Timothy J. Watson 1 Torts Summary Fall 2005 Table of contents: 1. INTRODUCTION A.



Timothy J. Watson 3 MARSHALL v. LIONEL ENTERPRISES RHODES v. CNR ALCOCK v. CHIEF CONTABLE OF SO. YORKSIRE 6. NEGLIGENCE: DEFENCES A. Apportionment BUTTERFIELD v. FORRESTER DAVIES v. MANN THE CONTRIBUTORY NEGLIGENCE ACT WICKBERG v. PATTERSON GALASKE v. O’DONNELL B. Complete Defences 1) Voluntary Assumption of Risk HAMBELY v. SHEPLEY DUBE v. LABAR CROCKER v. SUNDANCE NORTHWEST RESOURTS 2) Illegality HALL v. HERBERT 7. INTENTIONAL INFLICTION OF HARM A. Intentional Infliction of Mental Suffering WILKINSON v. DOWNTON CLARK v. CANADA B. Battery and Assault BETTEL v. YIM BRUCE v. DYER NORBERG v. WYNRIB 8. TORT LAW AND DISCRIMINATION BHADAURIA JANE DOE V. TORONTO 1. INTRODUCTION Torts v. Criminal 1. Different parties involved (no government) 2. Different onus of proof (balance of probabilities v. beyond reasonable doubt) 3. nature of what your trying to prove is diffent (intent v. negligence) 4. purpose different – punishment v. compensation 5. remedies – monetary vs. jail A. Compensation Systems A PROBLEM OF INJURY AND LOSS COMPENSATION SOURCES, Cooper-Stephenson & Saunders Alternative sources of assistance: 1. Employment insurance 2. Canada Pension Plan - some compensation

Timothy J. Watson 4 3. Workers Comp. - developed in part to avoid tort action for injuries incurred on the job. 4.Veterans Pensions and allowances 5. Criminal Injuries Compensation - gov’t funded comp. 6. No-fault Auto insurance 7. Welfare - base-line assistance 8. Insured health services - healthcare etc. 9. Sick Pay - privately funded 10. Occupational disability pensions - professional groups etc. 11. Private accident insurance - life insurance etc. 12. Public or private benevolence - Ronald MacDonald House, Friends, Family 13. Reparation under the criminal code. Benefit of opting for civil action for damages? - greater compensation - all other sources generally limit the amount you can receive. Drawbacks? - cost; lawyer required - time - payment mechanism - lump sum and therefore involves a lot of guess work. - medical implications of injury may not be known -settling out-of-court typically involves less money. Underpinnings of Tort Law (its goods): 1. Compensation - the central accomplishment/aim of tort law - all of the above serves to compromise this. - requires loss spreading 2. Deterrence -obviously conflicts with loss spreading but nonetheless, word-ofmouth serves to deter -no empirical evidence that it works that way. - there are people that aren’t capable of meeting the standards and therefore will not be detered by it. 3. Tort law as an educator - tort law reflects values of society Studies of heavily regulated industries reveal that tort liability does affect practices 4. Gives citizens a voice without violence etc. - also good psychologically - explains many low-reward torts. - pretty expensive therapy. - what is the psychological effect if you lose Only a case in tort law --if there is somebody to blame. Important to know alternatives in order to decide if you’re going to pursue a court case. B. The Structure of an Action in Negligence THE ELEMENTS OF NEGLIGENCE, Cooper-Stephenson The BIG FIVE: (each have to be established, more or less in order) 1. Duty of Care: is there a duty of care?:

Timothy J. Watson 5 - whether the class of persons to which the defendant belongs owe a duty of care to the class of persons to which the plaintiff belongs? - done at a level of generality - ie. Dr. and Patient Two Part Test: 1. General Proximity: should the defendant have the plaintiff in mind hen they are acting. 2. Social Policy: is there a reason why - in spite of G.P. - the harm should be excused??? This is basically the ‘Anns Test’ brought to Canada officially in Kamloops. 2. Breach of Duty. Given Duty of care: did the defendant fall below the standard of care that a reasonable person would have provided. Three Part test for breach of duty: 1. Who is the reasonable person to whom the defendant is to be compared? ( some times helpful to look at the class of persons defined in duty of care - ie. Reasonable Dr’s) 2. What is the impugned conduct? -what did the defendant do that is alleged to be negligent. 3. Balancing test – what would the reasonable person have done. foreseeability of harm to plaintiff + extent of that harm VS. burden of precautions which would have prevented that harm + the social utility of the defendants conduct (rescue workers speeding to another accident strike a person… idea) = liability. 3. Damage Whether the plaintiff suffered legally recognizable damage. A. Pure economic loss - damaged property B. Pure Emotional distress Whether the plainitff suffered legally recognizable damage within a timeframe that is actionable. limitations of action acts - central question of when that period begins to run – typically the moment damages are “discoverable” 4. Factual Causation - given duty, breach, damage - Whether as a matter of scientific fact the defendants breech can be said to have caused the harm of the plaintiff. - “but-for” test: were it not for the defendants conduct would the plaintiff have suffered the harm. - problems arise in instances of multiple defendants: multiple sufficient cause the typical answer 5. Remoteness/proximate cause Whether the harm caused to the plaintiff was sufficiently closely linked to the defendants conduct to give rise for recovery. Although it could be a cause, the proximity should affect: a. Proximity of plaintiff - how close to the accident was the plaintiff b. Proximity of damage - the relation of the damages to the accident c. Intervening cause - did something happen inbetween defendants breech and the damage that broke the chain of causation d. Post-injury events - something/somebody exacerbating the plaintiffs damage

Timothy J. Watson 6 after the fact; ie. Medical care FOLLOWED BY – FOUR MORE (what is the importance of these) 6. Complete Defenses: whether circumstances exist that give rise to excuses which completely excuses the payment of damages. Only a couple left: 1. Voluntary assumption of risk - volenti non fit injuria 2. Illegality - ex turpi causa non oritur action 3. Statutory defences: immunities given to public officials. Used to be that contributory negligence was a complete defence 7. Apportionment should the damages be apportioned in relation to fault…. Ie. Contributory negligence… and how damages should be proportioned by way of contribution between joint defendants. established the same way as negligence with the exception of duty - which is assumed 8. Measure of damages: (the aftermath) What sum of money will provide compensation - Ie. Put plaintiff in position they would have been in 1. Pecuniary Loss - tangible loss; aproximate income loss etc. 2. Non-pecuniary loss - non-tangible; pain and suffering, Etc. - courts try to provide sum that will give solace for pain and suffering etc. 3. Aggravated Damages - money to soothe feelings of humiliation, indidgnation, fear of repletion etc. (most likely in intentional torts) 4. Exemplary of punitive damages - what is appropriate to punish the Defendant (quite rare) 9. Vicarious Liability whether another person is vicariously liable for the conduct of the defendant - employer and employee DUNSMORE v. DESHIELD Facts: Plaintiff purchased eyeglasses from Deshield, optometrist. Lenses were supposed to be Hardex and thus stronger than regular lens glass. Plaintiff was injured when glasses broke during touch football game. Issues • Did defendants owe a duty of care to ensure Plaintiff received Hardex lenses? Decision • Judgment for plaintiff against defendants jointly and severally; claim of defendant Deshield for indemnity against defendant Imperial allowed Reasons for Decision • Plaintiff was not engaged in a ‘game of violence’ and was not guilty of contributory negligence • Each defendant had duty to Dunsmore to ensure he received Hardex lenses

Timothy J. Watson 7 • Imperial had duty to Deshield to supply Hardex lenses • Deshield had no duty to Imperial to test lenses Ratio Decidendi • In case in which co-defendants, a supplier and a retailer, contract to provide product to a plaintiff, they have a duty to ensure the correct product is provided. The supplier co-defendant is ultimately responsible for ensuring the correct product is supplied. 2. NEGLIGENCE: DUTY OF CARE “there’s no negligence in the air” - a you can not be held for negligence unless you owe a duty to somebody. A. The Neighbour Principle DONOGHUE v. STEVENSON (1932) Procedural History Heard in the House of Lords on appeal from The Second Division court. Trial Court had found in favour of the appellant Donoghue, and the Second Division dismissed the action on appeal. Facts of Case The appellant consumed a bottle of ginger beer manufactured by the respondent and claimed afterward to have contracted a serious illness from a snail later discovered in the bottle. The bottle was opaque and did not afford the appellant the ability to inspect its contents before drinking. Issues / Questions Is a manufacturer who sells a product to a distributor in circumstances which prevent the distributor or the ultimate purchaser from discovering by inspection any defect under any legal duty to the ultimate purchaser to take reasonable care that the article is free from defect likely to cause injury to health? Decision Found in favour of the appellant. Reasons for Decision It was accepted from the lower courts’ writings that the manufacturer was in fact responsible for the snail in the bottle and that the snail was the cause of the appellant’s illness. The only remaining issue was the establishment of duty of care. It was held that the manufacturer owed a duty of care to the appellant in that he should have reasonably foresaw that his failure to ensure the product was free of contaminants could have resulted in illness or injury to the consumer, and was bound to do so. Ratio Decidendi One must take reasonable care to avoid acts or omissions which one can reasonably foresee would be likely to injure his / her neighbour. Neighbours are defined as persons who are so closely and directly affected by one’s act that (s)he ought reasonably to have them in

Timothy J. Watson 8 contemplation as being affected when one directs his / her mind to the acts or omissions in question. Comments Landmark case; ‘neighbour principle’ became the hallmark test for negligence in tort law. This was extended in Home Office v. Dorset Yacht to apply to public authorities as well. Beginning of modern negligence comes from Donoghue: Two part Duty of Care test resulted. (specifically the first part) - several relationships here. Plaintiff and friend who bought the beer. Plaintiff and proprietor of café. Plaintiff and manufacturer. o No specific contract between plaintiff and manufacturer. Prior to Donoghue, there was more of a list as to those who have duties. (Lord Atkin’s list pg. 2-2) Lord Atkin claimed there was an underlying principle. -duty to your neighbour: Pg. 2-3 → duty to thy neighbour. “The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, who is my neighbour? Receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The anser seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation when I am directing my mind to the acts or omissions which are called in question.” Thus Lord Atkin established step 1 – foreseeability and general proximity. Lord Macmillan: The window of negligence is never closed. The dissenting Lord Buckmaster: - “if one step, why not fifty” → reveals the fear of extending this idea. Step 2: social policy. - arose from Anns v. Merton London Borough Council - three parts o scope of the duty o class of persons to who it is owed o damages to which a breach of it may give rise. Social policy considerations only brought in through nature of relationship between plaintiff and defendant. Read Cooper v. Hobart → LRW – par. 33 Anns test brought in to Canada in Kamloops v. Nielsen - what is the relationship between the two parties. o If it’s happened before it’s easier  If not – have to discover if there is general proximity.

Timothy J. Watson 9 Identify class of persons/type of relationship and argue that it is somehow analogous. Policy: para. 37 of cooper – would recognition of the liability open floodgates. Examples: 1. Administrative factors. 2. Nature of the activity that is alleged to be negligent. Is this a sphere of activity better left free of oversight by tort law. (eg. Omissions – as opposed to acts) 3. Identity of the defendant. Is this a class of actor who should be free of oversight by tort law? Eg. Government actors. 4. nature of the damages. Is this a type of damage which ought not to be compensable through tort law? Eg. Pure emotional distress and pure economic loss (loss of profits). B. Supervision and Prevention ARNOLD v. TENO (1978) Procedural History The truck driver and owner appealed to the Supreme Court respecting liability and quantum of damages; the owner and driver of the car appealed only respecting their quantum of damages; the mother appealed the granting of contribution against her. Facts of Case The infant plaintiff bought ice-cream from the defendant’s ice-cream truck parked at the curb, and in crossing the street to return home was struck by a passing car. The driver of the truck was untrained and was using a manual provided by the truck owner which did not apply in several respects to the truck in question. The infant plaintiff was not accompanied by a parent at the time of the accident. However, Mrs. Teno warned her daughter to watch for cars before giving her the money. Issues / Questions Where one party operates a business which by design attracts small children in a public area, does the party owe a duty of care to these children to ensure their safety in the course of transacting its business with them? Was the mother negligent in her actions as compared to a “reasonable standard of care” for her neighbourhood. Decision The appeal of the driver and owner of the truck respecting liability was dismissed. The appeal as to the quantum of damages for all four defendants was allowed and the portion of damages assigned to them was reduced. The mother’s appeal with respect to contribution was allowed and the defendant’s claim against her dismissed. Held that the mother was entitled to costs. Reasons for Decision Findings of the lower court with respect to the negligence of the car driver and owner were upheld. The Appeal Court’s finding with respect •

Timothy J. Watson 10 to the mother was overturned as it was found that she had acted within a parent’s normal standard of care in this situation as her children had been properly instructed in road safety with respect to visiting ice-cream trucks and had visited them without incident in the past; moreover it was held that she was entitled to rely on the vendor to exercise “some care toward the children which it attracted.” Citing the ‘neighbour principle’ from Donoghue v. Stevenson, the Court reaffirmed the Trial Court finding that ice-cream truck driver and owner “owed a duty of care to customers too young to be held responsible for their actions and that they were in breach of such duty”; it also reaffirmed the Appeal Court finding that “the children induced into the street by the defendants. . . became the neighbours of the defendants,” and as it was reasonably foreseeable that harm might befall the children in crossing the street to the truck, the defendants should taken steps to ensure the safety of their children customers. The mother exercised a standard of care deemed reasonable in light of neighbours… including: telling the children to watch for cars, had watch the kids do this before. Ratio Decidendi Where one party operates a business in a public area which by design attracts small children, a relationship is formed which dictates that the party owes a duty of care to these children to ensure their safety in the course of transacting its business with them; furthermore, parents may expect the party to assume a duty to take reasonable care of these children. The mother has a liability which must be considered in relation to the “accepted standard of care by parents generally in the community.” Obiter: -It is probably the case that not finding teno negligent was at least partly a result of the financial needs of the family/Dianne Teno. -Custom is persuasive but NOT sufficient/absolute evidence. -Arguments put forward by Arnold: - it wasn’t economically profitable to put a second person in the car. - Argued that there should be no duty because of their omissions. o Court said that this was in the exception of the no liability on omissions law. HOME OFFICE v. DORSET YACHT (C.A.) Procedural History Heard in Court of Appeal, Civil Division (U.K.) on appeal by the defendants (Home Office) from Trial Court preliminary judgment; case had not been tried prior to appeal. Facts of Case

