
Ratio
Simultaneous distinct acts – Ds treated as solidarily liable.
Choquette: Adler points to the notion of remoteness – the explosion is too removed to say that the painters are
responsible (no temporal proximity since it happened 4 weeks later). But, time factor is not decisive since these
2 faults are treated as though they are simultaneous. F1 is a continuous fault and therefore a determinant of the
injury (F1 is still fresh but it is suspended – waiting to combine with something else). They are distinct faults
but are conceived as coming together to create the injury. The painters and the janitors who opened the gas line
are solidarily liable.
Rivard: We use solidary liability when we have identical/similar acts causing one injury. When there are 2
separate or distinct acts that happen simultaneously but both are needed for one unique injury, we will also say
there is solidary liability. (need faults, causation with injury, one unique damage from the faults.
Dissent
Owen – Adler’s painters are not responsible. Their actions were not negligent. Therefore the responsibility is
on the janitors who turned on the gas line and the person who lit a match.
Note
This case is not treated as one of successive faults even though there are four weeks in between. The more you
can characterize the 2 faults as coming together, the easier it is to justify saying D1 is 100% liable from
perspective of the Pl.
Van Praagh
 This case is not the exact same as the indivisible injury as mentioned above. Here, without F2 there would be not D.
But….the court says that F1 is a continuous fault and therefore F1 is liable even though they are sequential. Does not
erase or limit the responsibility of F1.
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Solidary liability gives an advantage to the Pl since he just has to name one D and make that one case and then walk away fully
compensated. Then, the Ds can sort it out as in this case between these 2 Ds.
Time in this issue
 Time on its own will not tell us that we have not satisfied the direct and immediate cause of the eventual damage.
 It is relevant but not determinative.
Distinct faults with distinct Damages
E.g. two hits to a person’s body, one to the head, one to the leg. Cannot say that F1 is responsible for all bodily injury. There
F1 is responsible for D1, F2 is responsible for D2.
1478 CCQ – reference to the gravity of the fault that helps us decide as to the apportionment.
Art 1478
Where an injury has been caused by several persons, liability is shared by them in proportion to the
seriousness of the fault of each.
The victim is included in the apportionment when the injury is partly the effect of his own fault.
Caneric:
F1
Dam1
Dam2
This is chronological.
F2
Apportionment is like a modified NAI – as between D1 and damage 2.
Caneric Properties Inc. v. Allstate Compagnie D’assurance et Ville de Montréal
Jurisdiction [1995] QCA Baudouin J.
Facts
Caneric had a permit to demolish property – empty. The neighbour notices water seeping into their basement.
They contacted the old owner, Mr. Globensky. He checks it out and finds out that a pipe has burst so he
contacts Caneric. Team of workers come from the City to shut the water but the day ends so another team
comes. The new team comes and goes because no one is there. The pipe explodes.
Issues
Who is responsible for the damages of the PL’s basement.
Holding
Caneric and City are each liable for 50%. F2 and F3 contributed equally to the damage so liability is separated
equally. Solidary liability.
Ratio
There were successive faults.
F1 = Caneric’s fault for the pipe bursting. Pipe bursting from cold in Quebec is foreseeable.
F2 = The second team from the City leaving without doing any number of things to remedy the situation.
F3 = Caneric not bothering to check into the work of the City. Didn’t act like the prudent, diligent and
attentive owner. There are 3 faults and a causal link for all three.
Note
F1 is not seen as a direct cause by Baudoin since it is too remote in time. It is as if F2 (of City) and F3 (of
owner to not check up on City ees) combine to constitute a NAI vis à vis F1 (not turning off the water). There
is no reason given for this focus on the time factor for why F1 is no longer linked to the damage. It is a matter
of perception of the judges.
Van Praagh
 Baudouin says foreseeability does play a role in Quebec Civil Law.
 Seems like the only reason that judge removed F1 was b/c Defendant for F1 and F3 are the same.
The first fault in Deguire was in suspension until the second fault came along and causes the final explosion. In Caneric,
either the City or Caneric could have caused the pipe to burst. Didn’t need the 2 nd injury to make the 1st injury
materialize. Can you treat Caneric in exactly the same way as Deguire even though what you have is an omission as a
fault that is suspended in air rather than (as in Deguire) an act suspended in air.
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F1
x-ray
D1
Kirk Shannon
D2
F2
Orhtopedic surgeon
Price v. Milawski
Jurisdiction On CA [1977] – Arnup J.A
Facts
Pl injures ankle. Doctor Murray writes right foot instead of right ankle for prescription for x-rays (F1). Doctor
reads the x-ray and say nothing is wrong. Later, orthopedic surgeon, D. Carbin, looks at the x-rays and says
nothing is wrong. The Pl suffers much more than he would have but for the combined faults.
Issues
Is Orthopedic surgeon liable for the disability caused by his negligence?
Holding
D1 (Dr. Murray) is responsible for the worsening part solidarily with D2 so D1 can go after D2 for that
aggravation part. The Pl still gets 100% compensated. It’s all part of one responsibility (using the
foreseeability lens). “Not possible to apportion the extent to which each was responsible for the Pl’s
subsequent operation and his permanent injury.”
Ratio
Note: This is a little unfair if, in fact, F2 made the injury worse. D2 will only be responsible for the difference
– the final damage minus the damage1. Mechanism to make D2 be responsible for the aggravation part –
solidary liability (with D1).
Note
Ratio: For successive negligent acts, D1 may, in circumstances lending themselves to that conclusion, be held
liable for future damages arising in part from the subsequent negligent act of another, and in part from his own
negligence, where such subsequent negligence and consequent damage were reasonably foreseeable as a
possible result of his own damage.
Is this an intervening act of negligence? The Doctor was inviting the wrongdoing of the surgeon through his
wrongdoing. F1’s responsibility flows right to the end of the whole story since it is because of D1 that the
whole thing happens. D1 is responsible for damage1 and the aggravation because of the scope of the danger
created by damage 1. It was foreseeable to Dr. Murray that his negligence would lead to further negligence
since patient history is always an important factor in diagnostics.
Van Praagh
 Here the whole thing can be traced back to F1. Basically the same situation as Caneric where it is considered that
there are two different Damages.
 F2 is only responsible for the agrivation part, the worsening part. F1 can go after him for a portion of that part. The
initial Fault (the x-ray screw-up) is all on F1.
Joint and several liability = solidary liability = either D is responsible 100% (i.e. if one goes bankrupt, the other must pay
all damage. Both are responsible for all the damages).
