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TORTS FINAL (GENERAL NEGLIGENCE)
REQUIREMENTS FOR A NEGLIGENCE ACTION:
1. Owe a duty of care
2. Breach of standard
3. Breach causes damage
4. Damage is not too remote
1. IS THERE A DUTY OF CARE?
[FIRST LIMITING DEVICE]
FIRST--> IS IT ANALOGOUS TO AN EXISTING DUTY?
Cooper--> once the court has recognized a duty, it is usually enough to infer a prima facie duty of care.
However, if it is not the same, check whether proximity is still there. If it is NOT analogous, go to the new duty
test
Crocker: “The common thread running through these cases is that one is under a duty not to place another
person in a position where it is foreseeable that that person could suffer injury”
Foundation of the law of negligence: the Neighbour principle from Donoghue v Stevenson. One’s legal duty
extends to one’s neighbour: local neighbourhood is restricted to persons;
“who are so closely and directly affected by my act that I ought to reasonably have them in contemplation as
being so affected when I am directing my mind to the acts or omissions which are called into question”
COMMERCIAL HOSTS
Jordan House 1974
Duty of Care Commercial host owes a duty to the intoxicated patron
Facts
Man in a bar expelled, owner knew that he would have to make his way home on the highway
(walking). They knew he was drunk. He was hit by a car.
They served him alcohol, was foreseeable risk in kicking him out
Stewart v Pettie 1995
Duty of Care Commercial vendors of alcohol owe a duty to persons who can be expected to use the
highways
Facts
Pettie was served alcohol all night although he did not appear drunk. Their group left the
event, and Pettie drove the car, lost control, and injured a third party in another car. The third
party is now claiming against the commercial host.
Application
It is a reasonable step from Jordan House: the patron would reasonably be expected to come
into contact with others and pose a risk to them, especially if they are driving.
 This was analogous to the duty found in Jordan House
 “The risk to 3P’s from the patron’s intoxicated driving is real and foreseeable”
Crocker v Sundance 1998
Duty of Care Commercial resort with a competition, serving alcohol, affirms Jordan House
Facts
Sundance held a tubing competition, which Crocker decided to enter. They were visibly drunk
for the race, and although were told to not race, they were not restrained from doing so. He
suffered a neck injury.
Application
Sundance had a responsibility to take all steps to prevent a visibly drunk person from
participating because:
 Set up an inherently dangerous competition to promote itself
 Employees were in charge of how it was conducted
 They provided liquor
 They knew Crocker was drunk, and that it would heighten his chance of injury
 Close NEXUS
Childs v Desormeaux 2006
NO DUTY: Social hosts to 3P’s who may be on the road and may be injured by intoxicated guests
(who invite guests to an event where alcohol is served)
Social Hosts
- rules regarding alcohol consumption
are not regulated
- there is no institutionalized method of
regulating consumption or enforcing
limits
- there is no expectation of monitoring
(no paying per drink)
Commercial Hosts
- capacity to monitor alcohol consumption
- it is expected to monitor, they are being paid for service (patrons
will expect to be monitored, if only to make sure drinks are paid for)
- servers have training to understand the risks of over service and the
sings of intoxication
- sale and consumption of alcohol is regulated, imposing
responsibility on those who profit from it’s sale
- there is incentive to oversell, and the benefit is to the host alone.
Therefore the imposition of a duty to monitor is fair
DRIVERS
Duval v Seguin 1972
Duty of Care To other drivers on the road: some of those drivers may be pregnant, so a child en ventre sa
mere would be included in those on the road (owe a duty of care to the mother and therefore
also the child)
Facts
Note that for the child to sue: it must be born alive and also suffer damages from the accident
Here: it was born prematurely and with connected health issues
BOAT CAPTAIN
Horsley v MacLaren 1972
Duty of Care Boat captains owe a duty to rescue (exception to the nonfeasance rule)
Boat captains owe a duty to a second rescuer if they are negligent in the first rescue
Vanvalkenburg v Northern Navigation Co: no duty of care because he had nothing to do with
endangering the crew member.
Facts
A guest (Mathews) on a boat fell in the lake, another guest (Horsley) tried to save him but died
(Horsley). Two charges were brought against the boat owner, the duty to the second rescuer is
at issue.