Timothy J. Watson 11 Seven borstal boys in the custody of officers of the Home Office escaped from custody in the night, boarded a privately owned yacht, and did significant damage to the vessel. The plaintiff’s insurance company paid for repairs and brought an action against Home Office for recovery of damages. Issues / Questions Is the Home Office liable for damage done by prisoners who escape from custody or done by them whilst on parole? Decision Held that the Home office did owe a duty of care to those in the neighbourhood which was capable of giving rise to a liability in damages; appeal dismissed. Reasons for Decision DENNING, M.R.: As this was a preliminary finding of law, facts were not in dispute. Argued that recent case law involving prisoners harming other prisoners provides a basis for the Home Office’s duty to others beside the Crown. The damage was not too remote as it could reasonably be foreseen as a consequence of leaving the boys free to escape at will. Held that neighbours of the borstal institutions are entitled to expect that reasonable care will be taken to protect them and that maintaining the neighbours’ confidence in the law supercedes the importance for Home Office agents to be able to operate without fear of liability. Held that Home Office agents would be considered negligent if they did not take such care and supervision as a reasonable person operating such a system would take. -Inch by inch approach; gradually extends hypotheticals to eventual situation. EDMUND DAVIES L.J. (concurring): Cited exceptions to the general principle that no “one man is under no duty of controlling another man to prevent his doing damage to a third”, wherein the man may be responsible where the third person could not have acted but for the fault or breach of duty of the first man. These include relationships such as parent and child, master and servant, principal and agent, and joint tortfeasors. Held that those responsible for prisoners should be responsible for their actions upon escape just as they are responsible for their actions while in custody. Carmarthenshire County Council v. Lewis – ruled that duty between teacher and pupil but also between teacher and users of nearby highway to keep students away. Just saying that they have a duty NOT that they are necessarily liable. Ratio Decidendi The Home Office liable for damage done by prisoners who escape from custody or done by them whilst on parole where the damages could be reasonably foreseen as a consequence of the Home Office’s breach of duty toward the neighbourhood by failing to maintain proper supervision of the prisoners.

Timothy J. Watson 12 HOME OFFICE v. DORSET YACHT (H.L.) Viscount Dilhorne: If foreseeability test is applied to determine to whom the duty is owed, I am at a loss to perceive any logical ground for excluding liability to persons who suffer injury or loss no matter how far they or their property may be from the place of escape, if the loss or injury was of a character reasonably foreseeable as the consequence of failure to take proper care to prevent the escape. C. Government Liability and Statutes Two conflicting problems. 1. governments should have liability like the rest of us 2. governments being special should have some special status.  court’s should not decide for governments how to spend their money.  Potential for liability is nearly endless. General rule: liability for policy but not operation JUST v. BRITISH COLUMBIA Facts: Appellant and his daughter were driving to Whistler on Sea-to-sky. A heavy snowfall forced them to wait in traffic; a boulder fell down the slope and landed on the car, killing the daughter and severely injuring the plaintiff. Appellant brought action against the respondent for negligently failing to maintain the highway properly. Issues / Questions Does the Crown owe a duty of care to ensure the safety of those using the public highways? To what extent if any is the Crown liable to citizens for damages caused by its decisions? Decision Found that the province did owe a duty of care; appellant was entitled to a finding of fact; new trial was ordered. Reasons for Decision CORY J.: Applied two part test developed from Donoghue v. Stevenson / Hedley Byrne / Dorset Yacht: 1. Is there sufficient proximity and foreseeability? - Proximity was established by province “inviting” tourists to go to Whistler. Thus creating a duty of care. 2. Whether or not there were limiting social policy considerations? a. Is there statutory immunity? - An examination of the Crown Proceeding Act and the Highway Act not only did not absolve the province of responsibility, but in fact established a positive duty by holding the province liable for the maintenance of highways to the same extent that municipalities are liable for roadways, and making the Crown subject “to

Timothy J. Watson 13 all those liabilities to which it would be liable if it were a person.” b. Is there common law immunity? - The court cited an Australian case (Sutherland Shire Council v. Heyman) which distinguishes between policy decisions, which aren’t actionable, and operational decisions, which are. Court found that the specifics of the inspection system, which may have been responsible for the accident, were a matter of operational rather than policy decision. -The court cited an Australian case (Sutherland Shire Council v. Heyman) which distinguishes between policy decisions, which aren’t actionable, and operational decisions, which are. Court found that the specifics of the inspection system, which may have been responsible for the accident, were a matter of operational rather than policy decision. - Policy Realm: nature of decision - Based on finance - level of authority of decision maker - Operational Realm: how policy is carried out. - action/inaction which is merely the product of administrative direction. Ratio Decidendi “A public authority is under no duty of care in relation to decisions which involve or are dictated by financial, economic social or political factors or constraints. . . But it may be otherwise when the courts are called upon to apply a standard of care to action or inaction that is merely the product of administrative direction, expert or professional opinion, technical standards or general standards of reasonableness.” Comments One stated exception to ration: policy is actionable when it does not constitute a bona fide exercise of discretion. SOPINKA dissenting: inspections were a matter of policy and thus protected; in any case, no evidence of a lack of reasonable care so it’ll probably be dismissed in a finding of fact. Hedley v. Byrne—applies neighbour principle to cases involving negligent statements causing economic losses. Same trilogy (with Donoghue v. Stevenson and Dorset Yacht) applied in Anns v. Merton. Policy can be open for tort law (according to Just) if not made in bona fide exercise of discussion: a decision will be deemed not to have been made in the bona fide exercise of discretion if it is made in bad faith or if it is “so irrational as to constitute an improper exercise of government discretion.” (2-36) -Roncarelli v. Duplessis – stands as example of bad faith decision making by governments.

Timothy J. Watson 14 “misfeasance in a public office” or “abuse of power” is a tortious liability; “Discretion necessarily implies good faith in discharging public duty” NOTES (Casebook 472) Hedley v. Byrne—applies neighbour principle to cases involving negligent statements causing economic losses. Same trilogy (with Donoghue v. Stevenson and Dorset Yacht) applied in Anns v. Merton. The Anns Test of government liability: 1. Sufficient proximity. 2. Policy considerations. - The two-part Just test See 2-41 Kamloops v. Nielson, [1984] • Claimant can still recover if it can be shown that a policy decision was made in bad faith or that it was so irrational that it was not a proper exercise of discretion. A government agency may be held liable if it fails to follow properly the policy it has adopted (Linden p.472). • Policy vs. operation= “probably a distinction of degree” • Government can be held liable if it fails to even consider enforcing its by-laws (if it considers it and as a matter of policy elects not to, it’s not actionable): “inaction for no reason or inaction for an improper reason cannot be a policy decision taken in the bona fide exercise of discretion.” Failure to consider=failure to act with reasonable care • Imports the Anns Test JANE DOE v. TORONTO (H.C.J.) Facts of Case Victim was raped at knife point by a serial rapist who was known to be operating in the area by police, who made no effort to alert the community. Police claimed that they had refrained from issuing warranty to avoid a hysterical reaction from neighbourhood women which might cause the rapist to flee. This case is a motion by defendants to strike out the statement of claim and dismiss the action as disclosing no reasonable cause of action. Issues / Questions Are the police liable for negligence and breach of plaintiff’s constitutional rights under the Charter for failing to allocate adequate resources to the investigation, failing to capture the offender and failing to adopt appropriate investigative techniques and to protect the plaintiff from foreseeable harm to her as a potential victim? Decision Police board and chief may be sued in respect to their own torts; chief also liable under s.24 for torts of his constables •

Timothy J. Watson 15 NOTE: Rejects policy defence that police would be hampered by continually fighting law suits because these will only be opened in rare “special circumstances.” Comments Purpose of case was to determine if there were grounds to find a duty of care under which the police could be found liable for negligence. Their guilt would be determined in a future proceeding once there motion to quash the statement of claim was dismissed in this case. A number of precedents are consulted in discussing Air India: • Anns v. Merton London Borough Council—2 part test: (1) Is there “a sufficient relationship of proximity or neighbourhood such that, In the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter, in which case a prima facie duty arises.” (2) if there is, “whether there are any considerations which outgh to negative, or to reduce or limit the scope of the duty or class of person to whom it is owed” (Direct from original judgment) • Home Office v. Dorset Yacht—government must be free to exercise discretion, but “there must come a stage when the discretion is exercised so carelessly or unreasonably that there has been no real exercise of the discretion which Parliament has conferred. The person purporting to exercise his discretion has acted in abuse or excess of his power”, which Parliament cannot have meant to grant immunity for (Direct from original judgment) • Kamloops v. Nielsen—where “a government official is acting in execution of a policy or discretionary decision, i.e., in the operational area, a common law duty of care may arise more readily” (paraphrase by Air India judge) • Hill v. Chief Constable of West Yorkshire—“there may be no duty of care to members of the general public. . . however, third does not exclude a duty of care to a more limited class of individuals” (paraphrase by Air India judge) Outside of Air India: • Johnson v. Adamson—police chief held personally liable for allowing racist attitudes to permeate police force, knowing that it would place black people in danger • Hill v. Chief Constable of West Yorkshire—police owed a general duty at common law to public at large, but no common law duty toward individual members of the public o Constable “may be liable in tort to a person who is injured as a direct result of his acts or omissions”, but fails in second part of test with respect to Hill in particular o Distinguishes from Hill because plaintiff wasn’t one of a vast group at risk with no special distinctive relation to the

Timothy J. Watson 16 offender; reasonable forseeability that someone like Hill might be in danger but it’s too broad to bring it down to her • Beutler v. Bueutler—general duty to warn; proximity is easy because it’s the people in the area (gas leak explosion) JANE DOE v. TORONTO (Gen. Div.) (1998) Issues / Questions Did the police owe a duty of care to the plaintiff to notify her as a member of the public of the potential threat posed by the rapist? If so, was the breach of this duty a violation of her Charter rights? Decision Held that the police did owe a duty of care, which they had breached, and in doing so had violated the plaintiff’s rights under s.15(1) and s.7 of the Charter. This violation was not exempt under s.1. Reasons for Decision 1. Is there sufficient proximity and foreseeability? S.57 of the Police Act establishes a “duty of preserving the peace preventing robberies and other crimes” which indicates a duty of care to protect the community members from violent assaults. The court held that it was reasonable for the police to foresee that the rapist might be able to harm other women in the area if they were not warned to exercise greater caution, and that it was foreseeable that someone belonging to the plaintiff’s class of person (i.e. single women in the area) might be assaulted should the police fail to notify the public. 2. whether or not there were limiting social policy considerations? Just Test: a. Is there statutory immunity? -there is none because of s. 57 of the Police Act. However, there is nothing in the act that would get there b. Is there common law immunity? -Policy Realm: nature of decision/decision maker -Operational Realm: how policy is carried out. - Was the decision one of operational or policy level? o It was a decision made by the officers – not by somebody higher up. o Court ruled it was an operational decision. Some question of whether this was right – if this was a policy decision, it was one made in bad faith. Not entirely certain on what basis high court of justice made its decision. Ratio Decidendi The police owe duty of care to the public to alert its members of potential threats to their safety. Failure to do so on the basis of discrimination is a violation of Charter rights. Comments • 3rd party liability issue

Timothy J. Watson 17 • • Applied under s.24 for compensation strictly related to the Charter violations, but none was given SCC has recognized that there’s “no body of jurisprudence . . . in respect of the principles which might govern the award of damages” under s.24 D. Failure to Act OMISSIONS, Atiyah P.S. Atiyah, Atiyah’s Accidents, Compensation and the Law (2-59) Attempts to draw ‘logical line’ between affirmative (misfeasance) and negative (nonfeasance) conduct Distinction depends on whether you’re considering failure to act as an isolated failure or part of a larger activity Difference=difference between tort and contract liability: not generally bound to act unless there’s an agreement to do so, whereas negligence relates to a DOC not to act in a way that causes damage Attempts to reach a policy for distinguishing; sets three possible considerations, then rebuffs each: 1. Imposition of affirmative duties is more burdensome than negative duties, taking more time, effort, money and risk  Existence of burden shouldn’t excuse nonfeasance  Extent of burden should be measured against the value of the end achieved by acting (i.e. inconvenience / expense vs. preservation of life)  However, tort already judges burden of precaution against the foreseeability of harm - no truly severe burden is ever applied (already the case in torts) 2. Difficulty in identifying person liable for nonfeasance; misfeasant person knows he’s done something wrong, whereas nonfeasant thinks he’s blameless for doing nothing; who do you blame for it?  This is also a problem with misfeasance, where often the most convenient person is blamed  Question isn’t if someone else was more responsible, it’s if the defendant was responsible 3. Misfeasance is related to causation; nonfeasant doesn’t cause anything directly  “language of causation in this context simply provides a way of expressing a judgment about the proper limits of liability for negligent failure to act” Bottom line: there’s probably no satisfactory reason to or way of distinguishing LIABILITY FOR OMISSIONS, Cooper-Stephenson

