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1
Class 1
Donoghue and Stevenson
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established modern negligence law.
Trespass on the case, plaintiff had to prove that the loss suffered was the direct result of some
sort of careless conduct. You couldn’t bring an action unless you had a writ
Stevenson, who is the producer of the drink, is responsible, should compensate her for the harm
caused. Donoghue tries to sue Stevenson who owed a duty of reasonable care that the ginger
beer he produced and marketed did not contain substances that could cause consumers harm.
There are contractual duties to the people who buy the products directly from them (cafe
owner) and maybe indirectly (the friend), but no general duty of care.
Lord Akin argues that the fact there was not a specific, pre-existing contractual relationship
between D and S should not prevent D from recovering. Instead, he argues that Stephenson
owes Donahue a duty of care as her “neighbour.”
Neighbour Principle
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Akin: rule to “love your neighbour” becomes “must not injure your neighbour” in law and “who
is the neighbour.” Must not commit actions that will likely injure your neighbour.
Neighbours are persons so closely and directly affected by my act that I will reasonably have
them in contemplation when I do the actions that could lead to the loss, the person I should
foresee or reasonably be thinking of when doing the thing that leads to the loss.
If you produce something that people don’t have the ability to investigate and it causes them
some injury, you are responsible.
Was an attempt to consolidate the existing law, saying that within each of these writs that he
looks at, they look different on the surface, but find a common principle to all of them, which is
this notion of “neighbourhood.” He says writs are just examples, containers, for this
Two major dissents
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Buckmaster: floodgates argument, massive number of possible negligence cases. “When
wouldn’t you find a duty of care?”
Tomlin: where do you end the liability for the axle producer? Are they responsible to the train
company, the injured passengers, the relatives of the passengers? What is the scope of liability?
Asking where the liability would end, where on the causal chain would you stop?
Tomlin is talking about problems of remoteness, proximity, while Buckmaster is talking about
the scope of liability/negligence.
Elements of negligence that must be established:
1. Duty of care
2. Standard of care required
3. Causation (did the loss come due to breach of standard of care?)
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4. Remoteness/proximity?
5. Actual loss?
6. Defences? (voluntary assumption of risk)
Class 2
Donoghue
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Distils all the writs down to one principle: neighbour principle.
Akin makes it so that a pre-existing relationship is not necessary, don’t have to know each other
before the act in question in order for their to be liability. Plaintiff must merely be foreseeable
on the part of the defendant.
Stages of negligence are interrelated, when one expands or contracts, the others respond in
kind. For instance, if a court decides that a case is going to have a narrow reading of duty of
care, one of the other items is going to be expanded, otherwise overall liability is narrowed
Duty of Care
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asks whether a legal relationship could exist between the parties.
Is the plaintiff foreseeable? Some cases ask if plaintiff’s harm foreseeable, but it’s the plaintiff
Look at duty of care as the basis of liability. It provides basis for the finding of liability, that
there’s a legal connection between the two people, if you don’t have that, nothing else follows.
also helps to determine the nature and scope of liability, or the limit.
Third thing duty of care does: allocated risk. My level of risk as manufacturer depends upon
how many people are caught in sphere if duty of care, my exposure. When court changes duty
of care, they are changing the allocation of risk. Changes a defendant’s risk profile; before, they
would not be liable, but now that duty of care has been extended, they have this risk allocated
to them.
Duty to Rescue
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doesn’t exist in Canada.
principle in common law that the role of the law is to STOP you from being bad and NOT to
make you good. When you make someone do something good, they’re not actually being good,
they’re just doing what they’re supposed to do.
Proximity (who is the neighbour?)
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person has to be reasonably foreseeable and should be closely and directly affected by the act.
Proximity is a limiting principle, the person has to be reasonably within your contemplation
when you’re doing the act, BUT they must be closely and directly affected by the act.
Proximity: who am I liable to, remoteness: what am I liable for?
Akin: need for neighbourhood principle with limiting principle of proximity.
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Sometimes, the courts collapse the two, saying that things that are foreseeable are reasonably
proximate.
Hedley/Byrne
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question whether a duty of care was owed despite no contractual obligation, Byrne gave bad
financial advice and it got to the plaintiff. Court says yes, because Byrne should’ve anticipated
that the information would be communicated to the plaintiff.
Dorset
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young offenders allowed to roam free on island, two of the boys steal a yacht and run it into
something. The yacht club sue the govn’t saying they should’ve foreseen this.
Gov says don’t owe duty of care to yacht club. Court disagreed, said it’s entirely foreseeable.
Court applied Donoghue faithfully, as this was a novel duty of care. Public authorities
responsibility for people in their charge.
Anns
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builder submitted plans to build buildings. All plans are to be submitted to local council, who
sign off on them before building can begin. 8 yrs later, building starts to fall down, the tenants
sue the council in negligence, say they hadn’t done investigation properly
Council argues duty of care: no duty of care, proximity. Investigation was performed for the
builder, not for the tenants, statute requires them to do it for the builder, and they’re only doing
it because of the statute, not because they owe a duty of care. Didn’t owe duty to investigate to
plaintiffs, only doing it because of statute, looking at builder.
Court rejects this: whole point of the statute is to protect the tenants. Can’t say you’re only
duty is to the statute and not the tenants, when the statute’s purpose is to protect the tenants.
There is thus a duty of care for the tenants.
Anns Test for Duty of Care
1. Proximity based on foreseeability?
2. Policy consideration to negate duty?
 Anns is talking about novel situations, where there is no pre-existing categories, lack of
precedent.
 Criticism: Ann’s test did the opposite of what Akin wanted to do, that foreseeability and
proximity are different. Anns test collapses the two. Akins says they’re doing different things
and shouldn’t be conflated, as foreseeability is establishing liability while proximity is limiting it.
When you fold the two into each other, proximity doesn’t survive and gets lost.
 To rectify this, many courts have changed Anns into three steps, separating foreseeability and
proximity into two separate steps.
 Without the proximity restraint, courts will almost always find foreseeability, as in hindsight,
almost anything is foreseeable. It’s overly plaintiff friendly.
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Other problem is the burden of proof for the second step would be shifted to the defendant.
Plaintiff stays silent. It’s always more onerous to prove something than not prove something, so
again, this makes it plaintiff friendly.
courts have since been clear that you need to separate out proximity and make it 3 steps
Class 3
Caparo v Dickman
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This case marks a retreat from Anns in the UK and establishes a different test for establishing a
duty of care. 1. Reasonably Foreseeable. 2. Proximate 3. Fair, just, and reasonable.
This new test breaks apart foreseeability and proximity into two separate steps
Step 3 shows an abandonment of Anns’ 3rd step of putting the onus on the defendant for
showing why the court shouldn’t find a duty of care. This flips the emphasis and makes it more
defendant friendly – unless it would be fair, just or reasonable to impose this duty on the
defendant, you shouldn’t do it.
only engaging in Caparo/Anns tests when you’re dealing with a novel case
In practice, courts in the wake of Caparo haven’t been overly defendant friendly, they’ve
interpreted it as “think of the policy results if you find a duty of care,” not favouring the
defendant necessarily.
Kamloops
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confirms the Anns test. Is it foreseeably proximate and are their considerations that negate the
scope of the duty or the people it applies to or the damages?
determine the scope of the duty = the class of persons who can be in it. Damages = The types of
damages for people who are within that duty, what kind of damages they can recover.
Cooper
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Show that risk of injury to plaintiff was reasonably foreseeable, that the plaintiff was sufficiently
proximate, and then you need to consider any policy concerns that way against or in favour of
finding a duty.
In many ways the policy concerns in step 3 look more like Caparo than Kamloops.
Courts have taken Cooper as just a clarification of Kamloops.
Reasonably foreseeable: subjective or objective? This is a reasonable person in a particular
area of expertise. It’s not the person on the street. It’s always contextual.
Proximity in duty of care: close and direct relationship , it’s within the range of people you
might think of as foreseeable. Courts have said that it’s almost about common sense and
common sense notions of causation. Is the fact that I can foresee them adhere to common
sense notions and the common sense limitations of what I can foresee?
Limits of proximity, they’re so causally removed from me, so that even I can technically foresee
them, it’s so causally unusual that I can’t be expected to take it into consideration.
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just because somebody is not proximate doesn’t mean they’re not reasonably foreseeable
(Haley).
Reasonably foreseeable = the act to the harm, while proximate = the plaintiff to the defendant
Questions to ask in policy/third stage (Cooper)
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“is there already a remedy?” (is there a statute that already covers this, could it be done
through contract law? Don’t want negligence creating parallel actions).
