TORT LAW: WINTER SEMESTER

TABLE OF CONTENTS
LECTURE 1 – NEGLIGENCE............................................................................................................................................3
DUTY OF CARE................................................................................................................................................................... 4
Donoghue v Stevenson – leading decision in Negligence Law........................................................................................5
Anns – Cooper v Hobbart 2001 SCC..............................................................................................................................6
REASONABLE FORESEEABILITY.................................................................................................................................7
Moule v NM Elec Power Comm (1960) SCC..................................................................................................................8
Amos v NB Elec Power Comm (1976) SCC....................................................................................................................8
Palsgraf v Long Island Ry Co (1928) NY........................................................................................................................9
Rankin v JJ 2018 SCC.....................................................................................................................................................9
DUTIES TO PREVENT CRIME, PROTECT OTHERS................................................................................................11
Jane Doe v Metropolitan Toronto Commissioners of Police (1998) Ontario................................................................12
Hill v Hamilton-Wentworth Regional Police (2007) SCC.............................................................................................12
RECOGNIZED DUTIES.........................................................................................................................................................15
REJECTED DUTIES..............................................................................................................................................................15
CASE STUDY: LUCIA VEGA-JIMENEZ.................................................................................................................................15
AFFIRMATIVE DUTIES OF CARE................................................................................................................................16
LIABILITY FOR THE INTOXICATED......................................................................................................................................16
Crocker v Sundance Northwest Resorts (1988) SC.......................................................................................................16
Childs v Desormeaux (2006 SCC).................................................................................................................................18
Kennedy v Coe..............................................................................................................................................................21
PROFESSIONAL DUTIES – HEALTH CARE...........................................................................................................................21
Haughian v Paine (1987) Saskatchewan CA.................................................................................................................22
MANUFACTURER’S AND SUPPLIER’S DUTY TO WARN.......................................................................................................23
Hollis v Dow Corning Corp (1995) SCC.......................................................................................................................23
DUTY OF CARE OWED BY A BARRISTER............................................................................................................................24
Demarco v Ungargo (1979, Ont HC)............................................................................................................................24
STANDARD OF CARE......................................................................................................................................................25
COMMON STANDARD OF CARE – THE REASONABLE PERSON TEST...................................................................................25
Arland v Taylor (1955) Ont CA.....................................................................................................................................25
FACTORS DETERMINING STANDARD OF CARE...................................................................................................................26
Bolton v Stone............................................................................................................................................................... 27
Paris v Stepney Borough Council (1951)......................................................................................................................27
Vaughn v Halifax-Dartmouth Bridge Comm (1961) NSSC...........................................................................................28
Law Estate v Simice (1994) BCSC................................................................................................................................28
Watt v Hertfordshire County Council (1954)................................................................................................................28
STANDARD OF CARE – INDIGENOUS AWARENESS WEEK – SPECIAL LECTURE..................................................................29
STANDARD OF CARE CASE STUDY – WALKER ESTATE 2001 SCC 23...............................................................................29
SPECIAL CASES IN STANDARD OF CARE............................................................................................................................30
Fiala v Cechmanek (2001) Alta. Ca..............................................................................................................................30
STANDARD OF CARE EXPECTED OF CHILDREN..................................................................................................................31
Joyal v Barsby (1965) Man. Ca.....................................................................................................................................31
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 STANDARD OF CARE EXPECTED OF PROFESSIONALS.........................................................................................................31
White v Turner (1982) Ont. CA.....................................................................................................................................31
DEGREES OF NEGLIGENCE.................................................................................................................................................32
Ter Neuzen v Korn (1995) SCC.....................................................................................................................................33
CAUSATION....................................................................................................................................................................... 33
Kauffman v Toronto Transit Commission (1959) Ont. Ca.............................................................................................35
Barnett v Chelsea & Kensington Hospital (1969) QB...................................................................................................35
Richard v CNR..............................................................................................................................................................35
Ediger v Johnston (2013) SCC......................................................................................................................................35
CAUSATION AND FACTUAL INFERENCE.............................................................................................................................37
Snell v Farrell (1990) SCC............................................................................................................................................38
Benhaim v St Germain (2016) SCC...............................................................................................................................38
Clements v CLements (2012) SCC................................................................................................................................39
REMOTENESS................................................................................................................................................................... 40
DIRECTNESS TEST:.............................................................................................................................................................41
FORESEEABILITY TEST:......................................................................................................................................................41
The Wagon Mound (no. 1); Overseas Tankship (UK) Ltd v Morts Dock & Engineering (1961) PC.............................41
Hughes v Lord Advocate (1963)....................................................................................................................................42
THIN-SKULL PLAINTIFF RULE............................................................................................................................................42
Smith v Leech Brain & Co (1962).................................................................................................................................42
Marconato v Franklin (1974) BCSC.............................................................................................................................42
THE POSSIBILITY OF INJURY..............................................................................................................................................43
The Wagon Mound (no. 2); Overseas Tankship Ltd v Miller Steamship Co. (1967).....................................................43
Assiniboine South School Division No. 3 v Greater Winnipeg Gas Co (1971) Man. CA...............................................44
Mustapha v Culligan of Canada (2008) SCC – Read this***.......................................................................................45
REMOTENESS: INTERVENING CAUSES................................................................................................................................45
Bradford v Kanellos (1973) SCC..................................................................................................................................46
Price v Milawski (1977) Ont Ca....................................................................................................................................46
Chinsang v Bridson (2008) Ont Superior Court of Justice............................................................................................47
NEGLIGENT LIABILITY OF PUBLIC OFFICIALS....................................................................................................48
Just v British Columbia (1989) SCC.............................................................................................................................49
R v Imperial Tobacco Canada (2011) SCC...................................................................................................................51
VICARIOUS LIABILITY........................................................................................................................................................52
TG Bright 7 Co v Kerr (1939) SCC...............................................................................................................................52
Bazley v Curry (1999) SCC...........................................................................................................................................53
DEFENCES IN NEGLIGENCE........................................................................................................................................55
CONTRIBUTORY NEGLIGENCE............................................................................................................................................55
Gagnon v Beaulieu (1977) BCSC..................................................................................................................................56
APPORTIONMENT OF LOSS.................................................................................................................................................56
Mortimer v Cameron (1994) ORCA..............................................................................................................................57
VOLUNTARY ASSUMPTION OF RISK...................................................................................................................................58
Dube v Labar (1986) SCC.............................................................................................................................................58
PARTICIPATION IN A CRIMINAL OR IMMORAL ACT............................................................................................................59
Hall v Hebert (1993) SCC.............................................................................................................................................59
INEVITABLE ACCIDENT......................................................................................................................................................59
Rintoul v X-Ray and Radium Indust Ltd (1956) SCC....................................................................................................60

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 LECTURE 1 – NEGLIGENCE

The Law of Torts – Osborne Textbook  explains it really well

 The term negligence  refers to 1 particular element within a cause of action – whether the defendant’s conduct met
the standard of care.
 Threshold issue in every case: whether the defendant was subject to a legal obligation or duty to exercise care w.r.t.
plaintiff’s interests.
 No intent  good meaning people doing good meaning things, they just screwed up
o Well-meaning careful people and they screw up, or something beyond their control happens
 You need concrete loss, but who is to blame?
o Most of the cases involve serious/significant loss
 One of the effects of negligence law is to: Fundamentally change behavior
 Negligence law has a profound ripple effects, it is profoundly powerful (eg. The bad side effects of the pills on a
commercial)
 Very few instances of aggravated or punitive damages
 Decide who is each other’s neighbors so that the floodgates do not get opened up.
 The underlying goal that pertain the balancing act of putting the P back in original position and not holding someone
liable is rooted in policy.