• • •

Timothy J. Watson 18 • Old ‘starting point’ for tort law that said it involves a “more serious restraint on individual liberty to require a person to act than it is to place limits on his freedom to act” is mistaken because it assumes no-one has any entitlement to anything from anyone; modern views recognize that “the strength of [individualistic] sentiments is steadily being sapped by an increasing sense of heightened social obligation and other collectivist tendencies in our midst.” • “gradual acceptance of communitarian political duties to act in a variety of circumstances” has lead to a broadening of categories for omissions liability: 1) Where the failure to act was an integral part of a larger pattern of active conduct 2) Where the defendant participated in the creation of a risk or hazard 3) Where the defendant undertook to do something and thereby induced reliance 4) Where there was failure to perform a contractual promise 5) Where the defendant was in a position of supervision and control 6) Where the affirmative duty was imposed by statute 2-69: It is still in the modern law of negligence that, there is no duty to come to the rescue of a person who finds himself in peril from a source completely unrelated to the defendant, even where little risk or effort would be involved in assisting: thus a person on a dock can with legal impunity ignore the call for help of a drowning person… Note: Omissions can be found in nearly every case (Dunsmore, Donoghue, Arnold) → in exams do not go fishing for them. The rule is that there is no duty where there is purely omissions except for the exceptions (which now pretty much rule). HORSLEY v. MACLAREN (The Ogopogo) Ratio Decidendi Held that a cornerstone of common law is the principle that “there is no duty to take positive action in aid of another no matter how helpless or perilous his position is.” Comment “. . . it appears presently the law that one can, with immunity, smoke a cigarette on the beach while one’s neighbour drowns. . .” OKE v. WEIDE TRANSPORT LTD. Facts: Somebody fell ill in dpt. Store – was taken to infirmary and left there until they eventually died. Omission: Undertaking in reliance: (gratuitous undertaking and reliance) - Gimbel bros. did not have a duty to deceased – but once undertook it had a duty to finish it o They prevented others from helping her. Ratio Decidendi

Timothy J. Watson 19 A party who would not otherwise owe a duty of care to a second party assumes a duty of care when (s)he undertakes to assist the second party and in doing so lessens the possibility of the second party receiving assistance from someone else, thus inducing reliance on the first party by the second. ZELENKO v. GIMBEL BROS. Facts: Somebody fell ill in dpt. Store – was taken to infirmary and left there until they eventually died. Omission: Undertaking in reliance: (gratuitous undertaking and reliance) - Gimbel bros. did not have a duty to deceased – but once undertook it had a duty to finish it o They prevented others from helping her. Ratio Decidendi A party who would not otherwise owe a duty of care to a second party assumes a duty of care when (s)he undertakes to assist the second party and in doing so lessens the possibility of the second party receiving assistance from someone else, thus inducing reliance on the first party by the second. CROCKER v. SUNDANCE NORTHWEST RESORTS (1988) Facts Crocker entered a tubing contest at a ski resort. He didn’t notice that the entry form contained a waiver of liability. He became intoxicated the night of the event; resort staff continued to serve him alcohol after he passed the point of visible intoxication, despite knowing that he was a contestant. Crocker was warned of the danger and recommended not to compete intoxicated by resort staff; he declined this advice, competed, and was severely injured. Crocker sued the resort for negligence. Issues / Questions Does the organizer of a potentially hazardous sporting event owe a positive duty to prevent visibly intoxicated contestants to compete? Decision Found for the plaintiff. Reasons for Decision The court determined by citing numerous cases that there is a common law principle that one is under a duty not to place another person in a position where it is foreseeable that that person could suffer injury. Special relationship established because: 1. relationship of economic benefit to the defendant. 2. Participation in creation of the risk 3. Affirmative duty: Meno v. Hnsberger – bar found liable for drunk who died outside of their

Timothy J. Watson 20 bar i. court draws comparison b/c held that it was a special relationship between bar and patron. Now for dealing with omission you have to look for a special relationship. Ratio Decidendi An organizer of a potentially hazardous sporting event held for profit does owe a positive duty of care to its visibly intoxicated contestants to prevent them from competing. E. Pre-Natal Injury DOBSON (litigation guardian of) v. DOBSON Facts: Pregnant woman was negligent in causing car accident which induced the delivery of her baby by c-section. The child was born with CB. Child is the plaintiff – through the grandfather. Purpose of case is to access insurance of mother. (Mother wants to lose and is being defended by Insurance) Issues / Questions “Should a mother be liable in tort for damages to her child arising from a prenatal negligent act which allegedly injured the foetus in her womb? Decision Appeal allowed without costs. Reasons for Decision 1. General proximity? - actually not answered by the courts because they knew it wouldn’t get past the second and, in light of that, did not want to open up the “fetus” can of worms. - However, in other cases it has been held that third parties do owe a duty of care to fetus’s. (Montreal Tramways – under civil code) (Ontario case – reasonably foreseeable) Note: it’s not mother suing it’s child suing third party. 2. Social policy reasons: Held that there are social policy reasons - Two main ideas: o 1. liberty: if we held that there is a duty, every action of an expecting mother would be subject to dispute. (Sleeping, eating etc.)  Para 28 – regulating diet, abstain from smoking, sex, etc. • No rational limit to when tortuous claims o 2. Equality: Constitutional character of these values.  Charter does not apply to private law. Ie. Can not sue judges for decisions in which they exercise their law making power… nonetheless common law decisions about duty have to be made in sync with “Charter values” While it was recognized that third parties may be held liable in tort for prenatal injuries inflicted by negligence which become actionable upon the birth of the child and thus his / her becoming a legally recognized person, and that in this case the mother owed a duty of care under the

Timothy J. Watson 21 first condition of the Kamloops test in that she was close in physical proximity and that it was foreseeable that her actions could cause harm to her unborn child, it was held that the unique relationship of mother and unborn child provided reasons under the social policy component of the test which preclude tort liability of the mother. These included unacceptable abridgement of her Charter rights to equal treatment (s.15(1)). Ratio Decidendi A mother should not be liable in tort for damages to her child arising from a prenatal negligent act which allegedly injured the foetus in her womb because to do so would impose unique and unacceptably great infringement on her fundamental rights under the Charter. Comments McCLACHLIN, concurring: added that imposition of tort liability would infringe on pregnant women’s liberty and equality under the Charter and that the Appeal court notion that she could be held liable under a general duty of care to anyone on the road was bizarre because it would probably require that some unrelated third party were also harmed. F. Social Host Liability CHILDS v. DESMOREAUX offers a summary of duty of care. Facts: Zimmerman and Courrier hosted a new years party at which Desormeaux was a guest. The party was BYOB. Desormeaux had two previous D.U.I. convictions and drove to the party. Sometime later, Desormeaux left the party with two other guests and drove home. He hit a car in which Childs was a passenger leading to her serious injury. His blood alcohol was somewhere around .18. Joint and several liability applies here (and in most cases of multiple defendants). Had been decided 75-25 at trial level. Because Desormeaux was broke, Zimmerman and Courrier were the only ones who were going to have to pay. Theoretically defendants can go after co-defendant if forced to pay whole sum. Issue: Is “social host” liability a novel duty of care and is there a duty owed by social hosts to users of the road. Should tort liability not be extended to social hosts because of policy reasons. Ruling: Ratio: 1. Anns test of tort liability: a. Is there sufficient proximity?

Timothy J. Watson 22 b. Are there any considerations which ought to negate or limit scope of duty, class of persons duty owed to or damages to which they may give rise? 2. Commercial host liabilities application to this problem. (Jordan House) Analysis: - “there are significant differences between the relationship of a commercial host and a social host. Commercial hosts serve alcohol for profit and, as a result, the relationship between the commercial host and the drinker is a contractual one giving each party certain legitimate expectations.” - Commercial hosts are regulated by statute. Statutory duty to monitor the amount of alcohol patrons consume. - At a BYOB party, social hosts do not assume control over the supply and service of alcohol. Court leaves the door open for other types of social gatherings. - Alcohol consumption in social settings is much different from bars and requires “specific analysis” before policy considerations can be dealt with. - “in the absence of some assumption of control by a person or justified reliance on that person by another, arising out of circumstances or as a result of the imposition of a statutory duty, the common law does not make one person liable for the conduct of a second person simply because the second person occasions damage to a third party that is reasonably foreseeable.” - Other social host cases involved other issues such as underage house guests. o Plaintiff tries to set up a paternal situation by pointing to Desmoreaux’s history. - No duty of care arises in the circumstances of this case to third party users of the road, I would not exclude from future consideration the imposition of a duty of care upon a social host. - Foreseeability arguments – does desmoreaux’s propensity to drink affect the standard of care owed by Zimmerman. o J. say no – past history does not alter their duty  In fact, the past history suggests that he would stay over. - court also did not determine the extent of the duty – they did not recognize that there was a duty so they didn’t answer this question – o without general proximity you can not determine extent of the duty. Para.75 – summarizes Para. 76 – hold the door open to social host liability Conclusion: appeal dismissed. However: Para 78-83: possible policy arguements Obiter: Quote on anns test: Once the trier of fact concludes that the nature of the relationship was such that the defendant ought to have had regard for the interests of the plaintiff, that the injury in

Timothy J. Watson 23 question was foreseeable and that there are no case-specific factors that would negate or limit the imposition of liability, the court will proceed to the second stage of the Anns test. At this second stage of the Anns test, the court will consider whether there are other residual policy considerations outside the relationship of the parties that might affect the imposition of a duty of care. Page 296 – summary of anns test. Para 24 Once the trier of fact concluedes that the nature of the relationship was such that the defendant ought to have had regard for th interests of the plaintiff, htat the injury in question was foreseeable and that there are no case-specific factors that would negate or limit the imposition of liability (THIS IS THE COOPER AND HOBART EXTENSION), the court will proceed to the second stage of the Anns test…. 3. NEGLIGENCE: BREACH OF DUTY Three phases of analysis: 1. Determine the standard of care to be applied - who is the reasonable person against whom to measure defendants conduct 2. what is the impugned conduct? Precise conduct that is alleged to give rise to a breach of the standard of care 3. Unreasonable risk standard. Did the defendant in engaging in the impugned conduct take an unreasonable risk. Have to satisfy 1 and 2 to get 3. A. The Reasonable Person Standard Against whom to measure the defendants conduct? “The man on the platinum omnibus.” Subjectivized to some extent by the idea that we look at people in the situation given. - we don’t hold children to the reasonable person standard: we hold them to standard of child of similar age, intelligence and situation Oliver Wendell Holmes: quoted in Vaughn “The law takes no account of the infinite varieties of temperament, intellect, and education which make the internal character of a given act so different in different men. . . . when men live in society, a certain average of conduct, a sacrifice of individual particularities going beyond a certain point, is necessary to the general welfare. . . . he who is intelligent and prudent does not act at his peril, in theory of law. On the contrary, it is only when he fails to exercise the foresight of which he is capable, or exercises it with evil intent, that he is answerable for the consequences.” VAUGHN v. MENLOVE (1837) Facts: Defendant constructed a hay-rick which spontatneoulsy combusted and burnt down plaintiffs house. Over period of five weeks the defendant was warned of his peril. He said he would chance it.

Timothy J. Watson 24 Issue: Did the defendant breach a duty to his neighbours in constructing the hay-rick as he did? Did the defendant act bonafide to best of own judgement OR whether he should be compared to reasonable person standard. Ruling: yes. Should be compared to reasonable person. “there is a rule of law which says you must so enjoy your own property as not to injure that of another… though the defendant did not himself light the fire, yet mediatley, he is as much the cause of it as if he had himself put a candle to the rick.” Ratio: “instead, therefore, of saying that the liability for negligence should be coextensive with the judgement of each individual, which would be as variable as the length of the foot of each individual, we ought rather to adhere to the rule which reauires in all cass a regard to caution such as a man of ordinary prudence would observe. That was in substance the criterion presented to the jury in this case, and therefore the present rule must be discharged.” the formulation of the idea of a reasonable man. Court did not take into account the mans questionable intelligence. Plaintiff shouldn’t have to bare the loss simply because of the fact that the defendant was an idiot. BLYTH v. BIRMINGHAM W.W. CO. (1856) Facts Water main built and maintained by defendant, froze and flooded house causing damage. It was an unusually cold frost and there was nothing unusual about the water main etc. Watermain specified with ALL statutory regulations. Issues / Questions Where a party installs a product to the best known standards of the time, and the product fails and causes damage nonetheless, is the party guilty of negligence? Ruling: defendant was not liable. I am of opinion that there was no evidence to be left to the jury. The case turns upon the question, whether the facts proved shew that the defendants were guilty of negligence. Negligence is the omission to do something which a reasonable man, guided upon those consideration which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Ratio Defendant not required to go above the reasonable standard for water-works companies. A party installing a product which causes harm is liable for negligence only if they failed to perform the installation standards according to what a reasonable person would consider prudent, according to average circumstances and conditions. -Reasonable person standard is culturally specific –depth depends upon frost of that area – reasonable person from another area might not be liable for that. DOBSON v. DOBSON Difficulties of Articulating a Judicial Standard of Conduct for Pregnant Women • Argues against a standard of conduct for pregnant women

Timothy J. Watson 25 o Cites Stallman:  What standard would women’s acts / omissions while pregnant would the State apply?  What objective standard would guide juries in tort cases?  How would they stop prejudicial / stereotypical ideas about women be kept out of equation? o “inconsistent with the general principles of tort law and unworkable in practice” Reasonable Pregnant Woman Standard • “spectre of judicial scrutiny and potential liability imposed for “lifestyle choices”” • problem of holding all women to a single standard would be that not all pregnant women share the same socioeconomic circumstances Lifestyle Choices Peculiar to Parenthood • impossible to set immunity with respect to activities specific to parenthood because so many activities important to parenthood overlap with regular life (e.g. driving); would lead to inconsistent application of the law • Can’t have a “general duty of care” as a test for maternal tort liability because “negligence cannot exist in the abstract. There must be a specific duty owed to a foreseeable plaintiff, which is breached, in order for negligence to arise” B. The Impugned Conduct Impugned conduct is all about facts WARE’S TAXI LTD. v. GILLIHAM – example of impugned conduct evidencing breach. Facts: Young child riding in taxi opened door and fell out. Issue: Was there a breach of duty on behalf of the taxi driver? Ruling: Yes there was a breach. They were taking an unreasonable risk. as this. Majority: Estey J. – Compares to other taxi companies; comments on the age of the students and the arrangement of the students. - looks at safety devices. Impugned conduct is failing to do one of these things. -See how this affects unreasonable risk standard – depending on the one you affect the burden goes up or down. - installing a simple lock vs. having another driver. You look at unreasonable risk through standard of care and impugned conduct. - this gets at difference between taxi driver and parents. - helps explain the difference. Ratio: Reasonable person would take extra steps to protect children from incidences such Obiter:

Timothy J. Watson 26 Dissent – parents knew of the situation. Unfair to place duty on taxi for something which parents helped create. Rand J. - compares to reasonable parent. Says that it wasn’t that unusual for parents to pile kids in a car and go for a ride. Rand and Estey are essentially looking at different people as reasonable standard of care. - Rand: who is more concerned about the child than the parents? o Therefore if they acquiesced – it was valid. C. Unreasonable Risk U.S. v. CARROLL TOWING CO. Facts: focus on deckhand and harbourmasters fixing of boat to pier. Liability of the owners for the damage caused by the barge at the fault of the bargee. They decide that burden of precaution requires at least checking in every 21 hours. Probability of harm was high b/c of crowded harbour. Three factors to consider: 1. Prob of harm 2. Gravity of harm 3. Burden of precautions: If BP is less than the prob of harm and Gravity of harm – then you have breach. Canadian Courts have embraced algebraic formula with some differences. Object cost substituted instead of Burdern of precaution. Mathematical formula ( B<PL=breach) is misleading. Better (more legal) to look at balancing scale Probability of harm vs. burden of precaution Gravity of Harm social utility Which way does balance fall Important: it is the prob. Of harm looked at by the reasonable person before the act. Same with Gravity. Burden of precaution – can be partly economical but most often thought of by the courts as associated with other costs: time, discomfort etc. Social utility rarely comes up – mostly with very specific defendants. - the rescue workers idea. The economic interpretation of tort liability. BOLTON v. STONE Facts: Defendants are a cricket club. Plaintiff was struck by ball. Foreseeable: Yes – it had happened before. - does not mean it was unreasonable for them to use that pitch. Issue: was it a breach of duty? Ruling: no Analysis: probability of harm was extremely low. It wasn’t a busy street, further reducing the risk. Gravity of harm was low as well. How does a reasonable person respond to a low risk? Frequently they take chances.