Summary of Solidary Liability and Apportionment:
D
Pl
3rd party
The D will be fully responsible if:
1) D and 3rd party are characterized as working together
2) The 3rd party is characterized as a hazard created by the D (Deguire)
3) The 3rd party is characterized as being foreseeable to the D
The D will not be responsible or will be partly responsible if:
The 3rd party is characterized as an independent/effective/real/true cause – breaking the link
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This can be seen as being on a SPECTRUM:
1F
depends on how you understand the injury
NAI – 0%
dam1 remote
broken link (not direct, etc)
D1 is not responsible
The language matters in that area because it will influence which end the spectrum the damage will be placed on. The
language shows how the judge is understanding the 3 rd party’s responsibility and how the damage is assigned.
1 damage
Solidary
D1 100%
1523,1526
more than1 injury, more than1 damage (1478)
D1 pays some part
The language matters
2) Subsequent Events and Aggravation of Injuries
Innocent condition which has an impact on the damage suffered by the Pl. Does it have an impact on responsibility of the D
and is it appropriate to discount the damages paid by the D?
Look to a case from NY (Dillon) which kid falls to his death and gets killed on the way down by electric wires of a negligent
hydro company. Hydro was found negligent but, because of resitiutio in integrim, paid no damages. Put you back in you’re the
situation…..he’s dead anyway.
In Athey, Major goes through all the situations in which we may discount:
1) Apportionment law
2) Divisible Injuries
3) Contribution by the Pl
4) Pre-existing Causal Condition that you know about at trial that gives you more information that you would otherwise
have about the RII principle for the Pl. I.e. RII takes into account the health of the Pl and other conditions affecting the
Pl’s life. The D may pay less than 100% because the Pl would have been suffering part of that damage anyway.
Question: Is this case in Athey anyone of these possible situations? In particular, is it a Jobling case? The lawyers argue
that it is a causal condition case. We characterize it, though, as a thin-skull case (Viney).
Nice summary of Tort Principles  Straight Thin Skull Case
Athey v. Leonati
Jurisdiction SCC [1996] – Major J.
Facts
Pl suffered back injuries in 2 successive motor vehicle accidents and soon after experienced a disc herniation
during a mild stretching exercise. The herniation was caused by a combination of the injuries sustained in the 2
accidents and a pre-existing disposition.
Issues
Should the loss be apportioned between the tortious and non-tortious causes where both were necessary to
create the injury?
Holding
D is fully responsible. Application of the Thin Skull Rule.
Ratio
- “But for” test is unworkable sometimes so the courts have recog’d that causation is established where the
defendant’s negligence “materially contributed” to the occurrence of the injury
- Factual causation need not be determined by scientific precision – as long as the D is part of the cause…then
liable
- There can not be apportionment b/n tortious and non-tortious causes as Pl would only recover then D’s
negligence was sole cause of the injury. Pl would not be adequately compensated in such a case as would
not be in the position would be in but for the negligence of the D.
- Both injuries and pre-disposition are cause of the injury. Therefore, D materially contributed to the injury
and is therefore fully liable (even though only responsible for 25% to wrongdoing of D)  This is cause in
fact.
- Damages for the whole wrongdoing – not 25% b/c otherwise would be compensating for a loss of chance
Note
- Excellent resume of different apportionment schemes
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Van Praagh on Athey
 Lawyers here confuse arguments when dealing with damages. Here the physical condition of the Pl was never on its
own going to lead to the disherniation. This is a Thin Skull application. He has a condition that makes him more
susceptible.
 Nice little review that ties principles of damages, cause in fact, extent of responsibility.
Summary of Factors that are important of the assessment of causation with multiple defendants:
No consistency, no clear logical answers. Figure out the language used in the characterization of multiple defendants –
1) foreseeability
2) Scope of the risk taken on by the fault of D1, does the intervening actor fall within the scope of the risk?
3) D2 as independent cause
4) Presence of D2 affecting label of F1 (i.e. D1) – Hydro v. Girard – Sole cause, cause a causans, effective cause,
adequate cause – does responsibility of D1 survive the intervention of D2.
5) Comparative seriousness of F1 and F2 as being determinative – Baudoin says that there is a tendency in Quebec of
saying that D2 cuts off D1 if D2’s fault is more serious than D1’s fault – in order to determine if F1 is “faute
continue.”
D: Placing the Victim/PL under Scrutiny
i) Predisposition of the Victim
Characteristics/Conditions of the Pl
 Reference cases: Smith v. Leech Brain, Athey
 Thin Skull – do not blame the Pl for his vulnerabilities. This is particular for Human Beings
3 levels of Questions
1. Cause in fact
 Although 25% responsible for the wrongdoing in Athey, it is determined that it was a material contribution and
therefore fully responsible.
2.
Cause in Law, Scope of responsibility
 Proximate cause, foreseeability, type of injury is foreseeable…..etc.
 Novus Actus
3.
Damages RII
 Apportionment of Damages b/n defendants (Art 1478, CNA legislation in CL) ( like in Crocker)
 No apportionment b/n tortious and non-tortious causes.
 If we find that there is a pre-existing causal condition, that on its own would have caused the injury, then we
take this into account. Otherwise, we would be putting the PL in a better position than he would be without the
wrongdoing. (Note, this is different than a pre-existing condition that is not causal – where there is nothing to
show that, on it’s own, the injury would have happened.
o This is evaluated in the damages sphere. In a car accident and have to miss work. While in hospital, find
that have a heart condition and would have to miss work anyway. Damages are less but D is still
responsible.
o Different from non-causal pre-existing condition – e.g. in a car accident and because of a heart condition
has to miss 30 months of work where a person without a heart condition would only miss 15 months.
This is thin skull.
MORE THIN SKULL
We do not assess responsibility of the D dependant on the average/normal/reasonable Pl (whether you are stronger or weaker
does not make a difference). Both Common Law and Civil Law have this implicit principle.
Is this reconcilable with the broad overarching ways of talking about the scope of responsibility or causation?
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Civil law
 direct and immediate consequences – no problem of reconciliation with the thin skull. Care only about what flowed
from the D’s wrongdoing (1607 CCQ).
Common law foreseeability (Wagon Mound 1) may not be so easy. Wagon Mound test strictly applied in Leech Brain would
mean that the Pl would not recover.
 In Leech Brain, the employer is at fault because the work method is very dangerous and other employers are not using
it anymore. “Sooner or later, the man will look around” and come out from behind the shield – the employer should
have foreseen this. The foreseeable type of injury is a burn.
o Pl develops cancer. Pl argues that the employer is responsible for the cancer. Cancer is not the foreseeable
injury. Judge says that Viscount Simonds couldn’t have been thinking of this type of case in Wagon Mound –
it was not about personal injury in this sense but rather property damage.