--> found that the first rescue was not negligent due to emergency situation so there was no
duty to the second rescuer
SECURITY FIRMS
Fullowka v Pinkerton’s 2012
Duty of Care A security firm owes a nonfeasance duty to the people they are hired to protect
Facts
Strike at a mine in NWT. Mine chose to bring in replacement workers, and hire Pinkerton’s to
guard the mine. A striking minor left a bomb in the mine and nine workers were killed
1) Foreseeability: there was evidence of warning about the strike
2) Proximity: the company undertook management of the risk and assumed responsibility to
protect the miners. The miners relied on them to do what it could to mitigate the risks (take
reasonable precautions) = special relationship
POLICE
Hill v Hamilton-Wentworth Regional Police Services Board 2007
Duty of Care Police officers owe a private law duty of care to suspects they are investigating
Facts
Foreseeability and proximity: relationship between the plaintiff and the defendant was
sufficiently close and direct to give rise to a legal duty of care, considering such factors as
expectations, representations, reliance and the property or other interests involved
Policy factors: Police being more careful in investigation is not a bad thing, no indeterminate
liability
Jane doe v Toronto Police: duty to warn
Odhavji: duty to supervise police officers
GOVERNMENT: only for operational decisions
Home Office v Dorset 1970 HL
Duty of Care The government is vicariously liable to the yacht owner if it’s employees were negligent in
watching the trainees
 The Neighbour principle should apply unless there is a reason to not (even to government)
Facts
Just
Duty of Care
Facts
Trainees (from a detention centre) are left unsupervised by the guards (Home Office) and they
damage someone’s yacht.
General rule: prima facie duty will be determined the same way. Will not go forward if there is
a statutory exemption of liability, or if it was a bona fide policy decision
sues for a rock falling, but the government had decided to not fix the rock face.
 The consequences of governmental discretion cannot lead to liability
 However the court can review how a certain action is done (how the decision was
operationalized)
 True policy decisions: usually made by high ranking officials
Lewis v BC 1997
Duty of Care Minister of highways owed a duty of care to the public, and this duty is NOT DELEGABLE
Facts
Decision was made to stabilize the rock face, and this was contracted out. Once decision is
made to stabilize the rock face, they are opened to liability in doing it negligently as this is an
operational decision.
Fullowka v Pinkerton’s 2010
Duty of Care The government owes a duty of care to the miners (they controlled the choice to keep the mine
open- “It’s capacity as a regulator”)
Facts
A prima facie duty of care existed
1) foreseeability: there was evidence of warning about the strike (pinkerton’s knew)
2) Proximity: an omission to prevent the harm by taking reasonable care
R v Imperial Tobacco Canada Ltd. 2011
Duty of Care Government had never been held liable before in negligent misrepresentation for statements
made to an industry. A duty of care was NOT recognized
1) a duty of care arising from a statutory scheme:
 Where the sole basis asserted for proximity is the statute.
 if the statutes are aimed at public goods, it will be difficult to infer that the
legislature intended to create private law duties, especially where the duty would
conflict with the duty to the overarching public duty.
2) a duty of care arising from interactions between the claimant and the government
 where the government has entered into a special relationship with the P,
establishing the necessary proximity. This could be recognized, as long as it doesn’t
conflict with the state’s general public duty (would be allowed to trial)
Facts
Two duties alleged: between Canada and the consumers, and Canada and the tobacco
companies. At issue: negligent misrepresentation by the government, saying that low tar
cigarettes were better for people’s health.
Application
Although proximity was found, the decision to advise was a policy decision based on social
and economic factors, not an operational one. Recognizing this would lead to indeterminate
liability (usually the case with economic loss)
MOTHERS
Dobson 1999: a mother has no duty of care to not injure the unborn child (cannot be sued by the born alive
child for pre-natal injuries caused by the mother’s negligence)
 not a question of foreseeability, but policy factors: it violates the autonomy and privacy rights of women
 the more pressing issue is lack of financial support for disabled children (this was a ‘friendly’ law suit)
SECOND--> AFTER ANALOGIZING, GO THROUGH NEW DUTY TEST
Current Mode of Analysis: Cooper
This test: clears up Anns, where it was unclear whether the first step considered just foreseeability, or both
foreseeability AND proximity, and issues on the policy factors.
 Acknowledges that donaghue was simply a balancing of interests, and builds on this on a quest for
“prudent” policy, aka how do you define policy appropriately?