Would the recognized duty of care create a spectre of unlimited liability owed to an unlimited
class? Would it be possible to impose restrictions on this duty if we recognized it?
Finally, broad policy considerations, which is a catch-all for all other policy concerns.
Operational decisions are juxtaposed to policy decisions. Rule of law is that courts don’t
interfere in the policy decisions of government agencies. When these decisions become
operational decisions, then courts can speak about it.
Just v BC (Policy vs. Operational decisions)
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Sue BC for lack of highway maintenance. BC says the timing of the implementation of the
inspection is entirely a matter of policy, can’t bring action.
Court disagreed, said distinction between policy, which are govn’t decisions, and operational,
which are actions undertaken to implement policy. The latter can be found negligence, though
the former can’t.
Clearly foreseeable, clearly proximate, But BC is trying to negate on third step of Cooper, that
it’s policy, but court says it’s operational and you failed.
Class 4
Moule
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Court talks about the unusual height that he climbed, the cleets, the fact that he accidently
stepped on a rotten branch, the sequence of events is so fortuitous that it wasn’t foreseeable by
a reasonable man. They have a duty care about the wires and making the tree unclimbable. But
the sequence of events that allowed the kid to get past those precautions were so fortuitous
that it could not reasonably be foreseeable.
Duty of care is an allocation of risk. They could’ve struck this out on policy grounds, as putting
an electric company under such constraints to make it SO impossible and the duty of care so
extensive would make it impossible for them to function.
Courts generally accept that children are very resourceful in terms of ability to injure
themselves. Courts say yes you took precautions, but children are resourceful. The duty of
care/standard of care is very high, have to make it impossible to get in.
Haley v London
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mere fact that something is improbable doesn’t mean it’s unforeseeable. The question is would
a reasonable person have foreseen them as a plaintiff.
Could argue that if you think about children, more things are reasonably foreseeable.
Edwards v Law Society of Canada
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case suggests that when you go through Anns test, it’s wrong to simply relegate policy to the
third question. Policy matters even in the first part of the test, foreseeability is really a policy
question. “someone a reasonable person in your position should’ve seen” has a normative
dimension and is thus in many ways a dressed up policy question.
This suggests that these aren’t real, factual questions about what a reasonable person would’ve
foreseen, but normative questions about what the court expects that a person would foresee.
Amos
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Power line is in a fast growing tree, power company has to trim it regularly. But how regularly?
Opposite of Moule, as here court determines that it is reasonably foreseeable. Weren’t
trimming it enough and it was reasonably foreseeable that people would climb it.
Nova Mink v Trans-Canada Airlines
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low flying aircraft flew over a mink farm, mink do things when they’re stressed: eat their young.
Farmer sued the Airlines claiming negligence.
Court rejects this, says no duty of care, not foreseeable.
Academics take this as meaning tort liability not merely be imposed to compensate. Mere fact
of a loss shouldn’t change the way we look at foreseeability. It’s not about compensation for
losses, it’s also about responsibility for the harm.
Responsibility/foresight is the driving element here, not merely the need for compensation.
Misfeasance (positive acts) vs. Nonfeasance (not acting)
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Class 5
Courts are hesitant about nonfeasance.
Liability rests with misfeasance and not nonfeasance, a ccording to common law, barring any
pre-existing duty of care or relationship where there’s an obligation to act.
when you require someone to act in a particular way, it offends against personal autonomy,
you’re telling someone to do something rather than not to do something, which is a lesser
infringement on personal autonomy
nonfeasance interferes with capitalist notions of choice and minimal interference with
individual choice, put as few impositions on people so they can go about their lives
positive obligations are necessarily more intrusive than negative obligations. If i say “you must
rescue” you can do nothing but x. Whereas if I say “you cannot rescue” that just means you
can’t do x, but you can do anything else.
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Duty to Rescue (despite discussion above)
Maclaren/Matthews/Horsley (voluntary assumption of responsibility)
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must establish that Maclaren, who was operating the boat, has a duty of care.
In determining this, first question is to see whether there’s a statute here that pertains or
governs the relationship between the parties. Here, there’s a shipping statute that applies,
statutory duty of care that says captain has a duty to rescue.
voluntary assumption of responsibility. moment Maclaren starts to reverse boat to rescue
Matthews initially, he has assumed responsibility, which gives rise to a duty of care.
Once you embark upon a rescue, you effectively give rise to a duty of care that may not have
been present before. Duty of care is thus made out.
Maclaren fails the standard of care because he didn’t follow proper rescue procedure for.
couldn’t show that his breach caused the loss, that his negligence caused the harm, so failed
causation.
Maclaren (duty to rescuers)
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Judge says it’s about whether his crappy attempt to rescue Matthews is what caused Horseley
to attempt the ill-fated rescue. Did Maclaren’s botched rescue put Horsley in a situation where
he felt compelled to attempt a rescue? (Causation)
Denning does say that if you create a situation where other people feel obliged to attempt a
rescue, you are responsible for the rescuers, liable if they are injured.
in creating a situation of peril by his negligence, if it can be shown that he induced Maclaren to
act the way that he did, it can lead to negligence.
Professional competencies may make people better placed to rescue people – off-duty EMTs for
example. However, courts hold them only to the same standard as anyone because they’re offduty, same as anyone else. Unless start to rescue somebody, they do not have a duty to rescue.
Stevenson
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off-duty ambulance worker found not liable, despite standing by watching people deliver very
bad careleading to person dying. He does not have duty of care, he’s the same as anyone else,
only has duty of care upon voluntary assumption of risk, if he starts rescuing.
Difficulty here is our strong intuitive moral sense that rescuing is a good thing, but we feel very
uncomfortable about turning that into a legal responsibility.
law can’t fix every problem and make everyone do the right thing because when it starts to try
to do that, there are significant costs to individuals.
Jordan House
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Other affirmative action: duty to control actions of others. Liability for people who you know to
be intoxicated, particularly where you may have been part of the reason they are drunk.
as a general principle, you are not liable.
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Where there is a pre-existing relationship, pre-existing statutory duty, or where the intoxication
has been allowed to take place and you have induced the situation and you can foresee a harm
may arise, you may be liable and have a duty of care.
Crocker
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for waivers to be effective, they must provide the notice intended, person who signs it has to
understand what it’s saying, you can’t just shove the terms under their nose, you have know
that they understood it
Where the provision of alcohol is part of a profit-making activity, they are more likely to find a
duty of care, because they are seeking to benefit. They were setting up situation for their own
benefit, can’t say “not my fault,” can’t get all benefit without any of the risk.
Courts are more likely to find liability in public profit-making setting than a social one, where
there was no attempt to profit or exploit.
At some point in the series of facts, there is a voluntary assumption of responsibility, the point
they become aware that they are intoxicated but allow them to continue in the event anyway,
to the court, amounts to a voluntary assumption of responsibility, and thus find them liable.
It’s creation of the situation and voluntary assumption of risk piggy-backing on one another in
this case.
Prior fault (Crocker – probable argument of the defendant)
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if you’re the author of your own harm or to some extent have created a situation where you
end up injured, there’s prior fault. This comes up often in intoxication.
Court says unless you can show that you were so intoxicated that it was literally involuntary
you’re liable, as it’s your fault you were drunk and have to bear consequences of what happens.
Class 6
Intoxication Cont’d (Crocker)
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not the same duty of care for getting someone intoxicated in someone’s house, alcohol
provided in a social context. Idea is that commercial hosts are better able to monitor alcohol
Profit motive: if you’re doing something for profit, you are more likely to be found liable.
Commercial context is pursuing for their own benefit a nd we’re not comfortable with idea of
people pursuing something for their own benefit that causes others harm.
Chilling effect: courts don’t want to discourage people from holding social functions
Jane Doe/Toronto Metro Police (Duty to Warn)
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police wanted to avoid hysteria, and wanted to coax the offender into reoffending in order to
catch him. Jane Doe’s “bait argument”
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The cops said this was a policy Courts said no, this is an operational issue. The way you conduct
an investigation is operational, you didn’t have a general policy that we never warn people
about the prospect of rape to catch the criminal
Courts went through Anns test, novel case, and said the risk and motive were foreseeable
Court rules that the more general the plaintiff, the risk, the less likely there will be a duty to
warn. The duty to warn will depend on the case, a case-by-case basis. Here, the at risk
population was very specific
Duty to unborn Children
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divided into pre-conception wrongs, wrongful pregnancy, pre-natal injuries, and wrongful life.
General duties of care: pre-conception wrongs are things that can affect your reproduction
potential. Initial harm is caused to the parent before the pregnancy. is there any duty of care or
link that exists to the child, even though he/she had not been conceived when the injury
occurred. The harm to the parent, transfers to the conception, and ultimately affects the child.