 Also, the thin skull has been around forever. Wagon Mound couldn’t have been trying to get rid of it. Reconciliation of
Wagon Mound 1 and thin skull (post-Wagon Mound 1) - what you have to foresee is a type of injury, not the extent of
the injury. The type of injury is the burn, the extent is the cancer (like in Hughes v. Lord Advocate).
It is strange to say that cancer is the extent of a burn. We get around this by talking about predisposition or susceptibility – if
we can establish this susceptibility, we can talk about the extent of the injury. We take into account the susceptibility of the
person – because of this susceptibility, the burn is a trigger in this person.
 But for the burn (fault of the employer), the cancer would not have happened. Foreseeable type of injury and the Pl has
an established predisposition, the D is responsible for the outcome even if it is really extensive. But, it is not always an
established predisposition.
 What we look for is a foreseeable type of initial injury and the D is responsible for all consequences flowing from the
consequences of the particular Pl. Seems to go beyond the established thin skull (the implication of thin skull is that
you can go back and show a susceptibility). But, in both systems, you don’t need the established predispositions.
Does thin skull fit with “type” of injury or does it go beyond it? How flexible is it? This seems to be tied to the inexorability of
the first damage (the burn) leading to the second/full damage (the cancer).
o Thin skull is a broad concept and seems to allow us to drop the notion of foreseeability, direct and immediate
link, type of injury. It carves out an exception to foreseeability when it comes to a personal injury. We have not
gone back to before Polemis. We then focus on Cause in fact mostly.
o Athey is a simple thin skull case – predisposition (susceptible to herniation). The D cannot limit the full
responsibility for the injury. The D is 100% responsible for the injury. The D lawyers were arguing that Athey there
is a pre-existing causal condition inside the Pl that is known about at the time of trial (when we calculate damages).
This is not the case….
Characterization is important:
 Susceptibility or predisposition is part of causation – thin skull. Problem of causation.
 Intervening or pre-existing causal condition is taken into account at calculation of damages. Problem getting RII right.
 Comparing these 2 things is artificial.
 Court will tend to come down toward the thin skull unless there is evidence otherwise.
Psychological susceptibility and particularities
Are also accounted for in thin skull – Page v. Smith, Marconato. This is just a real as physical susceptibility. We go very far in
the law to respect the particularities of each Pl. We understand that human beings are fragile and peculiar. But, we do not go so
far as to day that it foreseeable that anything might happen to a person that is injured. This is a policy decision about respect for
human dignity.
Marconato v. Franklin
Jurisdiction BCSC - Aikins J.
Facts
PL in car accident which involves minor injuries. Later she complains of pain, stiffness, depression.
Issues
Is there a causal link b/n the accident and the subsequent injuries that manifested themselves sometime later?
Holding
D is responsible for the injury.
Ratio
Straight thin skull application. Mrs. Marconato was particularly susceptible, due to her personality, to this type
of injury. D takes the PL as she finds her. D is liable.
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Van Praagh on Marconto
 Sees it as odd to fit into a thin skull case. They are trying to label her as having a susceptibility so as to give damages.
Question to ponder: Accident in jurisdiction without auto insurance. Car negligently turns without looking and hits motorcyclist
who suffers severe head injuries – not wearing helmet because wearing turban for religious reasons. Is this thin skull? Is the Pl
responsible? What if there is a statute in this jurisdiction saying that you must wear a helmet and there are fines if you don’t?
What if the Sikh community lobbied successfully at the time the legislation was passed for an exclusion to not be pulled over
and fined? Do these things make a difference?
ii) Victim’s Behaviour
Behaviour/Actions of the Pl
Has the PL done what is appropriate to look out for his or her own interests?
 Can operate as a scope of responsibility (Could be a novus Actus)
 Can be relevant to damages.
Possible Defences
 Contributory Negligence is NOT a defence. Typically comes in damages issue but could enter into scope of
responsibility.
 Voluntary Assumption of Risk is a defence
What does it mean to act “negligently” as a victim? Is it ever the case that a victim acts so as to accept another’s harmful
behaviour and its consequences?
 The Pl’s failure to avoid getting hurt can be part of the mix in apportioning blame. This idea in common law
(Contributory Negligence Act (CNA)) is borrowed from the civil law (Art 1478). This is the Pl’s duty to take
precautions to avoid being hurt. Common Law traditionally, the PL’s contribution used to be a defence for the full
responsibility. Until CNA Common law did not allow for apportionment among multiple wrongdoers including the
plaintiff.
EXTREMELY UNLIKELY that this will be accepted
Common Law Volenti Doctrine  Total defence if can show that the PL assumed the risk. Taking on the legal and physical
risk. That is, PL expressly took on the risk of the wrongdoing, the negligence of the D. Relieves the D of the wrongdoing. Pl
must have assumed both the physical and legal risks involved (per Iacobucci in Waldick and Malcolm)
 Civil Law  Art 1474, it is impossible to contract away the risk.
By not wearing seatbelt, you will not cause accident but, at the level of injury, it will be worse because of not wearing a seatbelt
and we can take this into account.
 If it cannot be shown that what happened to you is worse because of not wearing the seatbelt, nothing will be deducted
from the D’s responsibility.
 What about a case where religious person who refuses blood trans gets into an accident and the injury is much worse
with no blood trans. Is this a thin skull or a contributory negligence?
Gaudet v. Lagacé
Jurisdiction [1998] QCA
Facts
Three boys playing with fire, one is badly hurt.
Issues
Did Steve Gaudet contribute to his own injury? To what extent?
Holding
All three boys are equally responsible
Ratio
Something is an “aventure commune” when the victim knew of risk and the victim accepted the risk in
question by, for example, participating in the activity.
 Here, both conditions are fulfilled.
Ratio: Used Art 1477 which says that the assumption of risk by the victim does not mean that he has
renounced his remedy against the person who caused the injury. The victim is then included in his own
injury through apportionment under Art 1478.
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In Gaudet we see language like “aventure perileuse” and implication that Pl has taken a risk (like voluntary assumption of risk).
 But then, it is treated as contributory negligence (1/3 responsible each. This case is illustration of the process of
building the Pl’s wrongdoing into the picture.
Viney – distinguishing between characteristics and behaviour of Pls. Why not say that a Pl who refuses to wear seatbelt
because of being old and not believing in them should be taken as he is? We draw an unclear line between nature and actions of
the Pl. Depending on how we characterize the Pl, the cases will fall into either thin skull or contributory negligence.
