Download Anns/Cooper Test

TORTS FRAMEWORK – Prof. Hall
Grace K
NEGLIGENCE FRAMEWORK
Preliminary Steps
1. Identify the players (plaintiff, defendant)
2. Identify the issues/damages.

I.
Duty
Question:
Does A owe a duty of care to B?
Law:
A owes a duty of care to B, where A can reasonably foresee that B would be directly
affected by A’s actions/omissions. A duty of care is not owed to the world, but only to one’s
neighbor in law (Donoghue). In additional to reasonable foreseeability, a relationship of
proximity must exist between A & B (Cooper).
1) Is _______ a foreseeable plaintiff?
The reasonable hypothetical observer must have reasonably foreseen the likelihood that
anyone placed in the position of the P would be affected by the events in the way P was. No
duty of care is owed to an unforeseen plaintiff (Palsgraff).
In this case, it was (not) reasonably foreseeable that B would be directly affected by A by
A doing (failing to do) ______ and creating harm.
2) Does the case fall within a recognized category of relationship: is it novel or existing
duty? (Donoghue; Cooper)
A. If already established duty/normal duty, ask foreseeability. Go to A.
B. If novel duty, apply Anns/Cooper. Go to B.
C. If affirmative duty, see if special relationship. Go to C.
A. Normal Duty
In this case, this is not a novel duty or an affirmative duty situation.
Was there a proximate relationship between P & D? (Cooper)
- Identify factors of proximity and see if there is sufficient proximity.
- Did D create the risk? Were D & P strangers to each other? Property/other interests?
There is (not) a proximate relationship between P and D because _______.
*if possible, bring in analogous cases
Conclusion:
Therefore, in the case at hand, a duty of care is (not) owed.
TORTS FRAMEWORK – Prof. Hall
Grace K
B. Novel Duty
If there is no existing category of duty, we would apply the Anns/Cooper test. (Cooper)
Anns/Cooper Test:
1. Does the relationship b/w P & D disclose a sufficient foreseeability & proximity to
establish a prima facie duty of care?
a) Was it reasonably foreseeable that the actions of D would cause harm to
P?
b) Was there a proximate relationship between P & D?
2. If prima facie duty of care, are there any residual policy considerations which ought
to negate finding this duty of care?
Conclusion:
As a result of the analysis in the Anns/Cooper Test, therefore, in this case at hand, a duty
of care is (not) owed.
C. Affirmative Duty
Generally, there is no duty for an individual to take action, but only to act non-negligently
,unless there is a special relationship between D & the P giving rise to an affirmative duty
(Childs).
Does the connection b/w D & P fall into a category of a “special relationship”?
1. Relationships of Economic Benefit (Jordan House; Crocker; Stewart)
o Positive duty to take care in relationships of economic benefit
o Commercial host contrary to a social host in (Childs)
2. Relationships of Control & Supervision (Crocker; Dziwenka)
- Positive duty prevent injury or or assist others in vulnerable position
3. Creation of Dangerous Situations (Oke; Ziemer)
- An individual who creates danger, even on-negligently, can rise to an
affirmative if reasonably foreseeable of garm
4. Statutory Duties (O’Rourke)
o Positive duty might arise where there is a statutory duty (i.e. – police under
positive duty to maintain traffic patrol)
Conclusion:
In this case, the connection b/w D & P is (not) a “special relationship” of proximity that
triggers an affirmative duty of care on the part of the D.
TORTS FRAMEWORK – Prof. Hall
Grace K
II.
Breach
Question:
Does A breach his duty to to B?
Law:
A reasonable person does not create or proceed in the face of “unreasonable” risk. 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 (Vaughn).
The measure of what is reasonable depends on the facts of each case: including the
likelihood of foreseeable risk & the gravity of harm (Bolton v. Stone)
In addition, one may look to external indicators of reasonable conduct such as custom,
industry or of statutory standards. (Ryan v Victoria).
1) Identify what standard of care the D is held to.
(If child, mental illness, doc/lawyer, Go to 3.)
In this case, the D is held to a standard of a reasonable ____. (party host, limo driver..)
2) Identify the factors a reasonable person in D’s person would consider before acting.
a) Likelihood of risk
- Is the damage likely to occur?
- Yes: Haley (blind person will use sidewalk)
- No: (Chicken palace – blind person should take precaution; Bolton)
b) Gravity of harm
- The greater or more serious potential harm requires greater care.