Timothy J. Watson 27 How does reasonable person respond to risk issue. The continuum: Fantastic Posssibilities___________________________reasonable probability Court thought this was (mildly) closer to fantastic possibilities. Which end of the continuum risk is on affects whether there is a duty. Gravity of harm: Not just the likelihood of being struck but the seriousness of the consequences. Reasonable person would take a very small risk seriously if it was a very grave harm. - paris v. stepney borough council (probability and gravity) Burden of Precaution: -if cricket cannot be played on a ground without creating a substantial risk, then it should not be played there at all. Ratio Decidendi Test to be applied should be whether the risk of damage to another person is so small that a reasonable person would have thought it right to take steps to prevent the danger. He or she should take into account the likelihood of harm being caused and the seriousness of the consequences should harm be caused, but not the difficulty or expense of remedial measures. Feminist critic Prof. Leslie Bender criticizes reasoning in cases like this for dehumanizing people by abstracting their suffering into costbenefit and risk-utility assessments. She states that “Tort law should begin with a premise of responsibility rather than rights, of interconnectedness rather than separation, and priority of safety rather than profit or efficiency.” PRIESTMAN v. COLANGELO Facts: Appellant, Priestman was a police officer engaged in a high speed chase with one Smythson. After attempts at stopping him, Priestman fired at the back tire of Smythsons car accidentally striking him and leaving him unconscious. Smythsons car ran over two people who died before it came to a complete stop. Three injured people. Driver of the car and two pedestrians (Colangelo being one). At time of this case – Supreme court focusing on families of two pedestrians vs. the policeman. Driver had lost by this point. Issue: did Smythson owe a duty to third party bystanders and did he breach it? - conflict of duty to apprehend fleeing conflict vs. duty to innocent bystanders. Ruling: not liable. Both sides apply the same test. Emphasize different facts and arriving at different conclusions. Majority: Locke J.: also points out the balancing act. - views letting go of Smythson as more significant than Cartwright does. - Also weighs the burden of precaution more heavily than Cartwright. I do not think that these officers having three times attempted to stop the fleeing car by endeavouring to place their car in front of it were under any obligation to again risk their lives by attempting this. No other reasonable or practical means of halting the car has been suggested than to slacken its speed by blowing out one of the tires.

Timothy J. Watson 28 - Locke takes the position that he has to be stopped. Dissenting: Cartwright J. - not focusing on the actual chain of events – just the final act. Focus only on firing the gun. - probability of harm – Cartwright has no issue, it was going to be harmful - In addition – assumes the gravity of such an act to be high Other side of the equation: what was the social utility of the impugned act? - Cartwright: not a very significant crime. - The officer should, I think, consider the gravity of the offence of which the fugitive is believed to be guilty and the likelihood of danger to other citizens if he remains at liberty; o Cartwright does not see allowing him to proceed as dangerous. Obiter: adds the social utility of the impugned conduct to the unreasonable risk formula as an additional factor to weigh against the probability and gravity of harm. - social utility mostly only considered in relation to society in general. Important to note how the perception of the situation determines justices opinions of burden. CROCKER v. SUNDANCE NORTHWEST RESORTS Facts: Drunk tubing accident. Had warned against but nonetheless did not prevent crocker from competing. Issue: Burden to prevent from competing. Ruling: They failed. Did not live up to their duty. Burden of precaution is very minimal. - Not a great deal of discussion about probability or gravity of harm. Court cited Jordan House: “it is relevant to relate the probability and gravity of injury to the burden that would be imposed upon the prospective defendant in taking avoiding measures.” Held that there were a number of precautions available to the resort which would have imposed little burden but which the resort nevertheless failed to take. In doing so it breached its duty to the plaintiff. Ratio Decidendi Where the party likely to be injured by a defendant’s failure to meet a standard of care is irresponsible and intoxicated, the defendant is obliged to take all reasonable steps to prevent harm from coming to the party. Return to Ware’s Taxi: Consider – probability, impugne conduct, gravity of harm, burden of precaution and social utility. Probability of harm: - frequency of children falling out of cars. -natural curiosity of children - their age. - majority thought it was somewhat probable. Burden of precautions: - diff. judges had different opinions about availability of devices.

Timothy J. Watson 29 - Lowest burden: hiring another person to sit in the car. Gravity of harm: - age of children? - Socio-economic status? Exceptions D. The Mentally Disabled FIALA v. CECHMANEK Facts: Robert MacDonald had a manic stage while running where he thought he was God. Eventually jumped on to a car, kicked through sunroof and strangled a woman (defendant) who unwillfully accelerated car through intersection and into defendant. Plaintiff bringing action against driver of the car and against Robert MacDonald. Prior to this in Alberta: you only apply the reasonable person standard without considering mental state. In Ontario buckley - somebody who is suffering from mental illness sufficiently extreme that they do not comprehend or can not discharge a duty of car are not held to be liable. Clear that Alberta court felt need to revisit previous decision (Wenden v. Trikha). - claim different facts – this is a cover-up for wanting to over-turn past decision. why apply the ordinary reasonable person standard: - compensation for the victim focus. - Elsewhere in negligence law we don’t make these distinctions – this is just being consistent. - Concern over establishing mental illnesses - Concerns for determining standard. Why we would not want to hold - would be creating a situation that is analogous to strict liability. o No moral fault involved - no foreseeability. - Can not deter Robert MacDonald type situations - Have the option of just holding the caregiver liable → not in this case but whatever. - Concern for the stigma of mental illness. - We make exceptions in several other places Depending on your emphasis of fault and compensation – you end up on other sides. The Buckley Test – page 3-40 In order to be relieved of tort liability when a defendant is afflicted suddenly and without warning with a mental illness, that defendant must show either of the following on a balance of probabilities. 1. as a result of his or her mental illness, the defendant had no capacity to understand or appreciate the duty of care owed at the relevant time, or; 2. as a result of mental illness, the defendant was unable to discharge his duty of care as he had no meaningful control over his action at the time the relevant conduct fell below the objective standard of care. Robert Macdonald – fell within the above test. - The weight of the evidence was sufficient to show that he did not understand The duty of care owed at the relevant time.

Timothy J. Watson 30 To understand this case have to understand the former precedent case in Alberta. WENDEN V. TRIKHA Facts: Defendant was, at the time of the accident, being treated in the lock ward of a psych hospital. - same illness and similar episodic circumstances (god making him do it) unclear how Wenden was suppose to avoid it. - if Wenden didn’t meet the test – a fair number of people will not. Battle is now over expert testimony. Plenty of question now over issues like alzheimers. E. The Young HEISLER v. MOKE 1. if a child can be found negligent WRT his age, his intelligence, his experience, his general knowledge and alertness. 2. WAS a child negligent wrt children of like age, experience and maturity. - all depends upon the facts. Not intelligence but intelligence wrt the impugned act or situation. Delwo v. Pearson – engaged in an “adult activity” - Driving trailbikes, boat, snowmobiles. o Reasoning that you can’t tell who is driving and therefore other drivers can not establish duty on other drivers - problem – what is an adult activity? o Motorized vehicles? o Licensing standars? o Can it be a purposively defined activity? - Problem – who is a child o Courts have not been clear. o The 16-18 area is where the problems arises. F. Professional Negligence - holding out theory: if you hold yourself out to be somebody who has expertise, you will be held to those expertise. Balance between protecting patients and protecting professional autonomy –ie. not interfering in professional regulation (statutes) - difference between errors and negligent errors. o The reasonable professional makes one and not the other. CHALLAND v. BELL Facts: Farmer fell in barn broke his arm. Went to local doctor who cleaned and set the arm. Challand complained of pressure of cast.Two days later took him to Edmonton – arm was amputated b/c of gangrenous infection. 3-47: Doctors, surgeons, and dentists owe to their patients a duty in tort as well as in contract. It is expected of such a professional man that he should show a fair, reasonable and competent degree of skill; it is not required that he should use the highest degree of

Timothy J. Watson 31 skill, for there may be persons who have higher education and greater advantages than he has, nor will he be held to have guaranteed a cure. Three step test: 1. surgeon undertakes that he possesses the skill, knowledge and judgment of the average. 2. in judging that average, regard must be had to the special group to which he belongs… 3. if the decision was the result of exercising that avg. standard, there is no liability for an error in judgment. This causes serious problems for innovation – ie. who will back them up Inexperience is not taken into account – a beginner is not held to a beginner’s standard. Reference to the locality of the practice – rural/urban, specialist/generalist – very much in question but typically held that urban have higher standard. - resources is considered. o Not expected to use resources you don’t have BUT do have responsibility to use cities etc. BRENNER v. GREGORY Facts: plaintiff bought lots. His lawyer Gregory, was hired to search title etc. Held that a building on property was encroaching on nearby road. No survey was ordered by the lawyer. Vendor told plaintiff that house encroached on the road; said it would need survey. Plaintiff then sued lawyer. Issue: “reasonably competent solicitor” Ruling: Have to follow general practice: - what was the general custom? o In this case, typically don’t need to have survey But… “known risks” - plaintiff had communicated this to the lawyer. Held: no breach on the part of the lawyer. A lot less deference given to “general practices” b/c judges know what the general practices is Lawyers can be held to be negligent, but not if conformed to standard practice Judges have immunity - relitigating cases would be a problem o would destroy any closure in the system - judicial independence. G. Custom WALDICK v. MALCOLM Facts: Malcom slipped and fell on Waldwick’s unsanded front step. Sanding was not the custom of the area. Theory: Custom is an example of a reasonable standard. Problems with this theory: - customs could be negligent - time period. - Evidence: how do you determine custom?

Timothy J. Watson 32 Courts have taken custom into account however, to take judicial notice you need “expert” witness. Who is the expert witness of salting. Example of farmers parking: leads towards “business or profession” – a tweak on custom - requirement for “custom” This would likely change the ruling in Arnold v. Teno Efffect: Iacobucci – custom will help but will not absolve people. - meeting or deviating custom will help one side or the other but will not decide the case. Problem is that adherence to custom will stop development. TER NEUZEN v. KORN Facts: women was infected with HIV at an AI clinic. There was no knowledge that you could get HIV from such a test. Professional standard: a subsection of custom with a very different interpretation. Reasonable person: reasonable OBGYN in 1985 Ruling: important we don’t judge reasonableness in hindsight. Given the state of knowledge at the time what would the prudent and diligent OBGYN have done? - probably not to screen. This doctor therefore, did not breach. IN cases of standard professional practice - custom IS determinative. - unlike regular custom. - THIS IS VERY IMPORTANT. Are there any circumstances where judge/jury could look past this? - If custom is obviously negligent. - Fraught with obvious risks - Para 41: The test: Para 51: - if established that it is a practice, and was adhered to . - standard practice that fails to adopt practices readily apparent to common person. Test: Who is the reasonable person What is the impugned conduct o will not get to unreasonable risk formula if it is held to be a professional practice. - Was it unreasonable. H. Negligence and Statutory Provisions English position: Tort of statutory breach distinct from negligence. Just proove: 1. breach of statute

Timothy J. Watson 33 2. damage was caused by the breach. Able to recoup. -English courts had to develop which statutes could be applied to this. - distinguished between broader duties and duties to the individual. - looked at intention of the legislature (to give rise to these things or not) American Position: statutory breach is within torts but not specified. Question of breach of statute was subsumed within negligence. Majority View: Statutory breach constitutes negligence per se. - basically strict liability - once the statute is determined to be applicable – which is to say, once it is interpreted as designed to protect the class of persons in which the plaintiff is included, against the risk of the type of harm which had in fact occurred as a result of its violation is conclusive on the issue of negligence, and that the court must so direct the jury… this usually is expressed by saying that the unexcused violation is negligence ‘per se”, or in itself. Minority view: statutory breach is evidence of negligence. - different courts, jurisdictions interpreted this differently. o Prima facie evidence of negligence – only have to show statute and negligence. Defendant would have to show was NOT o Merely relevant evidence of negligence Canadians – had vacillated between all of the above. - primarily the Minority Prima Facie view from the US. Statutory breach are evidences which strengthen an argument that common law duty of care has been breached. - it’s presence or absence is not definitive either way. When will it be evidence. 1. Have to prove statute was in fact breached. 2. Breach has to be the cause of the damage. - speeding driver is only in statutory breach if speed caused the damage. 3. accident must be of the type that the statute seeks to prevent. 4. Plaintiff must belong to the class of persons that the statute seeks to protect R IN THE RIGHT OF CANADA v. SASK WHEAT POOL Facts of Case Wheat Pool provided grain to Canada according to the terms of the Canada Grain Act, and in doing so delivered a quantity of infected wheat which had to be fumigated at cost to the government, which brought action against the Pool to recover the losses. Issues / Questions Does breach of statutory obligation give rise to tort liability? Decision Appeal dismissed. Reasons for Decision