Duty of Care Standard of Care Causation Remoteness Loss Defences

Matter of Law Law/Fact Cause in Fact Law and Policy Concrete/ Contributorily
 court must decide  Court must determine actual negligence
whether the D was the SoC required of Factual Factually you caused  P’s damages may
under any legal the D Assessment  the loss, but from the be reduced or
obligation to exercise  Ordinarily: D is “BUT FOR” the prospective of law, eliminated on
care w.r.t. P’s interest expected to meet the breach of the should we hold you account of their
 court determines SoC that would be standard of care, accountable? own conduct
nature and scope of exercised by would the loss  You have a way
obligation reasonable person have occurred? out still due to
 appealable  Professionals: special  You look policy reasons
training/qualifications for  Policy – what
Who – who owns duty of  meet standard of causation happens to the
care and how to operate it? profession from the world if we
 Apply 1 of these to breach of organize liability
Has this duty already D’s conduct to see if the standard in this way? Do
been recognized? – argue they breached SoC of care we want to
by analogy (sufficiently  Reasonable  “BUT structure the world
analogous that you don’t foreseeability FOR”  this way?
need to run through the  You need to be as there is 2  Foreseeability
standard of care) – can precise as possible for different  Limited to
your facts map onto that the standard of care scenarios – foreseeable
analogy and what exactly what evidence consequences of
was breached so that NOT there; the D’s negligent
Plaintiff: trying to show you can link this to 2 negligent act
the relationship causation Ds   Reasonable
(1) Foreseeability “material foreseeability
(Rankin) How – how should people contribution
a. Is the relate to one another? ” – only go Question is society as a
Plaintiff here if you whole (how Gym is
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 foreseeable? absolutely taught across BC)
b. Is the injury have to but
foreseeable? STAY in
(2) Proximity the “BUT
a. Close and FOR”
direct? analysis
(effect, per
Hill)
b. Consider:
contracts;
relationship;
effects;
policy
(Cooper)
c. Positive duty
 something
more –
Childs
factors
What is the standard? “BUT-FOR
Defendant:  Reasonableness test” Foreseeable loss? Significant Very few defences
Brings up residual policy o Consider:  Not 100% Consider:
defence – how is this Severity; pragmatic,  Reasonableness
recognized duty of care probability; common  Policy
going to impact legal cost sense –  Real risk –
obligations, the legal avoidance; only 1 possible loss
system, and society more public utility factor  Intervening act? 
generally? o Kids;  If evidence consider break
capacity; WEAK: chain of events put
Would recognizing this custom; inference? into motion by D
duty of care open the flood professionals  if still
gates?  Law NO:
Is there a breach? reverse
Are there any other policy  Fact onus  if
reasons that this duty of  You link the breach still NO &
care should NOT be to causation 2 negligent
recognized? D: material
contributio
n
Something More Criteria
(Childs):
 Materially impacted in
creation of risk
 Relationship b/w P
and D paternalistic
 Public function that
relates to public

DUTY OF CARE
 Classical approach:
o Legal responsibility from negligence did not flow inexorably from moral responsibility
o Political: courts had limited role in imposing liability outside confines of common law precedent
o Legal obligations: acts are seen to be more culpable than omissions – courts more likely to impose liability if
the D did something that hurt the P than if the D merely failed to do something that would have helped the P
o Physical injuries seen as more tanglible and measureable  concrete

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 From Caparo, the recognition of the duty of care requires proof that:
o The P’s loss was a reasonably foreseeable consequence of the D’s conduct
o There was a sufficiently proximate relationship between the parties
o It is “fair, just and reasonable” for the court to impose a duty of care in light of the applicable policy
considerations
 The demise of the Anns test outside of Canada  reflects a dramatic retreat from the rapid expansion of the duty of
care and the spiraling growth of liability  more classical approach
 The framework of negligence  Why even bother with a duty of care?  goes back to Donoghue – we want to
compensate people who have been harmed.
o Common law is conservative, incremental and rigid, it likes certainty  it doesn’t like change
 The floodgates idea  the neighbor principle is NOT extended too far, but in cases like Hill or Jane Doe there is a duty
of care and those individuals are liable so that people can be compensated when they’ve been harmed
 Ask yourself when faced with a set of facts: is this a relationship/situation in which we want to impose a duty of care
between each other? (eg. Case Study of Mexican lady).
 Really particularized duty of care strikes a balance between the floodgates of anyone should be liable and be
accountable for compensation to this individual and this duty should not exist as people have a right to engage in
dangerous activity in their own personal lives

DONOGHUE V STEVENSON – LEADING DECISION IN NEGLIGENCE LAW

Leading Case in Negligence Law – Duty of Care Test

 Lord Atkins judgement is most important: Neighbor Principle:

o Love your neighbor, you must not injure your neighbor
o You must take reasonable care of acts or omissions that would reasonably foresee would be likely to injure
your neighbor
o Who is your neighbor?  persons who are closely and directly affected by my act that I ought to reasonably
have them in contemplation as being affected when I am directing my mind to the acts/omissions that are called
into question
 persons who are close and direct enough to you in proximity and your actions must reasonably impact
them in a negative way
 proximity is NOT physical  but the act directly affects a person whom the person alleged to be
bound to take care would know would be directly affected by his careless act
o Categories are NOT closed  who is your neighbor is open-ended and changes case by case – anybody can be
found to be anybody’s neighbor
o Manufacturers of products owe duty of reasonable to the consumer
o Recognition of a duty of care:
 The P’s loss was a reasonably foreseeable consequence of the D’s conduct
 There was a sufficiently proximate relationship between the parties
o Central concern with Compensation  a harm has occurred and we cannot let this continue
 DISSENT: Lord Buckmaster – critical to maintain some remoteness in some way  Concern of the floodgates of
opening it up too broadly – gives rise to the Duty of Care
o No special duty attaching to the manufacture of food apart from that implied by contract or imposed by statute.
o Lord Tominlin – once liability is determined – the result is too broad  gives rise to the Remoteness Principle
 In order to establish duty of care:
o Q1: Ask whether the alleged wrongdoer and the person who has suffered damage there is sufficient
relationship of proximity or neighbourhood? – carelessness on his part may be likely to cause damage to the
latter  prima facie a duty of care arises

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 Q2: if question 1 is yes  are there any considerations which reduce/limit the scope of the duty or the class of
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person to whom it is owed or the damages to which a breach may give rise  policies?
 Anns Cooper Test refers to Donoghue  categories of negligence are not closed

ANNS – C OOPER V HOBBART 2001 SCC

 Notable for its flexibility and its expansiveness

o 1st branch: required to prove reasonable foreseeability of harm  prima facie duty of care was established
o 2nd branch: burden then fell to the defendant – to establish why a duty of care should be rejected or limited
 notable for its departure from the traditional, category-by-category evolution of the duty of care
 Facts don’t matter, just the test is important pg 323
 What does close and direct mean?
o Not about physical proximity
o About the impact of action from 1 entity to another (eg. Receiving blood from a blood transfusion)
o Look to existing categories
o Type of the interest at stake
o Expectation, representations and reliance between parties
o Property or other interests involved
o Statutes that might be applicable
o Contracts that might exist between the parties – sufficient closeness and directness