- Yes: Paris v. Stepney (the duty owed to a man with 1 eye is greater than 2 eyes);
Dziwenka (greater gravity of harm for deaf/mute student); Haley (blind)
- No: Bolton v. Stone (it was a cricket ball, not a javelin);
*2a) Consider custom or statutory duty if applicable:
a) Custom
Custom is not determinative but can help determine a reasonable standard of care
in accordance with the established practices/custom of the group the D belongs.
(Waldick)
b) Statutory standard
- Breach of statute is not automatically negligence (R. v. Sask Wheat Pool)
- Substance of statute must relate to breach (Gorris)
- Compliance of statute does not mean one is not negligent (Ryan v. Victoria)
3) Exceptions to RP – LOOK AT CAN for child, mental illness, doctor/lawyer SoC
Conclusion:
From the above factors, it would be a strong argument to conclude that D breach his standard of
care to P.
TORTS FRAMEWORK – Prof. Hall
Grace K
III.
Damage
Question:
Is there damage?
Law:
Even where a duty of care exists, and the standard of care required has been breached,
there can be no liability in negligence unless some damage has been suffered by the P.
Conclusion:
Yes, there has been damage suffered by P.
IV.
Causation
Question:
Does the damage flow from the breach?
Law:
Causation refers to the expression of relationship that must be found to exist b/w D’s
breach and P’s damage to justify the D compensating the P (Snell v. Farrell)
Determine what kind of causation test to apply:
A. “But For” Test (Kauffman; Athey)
Negligence action is established on a balance of probabilities that the injury would not have
occurred “but for” the D’s negligence. [onus on P to prove]
The D would not have suffered the injury, “but for” the _________.
B. Material Contributions Test (Resurfice)
When it is impossible to determine which of a number of negligent acts by multiple caused
the injury (Cook v. Lewis – multiple causes). [reverse onus on D to disprove]
Material Contribution Test:
1. It must be impossible for P to prove causation using “but for” test
- Either cuz of multiple actors (who did it? – Cook) OR it’s impossible to tell what the
person would have done if D was not negligent (Walker Estate)
2. Must be clear that D breached the duty of care, exposing P to risk of injury and
that risk materialized (P suffered risk that was created)
D’s actions materially contributed to P’s damage.
Conclusion:
D’s breach of his duty of care to to P (did not) caused __________, thus P is (not) liable.
TORTS FRAMEWORK – Prof. Hall
Grace K
V.
Remoteness
Question:
Is the damage too remote from the breach to establish negligence?
Law:
Even if there is an obligation to take reasonable care, and it was breached, if the damage is too
remote from the breach, D will not be held liable.To determine remoteness, the damage needs
to be reasonably foreseeable from the standpoint of the breach to include consequences that
are of real risk to which the reasonable person would not have ignored. (Wagon Mound 2)
A. T HIN S KULL – USED TO ASSESS LIABILITY
Law:
As long as the type of injury was to P was foreseeable, D is liable for all consequences- and the
extent of injury does not affect liability(Smith v. Leech Brain.) The D must take the P as he/she
finds him. (Athey)
B. C RUMBLING S KULL – USED TO ASSESS DAMAGES
Law:
If the P had a “crumbling skull” (a predisposed disease/condition), they should not be
compensated to the effect of putting them in the position of a non-crumbling skull. D only liable
to the extent they worsened the condition.
C. P SYCHIATRIC D AMAGE
Question:
Is this psychiatric damage a “real risk” that was reasonably foreseeable as a reasonable robust
Canadian of fortitude? (Mustapha)
Eggshell Personality – mental suffering (nervous shock) from physical injury is compensable
under thin skull
The psychiatric damage was/ was not reasonably foreseeable, therefore D does/does not owe
a duty of care to the P.
TORTS FRAMEWORK – Prof. Hall
Grace K
D. I NTERVENING F ORCES
Question:
Did the intervening act break the chain of causation between the breach and the damage?