Timothy J. Watson 34 Held that breach of statutory obligation does provide evidence of negligence (as opposed to establishing prima facie negligence requiring no other inquiry, or the proposition that breach is a nominate tort in its own right), but that in this case the defendant exercised reasonable care in fulfilling its statutory obligations to Canada. Five points: 1. civil consequences of breach of statute should be subsumed in the law of negligence 2. notion of a nominate tort of statutory breach giving a right to recovery merely on proof of breach and damages should be rejected, as should the view that unexcused breach constitutes negligence per se giving rise to absolute liability (shot at English and the US) 3. Proof of statutory breach, causative of damages, may be evidence of negligence. (see the four points above) 4. Statutory formulation of the duty may afford a specific and useful standard of reasonable conduct. 5. In the case at bar negligence is neither pleaded nor proven. The action must fail. Ratio Decidendi “Breach of statute, where it has an effect upon civil liability, should be considered in the context of the general law of negligence. . . To be relevant at all, the statutory breach must have caused the damage of which the plaintiff complains. Should this be so, the violation of the statute should be evidence of negligence on the part of the defendant.” “Proof of statutory breach, causative of damages, may be evidence of negligence. The statutory formulation of the duty may afford a specific, and useful, standard of reasonable conduct.” GORRIS v. SCOTT Facts: Plaintiff contracted to ship his sheeps from germany to England. Sheep were not penned in the way they were suppose to. Sheep were washed over board. Issue: Was there a breach of statute. Does the statutory breach have to result in harm caused in the manner the statute intended to prevent in order to found an action in tort? Ruling: the statute was not intended to prevent sheep from washing overboard. Statutory intent was to prevent spread of contagious diseases. People who were being protected was the industry as a whole – not the owners of sheep on ships. Rule: accident was not of the type that the statute was seeking to prevent. Althoguh plaintiff was member of class of persons statute was trying to protect. Ratio “. . . when the damage is of such a nature as was not contemplated at the all by the statute, and as to which it was not

Timothy J. Watson 35 intended to confer any benefit on the plaintiffs they cannot maintain an action founded on the neglect.” RYAN v. VICTORIA (CITY) Facts: appellant was riding motorcycle in downtown Victoria and was injured when front wheel of tire got caught in motorcycle tracks. Issue: Should there be an exception of negligence for the railway because of their Importance. Ruling: (31) The roots of the special rule reach back to the turn of the century, when railways occupied a position of unparalleled economic and social importance in the development of Canada. 15 years prior: court had questioned the validity of keeping up the exception that as long as railways had satisfied requirement they could not be held liable. Ryan overturned this and made railways open to the ordinary rules for the first time. Now: “A railway, like any other company or individual, is subject to generally applicable principles of negligence. . . ” Breach of stat. duty only evidence of negligence not proof (wheat pool) The weight to be accorded to statutory compliance in the overall assessment of reasonableness depends on the nature of the statute and the circumstances of the case. It should be deteremined whether the legislative standars are necessarily applicable to the facts of the case. Statutory compliance will have more relevance in “ordinary” cases – i.e.,, cases clearly within the intended scope of the statute – than in cases involving special or unusual circumstances… It is a wellestablished principle that an action will lie against any party, public or private, “for doing that which the legislature has authorized if it be done negligently” Held that a longstanding immunity from liability beyond strict compliance with statutory requirements should no longer be granted to the railways. The Railway Act specifically states that compliance with statutes doesn’t vitiate the possibility of liability for negligent conduct. Further held that the railway exercised discretion in not taking reasonable care with respect to the safety of the flangeways beyond that required by statutes with which it had complied. Ratio: The standard of care required of the railways was that of a prudent and reasonable person in the circumstances, having regard to all relevant factors including applicable statutes and regulations. It is undisputed that the railways complied with certain safety standards prescribed in regulations and Board orders. The question is whether such compliance satisfied the requirements of objective reasonableness in this case and absolved the railways of liability for the appellant’s injury. 4. NEGLIGENCE: FACTUAL CAUSATION A. Cause-In-Fact Cause in fact: Factual causation – scientific inquiry into cause and effect.

Timothy J. Watson 36 Proximate cause: a policy determination of extent of damages defendant should bare. Factual causation: absoloutley required that plaintiff prove causal link between wrongful act and damage. - Breach only has to be a cause not necessarily the cause on a balance of probabilities. - 51% likelihood that breach was a cause of the damage. The but-for test: If the accident would not have occurred but for the defendants breach, you have causation. KAUFFMAN v. T.T.C. Facts: appellant was on escalator when people in front of her fell back causing serious injury. Jury found defendant negligent for (1) installing an escalator with moving hand rail of particular type (to slippery) and (2) in failing to supply supervision. Issue: Did the impugned conduct of the defendant cause the accident? Impugned conduct is argued to be the negligently installing said hand rails? The but-for test. Ruling: Total absence of evidence that anybody even tried to grab at hand rail or that it would have made a difference. “It is a fundamental principle that the causal relation between the alleged negligence and the injury must be made out by the evidence and not left to the conjecture of the jury.” Very easy for the court to say that but-for the alleged negligent conduct the accident would have happened anyway. Analysis: The famous “but-for” test: Would the damage have occurred “but for” the defendant’s negligence. - if the answer is no – defendant’s conduct is a factual cause of the damage. “It is a fundamental principle that the causal relation between the alleged negligence and the injury must be made out by the evidence and not left to the conjecture of the jury.” Obiter: changes in scientific knowledge will change the ruling. Prichard v. Liggett & Myers Tobacco – science could not prove cigarettes cause cancer. If plaintiff can not establish the but-for test, that is not necessarily the end. B. General Onus of Proof SNELL v. FARRELL Facts: Ophthamologis performed surgery on respondent to remove cataract from eye. During surgery noticed bleeding. No other signs of retrotubular haemorrhage. Proceeded with surgery. Nine months later it became obvious that optic nerve had atrophied leading to loss of sight in respondents’ right eye. This was possibly caused by retrobulbar haemorrhage. No expert witnesses could identify cause of atrophy. Found liable at trial, reversed on appeal. Plaintiff could not establish on basis of “but-for” test that this was the cause.

Timothy J. Watson 37 Issue: “Whether the plaintiff in a malpractice suit must prove causation in accordance with traditional principles or whether recent developments in the law justify a finding of liability on the basis of some less onerous standard.” Can the burden of disproving cause be shifted to the defendant. Ruling: Appeal dismissed. Analysis: Traditional “but-for” has been in some instances weakened in some cases where because of the complexities of proof, the probable victim of tortuous conduct will be deprived of relief. Sopinka: situations where okay to deviate from but-for test: 1. specialized knowledge. 2. complexities of proof in situations of multiple defendants Two broad principles. 1. that the onus is on the party who asserts a proposition, usually the plaintif; and 2. that where the subject matter of the allegation lies particularly within the knowledge of one party, that party may be required to prove it. On the second argument, in cases of medical malpractice, the burden should be allocated on the defendant to disprove. “It was said that doctors were in a better position to prove absence of negligence than patients were to establish liability.” - after-the-fact expert can not attest to what the Surgeon saw. Should the onus be shifted to the defendant? Is that going too far? Consequences of shifting the onus to the defendant in medical malpractice? 1. crisis in liability insurance – make it too easy for plaintiffs to win. o Shifting the onus makes doctors more liable. 2. concern that doctors would practice more defensive medicine. 3. possibility it would lead to a defendant who did not cause the injury being held to be liable Sopinka: Proposal to relax onus: - Dissatisfaction with traditional approach b/c of too rigid application. Causation need not be determined to scientific precision: o Legal or ultimate burden remains with the plaintiff, but in the absence of evidence to the contrary adduced by the defendant, an inference of causation may be drawn although positive or scientific proof of causation has not bee adduced. - A new test developed for medical malpractice – para 30. o In many malpractice cases, the facts lie particularly within the knowledge of the defendant. In these circumstances, very little affirmative evidence on the part of the plaintiff will justify the drawing of an inference of causation in the absence of evidence to the contrary. o Legal burden still with plaintiff to find causation BUT not legal or evidentiary… just tactical. Draw an inference to which defendant must respond.  A robust and pragmatic approach  many say it’s basically shifting the onus under a different name. a masquerade – but nonetheless – a change in the approach. – modifies the mcghee test – a full switch

Timothy J. Watson 38 Sopinka: there are circumstances that would justify a complete shift in onus – witness the cases below. C. Two Negligent Defendants But Only One Cause COOK v. LEWIS Facts: two defendants were shooting at the same time at different (though very near) birds with the intention of sharing the bag. One – unknown which – hit plaintiff, a fellow hunter, in the face. Issue: In cases where the true cause of the effect is unknown can one be held liable. Does the plaintiff have an onus to prove who shot him on the balance of probabilities. Ruling: finding of the jury exculpating both defendants from negligence was perverse. New Trial ordered. Analysis: Arguments: - Joint enterprise, they’re both negligent. o Court: splitting of bag doesn’t amount to joint venture - two negligent defendants, both breach duty; plaintiff shouldn’t suffer by not proving specific causation: o they have created – through their wrong doing – the problems of proof; Court upholds the second theory. Test: two defendants both having breached their duty without culpability of the plaintiff, shifts onus. Not applied in this case b/c was possible to determine who shot Rand J.: In situations where the wrong doer has further wronged the victim by confusing his act with the environment, he has in effect destroyed the victims power of proof. - The legal consequence of this is to shift the onus to the wrongdoer – or in this case both of them – to exculpate themselves. “It becomes in fact a question of proof between him and the other… the burden of which he must bear.” Rule: Two points: 1. where a plaintiff is injured by force applied directly to him by the defendant his case is made by proving this fact and the onus falls upon the defendant to prve “that such trespass was utterly without his fault.” Stanlye v. Powell. 2. On the question of who – case of Summers v. Tice – They are both wrongdoers – both negligent to the plaintiff. Both were negligent, both have duty to absolve themselves. Operating Cause: that which in co-operation with particular environment is considered the factor of culpability in determining legal responsibility for damage or loss done to person or property. D. Market Share and Simple Probability Market share liability Plaintiff having shown that product caused harm and that each defendant had substantial market share the burden of proof shifts to the defendants to exonerate themselves from liability by proving they could not have manufactured the drug.

Timothy J. Watson 39 defendants are then held liable to level of market share (percentage of market share = percentage of liability) note: this is exactly correct b/c may only be 60% of companies left after some exculpate themselves –thus – percentage within that percentage is what you are liable for. have to have majority of those entitled to sue and majority of market share.


Test has since been applied to such class actions as breast implants, vaccines etc. - did not succeed for Tobacco b/c cigarettes were not a generic product (this is determined by sharing of info between companies, group advertising) - has not been adopted or rejected by Canadian courts – has been around since 70’s courts clearly don’t like it. Arguments for: Defendants: in better position to avoid the harm and also to bare the loss. Problems: defendants here are paying even when they may not have caused the loss. - this is counter to all tort rules - floodgate concerns - special rules will be crafted which should be made by legislatures SINDELL v. ABBOT LABORATORIES Facts: “dds daughters” Issue: Many years after the fact, how do you prove that it was the source of your problems and that your mother took it. DDS was manufactured by many drug makers and there’s no reason to think that all of them were dangerous? Breach: failing to do proper testing AND failure to warn women. Ruling: Plaintiff has established breach on basis of lack of proper test. Because no company had majority of market, it can not be proven on balance of probabilities that drug maker A was guilty. Test of snell: doesn’t apply Test of cook v. lewis: doesn’t really apply - not the same type of fault as cooke or summer Judge took an opinion from a law review article. 1. product in question caused plaintiff damage. 2. product in question had to be produced from identical formula by all defendants. 3. manufacturer that caused the damage can not be identified through no fault of the plaintiff. 4. Plaintiff has to sue enough manufacturers to make up substantial share of the market. - here it was 75% but could be less creates a reverse onus. And will be held liable in proportion to market share. Applies Summers as holding that between the innocent plaintiff and the negligent defendants, “the latter should bear the cost of the injury.” Ratio Decidendi

Timothy J. Watson 40 “Each defendant will be held liable for the proportion of the judgment represented by its share of the market unless it demonstrates that it could not have made the product which caused plaintiff’s injuries. Comments Dissenting opinion worried that the decision “effectively makes the entire drug industry. . . an insurer of all injuries attributable to defective drugs of uncertain or unprovable origin.” Changes to Burden of proof in Breach: 1. relaxed onus of proof – legal burden stays with the plaintiff, not a switch in burden, - however, in situations where defendant has extreme 2. cook v. lewis – plaintiff at no way in fault where there is two defendants… burden of proof shifts – both have to exculpate themselves. 3. Abbott laboratories – market share liability 1. multiple tortious causes - show material contribution - applicable cases - two merry-go-rounds example – both materially contribute to nuisance. - but-for test does not have to be met. o Courts have to decide amount each is liable. o Will be dealing with joint and several – plaintiff only have to go after one. 2. Divisible injuries - where injuries can be distinguished. Apportionment was not something that was a part of the common law. - apportionment resulted from legislation. Prior to legislation, courts would look for the last cause… the second merry-go-round would be held liable. E. Multiple Cause ATHEY v. LEONATI Issues of apportionment and multiple causes Two separate car accidents followed by back herniation during stretching. Issue: Which, if any car accident, caused the back herniation? Ruling: Stretching was not the cause. Combination of preexisting back problem and the car accidents. Trial judge found that the car accidents accounted for 25% of pain. Supreme court: Can not apportion a percentage of blame to non-negligence cases (preexisting conditions) see page 4-20 (20). If the law permited apportionment between tortious and non-tortious causes, a plaintiff could recover 100 percent of his or her loss only when the defendant’s

Timothy J. Watson 41 negligence was the sole cause of the injury. Since most events are the result of a complex set of causes, there will frequently be non-tortious causes contributing to the injury. Material contribution: basic rules (para. 15, 4-19): The “but for” test is unworkable in some circumstances, so the courts have recognized that causation is established where the defendant’s negligence “materially contributed” to the occurrence of the injury… a contributing factor is material if it falls outside the de minimis range. Causation need not be determined by scientific precision. A common sense idea. We know that 25% satisfies de minis – from this case – we don’t know how little qualifies as significant. THE NEGLIGENCE ACT Where two or more persons are found at fault / negligent, they are jointly and severally liable, but in the absence of any contract express or implied, each may make contribution and indemnify each other to degree which they are respectively at fault / negligent. • 1930 version specified persons found “liable”, not “at fault or negligent” • where two defendants are jointly or severally liable, plaintiff can collect full damages from either or both • inadequate legislation makes right of one tortfeasor to recover from another uncertain • when they do seek contribution from others, they sometimes get blocked by time statute of limitations o Ontario High Court allowed third party claim despite passing of deadline • Defendant can’t seek contribution from other defendant where the plaintiff’s case against him / her has been dismissed for procedural reasons (County of Parkland v. Stetar, S.C.C.) • Claim for contribution can be claimed prior to settlement of principal claim (Glass v. Avenue Dodge Chrysler, Ontario Co. Ct.) as claim arises when tortious act occurs • Proceedings for contribution can be taken independent of principal action (Cristovao v. Doran’s Beverages Inc.), i.e. can get contribution from party not named in plaintiff’s action • Can find concurrent contract and tort liability • Urquahart v. Hatt et al. (1982) (Ont. Co. Ct.) o Defendant not relieved of obligation to contribute until principal action is dismissed o Where there’s a settlement, if there was potential liability of party from whom contribution is claimed at any time before settlement was made, this would be sufficient to support a contribution claim (?)