Paxton v. Ramji (2008)
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Question is whether the doctor owed a duty of care to the unborn child. Court says no.
To impose such a duty would create an irreconcilable conflict between the mother and her
unborn child, undermining her autonomy. As doctor would have to advise a woman with any
potential child in the background. That is seen as real infringement on woman’s autonomy.
Also child is not yet a legal entity, the child literally does not yet exist
There’s no material risk to the mother with giving this drug, the entire risk is to the non-existent
child. He doesn’t owe a duty of care to this child, who is not a legal entity. Only owes duty to
mother, who is at no risk herself from this drug, so no duty to warn.
if duty was owed to child, it characterizes woman as always being at risk of being pregnant,
lingering cloud over women, you could always get pregnant, affects women’s autonomy as it
pre-supposes they have this duty to unborn children, these constant duties/restrictions
Winnipeg Child and Family Services:
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McLachlin says before birth the mother and unborn child are one in that life of fetus is
intimately connected with life of woman, only after birth does it have separate personality.
Law considers them as one. Where mother does something that injures the child, child can’t
sue mother, as that is like a part of the women suing the rest of her. Doesn’t make sense.
duty of care can never be owed to future children of female patients. And women do not owe
duty of care to future children. While children are in utero there is no duty of care owed.
Wrongful pregnancy
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botched sterilization/abortion and the child ends up born, either healthy or with defects.
Rule: if the child is born perfectly healthy, the child is deemed a blessing and the parents can’t
recover. Child is deemed unequivocal blessing, regardless of the financial burden.
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This is traditional position, but courts are retreating slowly from it. (Joshi v Wooley and Suite v
Cooke, both these cases suggest this traditional position is open to question and where the
decision not to have children was predominantly driven by economic factors, then there might
be an argument that they’ve suffered an economic harm and should be able to sue )
typically more willing to award damages when child is disabled due to the greater expenses
Krangle (wrongful life)
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doctor failed to inform women that she had increased risk of giving birth to downes syndrome
child. She insists that she’d’ve aborted. (duty to inform)
Court said entitled to non-pecuniary damages for pain and suffering of raising a disabled child.
Awarded not just the additional costs for raising disabled child, but also recognized an element
of suffering in having to raise a disabled child
polar opposite of “every child is a blessing” traditional rule.
Costs are usually assessed up to age 18
Class 7
Negligent Misrepresentation
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A gets advice from B, A relies on advice from B, B must have reasonably foreseen A relying on
the advice
Usually doesn’t give rise to tort law: It gives rise to indeterminacy, freedom of speech,
economic/psychological/non-physical loss have traditionally not been recognized
Indeterminacy: indeterminate classes of persons, indeterminate time, and indeterminate
amount. Essence of it is that if we allow people to claim, or admit the possibility of liability
could give rise to a flood of claimants and no way of limiting the liability. Cardoza v Ultramarine
Hercules Asset Management
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judge talks about policy considerations of Anns. Usually floodgates or indeterminacy
Problem with floodgates argument: there’s no reason why the consequences have to follow, it’s
merely presumed. Just because I make an exception on this set of facts doesn’t mean I have to
make exceptions for every other sets of facts.
If you allow this tort to develop, people will keep coming trying to expand its ambit, you will not
be able to resist the pressure on the court to expand, so Cardoza took the view better not to
even open the box. Once you admit to possibility, it spirals out of control
Hedley Byrne
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why is there a waiver if you didn’t foresee the possibility of a tort of negligent
misrepresentation? Argument is that these sorts of companies put waivers on everything,
institutional practice.
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Courts were wary of compensating for pure economic loss because they were wary of
interfering with free market. Perfectly good non-legal methods to indemnify yourself against
loss, and risk management is a big part of business. There’s also ways of insuring yourself.
Courts also are wary that where you interefere in the markets, your distort them.
Hedley argues there’s no difference between physical and economic loss.
Defendant argues the advice given by the bank wasn’t secret and it was open to Hedley to
inspect the advice. Could have checked it. Not like opaque bottle in Donoghue. Hedley has
time and doesn’t have to only rely on it or take it on face value, he could go and check the
particular facts in that advice.
The court doesn’t accept this argument.
Hedley/Byrne 3-stage Test for Duty of Care in Negligent Misrepresentation cont’d
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The defendant must possess a special skill, some skill in the thing they’re giving advice about.
Then must be shown that the plaintiff relied on that advice/exercise of that skill
Then show that the defendant knew, when giving the advice, that there was a chance that the
person would take the advice seriously and rely on it. That there would be reliance
Duty of care is largely a standing issue, whether I have standing to bring my losses to the court?
These are all going to be objective tests, but imbued with that person’s circumstances. Would
someone in Heller’s position reasonably expect that someone would rely on his statements?
Court was more sympathetic about the waiver in this case because Heller had no expectation or
anticipation of being held liable in this case. Would be unjust to say “you’re liable” when there’s
a waiver
The waiver saved them because court recognized they were being made an example of for sake
of developing a tort.
Hercules
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Rolls the Hedley Byrne test into the first stage of the Annes test. It also makes the policy stage
more explicit for negligent misrep
Court fleshes out the test from Hedley. Framing question of if there is a prima facie duty.
Makes this test, none of which are determinative, just a checklist that points to duty of care as
more things are checked off
1) Foresee Reliance?
2) Reliance Reasonable?
Checklist: direct/indirect financial interest? Special skill? Course of business? Deliberate?
Response to specific inquiry?
After establishing a prima facie duty of care through this rendition of the first stage of Anns,
they go to policy considerations to see if there are policy considerations that negative the duty.
The company is required by statutory duty to publish the accounts; the reports were prepared
for that statutory purpose but Hercules used them for a purpose for which they were not
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intended. find people liable where they are relying on reports for the purpose for which they
were intended. This policy concern is meant to limit liability for companies like this.
BC Checo International
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what happens when misrepresentation goes to a contractual term? Concurrent liability? Can
you sue in both tort and contract on basis of same misrepresentation?
Court says that unless the contract explicitly excludes tort liability, you can sue in both.
However, the court does not allow double recovery, you can’t have parallel cases in tort and
contract and recover damages in both.
Queen v. Cognos
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clear application of Hedley, court goes through five requirements: must be a special relationship
between the parties (can be employer/employee, expanding this beyond financial advice),
misrep must be untrue/inaccurate, must be reliance, detriment. (checklist).
Class 8
Hercules/Queen
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LaForest says that there isn’t a freestanding negligent misrep tort. Just apply certain criteria in
administering the Annes/Cooper test
Hercules puts Lord Reid’s test in the middle of the Annes Test, right after the first stage of
determining reasonably foreseeable/proximate plaintiff.
Queen case applies a 5-stage test. They are identical to Reid 3-stage test
You can do 3-stage or 5-stage test, doesn’t matter, they’re the same.
These are not determinate tests, courts can’t just tick boxes without thinking of overarching
question of whether its reasonably foreseeable or proximate. You can possibly tick all the boxes
and still not find it reasonably foreseeable or proximate
In negligence, first thing to do is to establish that the case is novel or not, that there isn’t a
similar case that hasn’t already recognized it. Do this before diving into an Annes test.
Pure Economic Loss
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Original position was that you could not recover for pure economic loss, now there’s more and
more exceptions, court has a more flexible approach.
Negligent misrep is almost always about pure economic loss.
Five major categories in which pure economic loss is available: negligent misrep, independent
liability to public authorities, negligent performance of a service, relational economic loss,
negligent providing of shoddy goods. (not exhaustive, but courts generally unwilling to add)
Martel Building case
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hard bargaining, negotiations collapse, plaintiff sues for losses that result.
13
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First stage of Anns test is made out, they found a duty of care, reasonably foreseeable
proximate plaintiff, they strike it down however based on policy considerations.
Laissez-faire capitalism. Don’t want court to be influencing business transactions and thus
affecting the market. This is just the nature of negotiation. There’s always a winner or a loser.
chilling effect: imposing liability would lead to people being wary of entering negotiations,
knowing that if they pull out, they could be found liable.
Other argument is that it puts tort law in the role of insurance. People don’t have to be vigilant.
If you suffer a loss, you come crying to court to get compensation.
puts the court in too much of a regulatory role. It would involve them examining very detailed
pre-contract negotiations which would take a lot of time.
contract law already has a lot of doctrines to deal with these situations. Tools of contract are
better here than tort’s.
floodgates argument, don’t want tons of people litigating about losses due to negotiations.