General Principle:
Reasonable foreseeability of the intervening act will determine liability
2nd ACCIDENTS
Law: If the D could reasonably foresee the intervening act then it does not break the chain and
then it means that the D is liable for the damage. (Wieland)
 P’s unreasonable conduct is not reasonably foreseeable (McKew)
MEDICAL ERROR IN TREATMENT
Law: If reasonable care is used by a competent physician, even though by an error aggravates
the damages, the initial D may be responsible for the later intervening act of a medical error
because medical malpractice is reasonably foreseeable (Mercer v Gray)
 Unless it’s negligent medical error, then it would break the chain
INTERVENING NEGLIGENT, INTENTIONAL & CRIMINAL ACTS
Law: Even if the intervening act is of negligence, intentional/criminal act – if there was a duty to
take reasonable care, the D may still be liable (Harris v TTC, Stansbie)
INTERVENING INTERMEDIATE EXAMINATION (PRODUCT LIABILITY)
Law: A product may pass through many hands from manufacturer to ultimate consumer, which
may be an intervening actor – but ultimately, manufacturers have a duty to warn of dangers to
consumers (Ives v. Clare Bros)
WARNINGS & LEARNED INTERMEDIARY
Law: Generally, the duty to warn is owed by manufacturer to ultimate consumer. The “learned
intermediary rule” is the exception where a warning to the learned intermediary may satisfy a
manufacturer’s duty to warn the consumer. (Hollis)
TORTS FRAMEWORK – Prof. Hall
Grace K
VI.
Defences to Negligence
1. C ONTRIBUTORY N EGLIGENCE
Common Law: P is denied recovery if his conduct contributed to his injury.
3 ways in which P can contribute their own injuries:
i.
Contributing to the event which caused the injuries
ii.
Exposing themselves to a risk of being involved in an injurious event
iii.
Failing to take reasonable precautions to minimize injuries (i.e. - seatbelt defence)
Legislation: Negligence Act allows the apportionment of liability.
SEATBELT DEFENCE
A passenger over 16 has a duty to wear a seatbelt, and a failure to do so will be an assessment of
contributory negligence (Galaske)
2. V OLUNTARY A SSUMPTION OF R ISK
Law: Volenti non fit injuria is a voluntary assumption of risk requiring that P consents to the risk of
injury & the lack of reasonable care of the D - thus, D is relieved of any DoC for that particular risk
of harm.
 Volenti doesn’t apply to police officers on the job, not consenting to risk (Hambley)
3. I LLEGALITY
Law: Ex Turpi Causa – if one is engaged in illegal activity, one cannot sue another for damages that
arose out of that illegal activity. (Hall v Hebert)
4. E XCLUSION C LAUSES
Law: Contractual exclusion clauses can serve as a full defence to a claim in tort (Crocker)
TORTS FRAMEWORK – Prof. Hall
Grace K
TORT LIABILITY OF PUBLIC AUTHORITIES
Law: Crown Proceedings Act creates liability for the Crown. Whether a public authority
owes a private duty of care to individuals affected by its actions requires an analysis of its
legislative scheme and the relationship b/w the regulator and P.
STEPS TO FIND A DUTY OF CARE BY PUBLIC AUTHORITY (Taylor):
1. Is there a conflicting duty owed by the public authority created by the statute b/w
the duty to the general public and a private duty owed to just you?
2. If yes, look at the language of the legislation to see if they intended to include or
preclude private duty of care.
3. If the DoC is not precluded by the legislation, Courts look at the proximity
relationship b/w public authority and P.
o Relationship with YOU must be significant & more distinct than the
relationship with the general public
4. If there is a DoC found:
a) Was the standard of care met by the Crown? (Fullowka)
b) Is it a true policy decision or an operation matter?
True policy decision will be immune from negligence liability (Just, Imperial Tobacco)
M ISFEASANCE IN P UBLIC O FFICE
Law: Tort of misfeasance in public office is an intentional tort with two essential elements:
1. Deliberate, unlawful conduct in the exercise of public functions. 2 categories of
“deliberate” conduct:
a) Category A - conduct specifically intended to injure a person or class of persons
(Roncarelli)
b) Category B - where a public officer acts with knowledge both that he or she has no
power to do the act complained of and that the act is likely to injure P
2. Awareness that the conduct is unlawful and likely to injure the P
Note: failure of public officer to perform a statutory duty can constitute a misfeasance (Odhavji)
D AMAGES FOR B REACH OF C HARTER
Law: Under s.24(1) of the Charter, anyone whose rights or freedoms as guaranteed by this
Charter have been infringed…may apply to obtain such remedy…
[LOOK AT p.40 of CAN for steps]
TORTS FRAMEWORK – Prof. Hall
Grace K
TRESPASS & INTENTIONAL TORTS FRAMEWORK
Preliminary Steps
1. Identify the players (plaintiff, defendant)
2. Identify the issues/damages.

I.