Timothy J. Watson 42 o Limitation period for claiming contribution commences from time of settlement, not from time of cause of damage 5. NEGLIGENCE: REMOTENESS AND PROXIMATE CAUSE Foreseeability is a cornerstone of tort law – part of duty, part of breach – reappears in remoteness. Test has shifted several times → factual cause, proximate, possible. Remoteness: Defendant will not be held liable unless judged a proximate harm or unless the harm caused by the defendant is not too remote a consequence of the defendants act. - keep extent of liability in line with fault. A. Directness Test IN RE POLEMIS In course of moving benzene out of ship a plank dropped which sparked and exploded the ship (because of fumes of petrol products) Foreseeability: dropping of a plank will lead to damage – this was foreseeable. Court: it was unforeseeable that dropping the plank as was done, would cause the problems it did. Directness cause: defendant responsible for all damage directly caused by their act. Remoteness was not much of an element at all: s the fall of the board was due to the negligence of the charterers’ servants, the charterers were liable for all the direct consequences of the negligent act, even though those consequences could not reasonably have been anticipated; and they were therefore liable for the loss of the ship by fire. Remoteness test: narrows the amount of liability that can be established. Defendants are responsible only for the probable consequences of their acts. Two parts: 1. Foreseeability of the plaintiff: 2. Foreseeability of the damage. B. Foreseeability of Plaintiff -In Anns you’re only talking about foreseeability between categories of people. -Class of person of defendant owing a duty of care to class of person to whom plaintiff belongs. - now we are looking at this plaintiff in these circumstances. PALSGRAF v. LONG ISLAND RY. CO. Fireworks→scale→woman Defendant is railroad employees. Directness test explained. (5-4)…assume, without deciding, that negligence, not at large or in the abstract, but in relation to the plaintiff, would entail liability for any and all consecquences, however novel or extraordinary. Have to look elsewhere. - begin with “no negligence in the air” Defendants do owe duty but not to plaintiff: - they owe duty to the passenger they are trying to get on to the train.

Timothy J. Watson 43 Thus there was a duty, there was a breach and there was cause but none of it transfers to plaintiff. Any negligence we might find of the RW workers to the men getting on the train – it does not transfer to plaintiff. Cardozo: Plaintiff has to show that she was in the danger zone. - range of apprehension How do you determine danger zone/range of apprehension. - It has to be somewhat likely that that she could be harmed. o Didn’t know there was fireworks – this might have made zone bigger. Dissent: Andrew’s disagrees with Cardozo – puts forward a wider range of duty (one more consistent with what would become donoghue) Driving down broadway is dangerous whether or not people are there. 5-7, proximate definition: arbitrarily decides not to trace law beyond certain point because of policy. What we do mean by the word “proximate” is, that because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point. This is logic. There must at least be something without which the event would not have happened. Reasons for Decision Held that, while there may have been negligence on the part of the railroad employees with respect to the man’s property, there was none with respect to the plaintiff as it could not have reasonably been foreseen that a dropped package would explode and injure her at the distance at which she stood. Social policy argument is made against holding people liable for wrongs they commit without forseeability. Ratio Decidendi “Negligence, like risk, is thus a term of relation. Negligence in the abstract, apart from things related, is surely not a tort, if indeed it is understandable at all. . . “ Quoting Bowen in Thomas v. Quartermaine: “In every instance before negligence can be predicated of a given act, back of the act must be sought and found a duty to the individual complaining, and the observance of which would have averted or avoided the injury. . . . The ideas of negligence and duty are strictly correlative.” Comments ANDREWS dissenting: holds that strict correlation of negligence to a particular defendant to whom duty is owed is “too narrow”; argues that negligence involves a relationship “not merely between man and those whom he might reasonably expect his act would injure. Rather, a relationship between him and those whom he does in fact injure.” HAY, (or BOURHILL) v. YOUNG -

Timothy J. Watson 44 Motorcycle accident in which plaintiff was not a victim, nor a witness, she heard the accident and saw the aftermath. Issue: given reckless driving of the motorcycle, was Hay a foreseeable plaintiff? Ruling: NO Can not accept that anyone would have foreseen that Ms. Hay was within zone of danger. That anybody owed a duty to her. Farrugia v. Great Western Railway - court held that did owe him duty b/c they owe duty to everyone within zone of danger. - Dealt with duty but no remoteness – whether or not it was a remote cause not an issue. Reasons for Decision Held that it was irrelevant that the man shouldn’t have been there and that a duty was owed to anyone who happened to be in the neighbourhood at the crucial moment. HORSLEY v. MCLAREN Facts: boating trip with botched rescue attempt. Plaintiff is estate of one of the two rescuers. The initial falling overboard of matthes (deceased) was not the fault of anyone on the boat. McLaren had a duty to rescue the first victim – b/c of statute etc. Issue: errors in rescue and foreseeability of duty to Horsley – the second rescuer. Majority: Ritchie J. Both agreed on the forseeability of the rescuers as plaintiffs. Disagreed with the facts as stated by trial judge (drunk McLaren) If a defendant puts a plaintiff in peril, than the defendant should be held negligent. - if plaintiff put themselves in peril through their own negligence situation is different. In this case – the first rescue attempt would have to be so negligent as to put the victim in a new set of peril to be found to constitute negligence. - we want to encourage rescue, finding negligence in such will only deter. If first rescuer is to be held liable for damage resulting from a required second rescue attempt - places the necessity of rescue in peril How big must the mistake be in order to create this negligence. Rule given by Laskin J. (5-16) The latter is now subject to liability at the suit of the rescuer as well as at the suit of the emperilled person, provided, in the case of the resucer, that his intervention was not so utterly foolhardy as to be outside of any accountable risk and thus beyond even contributory negligence. Court just applied the basic rule: Was horsley’s attempt foolhardy? - even beyond contributory negligence? Dissent: Laskin J. 5-21… in responding as he did, and in circumstances where only hindsight made it doubtful that matthews could be saved, horsely was not wanton or foolhardy… Question of what foolhardy is, or reckless:

Timothy J. Watson 45 - when is the action taken Must remember the social value of rescue… this is what pushes it to the “foolhardy” standard… not just contrib. negligence. Rescuer will always be seen as a potential plaintiff so long as not acting in foolhardy or reckless manner. C. Foreseeability of Damage THE WAGON MOUND (NO. 1) 1961 Facts of Case Oil was spilt from the Wagon Mound oil tanker into the harbour where the docks are located. No efforts were made to clean up the oil by Overseas. On the strength of the assumption by the respondent’s manager (Morts Dock) that the oil was not flammable in water decision was made that the that work on the docks would resume. A fire accidentally started with welding equipment set fire to the oil and did considerable damage to the wharf and the equipment on it. Issues / Questions Were the appellants liable for the damage caused to the docks? Decision Appeal allowed. Respondent’s action regarding damage by nuisance remitted to Full Court. Respondents paid costs of appellants in all courts. Reasons for Decision Held that the Polemis decision should no longer be considered good law, as “it does not seem consonant with current ideas of justice or morality that for an act of negligence. . . which results in some trivial foreseeable damage the actor should be held liable for all consequences however unforeseeable and however grave, so long as they can be said to be ‘direct.’” Ratio Decidendi “. . . a man must be considered to be responsible for the probable consequences of his act”, therefore, the test of remoteness is to be “judged by the standard of the reasonable man” such that the negligent party is responsible only for those damages which were “reasonably foreseeable.” Comments Note 1: Professor Fleming has called the decision “a retrograde step” which “will be by setting somewhat narrower limits to the range of recovery. . . imparing the process of shifting and distributing losses.” Polemis directness test still applied at this time. - once a defendant had been found to owe a duty, breached it – as long as damage is direct, defendant. Wagon mound is a report of a court overturning a precedent (polemis) Viscount Simonds:

Timothy J. Watson 46 Recounts polemis: -was based on very few precedents; these in turn had little support. - distinction between extent and type of damage. - Polemis decided before full effect of tort law had been imagined… over application. Polemis - court of appeals decision never reviewed by privy council Privy Council flat-out over-rules polemis- 5-25 and 26 Has collapsed together directness and damage New test: 5-26 a man must be considered to be responsible for the probable consequences of his act. Change: - we are no longer looking at it in a general sense. o Previously looking at the gravity of harm which could possibly occur. o now we’re looking at the foreseeability of harm that DID occur. How foreseeable was the kind of damage that occurred? - some damage was foreseeable. (the slipways) The slip ways is what illustrated that there was a breach. - court: have to deal with all damage separately 5-28: In doing so….. - damage by fire was not foreseeable and therefore defendant not liable Heavily criticized by many - foreseeability opens up torts. - Remoteness begins to constrict torts. - makes it more about fault than compensation. Wagon Mound is STILL the remoteness test. SMITH v. LEECH BRAIN Galvaniser – molten metal – drop on lip – safety – accelerated pre-malignant cancer. Issue: what is the defendants liability to the plaintiff for diseases which may/may not have developed. Lord Parker C.J.: Thin skull cases are exceptions to wagon mound. - thin skull rule: a tortfeasor takes his victim as he finds them. - Wagon mound did not have Nonetheless – somewhat like wagon mound - original injury vs. it’s extent - if the burn was foreseeable and the harm was not, still responsible for that harm. HUGHES v. LORD ADVOCATE The post office employees working on telephone lines at night below a street. Left manhole open (while area was marked) and went on break Kids fell in to hole with lamp – somehow it exploded. Was it foreseeable?

Timothy J. Watson 47 - burning was foreseeable b/c there were paraffin lamps. Morris of Borth-y-gest: - 5-33; my lords, in my view, there was a duty owed by the defenders to safeguard the pursuer against the type or kind of occurrence which in fact happened and which resulted in his injuries, and the defenders are not absolved form liability because they did not envisage “the precise concatenation of circumstances which led up to the accident.” Ratio Decidendi “The fact that the features or developments of an accident may not reasonably have been foreseen does not mean that the accident itself was not foreseeable. . . .the defenders are not absolved from liability because they did not envisage “the precise concatenation of circumstances which led up to the accident”.” Lauritzen v. Barstead (Notes to Hughes) Reasons for Decision Defendant held responsible for amputation of plaintiff’s feet after frostbite as a consequence of his grabbing a steering wheel as Wagon Mound doesn’t require that the “particular harm and the precise manner or sequence of events in which it occurred” be foreseeable. School division of Assiniboine South v. Hoffer. (notes to Hughes) It is not necessary that one foresee the ‘precise concatenation of events’; it is enough to fix liability if one can foresee in a general way the lass or character of injury which occurred. Oke v. Weide (Notes to Hughes) Reasons for Decision Defendant held responsible for bizarre spearing death of motorist because “it is enough that he ought to have foreseen that [the post] left in the state it was, could be a source of danger to a motorist.” THE WAGON MOUND (NO. 2) 1966 Plaintiff: owner of boat that was being worked on. on the strength of the assumption by the Wagon Mound’s engineer that the oil was not flammable in water decision was made that the that work on the docks would resume. A fire accidentally started with welding equipment set fire to the oil and did considerable damage to the Miller ship. Different findings of fact about whether it is foreseeable to expect furnace oil to burn on top of water. Contributory negligence at this time was a complete defense. Owner of the boat was not doing any welding – no potential to be found contributorily negligent.

Timothy J. Watson 48 Court held – furnace oil burning when spread on water was a possibility that ships engineers should have known about. Probable consequence (WM1) – The question: How foreseeable must the damage be? Go back to Bolton v. stone – fantastic possibilities and real possibilities. Burden of preventing the oil from spilling was really very small Probabilitiy of harm – low; gravity of harm is high. Burden of precautions is low; social utility of letting oil onto the water is nil. Real risks have to be taken into account Post MW2 – many commentators thought it was a step back to Polemis test. Answer is no. - WM2 is RARELY cited. o Thought of mostly for illegal acts -WM1 is frequently cited – referred to as the applicable test. Reasons for Decision Following Bolton v. Stone, it was determined that if the risk was foreseeable but so improbable as not to merit action, the defendants would not be liable. However, in this case, the danger posed by the oil was not so improbable as to warrant inaction. Ratio Decidendi Where a possible harm is foreseeable but its probability was ‘infinitesimal’, a defendant may be held not liable for not taking action to prevent it, where there is valid reason not to (such as considerable expense). However, “if it is clear that the reasonable man would have realized or foreseen and prevented the risk, then it must follow that the [defendant] is liable in damages.” INTERVENING CAUSE, Cooper-Stephenson & Saunder Even where the initial injury is reasonably foreseeable, recovery may be denied because of fresh intervening cause. - rarely seen anymore.: 1.Has not been ruled out. o Very much connected to the polemis test. o Now that we don’t have that – little refrence to breaking causation 2. Was initially set up before apportionment → now can aporiton between the two as court likes. 1. came from time when breaking chain of causation lead to….