 Paxton v Ramji acknowledged that the policy at stage one and two are not always clearly separate
STAGE ONE: do the facts disclose a relationship that gives rise to a prima facie duty of
care?
a. Foreseeability + proximity (burden on the P, Odhavji)
 “A reasonable foreseeability of the harm MUST be supplemented by proximity…sufficiently
proximate relationships are identified through the use of categories”
 Use recognized categories, but realize that these categories are NOT closed. Generally, proximity is
established by REFERENCE to these categories (look above for established duties)
 This provides some certainty to negligence law, while allowing for evolution…
 From Cooper
 “the question is whether the facts disclose a relationship of proximity in which failure to take
reasonable care might foreseeably cause loss or harm to the plaintiff” (Hill)
Misfeasance + Foreseeable Physical harm = prima facie duty of care (passes STAGE ONE)
 “overt act of the defendant…directly caused foreseeable physical harm” Childs
Misfeasance: look to both foreseeability and proximity
 To define the relationship in question: look to expectation, reliance, representations, interests
involved…any factors that indicate it would be fair to recognize a duty of care at law
Ex: Assiniboine para 6: They had a machine of substantial size and weight, capable of high speed. They knew
or should have known, that if the machine were released to careen riderless around the countryside, damage to
the person or property of others would result. The case falls squarely within the "neighbour" principle
enunciated by Lord Atkin in Donoghue v. Stevenson (1932) A.C., 562 at 580. The defendants Hoffer owed a
duty to anyone whom they might reasonably anticipate would suffer loss if the machine were carelessly allowed
to escape out of control.
Nonfeasance: a failure to act, omission
 foreseeability alone is not enough to conclude there is a duty of care
 must find foreseeability AND proximity
In order to impose a duty TO ACT (a positive duty of care) look to these factors to find a nexus
between the plaintiff and defendant:
 Creating the risk and then inviting people into it (there is then a duty to take steps to avoid the risk
materializing, or, if the risk materializes, there is a duty to rescue) NOT a social party
 Controlling, paternalistic relationship, supervisory position (parent/child, teacher/student, NOT social
host/guest in Childs because they are not acting in a public capacity)
 Public function/commercial enterprise that implies responsibility to the public at large (Jordan House,
Stewart)
Linking theme: The D created the risk or controlled the risk, and invited others into it
b. Policy factors: are there policy reasons notwithstanding the existing proximity (the relationship) that
the tort liability should not be recognized here?
Childs v Desormeaux: Application of the test to a nonfeasance situation
STAGE ONE Foreseeability: No
 the host did not know or did not ought to have known that he was drunk
 therefore, it was not foreseeable that he might injure other motorists
 “a history of alcohol consumption and impaired driving does not make impaired
driving, and the consequent risk to other motorists, reasonably foreseeable” para 29
Proximity: No
 holding a house party is not a risky activity
 they do not have a paternalistic relationship with guests
 they are not acting in a public capacity
Autonomy of the individual
 “a person who accepts an invitation to attend a private party does not park his
autonomy at the door”
 the choice to drink and assume the risks of impaired judgement is a personal choice,
and absent the special considerations in a commercial context, there is no reason that
others should bear the costs
Reasonable Reliance
 no one was relying on the host to monitor alcohol intake
STAGE TWO: Are there residual (broader) policy reasons outside the relationship of the
parties, notwithstanding the proximity, that the recognition of this duty should not be
enforced?
 concerned with the implications of recognizing this duty
 “spectre of indeterminate liability”
 What will not be enforced? (application of this stage of the test)
 Government: policy decisions will not impose a duty of care, only operational ones (Lewis)
 This stage could be seen as creating “exclusions of liability”: imposed usually because the
courts can’t criticize/pass judgement on the elected legislature on policy matters
 Could be extended to quasi-judicial decisions.
2. DID THEY MEET THE STANDARD OF CARE?
 Did the Defendant take an unreasonable risk?
Ryan v Victoria (para 28) “Conduct is negligent if it creates an objectively unreasonable risk of harm”



“To avoid liability, a person must exercise the standard of care that would be expected of an ordinary,
reasonable and prudent person in the same circumstances.”
“The measure of what is reasonable depends on the facts of each case, including the likelihood of a known
or foreseeable harm, the gravity of that harm, and the burden or cost which would be incurred to prevent the
injury.”
“In addition, one may look to external indicators of reasonable conduct, such as custom, industry practice,
and statutory or regulatory standards”
SPECIAL STANDARDS
a. CHILDREN
Heisler v Moke 1971 Ont HC
Facts/Issues Child had hurt his leg, warned not to jump, but jumped on the clutch and re-injured his leg
Held
There is a subjective/Objective test for children, here he was capable of being negligent but
could not be expected to foresee the consequences of his act.