Trespass Torts
Trespass is a direct interference without consent, with a person or property. P only needs to
prove that interference was direct - no proof of actual damage is needed (“laconic plea”). As a
defence, D can show that they did not interfere intentionally or negligently (Stanley v Powell)
1. A SSAULT
Law: Assault is the intentional creation of apprehension of imminent harm (Tuberville).
No proof of physical damage is required but the P’s fear or apprehension of imminent harm
must be reasonable (Bruce v Dyer).
Questions:
1. Was the assault intentional by D?
2. Was the P apprehended of imminent harm by the actions of D?
 A threat to do harm at a future time is not assault; not imminent harm (Mainland Sawmills)
 Apprehension of imminent harm needs to be reasonable (Warman, Bruce v Dyer)
Conclusion:
In consideration of the facts, it would be a strong argument to conclude that D has (not)
committed an assault against P.
2. B ATTERY
Law: Battery is direct interference of the person without consent. P only needs show
elements of laconic plea – that the interference was direct (Scalera). However the D can
defend by showing that the interference was without negligence or intent (Bettel). This tort
protects the interest in bodily security from deliberate inference by others.
Questions:
1. Was there a direct interference without consent to the plaintiff?
Physical contact accepted in ordinary conduct is not battery because there is implied
consent. (Collins v. Wilcock)
2. Can the D defend by showing that the interference was w/o negligence or intent?
TORTS FRAMEWORK – Prof. Hall
Grace K
Conclusion:
In consideration of the facts, it would be a strong argument to conclude that D has (not)
committed a battery against P.
SEXUAL BATTERY
Norberg – power imbalance + exploitation = vitiates consent to sexual activity. Sexual battery.
Scalera – sexual activity is not ordinary conduct in which consent is implied.
MK - breach of fiduciary duty for exploiting child for sexual purposes. Limitation period for claims.
3. I NTENTIONAL I NFLICTION OF M ENTAL S UFFERING
Law:
(Wilkinson) Intentional infliction of mental suffering requires the P to show that:
1. D’s specific acts were extreme, flagrant (Wilkinson, Bielitski)
2. The specific acts were calculated to produce harm (Bielitski)
3. The specific acts caused the harm. The harm must be a recognizable physical or
psychopathological harm and not mere upset. (Wilkinson, Janvier, Bielitski)
Conclusion:
In consideration of the facts, it would be a strong argument to conclude that D has (not)
intentionally inflicted mental suffering on P.
4. F ALSE I MPRISONMENT
Law:
To establish false imprisonment P must show:
1. That he or she was totally deprived of liberty or reasonably believed such
2. The deprivation was against his will (no consent)
3. That the D intentionally caused the P’s total bodily restraint.
 Restraint can be psychological/moral (Chaytor)
 Restraint is not total if there is a reasonable means of escape (Bird v Jones)
Once the elements are established, onus shifts to the D to justify the detention either by
common law or statute.
Conclusion:
In consideration of the facts, it would be a strong argument to conclude that D has (not)
falsely imprisoned P.
TORTS FRAMEWORK – Prof. Hall
Grace K
FALSE ARREST
False arrest & false imprisonment are not to be used interchangeably. False imprisonment
follows a false arrest who’s not been lawfully arrested is detained (Nicely).
o Canadian law does not recognize any right in the police to arrest/detain against his will
who is not charged for mere investigation (Smith)
5. T RESPASS TO L AND
Law: Trespass is a direct interference on someone’s property without owner’s permission
(consent) but like other trespass torts, no proof of actual damage is necessary (Entick).
Trespass to land interferes with the owner’s right to exclusive possession or a right to
possession (Crabtree).
Legislation:
Trespass Act adds to the common law of trespass by making trespass an offence under s.4.
TREE TRESPASS
If branches/roots protrude into the air or subsurface of one’s property it is trespass (Anderson)
II.
Defences to Trespass & Intentional Torts
Consent, self-defense, defence of property, necessity
1. C ONSENT
Law: If an individual consents to the intentional invasion of their interests, there is no
tortious invasion. Consent can be expressed or implied from P’s acts or from past behavior
(O’Brien) Consent is a defence and the onus is on the D to prove valid consent of the P.
Factors vitiating consent
 Age, duress, alcohol consumption
 Power imbalance + exploitation (Norberg)
 Sexual activity cannot be implied consent (Scalera)
Consent in the sporting consent
Consenting to sport means that you are consenting to the ordinary risks of a sport.