Contributory negligence allows for apportionment from 1% to 100%. In Hydro, the court says that the Pl’s behaviour is so
stupid (no self-protection), that he is fully responsible for his actions (author of own misfortune). Even though Hydro is at fault,
it faces no consequences because of the idiocy of the Good Samaritan. 1471 CCQ encourages rescue and says that we won’t
usually call this contributory negligence but if you rescue in a way that indicates gross negligence, you will be responsible for
your own injuries.
Girard v. Hyrdo-Québec
Jurisdiction QCA [1987] – L’Heureux-Dubé
Facts
Girard is going into town and sees falling hydro wire that is sparking and dangerous. At the store, he informs
Hydro of the danger. On his way back, he tries to tie a plastic bag to the pole since he notices that it has fallen
further. He is shocked and severely hurt.
Issues
Was there contributory negligence, to what extent?
Holding
Pl is responsible for his own injury. He is a NAI
Ratio
Hydro was negligent but Girard’s actions were stupid because he had already alerted the team from Hydro and
knew about the dangers of electricity. The judge says that the “témérité et l’imprudence grossière de l’intimé a
été la seule cause effective des dommage qu’il a subis.” But for the Pl, the accident never would have
happened. He was an NAI.
1474, 1477 CCQ – Voluntary assumption of risk – this shows that the civil law is following the common law in Waldick and
Crocker v. Sundance in that the mode of thinking that makes sense in the contractual context whereby I can agree to waive right
to not be hurt, is not allowed in extra-contractual liability. You cannot make that bargain.
Art 1474
A person may not exclude or limit his liability for material injury caused to another through an
intentional or gross fault; a gross fault is a fault which shows gross recklessness, gross carelessness
or gross negligence.
He may not in any way exclude or limit his liability for bodily or moral injury caused to another
Crocker v. Sundance Northwest Resorts
Jurisdiction
1988, SCC from ONCA
Facts
Crocker was hurt in a tubing contest when he was very drunk. Crocker paid a fee to be in the contest and
signed a waiver form. The hill didn’t prevent him from participating even though it knew he was drunk.
Issues
Did the resort owe Crocker a duty of care? Was Crocker contributorily negligent? Was this a voluntarily
assumed risk? Can Sundance rely on the waiver as a contractual defense to the tort claim?
Holding
Crocker is contributorily negligent (Sundance responsible for 25%).
Ratio
Sundance cannot rely on the waiver to escape liability since Crocker didn’t read it and it was not pointed out
to him.
Waldick v. Malcolm
Jurisdiction
Facts
Issues
Holding
Ratio
[1991] SCC from ONCA
Malcolms hadn’t sanded or salted the parking area by their home in rural Ontario. Waldick, D’s brother,
who also lived in the community, was visiting and fell and hurt himself on the ice.
Did Waldick assume the risks or was he contributoraly negligent?
No and No
(Iacobucci J.) Volenti defence is only to be used in a very rare number of cases where court is sure that
person has assumed both physical and legal risks. Here, not the case. Also, fact that Waldick didn’t
have his coat on and was hurrying is not evidence of contributory negligence.
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Summary:
Voluntary assumption of risk – victim turned into non-victim. Volenti non fit injuria – what happened to you is not an injury.
You worked out a priori that whatever the D does will not hurt you – you will have no claim. You were an autonomous
bargaining agent with the D. This is a contract picture – an agreement to be hurt. Therefore, the D has no liability. The private
law says this (1474, 1477 CCQ, Crocker and Waldick) very rarely. It is not the same thing to accept that a certain activity like
playing hockey will hurt you as saying that a certain wrongful thing can be accepted a priori. This is true in both civil and
common law Canada.
 In principle, this defence still exists and is a complete absolute defense. It exists but won’t apply in a situation like
Crocker or Waldick and the court says that you have to have assumed the legal risk, not just the physical risk. So there
is a gap between the theory and the reality. This is also true in the civil law under 1477 CCQ where the defence still
exists but the recourse is not lost.
Pl as contributor: Pl as one of the wrongdoers who contributes to the eventual injury. This is the case when the Pl has not
looked after himself or taken measures to be careful about the possibility of another person’s wrongdoing having an impact.
The Pl can be considered as one of the actors. It is only if the Pl has become the cause that the Pl is made 100% responsible
(Hydro v Girard). Usually, we apportion. The Pl has to act according to some norm – the norm of the average Pl who takes
some precautions (looking both ways before crossing the street, etc). These lines are not totally worked out. The discussion is
all around how you must act as a potential D – reasonable care. The Pl is expected to act in a reasonable/normal/average way.
 This is to be contrasted with the picture of the Pl as being assessed not on a norm but as THIS Pl – thin skull principle.
The Pl doesn’t have to be normal or average in that his particularities will be taken into account in restoring him to his
particular position – don’t demand that he adhere to some norm. The difference is in being as opposed to behaving.
 Thin skull applies to our physical and psychological particularities/sensibilities. Once we shift to
agency/action/behaving/choice, we will assess this according to a norm.
VI: Fundamental Rights and Civil Responsibility
Introduction:
How we can be hurt as individuals because of some aspects of ourselves/ our identity that is shared with others that needs
particular protection in society since it is because of this particularity that people may harm us. This is why we have HR
legislation – to acknowledge that as individuals we may need protection because we are hurt as members of particular groups.
 This is NOT thin skull.
Victims are holders of fundamental rights. This reflects the idea that we are not all the same. Those differences among us
remind us that it important to notice who the Pl is, why the harm was done, etc.
Distinction between government and non-government actors. The Charter protects us from action from government – not
violations done by non-government actors. The concern for non-government actors is in provincial HR legislation and extracontractual private law.
What is the relationship between the protection of fundamental HR and civil law?
This depends on how we view civil rights codes.
 Do we subsume HR violations into our private law scheme?
 Or, do we create and keep separate a free-standing framework for these violations?
What is our relationship between the specific legislation and the jus communes of interpersonal relationships and duties? Is
there a problem with saying that in the end, extra-contractual law is all about HR since it is all about human dignity?
Human Rights Legislation/Frameworks:
Every province has some kind of HR protecting legislation. Usually called a code (as in Ontario) or a Charter (Quebec). These
started coming into force in the 1960s and 1970s. Meant to be a fundamental law not to deal with specifics. It is quasi
constitutional, especially in Quebec where it is meant to be constitutive of a society. These are not ordinary statutes. Illustrate
the evolving policy of society. These are all based on human dignity and equality and recognize this in their preamble.