Negligent performance of a service (BDC Ltd vs. Hofstrand Farms)
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courier not found liable for not delivering the package on time; they didn’t know its contents.
plaintiff was not foreseeable because they didn’t know the nature of what they were delivering.
Class 9
Negligent performance of a service
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courts apply normal rules of negligence, Anns test, they’re interested in tests of proximity with
reliance as an indication of that.
In policy consideration, they’re most concerned about indeterminacy.
BDC v. Hofstrand (negligent performance of a service)
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Must argue that they are a reasonably foreseeable plaintiff and that they’re proximate.
they’re not a reasonably foreseeable plaintiff or proximate. The key factor for the courier is that
the courier had no idea what the document was, had no idea of knowing whether it was
important or otherwise, so couldn’t foresee that particular plaintiff or the type of loss
Also proximity, the courier did not create the terms of the contract between BDC and their
business partner, along with not knowing about it.
James
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it’s not on the plaintiffs to prove detrimental reliance, as it’s too onerous.
In absence of detrimental reliance, can be enough to show voluntary assumption of risk by the
defendant. Mere fact that there is no detrimental reliance isn’t the end of the case, where you
can show some sign of voluntary assumption, that may be enough to establish a duty of care.
Winnipeg (negligence for supply of shoddy goods)
14
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Usually arises in construction cases, where you don’t have privity. A supplies goods to B under a
contract and B sells them to C and it turns out the goods are shoddy, can C sue A?
Plaintiffs sue for pure economic loss and not physical damage. Had to take steps to repair the
building, or it would’ve fallen down due to those shoddy goods, so they’re suing for future costs
to repair the building. Court is fine with that.
Bird should easily foresee that not just Tuxedo would be harmed by negligent shoddy goods, but
must foresee that next person who buys those goods would also be affected by negligence, that
Tuxedo was selling goods to people who’d use them. Foreseeable plaintiff and foreseeable loss
Reasons to restrict: proximity and policy – some say these are separate, others that proximity is
a kind of policy
prima facie duty of care found and no problem of indeterminacy in the second stage because it
was a specific building, not an unlimited class of plaintiffs, and not indeterminate time, because
as the building gets older and more worn out, it would be harder to prove that any problems are
because of the original shoddy goods. Not indeterminate cost, because it’s restricted to the
reasonable cost of repairs.
Caveat emptor – buyer beware – doesn’t apply here because the buyer, Tuxedo, isn’t in position
to know about the defects. Aren’t in the position to do the indepth inspection necessary
Mere existence of contractual duty doesn’t foreclose the possibility of tort liability
Hasegawa
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a court ruled that there were no physical injury or property damage or health risks, only
business losses, and so the court said no duty of care.
However, Winnipeg does not exclude the possibility of recovering based on business losses.
Relational economic loss (Norsk)
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A is damaging something that belongs to B which causes pure economic loss to C. Question is
whether C can recover from A.
Norsk: Canada says you generally cannot recover for situations like this. Indeterminacy
problem. There are too many potential plaintiffs that could result.. So much ripple effect
worries court.
Court says the key is insurance should take care of these relationships. That’s why you have
business insurance, life insurance, and all forms of indemnity, to protect yourself from losses
due to personal injury. If court starts imposing liability, it interferes with insurance market.
Norsk says we shouldn’t have a blanket prohibition. Should rather take each case on its merits
and take it through Annes test, where indeterminacy can be considered in the policy stage
LaForest dissent says no, puts a lot of work on the court and still result in explosion of liability.
Bow River
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takes LaForest’s dissent as its majority.
15
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when you go to second stage, policy question, says you should be reminded not to expand
liability. Try to restrict it to pre-existing categories of duty of care.
very difficult to recover from relational economic loss. If you try to establish it through Anne’s
test, the court will take indeterminacy question very seriously unless you can fit yourself in
three pre-existing categories
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Alcock
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negligent infliction of nervous shock. Pre-Alcock, you could not recover
The issue is proximity. Questions of relational, temporal, and locational.
For relational proximity: plaintiff must show a close tie of love and affection to the victim.
examples (wife, husband, child) or if you can prove a close relationship.
Temporal: the shock has to occur in the immediate aftermath of the event. Not just aftermath,
but the immediate aftermath. Don’t define “immediate.” Doesn’t matter if it isn’t till days later
that the bodies are identified – time has passed.
Locational proximity: you had to be there to see it with your own eyes, not mediated through
something like television. What they’re worried about is that if you broadcast you it to millions,
it’s indeterminate.
Page and Smith
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court draws distinction to primary and secondary victims. Incredibly complicated case.
Mustapha explicitly rejects
Mustapha
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says that the decision in Alcock is relevant to the second stage of Anns. When you get negligent
infliction of nervous shock case, you apply Anns test and the three conditions of Alcock are dealt
with in the second stage.
Class 10
Standard of Care
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duty of care establishes the legal relationship between the plaintiff and defendant, standard of
care details the behaviour required of the defendant to discharge the duty.
“What do I need to do to prevent harm to the people detailed in the duty of care questions.”
judge decides what it should be based on the law, and the jury or finder of fact decides whether
or not it has been met.
Blythe (Uk), Arland (Canada)
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authorities for the standard of care being based on what’s expected of the reasonable person.
Determining standard of care is done on an objective approach.
16
Nettleship
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learning drivers must accord to same standards as learned drivers. Driving is judged on an
objective standard of the reasonable driver.
Unfair: setting a standard that some of the people in that class cannot meet or certainly with
much more difficulty.
tension between public protection and the unfairness to the individual in being unable to meet
that standard.
Standard of Care Modifiers
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Objective is not entirely objective, it considers the circumstances as well.
If you impose reasonableness standards, there are always going to be some people that no
matter how hard they try, they will fail, they cannot meet that standard.
Standard: what would be expected of a reasonable person in the circumstances?
Courts modify this reasonableness notion with three factors. The probability and severity of the
harm. The cost of risk avoidance. The social utility of the conduct.
What would reasonable person have done? But in addition to that, these three factors. Look at
them as limits, curving the standard you would get by simply applying the reasonableness test.
Bolton
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Probability/severity of harm: As probability of the harm goes up, the standard goes up. Where
the severity of harm goes up, the standard of care goes up
where probability and severity go in different directions, , courts have to balance it.
People in standard of care only to guard against reasonable possibility not fantastic possibility.
Test is whether the risk of damage to a person is so small that it doesn’t make sense to take
precautions against it. Where the risk of damage to a person is so small, that a reasonable
person wouldn’t bother or think to take precautions against it.
when court is trying to determine what constitutes a high or low cost, in the crowded conditions
of modern life, risks are inevitable. You cannot mitigate all risks, though of course as the
severity goes up, greater need to mitigate.
where there’s very high probability of the risk, may be reason to stop the activity altogether.
Paris and Stepney (severity question)
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works in conditions that blind him in one eye. he was already blind in one eye
Cost of precaution in this case was low, cost of goggles was low, not forced to retool the whole
process. Court wasn’t sympathetic to defendant’s argument of how no one else got goggles –
given the severity of the injury, the cost is low.
May be excused based on the social utility of it.
where the cost of precaution is low, you’re almost obliged to take it. If the probability is really
low, but the severity is high and the cost of precaution is low, you’re obliged to take it
17
Class 11
Loss of Chance
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There is no loss of chance in Canadian tort law, can’t use loss of chance to fill “but for” test.
Special standards of care: children, disabled/mentally ill, and professionals/volunteers
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General rule is that the standard is reasonable person in circumstances of the defendant. These
three situations are exceptions to that.
Standard of care in relation to children
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Joyal – standard is the ordinary child in those circumstances, not the reasonable person. They
are held to lower standard of care.
They’re not as experienced as adults, have less understanding and less capacity, less capability
of using foresight. They also are younger and have less intelligence. They have less capacity to
understand and control their actions, lesser impulse control.
developmental rationale: childhood is when you make mistakes and law should be mindful of
that, kids get their life experience by making mistakes and finding things out for themselves.
Law must create space in society to allow kids to behave in ways that would be negligent.
Joyal
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The standard of care expected of a child is determined according to what a child of that age,
intelligence and experience would have done in the same circumstances.
Heisler divides children into tender age (5 yr old) and above tender age. Says children of 5 years
or below can NEVER be liable.
Joyal is that you look at all those factors that indicate children (experience, understanding,
capacity, age, intelligence). Jurisdictions mostly follow Joyal’s approach too. Some differ on
whether to include “intelligence”
Carroll (disability)
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meet standard care of someone in similar situation with similar disability.
the law should take disabilities into account, can’t hold them to a standard that by virtue of
their disability they can’t meet.
Can be held to contributory negligence if you don’t take account of your own limitations. Don’t
take unnecessary risks, have to work within their capacities.