 P invested money with Eron Mortgage which was governed by the Mortgage Brokers Act
 This Act contained statutory duties for mortgage brokers
Facts
 P sued D in negligence claiming that they were too slow to suspend Eron’s license and wouldn’t have
suffered that big a loss if they had done so quicker
Issues  Whether the D owed a duty of care to the P?
 Donoghue v Stevenson foreseeability negligence test  conceals a balancing of interests
 Anns Test:
o Reasonable foreseeability of harm: Was the conduct that occurred the reasonably
foreseeable consequence of the D’s act?
 Proximity: relationship between P and D  defining the relationship by looking at
expectations, representations, reliance and the property or other interests involved
 The effect of the relationship, NOT the physical closeness of the
relationship
 Closeness of the relationship to determine DoC
 Physical harm to the P or the P’s property
Law
 Eg. Governmental authorities who have undertaken a policy of road
maintenance have been held to owe a DoC to execute the maintenance in a
non-negligent manner
 If proximity and foreseeability are established  a prima facie duty of care arises
o Are there reasons, notwithstanding the proximity between the parties established in the first
part of this test, that tort liability should not be recognized here?
 Are there residual policy considerations outside the relationship of the parties that
may negative the imposition of the duty of care?
 Residual policy considerations: the effect of recognizing a DoC on other legal
obligations, the legal system, and society more generally
Analysis  Mere foreseeability is NOT enough to establish a prima facie duty of care
 In addition to foreseeability, the P’s must point to factors arising from the circumstances of the
relationship that impose a DoC
 The statute does NOT impose a DoC on the Registrar to investors with mortgage brokers regulated by
the Act  the registrar’s duty is to the public as a whole
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  The first branch for this case fails  no proximity sufficient to found a DoC
 2nd branch: policy reasons:
o to suspend a broker involves both policy and quasi-judicial elements 
 balance public and private interests and what the policy should be (policy)
 the registrar must act fairly/judicially in removing the licence (quasi-judicial)
 must consider the impact of a DoC on the taxpayers

Anns/Cooper Duty of Care Test:

 Does the case fall within previously recognized duty of care, either directly or by analogy?  D v S: categories are
NOT closed. If YES  proceed to Standard of Care Analysis. IF NO  Proceed to Anns/Cooper
 Decides who in the world owes legal obligations between each other
 Analogy: is the alleged DoC within an established category or analogous to one (ie. Is it analogous)?  if YES – do
NOT proceed through Anns Cooper  Duty of Care is established – has a relationship/category already recognized?
(Cooper; Childs; Jane Doe)
 if proximity is established and rare overriding policy considerations  Duty of Care exists
STEP ONE: Can a prima facie duty of care be found? – Burden on P per Childs:
 ensure to have a very particularized duty
Reasonable Foreseeability: “the fundamental moral glue of tort” (Rankin)
 Is the risk of injury foreseeable? – it is a fact specific inquiry (Moule & Amos)  Was the plaintiff foreseeable and
was the harm reasonably foreseeable? (Long Island Railway; Cooper; Rankin) – was the conduct that occurred the
reasonable foreseeable consequence of Ds act? (Cooper); look back in time – ASK: was sequence of events of events
so fortuitous to be “beyond the range of foreseeable results which a reasonable person would anticipate as a probable
consequence”? (Moule) OR has the P established that the “risk of the type of damage that occurred was reasonably
foreseeable to the class of Ps that was damaged”? (Rankin)
 Foreseeability must be framed in a way that links the act to the harm suffered (Rankin)
 Test is objective so reasonable person standard (Rankin)  ought the D have reasonably foreseen the harm – look
back in time as it is situated in time and place (Rankin) – possible is different than foreseeability; easy to establish
(Hill)
Proximity: Heart and soul of this analysis – broad concept which renders the analysis “fair” 
 Closeness and directness – ASK: is there a close and direct relationship between the parties to justify a duty of care?
(Donoghue; Cooper)
 the relationship between P and D – the effect of the relationship, NOT the physical closeness – concern is NOT with
physical intimacy between P& D but whether the actions of one party have a close and direct effect on other party
(Cooper; Hill); If the harm was reasonably foreseeable, is there sufficient proximity between the parties that it would
be just/fair to impose a DoC on the D?
 categories where 1 case is like another case – a duty has been recognized – sufficient proximity is present
 Factors to consider in defining the relationship: existing categories, expectations between the parties, expectations,
representations and reliance, property, creation of risk, types of interests involved/at stake (physical, economic,
emotional) and statutory/contractual framework, Charter considerations (Cooper; Hill)
 Also consider policy considerations relevant to the relationship between the parties
 “Something more” proximity analysis  If facts give rise to a positive duty to act, consider Child’s something more
criteria  positive obligation, being charged for NOT doing something – an affirmative obligation  (1) was D
materially implicated in the creation or control of a risk to which others have been invited?; (2) Is relationship between
P & D of paternal control or supervision?; or (3) Does D exercise a public function or engage in a commercial
enterprise that includes responsibilities to the public at large?  NOT a legal test, just a series of things for you to
consider (Childs; Kennedy); impact of the Ds conduct on the P (Hill)
 Plaintiff only raises things that are relevant to show a DoC with respect to the relationship
If BOTH reasonably Foreseeability AND sufficient relationship of proximity  prima facie duty of care exists
 once the P established a prima facie DoC  evidentiary burden of showing countervailing policy considerations shifts
to the D to show policy considerations (Childs)
STEP 2: Why Duty should NOT be recognized – Onus on Defendant (Childs):

Are there Residual Policy considerations to negate the prima facie DoC ?:

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 Are there policy reasons to negative or otherwise restrict that duty  what is the likely effect of recognizing a duty of
care on other Legal obligations, the legal system, and society as a whole (Cooper)  is this a situation where a duty of
care should be recognized?
 Is recognizing this duty how we want to organize the world? (Cooper)
 Does the law provide an existing remedy?  more concerned with how this will affect society as a whole rather
than the relationship itself (Cooper)
 Flood gates concern  Would recognition of a duty of care here create a specter of liability to an unlimited class? 
therefore we’ve only recognized very particularized duties (D v S)
 Are there any other policy reasons to suggest a duty of care should NOT be recognized?
 It’s residual because we’re looking at the legal relations and society as a whole and because we already looked at
policy in stage 1
 Distinction between policy decisions and operations decisions (Just; Cooper)
 Existing Remedy? We do NOT want a legal regime where she suffered a wrong and there is NO way to compensate
her  “if I don’t recognize a duty of care here, I would potentially leave an entire class uncompensated and that would
go against the goal of negligence law”***
 Indeterminacy  we don’t want to extend indeterminate liability to an indeterminate class (floodgates) (D v S)
 Balancing Act  we want people to have remedies for the wrongdoings but we don’t want to open floodgates
 public authority who’s duties are grounded in statute  cases have been decided at the proximity stage  the D does
not have a sufficiently close and direct relationship with any particular individual
 Hill v Hamilton-Wentworth Regional Police Services Board  suggests that D’s will need some evidence to support
their claims that imposing a duty of care would have deleterious effects

REASONABLE FORESEEABILITY
 If a case falls within an existing category  directly or by analogy  then a DoC will apply on the facts
 If a case does NOT fit within an existing or analogous category  court must apply Anns/Cooper Test
 Anns/Cooper Test:
o Reasonable foreseeability [RF]
o Proximity
 RF and proximity  prima facie DoC
o Residual policy
 Used to negate/limit the prima facie DoC
 Essential question: Whether at the time of the alleged tort, it was reasonably foreseeable to a person in the D’s position
that carelessness on their part could create:
o A risk of injury to the plaintiff
 Factual assessment as seen in Moule and Amos
o Factually specific inquiry  the specifics of the case (case by case analysis)

MOULE V NM ELEC POWER COMM (1960) SCC

 There was a maple tree 5 ft from the pole  tree had been cleared of limbs to a certain height
Facts  Possible for a child to climb a branch to a platform on the nearby tree
 The little boy accidently touched some wires from the nearby pole and it caused them to spark
Issues  Should the power company be liable for the accident and its consequences?
 Was the Sequence of events so fortuitous to be beyond the range of the foreseeable results which a
Law reasonable person would anticipate as a probable consequence?