 No tort action if there is mutual consent in a course of a fight (Charland)
Consent in the medical context
A doctor must not treat or even touch patient w/o patient’s consent (Malette)
 Unless in an emergency sit’n, consent may be suspended (Marshall)
TORTS FRAMEWORK – Prof. Hall
Grace K
2. S ELF -D EFENCE
Law: To claim self-defence, the D must show there was a real threat warranting defensive
action and the response was proportionate to the threat and not excessive (Cockcroft).
3. D EFENCE OF P ROPERTY
Law: A trespasser on property cannot be forcibly removed until has been requested to
leave the premises and a reasonable opportunity of doing so has been afforded (Hees). To
raise a defence to property, the action taken must be proportionate to the threat. (Bird)
4. L EGAL A UTHORITY
Law: Legislative authority entitles D to engage in conduct which would otherwise be
tortious. (ex – police)
5. N ECESSITY
Law: Interference with private property may be justified by necessity. To establish
necessity, there needs to be an immediate urgency of the occasion and a due regard to
public safety and convenience (Dwyer). However if P caused damage at the expense of D,
even in the case of necessity, they are liable. (Lake Erie)
TORTS FRAMEWORK – Prof. Hall
Grace K
STRICT LIABILITY FRAMEWORK
Preliminary Steps
1. Identify the players (plaintiff, defendant)
2. Identify the issues/damages.

1. V ICARIOUS L IABILITY
Law: Vicarious liability is a form of strict liability – responsibility without fault requirement.
There is a creation of a high level of risk such that is is right to impose liability on the person
who is ultimately responsible
Requirements for Vicarious Liability
1. Must be a tort committed
2. There must exist an employee-employer relationship
3. Employee’s tort must have been committed “in the course & scope of employment”
 Apply Salmond test to see if it’s within the course & scope:
a) Acts authorized by the employer OR
b) Unauthorized acts so connected with authorized acts that they may be
regarded as modes of an authorized act.
 Additional rule under 2(b) (Bazley)
i.
Look at decided cases on very similar facts
ii.
Determine whether VL should be imposed in light of the broader
policy rationales & the purposes, which VL is to serve.
[pg.63 of CAN to look at guiding principles in reviewing jurisprudence]
2. S TRICT L IABILITY
Law: Strict liability in tort is liability without fault (no intent; no negligence). For each strict
liability tort, requirements of that specific tort must be met.
RULE FROM Rylands v. Fletcher
1. Non-natural use of the land
- Non-natural use is context specific
- Non-natural use must be some special use bringing with it increased danger to
others; and must not merely be the ordinary use of land
2. Escape
- Escape to some other land where there was damage
DEFENCES TO THE RULE IN RYLANDS
TORTS FRAMEWORK – Prof. Hall
Grace K
[Details on pg.66 of CAN]
1. Consent of the P
2. Default of P
3. Act of God
4. Deliberate Act of 3rd person
5. Legislative Authority
STRICT LIABILITY FOR FIRES
Law: Ordinary uses of fire are not subject to Rylands-like strict liability but controlled by
negligence.
STRICT LIABILITY FOR DANGEROUS ANIMALS
Law:
2 groups of dangerous animals:
(1) Dangerous as a group (ferae naturae) – ex: lions, zebras (Cowan)
(2) Not dangerous as a group (mansuete naturae) but I have knowledge (scienter) that
this particular member of the group is dangerous – ex: aggressive dog
TORTS FRAMEWORK – Prof. Hall
Grace K
NUISANCE FRAMEWORK
Law: Nuisance is a use of A’s property causing unreasonable interference with use and
enjoyment of B’s property. Actual damage does not need to be proved. What is reasonable
is based on whether it would be tolerated by the ordinary user in the P’s position.


Public Nuisance (Hickey)
Private Nuisance (Pugliese, Tock v. St. John’s, Antrim, Nor-Video, Appleby)

NEGLIGENT MISREP. FRAMEWORK
Law: Negligent misrepresentation is a special sub-category of negligence involving
economic loss. To establish negligent misrepresentation it requires:
(1) Duty of care based on a “special relationship” b/w representor & representee [duty]
(2) Representation in question must be untrue, in accurate or misleading [breach]
(3) Representor must have acted negligently in making misrepresentation [breach]
(4) Representee must have relied in a reasonable manner on misrepresentation
[causation]
(5) Reliance must have been detrimental to the representee (damages
resulted)[causation]
(6) **Ps must be members of a known class who will use the info for a known purpose
(otherwise, indeterminacy provides residual policy reason negates duty) (Hercules
Management) [residual policy concern]