Fiala
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defendant has to show on balance of probabilities that you either had no capacity to
understand or you had no control.
No understanding = you think the set of events are different than they actually are.
18
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Absolved of liability if you can show either you didn’t have capacity to understand the duty of
care or you had no meaningful control over your actions and so couldn’t be held to the relevant
standard of conduct.
Carroll’s issue of prior warning: In Fiala, he didn’t know this would happen to him. If he knew
that when he jogs, he can have a spontaneous episode, he may be held responsible.
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Hutchings
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found not liable because his delusion was such that he had no understanding.
For people suffering with continuous illnessthat’s their living condition, he would fall under “not
understanding that he has duty of care.” In those cases, court will provide complete relief. No
prior warning because so continuously crazy that he has no idea that there’s anything wrong
with him. Problem is, barring insurance, injured people would get no recovery
Just because someone is harmed doesn’t guarantee compensation. Must be fault.
Profession
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the standard that is expected of people of that profession in similar circumstances. Judged by
standard of care of his or her profession.
Based on industry specific standards of practice and testimony of experts. (White v Turner).
Failure to meet the standard practice of the profession is evidence of a breach
Volunteer firefighter (Killips Television)
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not held to the same standards of those “working” in the same field. It is based on training.
Causation
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Cause in fact “did A’s act cause harm to B?” (tort law’s causation)
Cause in Law: “should A be held responsible for causing harm to B?” (remoteness)
Cause in fact question: “but for test,” if we can “but for A’s act, harm would not have happened
to B” then we have answered this question in the affirmative.
Then we move to second question, cause in law, as to whether there are policy reasons or
reasons in fairness that we should restrict the liability.
In working out but for, court must first determine what a cause is
Things that we ordinarily expect to be true, we assume there’s oxygen, they are not but for
causes, they are background conditions. For instance, a lit match is a but-for cause, but the
presence of oxygen or paper are background conditions (Reeses)
Class 13
Barnett v Chelsea
19
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The mere fact someone has a duty and fails to meet it doesn’t mean they will be liable for
negligence – causation matters, have to show they are the but-for cause. Even when they’re
negligent, doesn’t mean they’re responsible.
Guy shows up, hospital sends him away, he dies of arsenic poisoning...but his case was so
advanced that they couldn’tve done anything ofr him anyway.
But-for is an all or nothing, very binary, which can lead to unfairness.
Other problem related to but-for are hypotheticals. But-for tests are always balanced against
hypothetical situations, we don’t actually know though. We just say we don’t THINK the doctors
could’ve done anything for him, we’re very confident he’d’ve died regardless of what they
could’ve done, given the level of poisoning, but we can’t say it with 100% surety.
Loss of chance: Barnett has lost something, he lost that slight chance of living ^. Loss of chance
is the chance of recovery you sue for, not the actual recovery. He also, by going to the hospital
and being turned away, he lost the other opportunity to pursue other options.
Causal Indeteriminacy
Evidential Gap/Evidential Insufficiency.
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where you don’t enough evidence to apply the but-for test so you have to either use material
contribution test or materially increased risk.
Walker (Material Contribution Test)
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hospital was sued for taking blood from HIV positive donor. Negligent in not providing a good
enough pamphlet.
Court applies material contribution test, if you can say the negligence of the defendant
materially contributed to causation, then they are liable. Doesn’t have to be but-for. The test is
material contribution beyond de minimis.
Too much unfairness to require the defendant to be the sole cause of the loss. Material
contribution leads to distribution of damages relative to the level of contribution. But for
usually would lead to 100% apportionment of damages to the but-for cause.
Material contribution test will also arise in situations with multiple defendants with none of
them being but-for causes, but all contributed materially. Able to allocate.
Fairchild
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plaintiff got asbestos disease and he’d worked for various employers that used asbestos and
couldn’t say which place caused the disease, so all the employers were held jointly liable in that
they all materially contributed to his harm.
Court says in these cases, they’ll hold both A and B liable as otherwise, you’ll end up with
illogical outcome of neither place being responsible when one of them had to be.
This is an illogical outcome that can occur in but-for cases, which causes the judge to move to
the material contribution case and finds them both jointly liable – one of them HAD to be
responsible, just can’t determine which, both were negligent.
20
McGee (Materially Increased Risk Test)
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Brick dust CAN cause that dermatological condition, but it’s not the only cause and you can’t
prove that that’s how you got it; however, it materially increases risk of getting the condition.
Can’t scientifically prove causation and there are workers exposed who don’t get it, but can say
based on medical evidence that people exposed like plaintiff was are more likely to get
condition than those who aren’t; company materially increased the risk, enough for causation
Materially increased risk test substitutes for but-for test where evidentiary is impossible as in
here and would lead to unfairness
Snell
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Court accepts that you just can’t prove that it was definitely or more than 50% chance, but-for
cause, that the negligence, the continuation of the operation caused this stroke months later.
Plenty of people get those strokes who don’t get those surgeries.
Court says, though, you can infer causation as it’s likely to have materially contributed to the
chance of the stroke. Materially increased risk.
Makes it clear that notion that material increased risk can be applied outside medical negligence
The plaintiff can’t prove but-for, plaintiff can discharge burden of proof for causation by
showing that, from a common sense perspective, it would be reasonable to infer thta the
actions of the doctor materially increased the risk of harm to the plaintiff. Low standard.
If the answer is yes, burden shifts to the presumed expert, the defendant to adduce evidence
that that conclusion is unreasonable, to disprove. All this is on the balance of probabilities.
Athey (Multiple Insufficient Causes)
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Trial judge says multiple causes, says Athey is only 25% responsibl. SCC overturns this, says 25%
is beyond de minimis and if you’re a cause that’s beyond de minimis you’re responsible for it all.
court says that the car accident is the only tortious cause. Court says the pre-existing condition,
the doctor’s non-negligent advice, they’re all non-tortious. So even though these are multiply
insufficient causes (none by themselves lead to the outcome, no but-for cause), court says you
can ignore all the non-tortious causes and give all liability to driver/defendant, because that’s
the only tortious cause available.
the law doesn’t exclude the defendant from liability simply because other causal factors which
he or she isn’t responsible for helped to cause the harm. It doesn’t excuse them from being
responsible for some of it.
Defendant wasn’t responsible for pre-existing condition, they’re only being held for additional
harm caused by the car accident and what comes after. For instance, if I’m injured again in my
rehab, if I’m not negligent in my rehab, you should be responsible as I wouldn’t be in rehab were
it not for your negligent act that injured me in the first place.
you can’t say that because a non-tortious act intervened, you are no longer responsible.
Multiple sufficient causes
21
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where there are two causes, both of which can be but-fors. Two people shoot someone in the
head at the same time. The law holds them both liable
Class 14
Remoteness
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Breach of duty + factual causation isn’t enough for liability. We also need for something to be a
a relationship between the breach of duty and the eventual loss; cannot be too remote.
Remoteness emerged as a way for courts to exclude liability where the loss is beyond what
would be expected of a particular breach of duty.
Cases focused on duty are usually focused on ideas of neighbourhood, foreseeability. The policy
discussions tend to be about floodgates and indeterminacy.
When you look at cases talking about remoteness, you see language like directness, probable
outcomes, close consequences, and immediacy.
is there a relationship between the negligent act and the harm? (is the harm foreseeable?)
Remoteness isolates a separate question, it’s trying to separate out foreseeability of plaintiff
and foreseeability of harm.
Re Polemis
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Court of appeal says foreseeability isn’t the question, but rather whether it’s a direct
consequence of your actions. If it is a direct consequence of your actions, it’s not too remote.
Basically, they’re saying that as a matter of fairness, if you are liable based on the first three
stages (duty of care, standard of care, factual causation), you’re going to be held to full liability
and held to be legally causation.
Polemis is critifcized and rejected as it will almost always turn out to be pro-plaintiff.
Wagon Mount #1
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Rejects Polemis as too plaintiff friendly; legal causation is not a barrier at all. Nothing would be
too remote: clearly directly caused by failing to meet standard of care.
While there can be no liability until the damage has been done, it’s not the act but the
consequences on which liability is founded.
If you have a directly caused loss which was not foreseeable, we generally ay not liable as a
matter of common sense.
If we have indirectly caused loss but it’s foreseeable, we say liable, out of common sense.
concludes from this that the essence of fairness that liability turns on is thus not directness, as
Polemic says, but foreseeability. For someone to see the harm coming, but get off because it
was indirect would be unfair.
Wagon Mount #1 is trying to harmonize negligence: saying that although we divide negligence
into different stages and tests, at the heart of negligence is this notion of reasonable
foreseeability. Why would we depart from this on question of remoteness?