Analysis  When one considers putting cleats on the trees, the platform between them, the unusual height the boy
climbed and being unlucky to step on a rotten tree branch 
o Sequence of events so fortuitous to be beyond the range of the foreseeable results which a
reasonable person would anticipate as a probable consequence
 Proximity: proximity of the wooded area, it was expected that children would play there  the wires
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 were nonetheless a danger and brought into the area by the Power Company
o Power Company under a duty to take precautions but only against any foreseeable
consequence of the presence of the danger which would involve a reasonable probability of
causing harm
o High voltage wires are dangerous; children are likely to climb trees  foreseeable
circumstance

 Respondent has taken adequate precautions against dangers from wires that could be reasonably
foreseen
Conclusion
 The D should not be held guilty of negligence for NOT having foreseen the possibility of the
occurrence of an unlikely event that happened here

AMOS V NB ELEC POWER COMM (1976) SCC

 Little boy visiting uncle who lives on side of highway decided with 2 other boys to playa contest
where they see who can climb the poplar tree, which is beside a fence with many wires running
Facts
through it
 The P who was 9 climbed the highest on the tree  the tree brushed against those high voltage wires
Issues  Should the power company be liable for the accident and its consequences?
Law  Reasonably foreseeable harm?
 Failing to maintain the particular tree properly trimmed in proximity to the power lines where the
branches or the infant P could come into contact with them constituted  a concealed danger
o The D ought to have reasonably foreseen the danger – must be deemed to have knowledge of
it – ought to have taken the necessary steps to get rid of it
Analysis  The tree was left uncut  heavily leafed  therefore adequately concealed the presence of the wires
from a boy carrying out normal play
 Children climbing trees is a foreseeable circumstance  it was easily foreseeable that someone might
climb the tree and so might become in close proximity to an unseen deadily peril

Conclusion  The accident here was inevitable and the power company is liable

 Element of foreseeability of harm is relevant to 3 elements of a negligence action:

o Duty
o Standard of care
o Remoteness
o A court will impose a DoC only if the defendant’s conduct created a foreseeable risk of injury to the P
o The probability of injury is 1 of several factors considered in determining whether the D breached the SoC
o The P’s losses will be held to be too remote if they were NOT a foreseeable result of the D’s breach of the SoC
 No clear distinction all the time

PALSGRAF V LONG ISLAND RY CO (1928) NY

 Foreseeable plaintiff

 P was standing on a platform on D’s railroad after buying a ticket

 2 men ran to catch the train and one of them jumped on as the train was moving – so a guard on the
car helped in get in
Facts
 as he helped him, the man’s package fell which contained fireworks – you could NOT tell it contained
fireworks  they exploded
 this explosion cause injuries to the P
Issues  Should the power company be liable for the accident and its consequences?
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  Negligence is NOT accountable unless it involes the invasion of a legally protected interest, the
violation of a right
 The P must show a wrong to herself  a violation of her own right
 An innocent act that is harmless to the outward person, with reference to this specific P  is NOT
Law
negligence because it was a wrong to someone/something else
 The act is negligent and wrong because of the risk of damage to other persons
o Risk imports relation – it is a risk to another/to others within the range of apprehension
 Negligence is a term of relation and results in the commission of a wrong
 There is nothing in the cautious mind that the package wrapped in newspaper would cause wreckage
through the station
Analysis
 Bodily security is protected against only some forms of aggression/interference

 Respondent has taken adequate precautions against dangers from wires that could be reasonably
foreseen
Conclusion
 The D should not be held guilty of negligence for NOT having foreseen the possibility of the
occurrence of an unlikely event that happened here

RANKIN V JJ 2018 SCC

 2 minors were smoking mary j and wanting to steal cars
 they went to a commercial car garage
Facts
 C told J to “get in” the car which he crashed  his friend J suffered a catastrophic brain injury
 Alcohol provided my J’s mother
 Whether commercial car garage owed J a DoC?
 Whether the type of harm suffered – personal injury – reasonably foreseeable to someone in the
position of commericial car when considering the security of the vehicles stored?
Issues
 Was the risk of personal injury reasonably foreseeable in this case?
 Did the commercial garage have a positive duty to guard against the risk of theft by minors?
 Could illegal conduct sever any proximity between the parties or negate a prima facie duty of care?
Law  Duty of Care  Anns/Cooper Test:
o Neighbor principle  parties owe a DoC to those whom they ought to reasonably have in
contemplation as being at risk when they act
o Not necessary to conduct a full anns/Cooper analysis if a previous case has already been
established that the DoC already exists in question
o Once foreseeability and proximity are made out  prima facie duty of care is established
o The P bears the legal burden of establishing a cause of action  thus the existence of a prima
facie duty of care; in order to meet this burden  the P must provide a sufficient factual
basis to establish that the harm was a reasonabley foreseeable consequence of the D’s conduct
in the context of a proximate relationship
o Reasonable foreseeability of harm and proximity operate as crucuial limiting principles in the
law of negligence  they ensure that liability will only be found when the D ought
reasonabley to have contemplated the type of harm the P suffered
 The wrongdoing relates to the harm caused
o Proximity: proximity analysis determines whether the parties are sufficiently “close and
direct” such that the D is under an obligation to be mindful of the P’s interest
o Relationship of proximity?  failure to take care might foreseeably cause loss/harm to P
o Whether or not something is Reasonably Foreseeable  objective test
o Physical injury is foreseeable only when there is a risk that the stolen vehicle will be operated
in a dangerous manner
o Reasonable Foreseeability: When determining whether reasonably foreseeability is
established the proper question to ask is whether the P has offered facts to persuade the court
that the risk of the type of damage that occurred was reasonably foreseeable to the class of P
that was damaged  ensures that that the inquiry considers both the D who committed the act
as well as the P, who’s harm allegedly makes the act wrongful
10
  The DoC analysis is a search for the connection between the wrong and the injury
suffered by the P
 The foreseeability question must therefore be framed in a way that links the
impugned act (leaving the vehicle unsecured) to the harm suffered by the P
(physical injury)
 Whether or not something is reasonably foreseeable is an objective test
 The question is properly focusses on whether foreseeability was present prior to the
incident occurring and NOT with 20/20 hindsight
o The nature of the risk taking is important  be specific about it  particularization of DoC
to address the floodgates concern (para 26)
 Characterizing the nature of the risk-taking as the risk of theft does NOT illuminate
why the impugned act is wrongful
Analysis  Reasonable Foreseeability: characterizing the nature of the risk-taking as a risk of theft does NOT
illuminate why the impugned act is wrongful in this case – creating a risk of theft would NOT
necessarily expose the P to a risk of physical injury
o Risk of Personal Injury Reasonably Foreseeable?  there were high risk o ftheft in the
area of Rankin’s Car Garage and evidence of theft from his garage in the past.
 However the evidence does NOT suggest that if a car was stolen, it would be operated
in an unsafe manner
 It does NOT automatically flow that evidence of risk of theft that a garage owner
should have considered the risk of physical injury
 To find a duty, there must be some circumstance or evidence to suggest that a person
in the position of the D ought to have reasonably foreseen the risk of injury – that the
stolen vehicle could be operated unsafely.
 The fact that something is possible does NOT mean that it is reasonably foreseeable
 for harm to be reasonably foreseeable, a higher threshold than mere possibility
must be met
 Here there was nothing about the circumstances of cars stored in a garage lot after
hours that was intended or known to attract minors  there is NO evidence that J or
his friend were targeting Rankin’s Garage in particular – there was insufficient
evidence to suggest that mnors would frequent the premises at night
 The evidence did NOT provide specific circumstances to make it reasonably
foreseeable that the stolen car might be driven in a way that would cause personal
injury – the evidence did not establish that the risk of theft included the risk of theft
by minors
 I am not satisfied that the evidence here demonstrates that bodily harm resulting from
the theft of the vehicle was reasonably foreseeable
 Reasonable foreseeability could NOT be established
 The notion that illegal or immoral conduct by the P precludes the existence of a duty of care is
consistently rejected by the court
 Nothing in this case to connect the risk of theft of the car to the risk of someone being physically
injured
o More evidence required that theft would have occurred at the hands of a minor in order to find
physical injury to J was foreseeable
o Reasonable foreseeability could NOT be established
o Burden of prima facie DoC has NOT been met
 P wrongdoing is integrated into the analysis  contributory negligence
 J has NOT met the prima facie DoC owed by commercial garage
 Reasonable foreseeability could NOT be established
 No evidence that the stolen vehicle would be operated in an unsafe manner causing injury
 Whether or not a DoC exists is a question of law
 Foreseeability operates as the fundamental moral glue of tort – shaping the legal obligations we
owe to one another and defining the boundaries of our individual liability
 Be specific: physical injury is only foreseeable when there is something in the facts to suggest that
there is NOT only a risk of theft, but that the stolen vehicle might be operated in a dangerous manner
11
 o In this case  since creating a risk of theft would NOT necessarily expose the P to a risk of
physical injury. Further evidence is needed to create a connection between the theft and the
unsafe operation of the stolen vehicle
 Court is concerned with evidence – what is provable and what is NOT provable
 Details of foreseeability with this decision***
 General prrincipes of DoC should be particularized
 The very elegant way the court mapped all of it out