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The Quebec Charter (1975) was meant to look like a constitution and to focus on human dignity. It applied to all and was
meant to be given a large and liberal interpretation in all contexts (not limited to housing, employment, etc.) Until new code,
ongoing debate about relationship b/n 1053 and Charter. Art 10 of Charter is very expansive.
The ONHR code does not talk about government only but it is confined to particular areas – identified as key areas where we
want to make sure people are protected from discrimination – employment (recruitment and context of employment as seen in
Bhadoria), accommodation, services.
The Nature of Private Law in the civil law:
Cotler’s article on the nature of Art 1457: articulates a unifying general obligation.
 General rule of human behaviour and duty to remedy harm caused by one’s wrongful behaviour. It is both normative
(guides) and remedial in nature.
 Contractual and extra-contractual obligations are linked. There is one law of obligations. Civil responsibility is unified
in theory in the civil law. Cotler (“Remedies Against Racist Incitement in Comparative Perspective”) wrote of
Crépeau’s belief that the law of obligation (CCLC 1053) operates hand in hand with a notion of human rights
protection. Art 1457 operates within a grund norm and can be used as a bulwark against discrimination and was used
before the Quebec Charter.
o By its nature, it is expansive, adaptable, dynamic.
o It operates as a veritable mini Charter of Rights, a chartre de droits et liberté – it tells us how to act and
interact. It hasn’t always been this way in operation. For example, sometimes freedom of contract in services
trumped human rights.
o One could bring any complaint of being injured. As long as could establish something was wrongful, remedy
could be sought. It was a constitutional reference point
o Christie v. York 1940s – black man turned away from restaurant upheld in court on contract principles.
o Therefore, the promise of Art 1053 CCLC didn’t mean that private law worked out in a way that was in
accord with the principles of protection of human rights. But, at least it could cover that kind of problem.
Preamble of code is even more explicit to show connection b/n charter and code  1457 kicks in when can show Charter
rights have been violated. Grounds of 1457 claims is a violation of Art 10 of the Charter.
Hopital St-Ferdinand Case shows that there has a violation of human dignity as per Art 4 of the Charter and this is a violation
of 1457 so therefore can punish (through punitive damages) and compensatory damages).
The Nature of Private Law in the common law:
F.R. Scott says that in Quebec there is a law of delict, not delicts. This is a comparison of the shape of the private law.
In the common law, there is no one general obligation. There is a different basis for each tort. Sometimes the basis might
explicitly be about human dignity/autonomy – like battery. But, they are not tied together except to the extent that neighbour
principle has seeped out to the torts near it. There is no one statement about our obligation to act vis à vis others that could
encompass an understanding of HR violations as tortious. Laskin points out in Bhadauria that the common law prefers not to
explicitly resort to public policy. It will if it has to.
Connecting HR Legislation and the Private Law – Keeping them Separate:
The court is confronted with a completed scheme and the argument by the Pl that she should be able to bring a claim in tort
since she was discriminated against based on race.
Laskin says that there is no tort of statutory breach per se. We won’t develop tort law by referring to public policy set out by the
HR Code since the legislature has set up a comprehensive system with adjudicative features in place. When discriminated
against, you use the code to make a claim and be compensated. There is a rejection of overlap. There is no new separate tort
and the private law does not incorporate HR violations.
Seneca College v. Pushpa Bhadauria
Jurisdiction SCC [1981] – Laskin J.
Facts
Pl applied 10 times for teaching positions at the college. She is highly educated and qualified and alleges
that she was not recruited because of discrimination against her origin. She is claiming that the college
breached its duty not to discriminate under s.4 of the ONHR Code and deprived her of teaching
opportunities and the opportunity to earn a teaching salary.
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Issues
Holding
Ratio
Kirk Shannon
Should the court recognize a new tort to protect the Pl against unjustified invasion of her interest not to be
discriminated against in respect of a prospect of employment on grounds of race or national origin?
Cannot make a new tort.
Suggestion that the code is sufficient to deal with this and there is no room for the creation of a separate
tort.
 Argument of Wilson J (then of ON C.A.) is a “bold” one.
 No tort of statutory breach (recall Sask Wheat Pool).
 Nor can we say that a breach of Code of HR will not found a tort.
 HR violations are to be dealt with HR tribunals and that is the whole system. Does not involve the
courts. Not the place of the private law  in a sense the statute has filled the field.
There is already a complete scheme in place. The ONHR Code is comprehensive and does not give or
envisage a civil cause of action. “There is a narrow line between founding a civil cause of action directly
upon a breach of a statute itself and founding a civil cause of action at common law by reference to
policies reflected in the statute. The cases that have dealt with situations of this kind have been in the field
of negligence [...]” There is no such tort.
Note
Van Praagh
 Must have fit into a tort. One box. Not battery, nuisance, Rylands……
 Argument of Courts don’t know about HR….but a few years later all courts had to with Cdn Charter.
 Why can’t we push the envelope like in negligence?
 Réome (sp?) argues for a new tort  there is a tort of intentional infliction of nervous shock – expand it. Broaden to
intentional damage to dignity.
Connecting HR Legislation and the Private Law – the Model of Overlap:
Béliveau has 2 legislative schemes in addition to the general law.
 General law means 1053/1457 CCLC/CCQ – the usual civil liability path.
 Quebec Charter – A.10 sets out the principle of equality in exercising our rights and freedoms – NON
DISCRIMINATION STATEMENT. s.10.1 adds that no one shall harass a person on the basis of one of those
grounds articulated in a.10.1 – NON HARASSMENT CLAUSE. A violation of one of this brings you to s.49 –
REMEDIAL PROVISION. s.49(1) – Compensation, s.49(2) – Punitive – exemplary damages if the discrimination
was intended.
 Worker’s Compensation legislation (LATMP/AIAOD) – based on a social compromise: don’t have to show fault to be
entitled to compensation from the fund paid into by the employer. This is an acknowledgment of risk. In return, the
employer is shielded from civil liability action. This is for COMPENSATION – partial fixed amount compensation
and does not include moral damages or exemplary damages.  Compensation only.
 Think about sexual harassment as a workplace injury  what do we think about this? Compensation scheme is not
going to have any deterrent factor in the workplace (for a broken ankle or sexual harassment). It is a compromise.
SEE BELOW
Béliveau St-Jacques v. FEESP
Jurisdiction SCC [1996] – Gonthier J.
Facts
Béliveau complains of sexual harassment by supervisor and the employer does nothing about the
supervisor’s behaviour. She files in civil liability and worker’s compensation. Her claim is met by
worker’s compensation because her claim is understood to be a workplace injury (like industrial accident)
by the court (interpretation). Nobody challenges this at the SCC. No story given as to human rights
because the issue is so removed from her by the time the case gets to the SCC.