Test
1) whether this child, having regard to his age, intelligence, experience, general knowledge and
alertness is capable of being found negligent at law  consider the particular child: a
subjective test
2) whether the child was negligent and to what degree: what would a reasonable child of that
age and intelligence reasonably be expected to do and foresee under the circumstances? 
objective
Pope v RGC Management 2002 ABQB
Facts/Issues 12 year old playing golf hits a woman in the mouth with a ball
Held
Not negligent for other reasons.
Rule
There is an exception to the lowered standard for children: when children are participating in an
adult activity, they are held to the adult standard of care.
Note: especially for motorized vehicles, where people can’t see the driver and therefore can’t
adapt their driving to accommodate. Also, cars are dangerous
Nespolon v Alford 1998 ONCA
Facts/Issues Teenager drank too much, he was killed on a road. The driver who ran over him suffered
nervous shock.
Held
Not liable. Although they were driving (an adult activity) they were not doing an adult activity
when they dropped him off.
Rule
 the specific activity giving rise to the allegation of negligence is examined, even if the
overall activity is normally an adult activity
b. MENTAL DISABILITIES
Fiala v Cechmanek 2001 ABCA
Facts/Issues D went for a run and experienced a bi-polar episode. Jumped on a car, driver involuntarily
pressed the gas and hit another car. Passengers in that car were injured.
Held
not liable, there is no fault
 Holding the mentally ill to the strict objective standard would essentially create a nofault regime, because at common law you cannot have liability without fault
Test
In order to be relieved of tort liability when a defendant is afflicted suddenly and without
warning with a mental illness, the defendant must show EITHER on a balance of probabilities:
1) as a result of the illness, the D had no capacity to understand or appreciate the duty
of care owed at that time
OR
2) as a result of the illness, the D was unable to discharge his duty of care as he had no
meaningful control over his actions at the time the conduct fell below the standard
Note: The onus rest on the defendant to prove that their mental illness has rendered them
incapable of attracting liability based on one of the above conditions. Otherwise a defendant
will be held to the objective standard of care.


People with disabilities are expected to adjust their conduct, and not to engage in activities that are
beyond their capacity to perform safely.
There is also a duty to mitigate: ex take medication
c. DOCTORS/SPECIAL SKILLS: see doctor’s analysis
Professionals/special skills:
 held to an objective standard within the skill group
 conduct is considered reasonable where it is consistent with or exceeds the standard of a reasonably
competent or average member of their group operating in similar circumstances.
 allows these people to perform tasks the general public cannot perform
 we should be able to rely on this elevated standard of care (particularly when someone holds themselves
out to have certain skills)
d. REGULAR CATEGORY
Factors to consider:
1. Probability of Harm
Bolton v Stone 1951 HL
Facts/Issues Cricket ball gets hit out of the park and hits a woman. Balls had been hit out 6 times in the past
(in 30 years). Plaintiff argued they should have avoided the balls flying out of the park (nets,
fence).
Held
not liable, the injury was not reasonably foreseeable, the degree of risk was too small (also note
that the harm at play was from a ball, not something like flying knives)
Rule
To demand that conduct is entirely free of all foreseeable risk would be impractical
 Reasonable people “cleanse” their conduct of unreasonable risk, but not every
foreseeable risk
2. Seriousness of the Injury
Paris v Stepney 1951
Facts/Issues P had one eye, while working a scrap of metal blinded him in the other eye. He sues the
employer for not supplying goggles. The D argued it was custom to not supply goggles, and that
his risk of eye injury was no greater than that to the other employees.
Held
Employer is liable.
Rule
Need to consider likelihood of the injury AND the magnitude of it.
Application
There may have been no greater risk of injury to him, but there was a risk of GREATER injury
to him
3. Cost of preventative/remedial measures
Rentway v Laidlaw 1980
Facts/Issues Highway collision. Suggestion that manufacturing defect caused both headlights to go out when
the tire tread separated. This is because both headlights were on the same circuit.
Held
not liable, but because of causation
Rule
LEARNED HAND FORMULA:
L (Degree of damage or loss)
B (burden $ of measures to prevent )
If P x L < B (burden of precaution)  no liability
If P x L > B (burden of precaution)  liability
 Used by scholars: if a larger cost could have been avoided by a smaller cost, then
efficiency requires one to incur the costs.
Note: doesn’t take into account other values (non-economic values- privacy, liberty)
Application
The potential risk that was foreseeable by the manufacturer in having the lights on the same
circuit outweighed the utility/cost savings from having them on the same circuit.
4. Social Utility of the Defendant’s conduct
Usually only relevant when government is involved
 Where inevitable price of benefits to the public at large is an increased risk of injury to some people
 Ex. Police high speed chase
 Depends on what risks society finds are reasonable
Emergency situations: leniency is shown to those who have “done their best” in the situation.