DISSENT – DO NOT need to know:

 TJ finding that garage owed a duty of care to J should be upheld
 The relationship between commercial garage and J falls within a category of established relationships
previously found to exist
 Physical injury to J was a reasonably foreseeable consequence to Commericial garage negligence
 Commericial garage negligence in leaving unattended cars unlocked with keys inside overnight could
have lef to reasonably foreseeable injury
 Respondent has taken adequate precautions against dangers from wires that could be reasonably
foreseen
Conclusion
 The D should not be held guilty of negligence for NOT having foreseen the possibility of the
occurrence of an unlikely event that happened here

DUTIES TO PREVENT CRIME, PROTECT OTHERS

 1 person has the ability to control the actions of another
o that relationship of control  NOT sufficient to trigger the doctrine of vicarious liability
o eg. Parents are liable for their kids actions if they failed to properly supervise their children – they also failed to
fulfill a duty of care that they separately owed to the victims of their children’s conduct
o this relationship exists between: parents – children; employers – employees; occupiers and entrants; police
guards and prisoners; coaches/instructors/supervisors – students
 duty to control:
o involves situations in which the D has direct control over another
o D has only indirect control or authority  eg. Those on parole who are living in the community
o The D will simply have an opportunity to prevent/reduce the likelihood of a crime/accident from occurring

JANE DOE V METROPOLITAN TORONTO COMMISSIONERS OF POLICE (1998) O NTARIO

 P sued police after she was attached by a serial rapist who had raped 4 other women living in 2 nd and
Facts
3rd apartments in the vicinity
Issues  Should the power company be liable for the accident and its consequences?

 Police are statutorily obligated to prevent crime and at common law they owe a duty to protect life
and property
Law
 Police have the duty to warn citizens of foreseeable harm

Analysis  P alleges the D’s knew of the serial rapist  eminently foreseeable that he would strike again 
allegations support foreseeability of risk
 P alleges that D knew or ought to have known that P had become part of a narrow and distinct group
of potential victims  special relationship of proximity
o D’s knew that the rapist confined his attacks to the Church-Wellesley area of Toronto; victims
all resided in 2nd/3rd floor apartments; entry in each case was gained through a balcony door;
victims were all white, single, female
o Sufficient to establish a private law duty of care  harm was foreseeable and a special
relationship of proximity existed
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  Amoung the reasons the D’s gave to NOT warn  their view that women would panic and
compromise the investigation
 You know that this is already happening  just talk about giving a heads up to potential victims
o Distinction between Hill and Jane Doe  in Hill we were already dealing with a suspect that
was already under care of police, whereas Jane Doe was dealing with a target
o The reason this can’t be analogized because the differences between the facts of Jane Doe and
Hill
 Foreseeability is easy; proximity is more complex  specific evidence – why the police did not warn
and how this particular woman did not fit the profile  factually specific analysis

HILL V HAMILTON-WENTWORTH REGIONAL POLICE (2007) SC

 Innocent person being investigated by police, arrested, tried, wrongfully convicted and ultimately
acquitted after spending more than 20 months in jail for a crime he didn’t commit
 10 robberies occurred in Hamilton between Dec 16 1994 and Jan 23 1995  the MO of the robberies
were all the same
 eyewitnesses provided similar descriptions of the suspect
 Hill became a suspect in the course of the investigation  the evidence against him included: Crime
Facts Stoppers tip, identification by a police officer based on a surveillance photo, several eyewitness
identifications
 Other exculpatory evidence surfaced as Hill was in custody and the descriptions of the robber and the
MO of the robberies were the same
 Legal proceedings against Hill in relation to the remaining 8 charges went through
 He became a suspect in 1995, and remained involved with various aspects of the justice system until
1999 – he was imprisoned for a total of 20 months
 Can the police be held liable if their conduct during the course of an investigation falls below an
acceptable standard and harm to a suspect results?
 Is police conduct during the course of an investigation or arrest subject to scrutiny under the law of
Issues
negligence?
 Whether the law recognizes a duty of care on an investigating police officer to a suspect in the course
of investigation?
Law ***Reread this case – important to go through duty of care analysis
there is a prima facie relationship between a police officer and a particular suspect
Concerned only with a very particular relationship – the relationship between a police officer and a
particularized suspect that he is investigating
Prima Facie Duty of Care
 Donoghue v Stevenson  love your neighbor  persons who are so closely and directly affected by
my act that I ought to reasonably to have them in contemplations being so affected when I am
directing my mind to the acts or omissions which are called into question
o Foreseeability alone is NOT enough  there must also be a close and direct relationship of
proximity or neighbourhood
o Proximity  asks whether the case discloses factors which show that the relationship
between the P and the D was sufficiently close to give rise to a legal duty of care; is the
relationship one where the imposition of a legal liability for the wrongdoer’s actions is
approporiate?;
 examining the relationship at issue – consider factors like: expectations,
representations, reliance, and property –
 factors which may satisfy the requirement of proximity are diverse and depend
on the circumstances of the case
 proximity is a broad concept which is capable of subsuming different categories of
cases involving different factors
 whether the actions of the alleged wrongdoer ought to have had the victim in mind
as a person potentially harmed