22
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Wagon Mount #1 test you should be applying: when asking about remoteness, you ask whether
the harm caused was reasonably foreseeable.
Shifts and Qualifications to Wagon Mount #1 test
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a shift from manner to type of harm.
treat accidents as sequences and not discrete events.
increased focus on fairness.
Hughes (shift from manner to type of harm)
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Court says the reality is that lamps cause burns, unattended lamps can cause burns but the way
it causes the burn doesn’t matter, it’s whether it causes burns. You don’t foresee the particular
manner in which the lamp caused burns (explosion), only foresee that lamps cause burns. It’s
the type of harm that matters, not the manner of it. This is much more plaintiff-friendly.
This verdict has been strongly criticized. This leads to a somewhat arbitrary categorization of
things that fall within particular types of harm.
Assiniboine (sequence of events.
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Court sees the events as foreseeable, sees the consequences as being foreseeable.
Runs through all the events and consequences in sequence and finds each of them foreseeable
and hence they constructed a foreseeable outcome by splitting it up into events.
if they’d just skipped to the end result, the final, ultimate consequence, and asked if it was
foreseeable, you’d say no. But by splitting it up into sequential events and asking whether each
of them was foreseeable, you end up winding up at the final consequence being foreseeable.
Osborne (academic)
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remoteness is becoming less and less important as its unusual for courts to strike cases out at
this late stage for interests of fairness, so courts will end up finding creative ways to find things
foreseeable at this stage. Very unusual to find cases failing by reason of remoteness alone.
Class 15
Intervening causes
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originally it was the last wrongdoer doctrine. The last wrongdoer is fully liable.
In practice, the use of last wrongdoer doctrine was more subtle than that, courts found ways to
hold people jointly liable. However, in theory, it produces hugely unfair outcomes
Other problem with is that when intervenor comes along, it makes the original wrongdoer free
and clear and, frankly, “lucky.”
Types of intervening causes: naturally occurring (like nature, storms, etc), negative intervening
acts, deliberately wrongful or intentional acts.
23
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General rule is that intervening causes won’t break the chain; notion of normality or usualness
attached to them.
Naturally occurring acts couldn’t break the chain, while negative intervening acts of third party
could break the chain and wrongful/intentional acts would almost always break the chain
Problem is the categorization: what if you can’t fit an intervening act neatly into one of the
categories. Old problem also: liability of a tortfeasor is contingent on a subsequent wrongdoer.
Bradford
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Decision at trial: was the action of the guy yelling “gas leak” seen as intervening act?
SCC said that the actions of the third party that yelled gas leak was unforeseeable. The actions
of the third party were idiotic and hysterical and as such, beyond the contemplation of the
reasonable person.
the questions of whether the actions of third person are intervening or not turns on whether or
not they were foreseeable by the original tortfeasor.
When you looking at the act complained of or the precautions the person should’ve taken,
should they have taken the possibility of this intervening act into account? Can we say that the
negligent actions of the defendant (the restaurant) are the but for cause of the harm
complained of? Would a reasonable person regard the behaviour of the third party as
foreseeable? Is it in the scope of the risk? If yes, then it’s not an intervening cause and doesn’t
break the chain. It no, not foreseeable, it breaks the chain and is an intervening cause.
Goes back to Denning saying that the heart of negligence is whether the plaintiff was reasonably
foreseeable and if yes, you’re liable for negligence.
The more culpable the third party, the more egregious their conduct, the more likely the court is
liable to see it as unforeseeable
Price
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Ankle swells up, sees another doctor, who looks at hospital’s diagnosis and based on that, says
not broken. Injury gets very bad and cripples the plaintiff.
Court asks whether it was foreseeable that Dr. Carbin would rely on Dr. Murray’s original xrays? Yes, so they find not an intervening cause, they’re jointly liable.
Carbin is negligent (should’ve still taken own x-rays); thus, subsequent negligence can be
foreseeable.
Seems morally dubious to expect people to behave badly, but nonetheless that’s the case
Test in Price is “whether the risk had to be foreseeably possible” as opposed to “reasonable
foreseeability” in Bradford. Bradford is better. Price can be taken to lower the bar, but really
it’s just trying to restate Bradford to make it clearer.
Class 16
Defences
24
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voluntary assumption of risk and illegality are rarely accepted. In practice, you’re left with
contributory negligence, which isn’t a complete defence and only pertains to apportionment.
Contributory Negligence
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A defendant will be contributory negligence if it can be shown that their careless conduct
contributed to the harm suffered as a result of the defendant’s negligence.
B suffered the harm from A, but if A had a chance to prevent the harm, contributory negligent.
It’s not all-or-nothing anymore. It’s not like the most recent contributing cause is 100% liable.
The last opportunity rule gets abandoned through legislation, which argues that apportionment
should be based on fault.
Bow Valley (contributory negligence test)
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SCC formally abandons the common law approach and goes with apportionment, echoing the
legislative developments and bringing the common law in line with the statute.
where there is a clear statutory trend or intent, the common law should harmonize with it.
Bow Valley establishes a two-part test to establish a defence of contributory negligence:
1) Plaintiff did not take reasonable care of himself.
2) Lack of care in 1 contributed to the injury.
If you get 1 and 2, the court can apportion liability on basis of fault.
Walls
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Case has to apply the Bow Valley test, the 1st part, the reasonableness of the conduct: did the
throwing snow on the fire, is that evidence that the plaintiff didn’t take reasonable care?
“agony of the moment” argument. Conduct under the circumstances was reasonable, you have
to look at the context in which the conduct took place, can’t just imagine it is a reasoned,
considered context, this was an emergency.
They were ruled to have taken reasonable conduct in that it’s what a reasonable person would
have done in the context.
Gagnon
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Court says the test is not whether the plaintiff believes they’d taken reasonable care of
themselves, it’s “plaintiff did not,” it’s a fact in the world.
The test is whether they do the things a reasonable person would have done?
Plaintiff could only sustain argument by saying that reasonable person would not have worn a
seatbelt in those circumstances, which they can’t do.
Court has an overwhelming amount of evidence about the effectiveness of seatbelts and that
the injuries were caused by not wearing it. Reasonable person would have worn it.
The plaintiff’s belief about the reasonableness of their conduct does not matter in the first stage
of the test. The standard of care expected of a plaintiff when faced with contributory
negligence is that of a reasonably prudent person. Subjective, honest belief is immaterial.
25
Thin skull rule
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1st question: are they reasonably foreseeable plaintiff, is the injury reasonably foreseeable? If
yes, you are liable for all harm that results, even if it’s due to their extra sensitivity. The fact
that they suffer a particularly severe injury due to the pre-disposition, you are still liable for it
It’s the reasonably foreseeable plaintiff with Alcock’s proximity considerations. Once this is
established, and they suffer a particularly bad injury, they still get compensated
Leech Brain
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if the injury suffered by the plaintiff was foreseeable, the plantiff can recover in full even if they
suffered greater damage than an ordinary plaintiff (due to pre-existing condition/vulnerability).
type of loss has to be of a kind that courts recognize.
Rules of apportionment under the BC Negligence Act:
1) under s.1, apportionment is on the basis of fault and where the distribution of fault can’t be
determined, they just split it equally
2) Liability for legal costs are apportioned under the same principle of s.1. They add up the losses and
the legal costs and split it up under s.1
Violenti defence
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to one who is willing, no harm is done. Where a person engages in an activity and knowingly
accepts the accompanying risks, you can’t sue for negligence based on the materialization of
those risks.
Two basic situations: express agreement and implied agreement.
Express: like a contracting out of tort liability, signing waiver of voluntarily assuming risk even if
we’re negligent.
Implied is where by virtue of the conduct of the other people involved or the situation it’s
implied that you know of and consent to the risk.
Canadian courts have become increasingly less willing to allow
Violenti is a complete defence, if you establish it, there is no liability on the defendant – court is
uncomfortable with that and prefer contributory negligence.
Court has restricted violenti by saying that you really have to be specific about the risks you
need to know and understand. Not enough to say they generally appreciated the risk and
generally consented, have to have understood the very specific risks and explicitly and
specifically consented to those risks.
Dube
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has to show something that is tantamount to an agreement not to sue. They knew full well
what they were getting into and it’s a waiver of liability.
In practice, very difficult to establish, as what sort of plaintiff would genuinely consent to that?
26
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The burden lies upon the defendant of proving that the plaintiff, expressly or by necessary
implication, agreed to exempt the defendant from liability.
To constitute a defence there has to have been an express or implied bargain between the
parties whereby the plaintiff gave up his right of action for negligence.