Ex. Horsley v MacClaren, botched rescue.
EVIDENTIARY ISSUES
Custom and Established Practices
 Conduct consistent with the usual practice of persons similarly situated as the defendant will often be
indicative of due care on the part of the defendant
BUT compliance with a custom will not necessarily be determinative, might just be evidence
Factors to consider:
 How long has it been followed?
 Universality
 Status and reputation of profession or trade (level of expertise)
 Degree of difficulty of the activity at issue
 Evidence of additional precautions that may have been available
Waldick v Malcolm 1991
Facts/Issues P was injured when he fell on the icy parking area of M’s rented farmhouse. D argued it was a
local custom to not sand or salt parking areas. The Occupiers Liability Act said they had a duty
of care to those coming on to the property
Held
the custom was unreasonable, D’s were liable
Test
compliance with a custom will not necessarily be determinative, custom requires evidence.
- Negligent conduct cannot be countenanced (by custom) to avoid generalized negligence
- the custom must be REASONABLE
Application



There was only the unsupported testimony of the wife to show it was a custom
sand and salt are not expensive and are readily available, unreasonable to not salt
the custom did not outweigh the imposed statute, because it was unreasonable
 the existence of customary practices which are unreasonable in themselves, or which are not
otherwise acceptable to courts, in no way ousts the duty of care owed by occupiers under the act
Brown v Rolls Royce 1960 England
Facts/Issues
Brown’s hands were in constant contact with oil from his job, he developed dermatitis and
brought an action for damages because supplying cream was industry standard. Rolls admits
they didn’t follow the practice, but they had sought medical advice and relied on that when
deciding not to supply the cream.
Held
Departing from a custom practice is evidence of failing to meet the standard, but here it was
rebutted so they weren’t liable
Test
The ultimate test is lack of reasonable care for the safety of the workmen in all the
circumstances of the case
Application


Common practice is just a factor
The ultimate test is lack of reasonable care for the safety of the workmen in all the
circumstances of the case, and here they sought medical advice that said the cream
makes no difference (ineffective)
Warren v Camrose 1989 ABCA
Facts/Issues P suffered injuries when he dove into the municipality’s swimming pool. Experts agreed it was
not common practice to put warning signs up.
Not liable
Held
Test
Application
The consensus in the field doesn’t bind the courts (even if it is strong evidence)


Due care does not require every possible precaution, or excluding every possible risk.
Expert advice in a field of what is safe, or the uniform practice of a profession or
industry, is not binding on the courts
Statutory Standards: Statutes provide specific standards of reasonableness, prescribed in advance of an
accident.
 There is usually a fine attached for a breach, whether or not someone is injured
Canada v Saskatchewan Wheat Pool 1983
Facts/Issues Grain was found to be infested after being on a ship. All precautions against this had been
taken, but providing infested grain was contrary an act that had a strict liability penalty.
Issues: Can Canada Wheat Pool also bring an action for breach of a statutory duty? (new tort)
Can someone sue for statutory breach?
Held
No new tort of statutory breach, because this would be an absolute tort liability (no fault)
Rule
If you breach a statute, it MAY be related to a negligence claim (can likely be used to
strengthen a claim)
 The statute may have the same standard as the common law in some cases
 Primary thing to consider is whether there was FAULT at issue in the statutory breach
Gorris v Scott 1874
Facts/Issues sheep are in a cage but aren’t tied down like they’re supposed to be. The tying down is related
to transporting animals and disease issues with overcrowding. They are swept overboard and
they drown. the sheep owners sue the ship owners, based on the fact that there was a statutory
breach.
Held
Not Liable
Rule
In order for the statute to be applicable to the standard of care, the negligent act must be one that
the statute was aimed at preventing and the plaintiff a class of persons that the statute was aimed
at protecting
Ryan v Victoria
Facts/Issues Motorcyclist injured when front wheel got stuck in a railroad track. Railway and city argued
that they had complied with all the regulatory standards imposed by the industry and so
were not liable.
Issue: Does compliance with a statutory duty equate meeting the standard of care?
Held
The railway was liable: it did not exercise reasonable discretion by keeping only these
regulations, the railway was subject to the common law standard of care (which was higher)
Rule
Compliance with statutory standard is not an automatic defense to negligence claim
 the statute will not be the only determinant of reasonable behaviour.