Issues
Possibility of claim for exemplary damages under the Quebec legislation?
Holding
No punitive damages can be given under the Charter as cannot get two remedies from two separate places.
Ratio
Gonthier J: Charter’s 49(2) is linked to 49(1) so if you are not bringing a claim under the Charter but
rather under the act, you cannot get punitive damages under 49(2). You can only bring one claim. This is
no longer a Charter claim once it is characterized as a workplace harm. 49(1) is not operating and
therefore neither can 49(2).
 When injury occurs, the act totally replaces the scheme in the general law. There is for her no
1457 CCQ possibility anymore once the injury is characterized as being covered by the act. The
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NOTE
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Court talks about overlap between the act and the Charter – this overlap is that between the act
and 1457 CCQ. The court agrees that 1457 CCQ and 49(1) Charter are identical in terms of the
scheme. They both have a compensatory objective. This question is not before the SCC. Since
the Act replaces 1457 CCQ here, it also gets rid of 49(1).
(L’Heureux-Dubé): “Only the first type of remedy which is compensatory in nature exists under the
general law and accordingly, it is only in respect of this remedy that there is a complete overlap
between the general law system and the Charter. Thus, the 2 sources of compensation merge which
also makes it possible to avoid double compensation for prejudice. The exemplary remedy provided for in
the second paragraph of s.49 is an exception to the general law of Quebec. Accordingly, these two systems
cannot overlap in respect of this remedy.” 49(2) is stand-alone, doesn’t depend on 49(1). Claimant
should be able to go ahead under the Charter under a parallel claim under 49(2).
When you bring a 1457 CCQ claim that is not in the workplace and you refer to a.10 Charter, are you
stuck in 1457 for parameters of the claim or can you hold onto 49(2)? The court leaves this open for
non-employment situations where there is no other scheme. This is very messy. Is the problem a
workplace problem or a human rights problem? This is the fundamental question to be asked and these two
things seem incompatible. Since once you characterize this as a workplace harm, you lose the human
rights aspect of the claim since it is that kind of injury for all elements of it including damages.
Van Praagh
 If a normal 1457 claim can go to 49(1) and (2). As 1457 is replace then the whole remedy is replaced by the scheme.
 Debate as to the words “in addition”. L’Heureaux-Dubé says it is a stand alone section where as Gonthier sees it as
inseparable from 49(1).
 Is the problem really:
o Van Praagh does not like that they say 1457 subsumes Art 49 of the Charter. Judgment assumes they are
same thing.
Confusing Areas of these Cases:
Why would you put your claim under 1457 CCQ in Superior Court? Reading Cotler’s article makes it seem like this is a great
aspect of the civil law but you might lose the exemplary damages of 49(2). And, the tribunal has the expertise. It is also
confusing that in principle, you could go to the Superior Court and argue only the Charter, not the CCQ. This seems to bypass
the whole point of setting up a Commission to decide these cases. In St. Ferdinand, there is a class action suit under the Charter
and they go to Superior Court. Does this mean that in class action, you cannot go to the Commission?
49(2) seems to get at the specialness of human rights violations – intention. This is based on a broader collective sense of
protected interests. Violations of HR arguably hurt the whole group. This also distinguishes 1457 CCQ and 49(1). 1457
recognizes moral injury but might be compensated more in 49(1) to take into account the feeling of being hurt that is a group
feeling and doesn’t fit within the interests of 1457 CCQ. Under 1457, you still go under a.10 to make the claim.
Issue of sexual harassment being in Worker’s Compensation:
 We are broadening the idea of workplace injury.
 This sits uneasily with the idea that there are risks inherent to the workplace given the intentional nature of sexual
harassment.
 This is like saying that it is to be expected that sexual harassment will happen. It is a good thing to notice that it is
wide-spread and make it easier to have those women be compensated. But, the result of this is that we almost accept it
by dealing with it just by compensating it. Seems very generous and responding toward complainants but is it also
generous toward complainants. This might immunize employers from civil liability.
 There is also a problem that there is no moral damages in this scheme and it is hard to assess sexual harassment
on physical damages. What needs to be compensated in dealing with sexual harassment as opposed to broken
leg?
 This might also be a way of protecting victims since they don’t have to come forward and go through a trial.
 Worker’s compensation takes it outside the problem of being about an individual victim and individual harasser and
looks as it as a systemic problem where the employer has a responsibility.
 What can you respond to by putting it through the worker’s compensation lens – it looks only at how the
harassment has affected you at work, not on an individual level.
Cannot distinguish between the Charter’s idea of compensation for harm done and 1457 CCQ’s idea – share the same principle.
There isn’t a dual civil liability system despite the Charter coming about (Baudoin). A violation of a.10 Charter is a violation
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of 1457 CCQ since 1457 says “according to usage or law” and this is an example of the law. Is this the right way of thinking
about it? This is the core holding for comparison with Bhadauria.
 This structure of the civil law seems to correspond to what Cotler thought was a good thing.
 But, the Charter stands on its own, there is a tribunal established under it, there are provisions for wrongdoing and
remedies, you don’t have to go to Superior Court. Why create a stand-alone system if what you simply wanted to do
was give guidance for what it means for acting unreasonably under 1457 CCQ?
 If you say there is complete overlap of 1457 CCQ and a.49 Charter, what happens to the “specialness” of the Charter
and this kind of injury? Is it good that the CCQ recognizes discrimination or do we want to say that compensation will
include some kind of acknowledgement of the special nature of this kind of harm? The feeling of being tripped
because of negligence and being tripped because of you colour might lead to a different kind of compensation model.
VII: Limits of the Private Law
A: The Responsibility of Public Authorities
Can we say the gov’t has injured and must compensate
 Look at examples of racial profiling, state-run gambling. In both there is lots of discussion of the harmful effects.
What category do they fall under:
o Policy
Look to something like a budget that allocates money in a way that is harmful. This is policy and it has been deemed to not be
liable. Policy is dealt with through elections. This is where defendant looks nothing like an individual.
o Operation of the policies
Here, the gov’t looks less like a group. Could be responsible if operation of filling potholes….but usually blocked by by-laws.
Look to residential schools, cannot name policy of taking kids away from communities as wrongdoing. Must look to the
operations which led to 1) bad education, 2) inadequate supervision that allowed for abuse.
Prud’homme v. Prud’homme
Jurisdiction
Facts
Issues
Holding
Ratio
Art 1376
SCC [2002] From Quebec  L’Heureux’Dubé and Lebel
Attempt to look at civil liability of a wrongful act of an elected municipal official.