Only where circumstances are such that it is clear that the plaintiff, knowing of the virtually
certain risk of harm, in essence bargained away his right to sue for injuries incurred as a result of
any negligence on the defendant’s part.
Ex turpi
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old rule is that you couldn’t have a cause of negligence if you the plaintiff was involved in an
illegal act, or in an illegal act with the defendant, you can’t then sue.
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Can only show the defence where:
1) plaintiff stands to profit from the criminal behaviour and
2) Compensation would amount to avoidance of criminal sanction.
Can’t use negligence to circumvent or mitigate the sanction from criminal law – use money from
negligence suit to pay criminal fine. Must “maintain the internal consistency of the law.”
McLachlin says it operates more naturally as a defence because its purpose is to frustrate what
would be, had ex turpi no role, a complete cause of action.
Hall
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Inevitable accident (Rintoul):
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Must be able to show that something happened over which he or she had no control.
Could not have been prevented by the exercise of reasonable care on their part.
Hard to know how operative this defence is as there are very few cases on it.
Could easily fall into causation instead of defence: Just say that you’re not the factual cause of
this harm...if you have no control over it, it could be an intervening cause instead.
Class 17
Wagon Mound No.2
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when accessing what a reasonable person would do, modified test so that it’s what a reasonable
person like the defendant would do
in this case, a reasonable ENGINEER, have to think about the context and expertise of the
person in that position
When determining whether a person has discharged that care, look at cost and social utility, etc
can conclude that a person in the reasonable position of the defendant might have a certain
standard of care, but you can say that the cost of reaching standard of care is so prohibitive that
they do something less, the court will take that into account as part of what the reasonable
standard of care is.
27
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Foresight: standard of care by reasonable person and what they would foresee as needing to do.
It might not be possible to discharge for a number of reasons. Weigh the standard against cost,
social utility, etc. Look at the standard according to what would be reasonably foreseeable for
that person and whether there are limits we should put on the standard based on those factors.
it’s the reasonable person in that context, but not far enough to be subjective
Tort liability of public authorities
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first cover whether it is a public authority or not: government departments, elected officials,
delegated authorities like licensing boards or regulatory authorities
question is whether they are acting according to the power delegated to them by the legislature
and the statute that empowers in them.
legislative and judicial actions are not subject to tort liability (Wellbridge). Only the
consequences of administrative decisions
standing over the shoulder of the govn’t because it politicizes the judiciary, hence inappropriate
Public authorities can only be held liable in tort for losses resulting from the negligent exercise
of administrative powers (Wellbridge). Only liable for results of operational, not policy or
judicial decisions.
Immunity only extends to actions that are directly or indirectly tied to legislative activities,
legislators are only protected to the extent that they are acting as legislators.
even if there was a generally foreseeable economic loss, not enough for policy decisions to be
open to review.
There’s a margin of legitimate error: municipalities should be given some leeway in terms of
their liability because allowing liability in negligence for legislative activities would make
governing impossible EXCEPT in cases where they were either not acting in good faith or their
actions were demonstrably irrational.
Judges cannot be held for losses or damage that flow from the exercise from their judicial
authority, even if they were exercising it negligently
public authorities can only be held liable for administrative and operational decisions, not policy
Two types of operational decision:
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discretionary: decisions made under a statutory discretionary power
statutory: to fulfil a statutory duty.
hard to find liability for statutory duty, as there`s usually no choice or discretion attached.
More likely to be found liable for discretionary operational decisions
Class 18
Statutory vs. Discretionary
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Provided they do what the statute requires (don’t just not do it) and are not careless in doing it,
they generally can’t be held liable in negligence.
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Where the statute gives discretion to public authority in the execution of a statutory obligation.
The question for the courts when someone is injured due to negligence by the police, was the
harm coming out of a policy or operational decision?
Plaintiff has to show the decision was operational and not policy. If the policy says “in those
cases, where we’re faced to a public order problem and a health problem, we will devote more
to health problem,” it’ll be hard to argue, as that’s a policy. However, if the policy is silent of
what happens in that case and the person makes a decision where to put resources, arguably
carelessly, then that’s operational.
Just vs. BC
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Cory says you need to look at true, narrow policy decisions where you have a broad allocation of
funding at high level of government.
The policy element is allocating funding to this area of the highway but by the time you get to
the point of maintenance crews, timing, manner in which they do their job, that’s operational.
If you start to question the resource allocation, that looks like it’s usurping legislative authority.
Once you get down to how it works on the ground, schedules, division of labor, it’s operational.
Allocation of resources and basic parameters are policy but manner in which inspection is
carried out, frequency of them, etc are all operational, proper for court to examine to see if they
meet standard of care.
Policy part of Anns test deals with this: deciding if its policy or operational.
Test, standard of care, is what is reasonable in the circumstances – that allows you to look at
resources and budget, because with infinite resources and budget, of course it would be a much
more ideal program.
Brown
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In determining whether something is policy, have to look at things like whether they involved
the broad allocation of resources as opposed to day-to-day, look at financial allocation, how
much control over broad matters they have.
Court concludes that even though the decisions about scheduling and such were made by lowlevel dude, the fact they involved broad allocation of resources and involved personnel, unions,
etc, it’s possible this is a policy decision.
decisions can be devolved, policy decisions can be made at operational level, as top of the
pyramid made the decision to shift the policy decisions downwards to lower-levels.
always have to inquire what the subject matter and circumstances of the decision are. Here,
they determine they were making broad decisions of resources allocations which meant policy
limits to how much you can devolve. Police chief can’t just devolve really broad things like
“maintain order” to the operational level, don’t really want policy decisions made on the ground
Misfeasance in a public office:
Woodhouse
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Mental element required is simply that you have to be aware that this might harm them. They
also can’t just turn their mind away from the fact that their conduct will harm the plaintiff, can’t
be wilfully blind.
Where you can show that the public officer is engaged in deliberate unlawful conduct the court
will almost always conclude that they subjectively knew what they were doing, that it was
unlawful. Proof of intention to harm will be inferred from the conduct.
Obligation is on the public officer to know the limits of their authority. Court will not accept
wilful blindness.
Essential question to be determined is whether there has been deliberate misconduct on the
part of a public official (doesn’t have to be of power he actually possessed, just in the purported
performance of the functions of the office).
Deliberate misconduct is an intentional illegal act and an intent to harm an individual or class of
individuals. Can be an action or a failure to act.
Statutory Torts
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statutes can create a cause of action.
Statutes can also change or limit the operation of a common law duty or tort.
infer a common law duty of care from the words of a statute. For instance, statute may create a
common law duty in this case, it may also infer one in a similar case.
Class 19
Statutory Torts
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Where a statute creates a tort, like the Marine Liability Act.
Simple case is where statute says “there is a tort called this, and duty of care and standard of
care are this”, you go through the statute.
These are direct statutory torts, torts that live and exist in the statute.
Where the statute only provides the basis for a common law tort, gives rise to or a tort, or
modifies an existing tort, leading to a common law cause of action. Statute here will typically
have a prohibition in it, which gives rise to a discussion of what the common law should do given
the court might say that clearly the intent of the legislature was to protect in this situation.
Court might see in statute a reason to recognize a common law duty of care.
Two ways in which you can get to a common law cause of action from a statute: one is that the
statute is used to provide the basis of a common law duty of care, you can extrapolate a
common law duty of care from it, and that leads to a common law cause of action (a tort)
Other way they do it is to bypass that step and just say that the statute in and of itself lends
itself to establishing a new common law tort, don’t have to look for common law duty of care as
interim step, just jump forwad to establishment of a tort/new tort.
Canadian Method for Establishing Statutory Tort
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In Canada, we go with the “indirect method,” the intermediary step is important as it stops
judicial activism. It requires them to look at the scope of the statute closely, what it’s trying to
regulate, and whether it’s fair to take a smaller step to say there should be a common law duty
of care in a similar way.
In future cases, you don’t have to go back to statute to look for that duty of care, just start with
the DoC, it’s now a creature of the common law.
Problem with this though is if the statute gets changed or the case is slightly different from the
one that established the duty of care....makes starting from the DoC problematic.
In Anns/Cooper test, seeing a statute that regulates similar conduct is a relevant policy
consideration that says that novel duty of care should be recognized.