**The common law standard of care and the statutory standards are CONCURRENT, the higher
one must be met for the D to not be negligent**
Application
Note: The more detailed the statute is, the more likely the common law standard will be the
same
 where a statute authorizes certain activities and strictly defines the manner of
performance and precautions to be taken, it is more likely to be found that compliance
with the statute constitutes reasonable care and that no additional measures are required)
 where the statute is general and allows wide discretion, it is less likely that it will
provide the common law standard of care.
3. WAS THERE CAUSATION? (FACTUAL CAUSATION)
1. “But For” test (Apply, unless there is justification to apply the other)
 Would the damage have occurred “but for” the D’s negligence?
 “Causation is an expression of the relationship that must be found to exist between the tortious act of
the wrongdoer and the injury to the victim in order to justify compensation of the latter out of the
pocket of the former” (Snell)
Four Steps Hypothetical (burden of proof on the P)
1) Identify the harm
2) Isolate the specific acts of negligence
3) adjust the facts so that D wouldn’t be negligent (can be multiple defendants)
4) Ask if the same harm would have occurred
 the D’s action does not have to be the ONLY cause of injury (Athey)
 it has to contribute substantially to the occurrence of the injury (Athey)
 if the answer is that the D’s action is only a possible cause of the harm…this claim will likely fail
Snell v Farrell 1990
Facts/Issues P advised she had a cataract which should be surgically removed. There was a retrobulbar
haemorrhage, which experts agreed was something that should have stopped the surgery. But
there were no other signs, so proceeded with the surgery. There was a bleed, and it resulted in
the loss of sight in her eye. She also had high blood pressure and diabetes, which could have
been another cause.
Held
Yes there is causation
Test
The test should be applied “robustly”: dissatisfaction with the test stems from the courts
applying it too strictly
Burden of proof: still on the P to prove the D was negligent
Inference is ok: : if the P’s claim is not countered by evidence brought by the D, then an
INFERENCE of causation may be drawn (even without scientific or “positive” proof).
 Addresses the issue of doctors being in a better position to provide evidence
 The court stopped short of a reverse onus
Application
it was open to the judge to draw the inference that the injury was caused by the bleeding as
there was no evidence to the contrary provided by the doctor to rebut the inference.
--> generally to be applied in the medical context
Athey v Leonati 1996
Facts/Issues P suffered back injuries from car accidents. Then had a disk herniation while stretching and
while he was recovering from the injuries
Held
The D was liable
Test
If the D’s negligence was A cause of the injury, then he is 100% liable even if that act alone
was not enough to cause the injury.
 The occurrence of non-tortious actions does not reduce the extent of the D’s liability
 The contribution was beyond the de minimus range
 It doesn’t have to be scientifically proven causation
Assessing the adequacy of the But For test… how should causation be resolved where there are multiple,
independent wrongdoers who act simultaneously and only one of whom actually caused the plaintiff’s harm, but
it is impossible for the plaintiff to establish which one caused the harm?
Alternative Liability Theory (“Cook and Lewis Rule”)
Cook v Lewis 1951 SCC
Facts/Issues P was shot when 2 D’s shot in his direction. It was impossible to say WHO shot him.
Held
Both defendants were found jointly and severally liable: Onus shifted to them
Test
If it is known that one of the D’s did NOT do the act, then you cannot allow the D’s to escape
liability by pointing the finger at each other. This does not meet the goals of tort law

Application
“The onus attaches to culpability, and if both acts bear that taint, the onus or prima facie
transmission of responsibility attaches to both, and the question of the sole responsibility
of one is a matter between them”
There was only one bullet that hit the P
2. Material Contribution of Risk Test
 “"material contribution" does not signify a test of causation at all; rather it is a policy- driven rule of
law designed to permit plaintiffs to recover in such cases despite their failure to prove causation”
(Clements)
 can only be applied where: it is impossible to say that a particular D’s act caused the injury
 It establishes liability not because the act caused the injury- but because it contributed to the risk that
injury would occur
 Has “NEVER” been used successfully in court (or the right case hasn’t come along) but really, it was
used in Cook v Lewis
 Expands the cook test, liability is imposed for policy reasons
** mesothelioma cases (one spore can cause it from asbestos. This is the ONLY possible cause)
Clements v Clements 2012
Facts/Issues Mr and Mrs Clements were on a motorbike that was overloaded, and a nail punctured the tire.
He accelerated above the speed limit to pass a car, but as he did the tire deflated. They crashed,
and Mrs. Clements suffered brain injury.
Issues: did his negligence cause the injury? Does the usual “But for” test apply? Under what
circumstances do we depart from the but for test?