Is a Municipal official liable for defamation when acting in capacity as municipal official? Under what
law?
Yes. Would be under Art 1376 CCQ.
Pre CCQ, law over public officials was based on Anns which provides that only those decisions of public
authorities that are within the “operational sphere,” as opposed to the political sphere, are subject to the
rules of private law.
o In CCQ Art 1376 trumps.
o Now, onus is on the party which intends to rely on the public law in order to limit the general
rules of civil liability to establish that there are relevant public law principles that prevail over
the civil law rules.
The rules set forth in this Book apply to the State and its bodies, and to all other legal persons established
in the public interest, subject to any other rules of law which may be applicable to them.
P.H. Osborne, “The Law of Torts”
o Welbridge Holdings Ltd. v Greater Winnipeg held that no duty of care was owed to a private citizen by a
legislative, judicial or quasi-judicial function of the gov’t
o Same case, however, said a duty of care was imposed where gov’t actions more closely resembled private sector
activities.
o In Anns a distinction was made b/n administrative functions in policy and planning that would not be subject to a
duty of care and operational matters which would.
o Now, policy vs. operational.
o Has now been somewhat restricted to “true policy” decisions and operational functions.
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Government is probably one of the biggest potential wrongdoers. Private law does not typically see as appropriate or easy to
get at a gov’t actor.
See also Dorset Yatch per Lord Reid who says that there is no ground to limit liability of a gov’t actor (in operations).
B: Family and the Private Law
Where does the private law not go.
1) ECO’s/torts – human identities, interests, interactions
Is it the case that we only got to HR at the end of this course? Why does this happen? In formal terms, this is true. But, if we
think that human rights is about the way human beings are seen and treated in society, this is at the very core of the private law
– contract and ECO.
The private law is about how the law understands us about individuals:
 How injury will affect us – Gosset
 Responsibility attached to individual selves – Don v. Steve
 Helping hand is necessary in some cases – Murphy v. Memphis Cabaret
 Children’s vulnerabilities, Patient’s health as important considerations
 Protecting diversity – Thin skull
 Justice – contributory negligence
The private law is a good place for looking at norms of society and thinking about the individual. What does it mean to live
with others? What do we mean by “protecting the individual”? Maybe ECO is all about HR or at least about human relations.
Thinking about private law in a broad sense. But, we have to be cautious of thinking that it can deal with everything in society.
Problems that are identifiable that are not addressed by Private Law.
 Think about, for example, the needs coming out of sexual abuse in institutional setting. Violation of bodily security,
language, culture, …etc. These violations are difficult to compensate. They also carry onto secondary victims. Also,
injuries to things other than bodily and moral are hard to phrase in a legal sense (how can you say it injured my
culture). Physical integrity we can get at.
 Example of sexual harassment  if it is the result of the milieu where it occurs, private law does not deal with this.
Also, the requirements of the private law seem very hard to meet.
2) Critique/Limits on the private law
b) Internal limits – Dobson
How does the law of ECO’s limit itself? Where are the built in blocking mechanisms? What are the lines between
what we do and don’t protect?
Elements in an action in ECO:
1. Causation – connection between behaviour and the suffering of the victim. The link is described as a causal
connection. This is NOT a neutral notion even in factual connection – use mechanisms reflecting policy related
concerns to deal with difficulty in establishing factual link. It is explicitly not neutral in dealing with remoteness
– what factors will make us describe a connection as too tenuous for imposing liability? Foreseeability language
is place where we see the scope for judgment. Foreseeability of Pl – relationship between D and this Pl. Look at
the nature of the injury, Pl’s sensitivities, Pl’s behaviour, etc.
2. Wrongdoing – Is wrongdoing necessary in the law? What is labelled wrongdoing? Indicators of what is
required – incorporation of objectivity – reasonable standard. Compartmentalizing different torts to correspond
to different modes of bad behaviour. Some torts don’t require bad behaviour at all. We look at people in the
middle who may be more immediately involved for the wrongdoing – child- parent-Pl, government-bureacratPl, etc.
3. Result of the bad behaviour – What is the nature of the harm suffered? Kind of loss. Who has suffered? Does
the law recognize that person (foreseeable Pl, relational loss versus “autrui”)? The “who” is more of a common
law question. Responding to pecuniary and non-pecuniary loss. Limits to the recognition of moral damages. Are
there kinds of damage that throws us back to our concern for the link – example: nervous shock? Are
fundamental rights recognized as protected interest?
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Lots of blocking mechanisms:
o Causation – imposes contours
o Centrality of fault – one is never liable to another unless one has done something wrong. Some say that we should
take on the risks of our actions and should responsible for the consequences whether or not we caused those
consequences. Internally, this centrality limits the ECO law.
o Looking at the character of the D (ex: public authorities) – makes us ask whether private law is the right tool for
getting at problems of government (policy) – private law operates with respect to government only when it can see
government as analogous to individuals.
Possible expansion of the Private Law
Could we not expand the private law? Dobson seems to respond.
Dobson v. Dobson
Jurisdiction
Facts
Issues
Holding
Ratio
SCC [1999] – Cory J.
Mother drives negligently and gets into an accident. Unborn son is born with defects b/c of injuries
sustained in accident. Through grandfather, sues mother. Mother actually wants to be held liable b/c
she would get insurance money to raise her child. NB: This discussion is only possible once the child
is born because the foetus cannot bring an action qua foetus.
Should a mother be liable in tort for damages to her child arising from a prenatal negligent act.
NO
Policy considerations such as a mother’s right to autonomy and privacy, and the inadequacy of a
judicial standard of conduct are sufficient to find that mother should not owe a duty of care to born
alive child who suffered injury in utero.
First Stage: Assuming that the mother and foetus are 2 separate legal identities, they certainly meet the
first requirement of proximity and foreseeability in Kamloops.
Second Stage: Public Policy Considerations
Privacy and Autonomy of Women’s Rights: Unacceptable intrusion into right of a woman to bodily to
bodily integrity, privacy, autonomy.
o A duty of care would significantly constrain a mother to control her own life. Not like imposing
a duty on a 3rd part toward the foetus.
o It would also increase the external scrutiny of a mother’s behaviour (floodgates). Issue raises
social policy concerns of such magnitude that they are better subject to a debate by the
legislature.
o Also, could be a gender-based tort which would violate s.15 of the Cdn Charter
Difficult judicial standard of conduct: (1) “reasonable pregnant woman” standard would go too far. (2)
Immunity from lifestyle choices would be unworkable in practice and the (3) existence of a mandatory
insurance scheme regime cannot impose a legal duty in tort liability. Best solution is to leave the
protection of the fetus as a moral obligation.