Occupier’s Liability
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3 questions of occupier’s liability: whether there are premises to be occupied, whether there’s
an occupier of that premises, and the nature of the visitor
4 different types of visitor under common law: licensee (whether there’s an economic
advantage to the invitation determines if its licensee or invitee), invitee, contractual entrant,
and trespasser
The Premises
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Common law says premises include allthe things you’d associate as being land (real property)
and things affixed to it (buildings), even movable structures on land like ladders can be basis for
occupier’s liability. Where vehicles are not moving, they can be premises. Statute says movable
things can be premises except where they’re moving
The Occupier
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Who is the occupier? This is determined by Palmer case. If you have control over the premises
you may be liable under occupier liability. They are responsible for the upkeep of the premises
If multiple people are in control, they see how much control each of them had and apportion
liability accordingly. Distribution of liability will mirror the distribution of control.
Common Law Classes of Visitors
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responsibility owed by occupiers to licensees is to protect from hidden dangers of which they
had actual knowledge. Must take remedial steps or warn of any known dangers on the property
For invitees, for whom the occupier has an economic interest, they are to take reasonable care
to prevent unusual dangers that occupier knew about or ought to know about
For contractual entrants, the rules were that it’s governed by the contract. If I sell you a ticket, I
can specify on the ticket my liability, you can even force contractual entrants to waive all rights
to liability. I can be completely absolved, provided there was effective notice
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Courts started to put in implied rules of contracts, they say that there’s an implied warrantee
even in relation to contractual entrants that the premise be as safe as reasonable care could
make them, so courts imply a minimum standard.
Trespassers: no need to keep property safe, but you couldn’t intentionally or recklessly injure
child trespasssers have to almost be treated as licensees based on a fictionalized consent.
Basically, you should expect them to trespass; even where you give them notice that should
prevent them to do so, children don’t have the same level of self-control
Veinot
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if an occupier knows that trespassers are likely to trespass and if are aware that dangers are on
your property, as a matter of common humanity you have to take steps to prevent their injury.
you’re not obliged to regularly inspect your property to ensure it’s safe to trespassers, but in
establishing duty of care court can still look at time or degree of danger on the land, the age of
the trespasser, the reason why the trespasser was on the land, the knowledge and resources of
the occupier (what could they actually do), and the cost of preventative measures
For instance, if it’s a huge farmland, the court may not impose it or just in a very minimal way.
Can’t be expected to inspect the entirety on a regular basis; provided you’re not aware of and
allowing extremely dangerous things to continue on your property.
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BC Statute
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occupier is defined as someone who is either in physical possession of the premises or has
responsibility for, control over, the conditions of the premises, persons allowed on the premises,
and activities on the premises. If
do NOT have to be the owner to be the occupier
premises = land and buildings, movable places (cars, ships,aircraft) but only when not moving.
dispenses with different categories and says you owe a general standard of reasonable care to
people coming on your premises. See that a visitor as well as any accompanying property is
reasonably safe. Thus it extends to personal effects and stuff that is brought on the property.
Standard of care may nonetheless be adjusted by factors like foreseeability of damage, the
degree of risk of injury (how likely), the gravity of the threatened injury, the kind of premises,
the burden of preventative measures, the practice of other occupiers (like commercial
occupiers, like what other restaurants do), and the purpose of the visitor (which is where the
trespasser status becomes relevant)
general duty is not owed to trespassers with criminal intent and trespassers on agricultural and
rural ground. Your only duty is to avoid injuring them intentionally or recklessly injuring them.
Class 20
BC Statute
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The occupier owes duty to see any visitor is reasonably safe.
32
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It’s just visitors vs trespassers, then you can look at trespassers of particular kinds.
Attempt at statutory level to bring occupier’s liability in line with negligence, that we now have
notions of general duties, which are just as useful in occupier’s liability as in nuisance.
you owe the same general duty of care to trespassers as you do to other visitors, exceptions are
where the trespasser enters with criminal intent (like burglars) and trespassers on agricultural
or rural ground. If trespassers falls in these categories, then statute says the only duty owed to
them is to avoid injuring them intentionally and not to act with reckless disregard
A bald notice does not relieve you of liability. Can’t use notice to subvert statute.
Varying the general standard
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Reasonable notice of any alteration of the general standard, there has to be notice. Only those
privy to the original agreement are subject to the standard.
People who come onto the property without occupier’s consent, the occupier can’t vary
standard as there are no conditions.
Where bound by contract to allow entry to persons not party to the contract, those other
people are subject to the general standard because they’re not privy to the original agreement
Occupiers are not liable for the actions independent contracts on their property, provided that
reasonable care is taken in selection of the contractor and in carrying out the work.
Strict liability
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increasingly marginalized in tort so courts are becoming increasingly uncomfortable with
imposing strict liability on defendants, particularly as negligence arises.
Strict liability: you can be held for harm that you not only didn’t intend but didn’t even foresee.
This strikes against notions of fairness. It starts to move towards holding people liable for
accidents. We feel uncomfortable for holding responsible where they didn’t make some choice.
Strict liability: mere fact you did this thing, even if you didn’t think it’d be harmful, may be
enough to hold you liable in the event that something does result.
Rawlings
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you can be held liable for full extent of damage once it’s established that you did the act, even if
the damages was massive. You may never have foresaw that any of that damage
true rule of law is that the person who for his own purposes brings things onto the land that is
likely to do mischief if it escapes must do so at his own peril, and is liable for damage that is the
natural result of its escape. Strict liability for the escape of dangerous substances from land.
To gain liability under Rawlings and Fletcher, you have to establish a non-natural use of land.
Initially courts tended to view non-natural as being artificial, out of the ordinary, or unusual, but
over time the requirement narrows, ends up being meaning you have to show that the use is
dangerous, extraordinary, and of no general benefit to the community.
Things that have been held to be presumptively non-natural (dangerous, extraordinary, etc):
storage of water in bulk, the manufacture and use of explosives, storage of nuclear materials,
33
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storage and use of biological agents. Generally court looks at degree of danger, utility, and
circumstances.
Once non-natural use is established, there has to be escape of something likely to cause
mischief. To do this, have to show that something escaped and that it is likely to cause mischief,
If you get injured by this substance, strict liability of Rawlings only applies if it escapes and
injures outside of the owner’s property, not if it injures someone on owner’s property
Then show that it does damage.
Other aspect is the requirement of damage: typically, the question is whether there should be a
limit on the responsibility for damage caused. Traditionally, if you established non-natural use
and escape, you are wholly responsible for the damage, fully liable.
Cambridge Water: there’s no liability for unforeseen consequences of a non-natural use; limits
liability. It looks like the court trying to draw in a limit how much damage you’ll be held
accountable for despite strict liability. If the damage is really unforeseeable, then court will
consider not holding you fully liable. Looks like remoteness test/negligence.
When we consider what constitutes a dangerous thing, we’re considering what reasonable
person would see as dangerous and what foreseeable consequences of escape would be.
What makes it dangerous is that you would foresee the nuclear materials would escape and
cause harm: sounds like early questions in negligence tort.
Class 21
Vicarious Liability
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not a separate tort but a way of shifting the negligence liability form an employee to an
employer. Employer’s can be strictly laible for the actions of their employees.
Plaintiff must show that the individual who caused the harm was an employee.
“control test”: are they an employee or something else (like an independent contractor)
Control test: Montreal and Montreal Locomotive works. Says does the employer have control
over the actions of the employee? Can you tell them when/where/how to work?
Problem with the control test is that it does not cover all sorts of employment situations,
becomes harder when the work is more specialized and so the supervisor cannot as effectively
control the work. Problem is also where there is less chance of oversight or less direct oversight
Entrepeneur test
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if it looks like the employee is carrying out a business of his own, we’re less likely to find that
they’re employee – like if it’s work where the employee can make a profit or a loss.
do they make a loss if the don’t do the work well? Do they buy their own materials? Are they
acting as an entrepreneur on their own behalf, running a business? If so, less likely to be found
an employee
Organization test
34
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whether they have been integrated into the organization? Do they get insurance from the
employer, attend staff parties, wear a uniform, stuff like this.
671122 Ontario
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says central question is whether a person is performing a service for someone else or as a
business on their own account. Are they acting as an employee or on their own behalf. To
determine this, look at everything in these three tests, all these surrounding circumstances.
2nd stage:
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Establish that the harm was caused during the course of their employment, have to have done it
in their role as an employee. Basic rule is that employer will only be liable if connection
between the wrongdoing and the employment.
Even if conduct is prohibited by the employer, that doesn’t mean they won’t be liable. You still
have to look at all the facts and circumstances.
Basic rule is that prohibitions have to be very specific and express to take someone out of the
course of employment.
Canadian Pacific railway: Argument is that even when I’m doing a prohibited act, i’m still acting
on behalf of my employer, because they’re deriving the benefit from what I’m doing. For
instance, if I drive the car because I’m running late between tasks. You thus have to look at the
nature of the prohibition.
35