Held
Test
Orders a new trial, says this is a single defendant case, so material contribution test doesn’t
apply
It can apply when:
i. P has established that the loss would not have occurred BUT FOR the negligence of
TWO OR MORE tortfeasors (each possible responsible for the loss)
 aka the normal but for test cannot be applied because there is not ONE
defendant…
ii. The P is unable to show that any one of the possible tortfeasors actually caused the
injury
 because each can point to one another – circular causation
 aka the only reason there is no liability CAN’T be because the P can’t prove
which negligent defendant injured her
Application
Factors to look for:
 Multiple tortfeasors
 All have breached the standard of care (“global” breach), don’t worry about
apportionment
 The breach materially increased the risk of injury
4. IS THE INJURY TOO REMOTE? (LEGAL CAUSATION)
[SECOND LIMITING DEVICE- limits to fair and reasonable boundaries]
 The D’s breach of duty must be a legal cause of the P’s injury
Cameron v Hamilton’s Auction Marts 1955 Scotland
Facts/Issues D’s excitable cow escaped and caused damage by going upstairs, turning on a tap and going
into a landing that then collapses
Held
Not liable, Damages are TOO REMOTE
Test
“none can be claimed except such as naturally and directly arise out of the wrong done, and
such therefore as may be reasonably be supposed to have been in the view of the wrongdoer”
Application


It is sui generis for a cow to run upstairs and turn on taps!
Outside what a reasonable man would foresee that a cow would do
Wagon Mound No1 1961 PC
Facts/Issues oil spilt into the bay from carelessness, but work continued, workers told not to drop things into
the water. But molten something dropped into the water, igniting floating cotton, which ignited
the oil, damaging the wharf.
Held
Application
Too Remote: the fire was not foreseeable

In this case: there is duty, breach, and some damage, and factual causation. The question
is whether there is foreseeability
 Oil and water would foreseeably cause some damage, but FLAMING WATER?!
 The foreseeability is more important than the directness here
 Factor to look for: what could they have done here to prevent the fire that was not
foreseeable? It would be unreasonable
Note: What this case left unclear: what needs to be foreseeable? The nature of the accident? Or
the consequences?
 Potential issues of pro-defendant tenancies
Hughes v Lord Advocate 1963 HL
Facts/Issues Children came across a manhole and thought it was for playing. They used the lantern because
the hole was dark, it fell into the hold, exploded, and the boy fell in and was consequently
burned.
Issue: D’s accept they were negligent in leaving the setup without supervision, but are they
liable for the injuries even though an explosion was not foreseeable?
Held
Liable: harm from lamp was foreseeable
Test
 CLARIFICATION of the scope of foreseeability
As long as the D created an unreasonable risk:
 If you can fit your harm into the TYPE that is reasonably foreseeable, then you can
recover
 plaintiff friendly in some circumstances
 It is unnecessary to foresee the MANNER in which the accident occurred or the precise
sequence of events
Application
the P suffered a kind of harm (burns) that was foreseeable, it did not matter than the explosion
itself was not foreseeable
Note: a “dilution” of the foreseeability principle, expanded its scope
Assiniboine School Division v Hoffer
Facts/Issues Dad lets his son use a rope to start the snowmobile, which meant the driver may not be in
control of the machine. This happened, and he hit a gas pipe serving the school which causes an
explosion
Held
Explosion and damage to the school was reasonably foreseeable
Test
becomes was the damage POSSIBLE, rather than probable.
“It is enough to fix liability if one could foresee in a general way the sort of thing that happened.
The extent of the damage and its manner of incidence need not be foreseeable if physical
damage of the kind which in fact ensues is foreseeable”


Application



Broad test, unclear what the words mean though..
Osborne describes this as: a narrative form step to foreseeable step to span the gulf
(building foreseeability on foreseeability)
Adoption in Canada of the “type of injury has to be foreseeable” principle
These kinds of gas riser pipes are common, damage to pipes it not unheard of
The toboggan was allowed to run without control, so that limits of reasonable damage
cannot be too narrow
SPECIAL REMOTENESS ISSUES
1. Thin Skull Rule, a rule of liability:
 As long as some physical injury to the plaintiff was foreseeable, the D is liable for ALL the
consequences of the injury arising from the P’s unique problems, whether or not the problems and more
severe consequences were foreseeable.
 The particular vulnerability does not have to be reasonably foreseeable
Bishop v Arts 1978
Facts/Issues He was used to having resistance on a door, but they changed it within informing him. When
putting force on the door to open it, he fell. He is a haemophiliac, and so had exaggerated
trauma from the fall.