Timothy J. Watson 49 Novus actus: refers to an agency or incident which intrudes after the defendant’s tortious conduct has occurred. - 5-41 - Usually involves the intervention of another person in a significant way. - Freakish, fantastic and highly imporbablie Case of decorator working in house – left and robbed – still held - even illegality by third party will not break chain of causation. Analogous cases on 5-48: It’s an uphill battle to establish novus actus. WIELAND v. CYRIL LORD CARPETS LTD Facts: defendants were liable for a bus accident in which the plaintiff suffered a neck injury. She is fitted with collar. As result of collar she couldn’t change her eyes- Fell on stairs and was injured even more seriously Defendants had two points: 1. did not cause the accident 2. was not foreseeable. (Fials uner WM1) Judge: but-for test reveals they had caused the accident. - if it had happened much later they may have been able to place some fault on her (the bifocals) Two phase approach: Is the harm connected to the injury? Is the injury connected to the act? Like the burned lip case Alternatively – foreseeability does not have to be precise. - the second accident is foreseeable. o Falling was not unforeseeable. Reasons for Decision held that the second accident was attributable to the original negligence and thus the defendant was liable; foreseeability is not required. Case could also have been made that “it is foreseeable that one injury may affect a person’s ability to cope with the vicissitudes of life and thereby be a cause of another injury.” Ratio Decidendi Wagon Mound No 1 doesn’t require that extent of the first accident be foreseen, nor does it require that “the precise mechanics of the way in which the negligent act results in the original injury [be] foreseen”, thus the court may hold that a second accident caused by the negligence of the first is part of the original harm. Second accident – not approached as unique - only question we have to ask is if the second act can be causitivley connected to the first.

Timothy J. Watson 50

MERCER v. GRAY - defendant injured the plaintiff whose injuries were exacerbated by medical error. - Was the medical error a novus actus? Court: As long as reasonable caution used in selecting physician, the error of judgement in that treatment can be traced back to the defendant so long as it was not negligent. - possible that consulting naturopathic medicine etc. could be deemed unreasonable. - Held that the original defendant was no less guilty. 1941 case – no longer good law - note on 5-55 – moloski – even negligence in future cases may not constitute novus actus This doesn’t meant subsequent negligences can’t be held to be co-defendants. Ratio Decidendi “if reasonable care is used to employ a competent physician or surgeon to treat personal injuries wrongfully inflicted, the results of the treatment, even though by an error of treatment the treatment is unsuccessful, will be a proper head of damages” except where conduct by doctor is “so negligent as to be actionable”, thus constituting a novus actus interveniens entitling plaintiff to sue doctor. D. Nervous Shock Time periods: no duty with respect to mental status. - concern for faking it. Nowadays there exists enough certainty to recognize certain mental disabilities. - have to call witnesses etc. Courts have addressed flood-gate concerns through rubric of remotness: - is it foreseeable that this type of person could suffer this particular type of harm. Originally – the danger zone created potential plaintiffs - now: has to do with witnessing act of family. - Act of negligence is the act which harms the loved on. - Actually suffering nervous shock. Proximity of time/space Proximity of relationship Rescuers have been foreseen as potential victims of reasonable shock. Helper at rescue attempt. Innocent bystander is not a proximate relationship. Psyhciatric diagnosis required. MARSHALL v. LIONEL ENTERPRISES Marshall v. lionel enterprises. History from no action, to limited ones.

Timothy J. Watson 51 - first case Second case: pregnant women. Fear for ones child: don’t want to reward the selfish mother who feels only for own savfety;.  rewards you for caring for your child. Shift finally towards a foreseeability case (dwhort and yonge) 1967 – chadwick – rescuer Lionel case Court concludes that clear and simple test of liability is foreseeability of injury. (as well, It’s a particular kind of tort. -64 – final paragraph - harm was foreseeable Problem: how far will we go too compensate victims. 3 factors. 1. location (proximity time and space) 2. relational proximity. 3.Temporal Case: Football game - people at game killed in stands. - Negligence to spectators there and at home. Little rationality anywhere – nervous shock can be foreseeable anywhere RHODES v. CNR Facts of Case Mother suffered psychiatric illness after hearing of the death of her son, caused by the negligent action of CNR. Issues / Questions Is a person whose loved one has died as a result of the negligent act of a third party entitled to damages against the third party for psychiatric illness resulting from impact of the negligence of that party? Decision Nope. Reasons for Decision Held that the closeness of the relationship between the plaintiff and the deceased was not sufficient to establish proximity to the defendant for her resulting illness to have been reasonably foreseeable, thus no duty of care was owed. Ratio Decidendi Where the negligence of a party toward a victim results in psychiatric illness to a third party close to the victim, a close relationship between

Timothy J. Watson 52 victim and plaintiff is not sufficient on its own do establish proximity for a duty of care owed to the plaintiff by the defendant. ALCOCK v. CHIEF CONTABLE OF SO. YORKSIRE Facts of Case Several people claimed for damages after loved ones were variously killed, injured or thought to be injured, in a soccer riot caused by the constabulary. In all cases the plaintiffs had heard of the news of the deaths via television broadcast. Issues / Questions Is a person whose loved one has died as a result of the negligent act of a third party entitled to damages against the third party for psychiatric illness resulting from impact of the negligence of that party, in cases wherein the person has heard of the death through public broadcast? Decision Appeals allowed; judgment for defendant. Reasons for Decision Held that a person who sustains nervous shock causing psychiatric illness as a result of apprehending the infliction of physical injury or the risk thereof to another person may only recover damages from negligent party where tests of reasonable foreseeability (satisfied by closeness of relationship to victim) and proximity (physical and temporal connection between plaintiff and accident) are satisfied. None of the cases satisfied both tests, in part because none of the parties was physically present at the match. Ratio Decidendi Third-party plaintiff may recover for nervous shock where: 1. relationship to primary victim was sufficiently close as to make it reasonably foreseeable that (s)he would suffer nervous shock 2. proximity to accident of primary victim is sufficiently close in time and space 3. nervous shock is suffered through seeing or hearing the accident or its immediate aftermath. Comments Class of persons not limited to particular relationships, but must “be within the defendant’s contemplation.” Bystanders to the accident and parties witnessing injuries simultaneously on television may in some circumstances be entitled to damages. 6. NEGLIGENCE: DEFENCES

Timothy J. Watson 53 - onus on the defendant to show each element on a balance of probabilities We’re going to look at three: 1. Contributory Negligence 2. voluntary assumption of risk 3. Illegality/public policy All three were originally complete defences – plaintiff got nothing. - b/c of apportionment – contributory negligence has become a partial defense - FOR OUR PURPOSES THERE ARE TWO COMPLETE DEFENCES A. Apportionment/voluntary assumption of risk: Originally a complete defence; now only grounds for apportionment based on plaintiffs fault. - orginal idea: law protects only those worthy of protection… those who were careless/not safe are not worthy of the laws protection - Has since loosened up. BUTTERFIELD v. FORRESTER Facts of Case Plaintiff was riding fast at night, hit an obstruction left across the road by the defendant, and was seriously injured. Plaintiff sued for negligence. Decision “Rule refused.” Reasons for Decision Person riding with “reasonable and ordinary care could have seen and avoided the obstruction.” Ratio Decidendi “One person being in fault will not dispense with another’s using ordinary care for himself.” Obiter: Horowitz’s idea that contributory negligence grew up with the ind. Revolution DAVIES v. MANN Facts of Case Man driving a wagon and horses “carelessly negligently, unskillfully, and improperly” ran over the plaintiff’s ass, which was tethered to the road. Decision “Rule refused.” Reasons for Decision It was wrong of plaintiff to tether his ass to the road, “still, if the proximate cause of the injury was attributable to the want of proper conduct on the part of the driver of the wagon, the action was maintainable against the defendant.” The last-clear-chance rule: last one to contribute to negligence wins.

Timothy J. Watson 54 Ratio Decidendi “The negligence which is to preclude a plaintiff from recovering in an action of this nature, must be such as that he could, by ordinary care, have avoided the consequences of the defendant’s negligence.” Comments As in Butterfield, the liability’s all one way; no apportionment where contributory negligence happens. This resulted in Apportionment legislation… allowed courts to find more than one party responsible… divide fault and apportion responsibility. 1924 – Ontario first of commonwealth provinces to enact apportionment THE CONTRIBUTORY NEGLIGENCE ACT S. 1. – damages caused or contributed to by two or more persons – joint and several liability. Mostly an admin. Mechanism. Makes it easier on plaintiff. S. 3. – contributory negligence – no reference to joint and several liability – thus in cases of many defendants and contributory negligence, have to squabble with each defendant. S.4. – if you can’t determine subjective degrees of fault – all equal S. 5. - can add people to proceedings Apportionment – some thought that last clear chance survived. WICKBERG v. PATTERSON Legislation: at the time s.6 of the contributory negligence act maintained to some degree the last clear chance theory. Judge had power to not instruct a jury on negligence if notwithstanding the fault of the other party, one party could have avoided the action. Facts: truck pulled over to attend to accident… he backed up and was partially on the highway when the plaintiff ran in to him. Issue: given plaintiff’s clear negligence – is the defendant liable. Held: it was sufficiently seperable to exonerate the defendant. Nonetheless, last-clear-chance had not survived apportionment and therefore the defendant can be held to some degree. 6-11: In conclusion, it is clear that last clear chance is an anachronism. It is no longer helpuflu or necessary in the causation analysis. Find each party 50% at fault. Ratio Decidendi Extensive review of the “last clear chance” doctrine: • “Last clear chance is the dandelion of causation analysis.” • all provincial Courts of Appeal have disowned the doctrine, but it continues to be applied at lower levels across all jurisdictions • “There is no justification, with apportionment legislation, for retaining a rule that was designed to ameliorate the harshness of the common law that defeated a plaintiff’s claim if he or she was partly at fault.”

Timothy J. Watson 55

The Seatbelt Defence
GALASKE v. O’DONNELL (SCC) 19974 Facts of Case Plaintiff child and his father were riding in defendant’s vehicle when an accident occurred; defendant had not taken steps to ensure that plaintiff was wearing seatbelt. Plaintiff brought action against defendant for negligence in not ensuring plaintiff wore seatbelt. Decision Appeal allowed; remitted to trial for apportionment and determination of contributory negligence by father or plaintiff. Reasons for Decision Held that “Canadian courts have recognized that passengers and drivers have a duty to ensure their own safety in a car by wearing seatbelts” and that “a failure to do so will result in an assessment of contributory negligence against the person.” A duty of care was owed the plaintiff by the driver by virtue of a special relationship of driver and passenger; this is part of the responsibility of driving as a licensed activity entailing certain obligations and conditions including that of ensuring the safety of passengers. Breach of statutes enforcing this isn’t a tort in itself but counts as an indicator of the minimum standard expected of drivers in tort. The presence of a parent didn’t vitiate the driver’s duty of care any more than it would have the driver’s duty to the child to drive safely. The definition of the standard of care is a mixed question of fact and law to be considered on a case-by-case basis with regard to particular circumstances; degree of responsibility will vary. Comments Quotes DENNING (earlier case in England; no statutory obligation to wear belt) on the difference between legal freedom and duty under common law: “. . . everyone is free to run his head against a brick wall if he pleases. He can do it if he likes without being punished by the law. But it is not a sensible thing to do. If he does it, it is his own fault; and he has only himself to thank for the consequences.” “Seat Belt Defence—An Exercise in Sophistry Source: Kliest, (1967), 18 Hastings L.J. 613 Comments “There is a basic legal fallacy to the seat belt “defence.” It fails to take into account the established rule that a motorist has a right to assume that others upon the highway will obey the traffic laws; he need not take protective measures against the mere possibility of some future negligent act by another.”

Timothy J. Watson 56 Standard practice in canada that contrib. neg. reduces damages between 5 and 25% B. Complete Defences 1) Voluntary Assumption of Risk You have already decided negligence – to say that b/c of something the plaintiff did – it’s negated is a BIG step. - courts would much rather find contributory negligence. 1. volenti non fit injuria “to one who is willing no harm is done” 2. if you consented you are to some extent at fault and courts won’t help. 3. if you consented to the risk – defendant should be able to rely on it. Can be expressed or implied. - often overlaps with contractual waiver. (the consent form) o usually there will be an argument in K and torts It used to take a lot less than it does now. - plaintiffs knew the risk - constented - incurred. That was it. Nowadays… conceptualization of voluntary assumption of risk as voluntary agreement between plaintiff and defendant. - plaintiff bargained away right to sue for damages. o This is VERY hard to prove. Courts moving towards distinguishing physical and legal risks. - can not extrapolate right to legal recourse from acceptance of legal risk. Conversations like this are very rare. Cases of: - extreme circumstances - active encouragement by defendant - common purpose (Dube v. Labar) HAMBELY v. SHEPLEY [OCA] [1967] Facts of Case Policeman struck by speeder while in the course of forming a roadblock with his cruiser to catch the speeder. Issues / Questions Does volenti non fit injuria preclude a policeman’s suing in tort? Decision Appeal allowed; judgment for plaintiff with costs; remanded to trial court for assessment of damages. Reasons for Decision Traditional grounds for establishing volenti by defendant: 1. plaintiff is agreeable to bearing the injurious consequences of the defendant’s negligent conduct.