13
  particular considerations relevant to proximity and policy applicable to this relationship: the
reasonable expectations of a party being investigated by the police, the seriousness of the interests at
stake for the suspect, the legal duties owed by police to suspects under their governing statutes and the
Charter and the importance of balancing the need for police to be able to investigate effectively with
the protection of the fundamental rights of a suspect or accused person
 P has the onus of establishing duty of care
 Investigating police officer and a particular suspect are close and proximate  prima facie duty
recognized
 Duty of care by police officers to suspects under investigation is consistent with the values and spirit
underlying the Charter
 A duty of care in tort law should NOT be denied on speculative grounds
 A proposed duty can be rejected on the basis that the conflict would come at the expense of other
important interests, of efficiency and at the expense of public confidence in the system as a whole
o Funds are not unlimited
o Effective and responsible investigation of a crime one of the basic duties of the state
 2nd stage of Anns: Policy considerations negating the duty of care?  “quasi-judicial” nature of
police work; the potential for conflict between a DoC in negligence and other duties owed by police;
the need to recognize a significant amount of discretion in police work ; the potential for a chilling
effect on the investigation of crime
o quasi-judicial nature  police concerned with gathering and evaluating evidence  the
fact-based investigative character of the police task distances it from a judicial or quasi-
judicial role
 the possibility of holding police civilly liable for negligent investigation does not
require them to make judgements as to legal guilt or innocence before proceeding
against a suspect – police are required to weigh evidence to some extent in the course
of an investigation
o discretion  police like other professionals exercise professional discretion – to characterize
police work as completely unpredictable and unbound by standards of reasonableness is to
deny its professional nature
o chilling effect  the police officer must strike a reasonable balance between cautiousness
and prudence on the one hand and efficiency on the other – files must be closed but care must
be taken.
o Flood of litigation  particularized suspects represent a limited category of potential
claimants – the class of potential claimants is further limited by the requirement that the P
established compensable injury caused by a negligent investigation
o No compelling policy reason to negate prima facie duty of care
 Police have a specific duty of care to take care in the course of investigations  police already
had the duty to serve and protect but that wasn’t specific enough to answer the question if a
DoC existed during the course of investigation – court is recognizing a very specific duty to take
care during the course of investigations

Core things:
 Impact of the action by defendant
 Foreseeability is a low threshold to meet
 Police have a DoC during course of investigations
 What is close and direct, we’re concerned about the impact of someone’s actions on another
 Distinction between stage 1 and stage 2 of the test – what counts in stage 1 and what counts in stage 2
 Value that’s attributed to personal relationships  NOT determinative of a proximate relationship

Analysis  this judgement only concerned with a very particular relationship – the relationship between a police
officer and a particularized suspect that he is investigating
 if a new relationship is alleged to attract liability of the police in negligence in a future case 
necessary to engage in fresh Anns Cooper analysis – sensitive to different considerations which might
obtain when police interact with persons other than suspects that they are investigating  sufficiently
incremental and gradual to maintain a reasonable degree of certainty
14
  reasonable foreseeability  clearly made out and poses NO barrier to finding a DoC
 proximity  relationship between the police and suspect under investigation is personal, close and
direct
o he was no longer merely one person in a pool of potential suspects  he had been singled out
o Proximity: the targeted suspect has a critical personal interest in the conduct of the
investigation  high interests support a finding of a proximate relationship  Duty of Care
nd
 2 stage of Anns: Policy considerations negating the duty of care?
o None negating, only supporting
o Discretionary nature of police work  no reason to deny the existence of a duty of care in
negligence – the discretion in police work is taken into account in formulating the standard of
care – not whether a DoC arises
 Professionalism  police exercises their discretion and professional judgement
o Don’t confuse standard of care with arrest
o Chilling effect  police officer strike a balance between cautiousness and prudence on the
one hand and efficiency on the other
o Flood of litigation  only a small number of suits, NOT enough to negate duty of care here
o Risk that guilty persons are acquitted may unjustly recover in tort

 Police owe a duty of care in negligence to suspects being investigated and that their conduct during
Conclusion the course of an investigation should be measured against the standard of how a reasonable officer in
like circumstances would have acted

RECOGNIZED DUTIES
 Manufacturer to consumer (D v S)
 Duty to Warn
 Duty of police to suspect to be reasonable (Hill)
 Duty of police to public (Hill)
 Duty of police to warn (Jane Doe)
 Prison officials to take care and provide a secure environment
 Duty to ensure patrons of a dangerous sport take take all reasonable steps to prevent a visibly incapacitated person
from competing (Sundance Northwest Resorts)

REJECTED DUTIES
 Registrar NO duty to investors (Cooper)
 Garage owner does NOT own a duty of care to subsequent harm arising from theft (Rankin)

CASE STUDY: LUCIA VEGA-JIMENEZ

Loss:
 Dec 20, 2013  Mexican national Lucia 42, is found hanging from a shower rod at the Canada Border Services
Agency’s airport holding cells shortly before 7 am
 She is first taken to Richmond hospital and then Mount Saint Joseph hospital in critical condition
 She died 8 days later

Initial Detention
 She was detained by the CBSA police
 She was then continuously detained in the Immigration Holding Centre (IHC) at the Vancouver Airport
 She had a detention hearing the next day and her detention ordered and continued  this is all lawful in tort law (no
legal liability in negligence)
 She was iisued a deportation order and told she had 15 days to file a pre-removal risk
15
 Documented her mental health as already deteriorating

Who is Lucia’s neighbor and who bears liability? Who owes her a duty of care?
Is there a recognized duty of care here?  NO, but there is a duty of care on prison officials
**You can take issue with this in policy but no issue with tort law.

Initial Signs of Distress

 When she arrived at the jail
 She sought mental health help and there was an interpreter over the phone because she couldn’t speak good English
 Once again who is her neighbor?

People Involved – Potential Neighbors:

 Translink
 CBSA
 Jail
 Genesis – private security firm contracted to run this for the gov’t byt CBSA  they run the detention facility
 Individual guard  should he have had her in his reasonable contemplation?