Held
They are liable for ALL injuries
Test
As long as some kind of physical injury was foreseeable, the D will be liable for the
consequences, even if they are unusual
 Can be harsh on defendants
 Policy reasons:
o Promotes goals of negligence law (protects P’s personal security)
o Relieves the courts of deciding what part of the injury was “normally” foreseeable
o Efficient administration of personal injury litigation
Notes
2. Crumbling Skull Rule, a rule for the assessment of damages:
mitigates some of the harshness of the thin skull rule, comes in at the damages stage.
 An EXCEPTION to the general rule of tort: return the P to the position they would have been in but for
the accident.
Athey v Leonati
 D doesn’t need to compensate for any debilitating effects of a pre-existing condition that
Test
would have happened regardless of the D’s actions.
 D is only liable for any additional damage
Application
Did not work in this case: there was no evidence that a disk herniation would have occurred, but
for the accidents at issue.
For example: If the P has a degenerative disorder, it something will happen in five years, but the
negligence causes the final effects to happen in two, the D is only liable for the difference (three
years)
3. Intervening Acts:
a negligent or non-negligent act or an act of nature that relieves the D of responsibility for the damage caused or
aggravated by it and that occur after that act.
o ASK: was it within the scope of the risk? If yet, then it is not intervening
Stansbie v Troman 1948
Facts/Issues A contractor was knowingly left alone in the house. He went out to by wallpaper, leaving the
door open so he could return. A thief entered and stole property. The owner of the house is
claiming from the contractor, who did not personally steal.
Held
Contractor is liable
Test
The duty must arise within the scope of the contractual relationship: the act of negligence could
consist of the failure to take reasonable care to guard against the very thing that happened.
 The act was within the risk of the defendant’s negligence

Application
Only when an act is unforeseeable and interrupts the chain of causation will it be an
intervening act
The decorator was negligent in leaving the house unlocked, and as a direct result of his
negligence the thief entered the front door.
Bradford v Kanellos 1974 SCC
Facts/Issues Husband and wife were in a restaurant, when a flash fire occurred, and was quickly
extinguished. The extinguisher made a hissing noise, which caused a patron to shout that gas
was escaping. Panic ensued, and the wife was injured.
Held
The hissing and acts of the patron were intervening acts (the injury was caused by the hysterical
patron)
Test
The acts must be within the ambit of harm created by the defendant
Application


The acts of the hysterical customer was not within the risk created by the respondents’
negligence
Policy issues behind the interpretation: the extinguisher was functioning properly, so might
be an issue approving that its sound could cause a riot: the ramification could be that people
won’t use this extinguisher
Dissent: said that the fire was negligent, and this response to a fire was reasonably foreseeable
5. ARE THERE ANY DEFENCES?
1. CONTRIBUTORY NEGLIGENCE
 P is partly responsible (failed to take reasonable care to avoid the injury)
 Results in apportionment of damages (if can’t apportion, split equally)
 Negligence Act: s.1(1) requires the court to apportion fault and reduce damages by the percentage
the victim has contributed
 S.4(2)(a): there can no longer be joint and several liability
 If one D is judgement proof- there have to be separate proceedings
2. VOLUNTARY ASSUMPTION OF RISK
 P voluntarily consents to the risk of injury arising from the D’s negligence
 Based on the moral theory that people should be entitled to waive their rights and not receive protection
 Can be a complete bar to recovery (why the scope of it is narrow)
P must agree to waive both:
1) Physical Risk of injury (the danger of being injured), and
2) Legal risk (waive the right to seek compensation from the D should the risk of injury materialize)
 A waiver can serve as a full defence, if it is signed with full knowledge
 The risk must have been obvious to the P and a necessary part of the activity in question
 P must be fully informed of the risk
 P must be willing to abandon right to due care from D
 Agreement may be express
 or implied (getting in a car with a visibly drunk driver- similar to CN)
Crocker:
1) the P’s participation in the competition was not a voluntary assumption of physical risks, he was drunk
2) he signed an entry/waiver form: his attention was not drawn to the release provision, he did not read it nor
know it existed. He thought he was signing an application form= no assumption of legal risk.
3. ILLEGALITY (ex turpi causa)
 tries to deny compensation to a person injured while involved in an illegal or immoral conduct
 a matter of public policy
 also can be a complete defence
Hall v Herbert 1991 SCC restricted its applicability. It is applicable:
I.
II.
to prevent a person from profiting from an illegal conduct, or
where a person seeks damages in order to evade criminal penalty
** there is a lack of judicial support for full defences: there is a prevalence of apportionment regimes