Timothy J. Watson 57 2. the defendant is relieved of any duty of care to the plaintiff in respect of the particular risk of harm. Held that modern construal of volenti doctrine requires evidence of actual consent, and that just as it no longer indemnifies employers from actions brought by employees for harm from known risks, it should not preclude police from suing in tort. Ratio Decidendi Quoting Fleming, “the defence [of volenti] cannot succeed unless the evidence permits a genuine inference that the plaintiff consented not merely to the risk of injury, but to the lack of reasonable care which may produce that risk.” Obiter: Big case of its potentional effect on essential services: firemen entering arson houses. Etc. DUBE v. LABAR [scr] [1986] Facts of Case Plaintiff and defendant were drinking and driving around the Yukon; at some point the defendant convinced the plaintiff to let him drive; defendant then crashed the car, injuring plaintiff. Defendant showed significant levels of blood alcohol. Trial judge put volenti non fit injuria and contributorily negligence to the jury. Decision Appeal dismissed with costs to respondent. Reasons for Decision Jury found plaintiff to have consented to bear the legal risk when he entered the car as passenger knowing the defendant was impaired. Appeal judge held that, while an unusual conclusion, it was not so unreasonable as to warrant setting aside, and was thus allowed to stay. Ratio below applies to the tests themselves. Ratio Decidendi “. . . volenti will arise only where the 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. Common sense dictates that only rarely will a plaintiff genuinely consent to accept the risk of the defendant’s negligence.” From Car and General Insurance Corp. v. Seymour 6-24 Rand J.: In other words, to constitute a defence there must have been an express or implied bargain between the parties whereby the plaintiff gave up his right of action for negligence. The test:

Timothy J. Watson 58 “In every case, the question is whether the plaintiff gave an express or implied consent to accept or assume the risk without compensation.” Comments • volenti non fit injuria = “to one who is willing no harm is done” • “. . . volenti will, furthermore, necessarily be inapplicable in the great majority of drunken driver-wiling passenger cases. It requires an awareness of the circumstances and the consequences of action that are rarely present on the facts of such cases at the relevant time.” • Contributory negligence and volenti “both had the same drastic effect of denying completely compensation to the plaintiff. This is no longer the case. Apportionment permits a sensible distribution of the financial burden of negligent conduct. It is a more flexible and more appropriate response” CROCKER v. SUNDANCE NORTHWEST RESOURTS Issues / Questions Voluntary assumption of risk? Decision Appeal allowed; trial judgment restored; new trial ordered to assess quantum of damages. Reasons for Decision Volenti only applies where the plaintiff has “assumed both the physical and the legal risk involved in the activity.” - Crocker’s assumption of the physical risk by participating is dubious because of his degree of intoxication, - Legal risk could not be assumed because: combined waiver and entry form, drunk when he signed up o Can not conclude that he voluntarily assumed the legal risk. Ratio Decidendi In light of apportionment legislation, the defence of volenti is strictly construed to apply only “where the plaintiff has assumed both the physical and the legal risk involved in the activity.” Comments Note that here even a signed waiver of responsibility wasn’t enough to support a defence of volenti. - Note case of Dyck v. Manitoba Snowmobile Association – in spite of proven negligence waiver served as complete defence. NOTE: New test – assumption of Physical and Legal risk – - will be tightly circumscribed b/c it is a complete defence.

Timothy J. Watson 59 2) Illegality -Operates as a complete defence like vol. ass. Risk. -Originially a K idea – imported to torts -Reinforces criminal sanctions… by not allowing recovery in torts. -Recovery – feared for putting integrity of law in question. -Requirements have tightened up for the same reasons. - given negligence don’t want to deny victim compensation - contrib. negligence will very often be the case that vol. ass. of risk is applicable at the same time. - contrib. negl. will likely factor in there too. HALL v. HERBERT[scc][1993] Facts of Case “Souped up” muscle car and the “Rolling start” gone bad. Parties were drinking together and driving in a car; plaintiff crashed the car and sued defendant for letting him drive impaired. Issues / Questions Can a plaintiff seek compensation for injuries sustained in the commission of an illegal act? Decision Appeal allowed with costs. Reasons for Decision Held that judges should be entitled to deny recovery where it would in effect serve to profit a plaintiff for an illegal act, thus introducing an inconsistency in the law (“punish conduct with one hand while rewarding it with the other”) and undermining the integrity of the justice system. This should not be applied where the plaintiff seeks only compensation for injuries sustained from the negligence of the defendant. Ratio Decidendi McLACHLIN: “The doctrine of ex turpi causa non oritur actio properly applies in tort where it will be necessary to invoke the doctrine in order to maintain the internal consistency of the law.” It does not apply where recovery is sought only to compensate injury. - criminals shouldn’t be able to profit from their wrong via tort law. o Theoretically this may never be true b/c negligence about putting back into state before… o Nonetheless some other cases apply  Loss of future earnings. Comments CORY held that the defence should not be used in tort cases and that traditional concerns about the integrity of the justice system are better dealt with through apportionment.

Timothy J. Watson 60 SOPINKA dissented: there was no special relationship to impose a DOC, and thus none should be imposed. 7. INTENTIONAL INFLICTION OF HARM Intentional torts: First rule forget everything from negligence. - it’s mostly about intent. A. Intentional Infliction of Mental Suffering Freedom of speech vs. the intentional infliction of mental suffering. - not free speech on the broad level but nonetheless are holding people responsible for words. - Context is important – extreme and outrageous today was not so before. WILKINSON v. DOWNTON Queen’s Bench, [1897] Facts of Case Defendant, as practical joke, told plaintiff that her husband was seriously injured in a hospital, compelling her to travel to see him. The shock of the statement caused her vomiting and “permanent physical consequences at one time threatening her reason, and entailing weeks of suffering and incapacity.” She had no history of previous mental or physical illness of this sort. Emotional thin skull is not going to be considered. Issues / Questions Can one sue for intentional infliction of mental suffering? Decision Judgment for plaintiff. Reasons for Decision Held the defendant had “willfully done an act calculated to cause physical harm to the plaintiff—that is to say, to infringe her legal right to personal safety” and that “although no malicious purpose to cause the harm which was caused nor any motive in spite is imputed to the defendant”, “it is no answer in law to say that more harm was done than anticipated, for that is commonly the case with all wrongs.” It is difficult to imagine that such a statement, made suddenly and with apparent seriousness, could fail to produce grave effects under the circumstances upon any but an exceptionally indifferent person, and therefore an intention to produce such an effect must be imputed, and it is no answer in law to say that more harm was done than was antifipated, for that is commonly the case with all wrongs. Ratio Decidendi So long as the “cause and effect” of the act and the harm is “sufficiently close and complete”, a defendant may be held liable for intentional infliction whether “the criterion is in asking what would be

Timothy J. Watson 61 the natural effect on reasonable persons, or whether. . . the possible infirmities of human nature ought to be recognized.” Comments • Note fact pattern emphasis on physical manifestations of the mental injury—crucial to establishing harm at this time. CLARK v. CANADA (1994) Facts of Case Female RCMP subjected to a prolonged campaign of persistent harassment by male colleagues which resulted in stress and depression which forced her to resign. Nothing was done following her complaints her job performance reviews went down. Reccommended traffic duty. Was subjected to criminal investigation for her prior behaviour which was ultimately dropped. Suffering from asthma, pre-existing aggravated by stress, described by a doctor as being in state of mental distress. Issues / Questions Can a plaintiff sue for emotional distress where the infliction of mental suffering was prolonged rather than resulting from a single incident, and where there are multiple wrongdoers? Decision Judgment for plaintiff. Reasons for Decision Citing Wilkinson, held that it is sufficient to find fault that the defendant’s intention was to “frighten, terrify or alarm his victim. . . provided that his conduct was of a kind reasonably capable of terrifying a normal person, or was known or ought to have been known to the defendant to be likely to terrify the plaintiff for reasons special to [her].” Also cited Irvine’s interpretation of Wilkinson which is less stringent, requiring that even where the nervous shock was unforeseeable, the defendant is liable where “some unwelcome, uncomfortable or unpleasant emotional apprehension or sensation. . . was foreseen and intended.” Ratio Decidendi A plaintiff may sue for emotional distress where the infliction of mental suffering was prolonged rather than resulting from a single incident, and where there are multiple wrongdoers, where the infliction of nervous shock was intentional and foreseeable. Crystalized case history into three criteria taken from McLachlin in Ramatoula: 1. outrageous or flagrant and extreme conduct - may be achieved without physical touching. - Knowledge of the plaintiffs susceptibility may elevate the defendants conduct to the extreme. 2. calculated to produce the harm it was produce - may only intend to scare, provided the conduct is of such a nature that the defendant knew our ought to have known it could produce the harm it did.

Timothy J. Watson 62 3. calculated to produce ACTUAL harm – a recognizable harm. - must extend beyond anguish or fright - need not stringently apply the requirement of provable mental harm. All of these are present in clark – B. Battery and Assault Battery: protects an individuals interest in bodily security from deliberate interference by others. - to intentionally cause harmful or offensive contact with another. Effects: - provides a socially exceptable alternative to vengeance. - provides mean of compensation beyond criminal injuries compensation board. Assault: Protect individuals interest in freedom from fear of being interfered with physically. - conduct which intentionally arouses apprehension of an imminent battery. - could be words alone but usually includes some kind of action (swinging an arm, brandishing a weapon) o Imminent: not just a threat to be made good later but imply soon. o Apprehension: has to be reasonable. Has to be conduct which would arouse that fear in a reasonable person. BETTEL v. YIM Facts of Case Plaintiff was throwing lit matches into defendant’s store; defendant grabbed and shook plaintiff and in doing so accidentally broke his nose. Plaintiff sued for battery / assault. Issues / Questions Is the doctrine of foreseeability applicable in the context of intentional torts? Reasons for Decision Held that, for the sake of tradition and social policy (i.e. concern that a doctrine of foreseeability would indemnify wrongdoers if the harm the accidentally caused while intending other harm was unforeseeable) that negligence and thus foreseeability should not be imported into intentional torts. Ratio Decidendi “The logical test is whether the defendant was guilty of deliberate, intentional and unlawful violence or threats of violence. If he was, and a more serious harm befalls the plaintiff than was intended by the defendant, the defendant, and not the innocent plaintiff, must bear the responsibility for the unintended result.” Court: battery began as soon as he started shaking him. - admission of intention to grab and shake is admission of battery. Remoteness – we want to discourage harm… if you intent to cause harm and accidentally cause more than you thought – you’re not off the hook

Timothy J. Watson 63 damage is done the minute he grabs the collar.

BRUCE v. DYER Facts of Case Plaintiff deliberately blocked defendant from reentering lane while driving on highway; plaintiff stopped car and he and defendant got out; defendant broke plaintiff’s jaw. Claimed self-defence. Decision Defendant exonerated for self-defence. Reasons for Decision Held that the cutoff in traffic was an assault and the defendant thus had grounds to believe he was about to be attacked once out of the car; under the common law he was entitled not only to defend himself but to strike back. Need to show that the plaintiff engaged in conduct which would generate fear in reasonable person in the situation of the accused. The plaintiff blocked the defendants car while driving – which precipitated the assault. - boxing the defendant in signaled imminent battery. Court says walking towards somebody shaking your fist is assault. - turn to issue of self defence Self Defence: - arises from necessity o if you can avoid it somehow you are expected to. - has to be proportional o can’t shoot for a push. Court says it WAS necessary – Proportionality: there was a pre-existing bone problem… the defendant was expecting a punch and replied with one… Not just a subjective view – what the reasonable person would have expected. NORBERG v. WYNRIB [1992] Facts of Case Defendant doctor extorted sexual favours from plaintiff in exchange for quantities of a narcotic to which she was addicted; he was not her physician at the time and did not actually prescribe the drugs. Issues / Questions Does a defence of consent apply in this case? Decision Who won / lost? Details of finding Reasons for Decision Court applied following test of unconscionablilty from contract law to evaluate whether or not there was “legally effective consent”: 1. proof of inequality in the position of the parites 2. proof of an improvident bargain

Timothy J. Watson 64 In this case it was held that there was inequality between the parties which ordinarily occurs “within the context of a special “power dependency” relationship”, and there was proof of exploitation (woman was young, uneducated and addicted to drugs which diminished her ability to “make real choice”). The fact that the doctor and not the young woman initiated the “drugs for sex” relationship indicated that he was the exploiter. Application: 1. in Dr. client scenarios – there is an inherent inequality - because she’s an addict there’s an additional inequality - age and education… the cumulative effect of all of these is what the courts are interested in 2. Exploitation. - dr. says she should just quit instead of recommending treatment. o Did this knowing how hard it is treat. Ratio Decidendi A defence of consent to the intentional tort of sexual assault will fail where there is evidence of an inequality of power and of exploitation in the relationship. Comments McLACHLIN dissenting: consent was valid but doctor was guilty of breach of fiduciary duty, for which the consent is immaterial. SOPINKA dissenting: consent was valid, thus claim of battery failed. • Klar has argued that the defence of consent should be evaluated on a case by case basis by examining the “reality of the consent and not on whether, for public policy or morality reasons, the courts wish to recognize it.” 8. TORT LAW AND DISCRIMINATION BHADAURIA (1979) Facts of Case Highly qualified woman of East Indian descent was turned down for several teaching positions by the College. Sued for discrimination. Issues / Questions Is there a tort of discrimination? Decision Judgment for the plaintiff. Reasons for Decision WILSON held that the preamble for The Ontario Human Rights Code grounded protection from discrimination as a fundamental right, and that while recognized by the Code, there was no prescriptive mechanism which would preclude use of tort for enforcement of the right.

Timothy J. Watson 65 Comments Overturned by LASKIN, C.J. of the SCC on grounds that Code established a “procedure for vindication” by means of appeal to the Human Rights Commission which precluded recovery through tort. Clark used the tort of intentional infliction of mental distress to deal with essentially a discriminatory wrong. - belief that not creating a tort is better. Rarely will the court create a new tort Charter has an impact on this - in that through dolphin delivery - court found that charter did not apply in private action BUT McIntyre – courts should develop common law in way that ascribes to charter values. - eg. Charter values of equality JANE DOE V. TORONTO - a fairly vague discussion of this, in early days of the charter. - plaintiff did not get any values under the charter – claimed that they would be the same as those under negligence. o However, left open the possibility  Can only be claimed against a public body

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