Duty of Care Analysis:

 Corrections is under Criminal Law; detention is under the realm of Administrative Law  so no established duty of
care already so we must go through the analysis  engage Anns/Cooper Test
 Should they be in a position that we should consider them to be responsible for the risk of harm?
 Foreseeability: Is the P foreseeable? Is the injury foreseeable? It’s assessed on an objective standard
o Is the risk of the type of damage occurred reasonable foreseeable to the type of class that it occurred? (Rankin).
Just because something is probable does not mean it is foreseeable (Rankin)
o She is foreseeable because she is under their care here the entire time  very simple  once she is there and
known to the parties she is foreseeable
o Foreseeable risk of harm  yes, when looking at the big picture, the nurse identified that she was struggling
with mental health
o Note difference between this and Rankin: She met all of the people involved – she interacted with all of them
on a personal level unlike Rankin where the garage owner was asleep in their house and had no idea that kids
were partying in his garage  the foreseeability of harm is much more removed than a situation like this
 Direct contact between each of the entities and the deceased
o Reasonabley foreseeable when deprived on liberty might self harm  it is more than just possible like in
Rankin  once you have to reallt grapple with it, it’s likely is foreseeable
 Proximity: Close and direct impact on her – where she was, how she was handled and what happened to her –
significant impact on her life  differentiated from Rankin in that he was asleep in house
o The relationship between them is definitely one that owes a duty of care – she can’t do anything other than
what they tell her – the relationship is one of reliance
o The law prescribes here what they can and can’t do – the law has already established what the law can and
can’t do  they should have her in their reasonable contemplation
 Policy: is this the “right” or “wrong” thing to do?
o There is policy reasons to suggest that there is a duty of care  we don’t want to give these gov’t agencies
power and want to hold them accountable – how we organize the world
o Counter argument: can’t expect these people to be mental helath practioners, there is no need to impose
additional obligations on them in tort, we can’t reasonably expect them to anticipate the unanticipatable
 Should [insert person] be a neighbor to Lucia and owe her a duty of care?
 Jane Doe and Hill:
o Hill  owed a duty of care when they took her into their custody and owed her to keep safe
o Jane Doe 
 Standard of Care:
o CBSA owes an obligation to take care of them throughout their incarceration – NOT just the training at the
beginning because if it was just the training at the beginning, then communicating with mental health person,
supervising genesis, having a translator does not make sense

16
  This speaks to having a particularized duty of care and a particularized standard of care so that the
breach of the standard of care is very precise.
 Causation:
o In part they caused them  Athey says it doesn’t matter, all that matters is that you contributed
o “but-for”  it is more than likely that had she been adequately supervised etc
 Remoteness:
o Do we want law enforcement agency to account for the loss of this individuals?
o What is the states relationship with the vulnerable?
o Is it reasonably foreseeable that an individual would self-harm like this?  Mustapha  they would or should
have known that there were mental health concerned – they should have known that in her situation that the
possibility of harm was more foreseeable than others

AFFIRMATIVE DUTIES OF CARE

LIABILITY FOR THE INTOXICATED

 Dangerous sports, dangerous activities, and anything that involves intoxication

CROCKER V SUNDANCE NORTHWEST RESORTS (1988) SCC

17
  D held a tubing competition in order to promote its resort
 P and his friend were at the resort did not watch the video
 P signed the waiver form and paid the $15 fee
Facts o TJ found that P did NOT read the form and did NOT appreciate that it was a waiver
 Owner of Sundance noted P’s drunk condition and asked him if he was in any condition to compete
o P was visibly drunk and manager of Sundance suggested for him NOT to continue
 P and his friend hit a mogul on the way down  injured his neck rendering him a quadriplegic
 Whether the ski resort had a positive duty at law to take certain steps to prevent a visibly intoxicated
Issues person from competing in the resort’s dangerous “tubing” competition?
o Whether the relationship between P and D gave rise to a positive duty?
 Negligent conduct  misfeasance
 Failure to take positive steps to protect others from harm  nonfeasance
 Jordan House v Menow (1973 SCC)  leading authority on the imposition of a duty to take positive
action to protect another
o An invitor-invitee relationship  the hotel was aware that Menow was intoxicated – the hotel
was under a duty to M to see that he got home safely
Law o The relationship here was close enough to justify the imposition of a duty of care
Duty of Care:
 One is under a duty NOT to place another person in a position where it is foreseeable that the
person could suffer injury
o The P’s inability to handle the situation in which they have been placed – youth,
intoxication or other incapacity  element of determining how foreseeable the injury is

 D employees were in charge of the way in which the event was to be conducted
 D provided the liquor to P during the event and knew of P’s inebriated and injured condition before
the start of the 2nd heat
 Sundance officials were well aware that P’s condition heightened the chance of injury
 The nexus between Sundance and P is very close so you cannot categorize as a stranger to P’s
misfortune
 Sundance must accept responsibility as promoter of a dangerous sport for taking all reasonable
steps to prevent a visibly incapacitated person from participating
o Highly particularized Duty of Care  running a dangerous sport for profit and serving
alcohol for the participants
 Foreseeable plaintiff  yes
 Proximity  close and direct effect here yes – by referencing the “something more” idea:
o Creation of control or risk?  YES
Analysis o Relationship between P + D a paternalistic relationship of supervision and control?  YES
o Does D exercise a public function or engage in a commercial enterprise that includes
responsibilities to the public at large?  YES
Standard of Care:
 D could have disqualified him when he realized he was drunk
 D did not have to supply him with a new tube
 Sundance could have attempted to bring home to Crocker the risk of serious injury in competing while
drunk  NONE of these preventitve measures imposed a serious burden on the resort
 Sundance failed to meet its standard of care  NOT acceptable for the resort to open its dangerous
competitions to persons who are incapacitated
Voluntary Assumption of Risk:
 Defence of Voluntary Assumption of Risk  moral supposition that NO wrong is done to one who
consents  by agreeing to assume the risk the P absolves the D of all responsibility
 P did NOT – by either word or conduct – voluntarily assume the legal risk involved in competing
 Sundance was subject to a duty to P to take all reasonable steps to prevent him from entering the
Conclusion competition
 Sundance failed to meet the standard of care
 Misfeasance  positive acts
18
 Nonfeasance  failures to act
 Courts have been willing to impose liability for losses caused by positive acts
 The rise of capitalism and laissez-faire ideologies  fostered the belief that the struggle of selfish individuals
automatically produces the common good of all
 A person performing a required act cannot simultaneously do anything else
o Contrast: a person refraining from committing a prohibited act remains free to do anything else
o Very difficult to define the scope of positive obligations
 Courts still cling to the general principle that there is NO liability in negligence for nonfeasance  there are exceptions
to this rule now
o Specialized principles governing individual categories of cases
 Positive duties of care arise in 3 situations:
o The duty to rescue  sailors and captains
o The duty to control the conduct of 3rd parties  in dangerous sports and dangerous activities
o The duty to fulfill gratuitous undertakings
o Eg. Divers on a dive together
 Picka v Porter (1980, QLCA), and Schmidt v Sharpe (1983 Ont HC)  courts held the alcohol provider liable even
though it did NOT have actual knowledge of the patron’s intoxication
 Hague v Billings (1989)  once the staff realized that Billings was intoxicated and intended to drive, they had a legal
duty to take all reasonable steps to stop him
o If they failed  they had a legal duty to call the police
o Billings drinking buddies were equally liable with him for the accident because all 3 had agreed in advance to
go drinking and driving
 Donaldson v John Doe (2009 BCLRCA)  court held that the organizers of an Oktoberfest event owed a duty of care
to persons who might be foreseeably injured by the intoxicated attendees
o P suffered facial injuries when a drunk man struck him in the face with a souvenir glass
 Stewart v Pettie (1995 SCC)  SCC held that serving patrons past the point of intoxication did NOT in itself pose a
foreseeable risk – court held that there had to be some additional risk factor
o Drunk person in this case was accompanied by 3 sober adults  NOT foreseeable that he would drive
o The defendant dinner theatre was NOT held to have breached the standard of care
 Calliou Estate v Calliou (2002 ARQB)  D hockey team organized and hosted a tournament where they supplied
beer; a number of people died as a result of a car crash caused by a drunk player
o Actions of negligence were brought against the D on the basis it had supplied some beer that the drunken driver
consumed
o NO duty of care here  nothing to indicate that the D knew, or ought to have known, that the driver was drunk
 Childs v Desormeaux (2006 SCC)  D’s hosted a NYE party where guests BYOB
o one of the guests was Desormeaux – who was a known alcoholic and had several DUI’s
o Desormeaux caused a car crash leaving Child’s a paraplegic
o Ont CA  insufficient proximity on the facts to establish a duty of care:
 Allowing guests to become intoxicated in a private residence and then drive away did NOT pose a
foreseeable risk of harm to other users on the highway
 Lack of proximity  distinguished social hosts from commercial hosts:
 Commercial hosts have a greater ability to monitor alcohol consumption amoung patrons
 Social hosts are NOT heavily regulated like those who hold liquor licenses
 Social hosts do NOT profit from the sale of alcohol