Concurring
McLachlin: Such a duty would run counter to 2 fundamental principles of the Constitution: liberty and
equality. It would be intolerable to say that women chose pregnancy and therefore should suffer the
consequences.
Dissent
(Major): Where a duty of care is owed to a 3 rd party, the child’s right to sue cannot be negatived under
the second branch of the Kamloops test.
Note: This result would be the same in civil law – 1457 CCQ would not extend liability of a woman to a child just born for
action when in the womb. In this case, all the elements of ECO case are present. She has acted in a negligent way in driving
dangerously. The Pl is foreseeable to her. The causal link is made out – injury is consequence of negligence of driving of the
mother. The born child suffered losses because of injury caused to foetus.
o But, internally, the tort law says there is a limit and does not impose liability here. Cory for the majority says that they
will not find pregnant woman responsible for harm suffered by child as a result of her negligent behaviour while child
was a foetus.
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Approaches:
1. Why not? – If all the elements are there, why not say that the tort law can step in? Why wouldn’t tort law
apply? (Lower court)
2. Woman as driver – Drivers owe an obligation to drive carefully vis à vis all people on the street. This
approach is not about her as a pregnant woman. If another pregnant woman was in the car, that woman’s born
child could win a case against her. So why can’t her own child? This is not an imposition of any greater
obligation because of being pregnant (CA, Major and Bastarache). Draw line between negligent actions that
are just negligent vis à vis the foetus (like drinking) and actions, like driving, where we can separate the
woman from here foetus – where her behaviour would have been negligent to anyone. But, are we able to
sustain that line?
3. Legislative exception for driving – Don’t want mother to be responsible for everything she does when
pregnant, just for driving. This can be legislated because there is compensation through insurance – if she had
hit someone else, that person would be able to recover so why can’t her child? (English example of legislative
scheme)
4. Immunity of pregnant woman – Inviolable principles of autonomy and privacy. Cory uses Charter
principles in the policy branch of the Anns/Kamloops test to say it would be inappropriate to impose liability
here. The court will not try to differentiate different types of behaviour of pregnant women. The court
acknowledges that there may be other approaches (like insurance scheme through the legislation) but the
court will not use the private law here. Thinking about pregnant women as a collective.
Immunity of the family – Tort is pitched towards two strangers, doesn’t apply well to the familial situation. We demand more
than just reasonable standard of conduct in the family and also expect that people forgive each other for more (mechanisms in
families for labelling injury and harm and other forms of compensation). Should the insurance company cover it if the father
had been driving when the mother was pregnant and born with injuries? Insurance company would probably argue family
immunity since it is cheapest for them. Should close relationships be subject to tort-like scrutiny?
 Closeness? Of course there is closeness. There used to be immunity within the family.
 Courts do not take into consideration the larger family unit. How does this really enter into it. Is it bigger than the
person?
 Is reasonable person standard enough to characterise relationship with both abuser and abusee (in J. v. J.)? Much
more complicated than that.
J. v. J.
Jurisdiction
Facts
Issues
Holding
Ratio
On Crt [1993] – Rutherford J.
Action against parents for psychological trauma resulting from sexual abuse by father and actions and
omissions (negligent or otherwise) of the mother. Sought punitive damages from the mother.
Is the mother liable for damages and punitive damages for failing to protect daughter even though she
knew abuse was ongoing.
Mother held liable in equity
There is a fiduciary obligation to the child by the parent. General characteristics include:
1. Fiduciary has scope for exercise of some discretion or power
2. fiduciary can unilaterally exercise power so as to effect beneficiary’s legal or practical interests
3. Beneficiary is peculiarly vulnerable to or at the mercy of fiduciary.
Mother preserved her own status quo and, in so doing, knowingly preserved the abusive environment. In
clear breach of her fiduciary duty as a parent in breach in equity!! NOT TORT
o Policy objectives of equity and tort are the same but the wrong encompassed in the battery and
assault torts are different.
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Extra- Contractual Obligations Summary – April 2005
Kirk Shannon
VIII Conclusions
All of the HR, Family and State/gov’t are problematic areas with the Private law. This type of law has problems and deems it
inapprorpriate.
The vocation of the private law. Abel is not happy about the private law saying that it is really not doing them. Not doing:
o Safety
o Deterence
o Moral
o Compensation
Not doing any of them well.
Back to barnyard dance. Who is it who is face to face?
 HR, family and gov’t may not be deemed to be face to face in private law.
 Individuals are captured in a very particular way. There are certain circumstances that are recognised under the
private law as individuals who can be “face to face”
Perhaps searching for the instrumentality (what private law can do for us) is not necessarily the most fruitful route to take.
c)
External – Abel, Conaghan & Mansell
 Abel – collectivizing the Ds but individualizing the Pls so we forget to put the Pls in context. This is a
problem. Groups in society that we need to protect – race, poverty – needs are recognized in the law.
 Our concern for autonomy and privacy is a symbol of a liberal, capitalist society that envisages
individual relations. This is often invisible but is always there.
Cannot do a good critique unless you do what a critical lawyer has to do (C&M, P203). But then you can respond to
what Abel calls the failing of tort law. Dobson shows that tort is always interacting with other systems (the family,
auto insurance, child protection, etc.). But, tort law doesn’t do a very good job of compensation so we came up with all
sorts of schemes (like auto insurance). This raises problems with the principles of compensation (C&M).
Compensation as a general role is not particularly well met by the private law (Abel) – we reproduce inequality,
limited success by the victims, etc. Maybe instead we can focus on safety. We need to address the ways in which
groups of people are victimized and left out of the analysis (Abel) – focusing on the individual who is hurt is not
getting at the goal of increasing safety.
Why not truly link compensation and fault? Just focus on the behaviour – don’t actually need injury. If the behaviour
is faulty, get the D to do something like apologize or pay into a bank of money. Then again, this tends to move into
criminal law – moves away from the relationship aspect. Although, apology is more related to relationships.
This analysis of setting up goals of the tort law and seeing how it performs on those can be helpful in thinking about whether
we should turn to the private law to meet particular needs. Think about the needs that civil liability can meet well and recognize
that there are others that it cannot respond to well and we should consider those alternatives. But, what tort must do is do as
well as possible of what it promises. And, we have to be careful in what it promises. For example: opening up vicarious liability
for child abuse in institutional setting is a way that the tort law has opened up to try to respond better on one of its own goals.
Abel: We are not stuck with the structures embedded in the tort law.
C&M: We should keep change in mind.
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