CHILDS V DESORMEAUX (2006 SCC)

Facts  D left a BYOB party hosted by others – he drove his car into oncoming traffic and collided head-on
19
 with a car driven by Patricia Hadden; 1 of the passengers in her car was killed and Zoe Childs was left
a paraplegic
 D was impaired at the time of the accident
 D was known to his hosts to be a heavy drinker – when he left the party, the host asked him “are you
okay” to which he responded he was good
 Whether social hosts who invite guests to an event where alcohol is served owe a legal duty of care to
Issues
3rd parties who may be injured by drunk guests?
Law The General Test for Duty of Care:
 Donoghue v Stevenson  principled approach –general concept of a duty owed to those whom one
might injure
o Negligence is based on a general public sentiment of moral wrongdoing for which the
offender must pay
o Acts or omissions which any moral code could censure cannot in a practical world be treated
so as to give a right to every person injured by them to demand relief
o Proximity  legal neighbourhood is restricted to persons who are so closely and directly
affected by my act that I ought to reasonably have them in contemplation as being so affected
when I am directing my mind to acts or omissions which are called into question
 2 part Anns Test:
o relationship between parties: is there a sufficiently close relationship between the
parties/proximity to justify imposition of a duty?
 Reasonable foreseeability?
 Sufficient proximity?  Odhavji v Woodhouse  clarified that proximity will NOT
always be satisfied by reasonable foreseeability
 Reference to categories  where a case is like another case where a duty is
recognized, one may infer that sufficient proximity is present and that if the
risk of injury is foreseeable  prima facie duty of care arises
 Onus on Plaintiff
o Are there policy considerations which ought to negative or limit the scope of the duty, the
class of persons to whom it is owed or the damages to which breach may give rise?
 Burden shifts to Defendant
 Law does NOT impose a duty to eliminate risk accepts that competent people have the right to
engage in risky activities
o Only when 3rd parties have a special relationship to the person in danger or to a material role
in the creation of management of the risk that the law may impinge on autonomy
o A person who attends a private party does NOT park his autonomy at the door  the guest
remains responsible for their own conduct
 Hosting a party where alcohol is served does NOT without more establish the degree of proximity
required to give rise to a duty of care on the hosts to 3rd party highway users who may be injured by
an intoxicated guest  hosts have NO statutory duty to monitor consumption of alcohol or control
the structure of the atmosphere in which the alcohol was served
 Affirmative obligation: over and above what is required of someone in their job  off duty
paramedic on the beach sees someone drowning – do we want to put her obligation to have DoC for
not saving this person?
 What gives rise to a positive obligation and what does NOT?
 Categories – Issue Spotting for Positive Obligations:
o Positive obligations: over and above what your job entails you to do
 Something more than your life or job requires
o Go out of your way in which individuals conduct themselves  you’re randomly walking
around and you see someone in a pit hurting  are you compelled to save that person even
though you have no skill sets – are you required to stop living your life and save that person?
 NO
 Citizen go out of their way in their daily life
 Commercial obligations  you don’t just serve drinks and go home, you actively
monitor their drinking and if they are too drunk to drive then you figure out how
they get home safely
20
 o Constraining someone’s autonomy in some way  is there an obligation to bungee jump in
certain dangerous situations?
 Law views these as a constraint on personal autonomy  so positive obligations will be difficult to
recognize
 Concerned not with the overt act of social hosts but with their alleged to act
 Personal autonomy is highly valued and we don’t want to authorize intrusions onto personal
autonomy  “the common law is a jealous guardian of individual autonomy”
o You have to change your life in that moment/moments  you have a personal right not to act
in those situations for whatever reasons

Analysis  Something More Analysis: Situation of commercial hosts and social hosts is different  CANNOT
be extended by analogy: YOU DON’T NEED ALL 3
o They have to go over and above of what life requires them – actively monitor people’s
alcohol consumption and take away their keys  positive obligation
 Social hosts are fundamentally different from commericial enterprises
 Requiring social hosts have these things would put a negative on social
interactions
o Paternalism, material contribution, public function
o Commercial hosts monitor alcohol consumption  they have a special incentive to
monitor consumption because they are being paid for service; regulators can require that
servers undertake training to ensure that they understand the risks of over-service and the
signs of intoxication
o Sale and consumption of liquor is regulated by legislatures  rules applying to
commercial establishments suggest that they operate in a very different context than private
party hosts
 sale and service in commercial settings is controlled
 a party host does NOT have: an institutionalized method of monitoring alcohol
consumption and enforcing limits, nor a set of expectations that would permit them to
easily do so
o the contractual nature of the relationship between a tavern keeper serving booze and a
patron consuming it is fundamentally different from the range of social relationships that can
characterize private parties in the non-commericial context – profit
Anns Test – Prima Facie Duty?
 Foreseeability  history of alcohol abuse by D and impaired driving as well does NOT make
impaired driving and consequent risk to other motorists reasonably foreseeable
o Conduct alleged against defendant is a failure to act  foreseeability alone may NOT be
enough and the nature of the relationship must be examined to determine whether there is a
nexus between the parties
 Courts have imposed a positive duty to act in a few situations:
o Where D intentionally attracts and invites 3rd parties to an inherent and obvious risk that they
have created/control over (eg. Boat captain for passenger that falls overboard or operator of a
dangerous inner-tube competition owes duty to those who cannot safely participate (Crocker)
 steps taken to invite others to subject themselves to a risk under the D’s control – ie.
Engage in risky activities  holding a house party where alcohol is served is not such an
activity – para 42 gives rise to a positive obligation analysis
o Paternalistic relationships of supervision and control  parent-child or teacher-student –
 Duty here rests on: special vulnerability of the P’s and the formal position of power
of the D’s  Also inapplicable to the situation  party hosts do NOT enjoy a
paternalistic relationship with their guests, nor are their guests in a position of
reduced autonomy that invites control
o D’s who exercise a public function or engage in a commercial enterprise that includes
implied responsibilities to the public at large (Jordan House v Menow; Metropolitan
Toronto Commissioners of Police)  must reduce risks to the public
 D’s offer a service to the general public  attendant responsibilities to act with
special care to reduce risk; public role or benefits from offering a service to the
21
 public, special duties arise  Private hosts are NOT acting in the public capacity
 The host creates a place where people can meet, visit and imbibe alcohol  more is required to
establish a danger or risk that requires positive action
 Do NOT have to go to second stage of Anns Test
Conclusion  Childs claim is dismissed

KENNEDY V COE – GOOD PRE-WRITE FOR DUTY OF CARE

Something More Analysis
 The Ps husband went heli-skiing and died as a result of falling in a tree well
 Ski buddies on a heli-ski trip
Facts  They were strangers and put together by the instructor  they did not know each other and
acknowledged each other by gestures only
 They look at each other and nodded  only discussion they had
 While they were going through the trees they were instructed to keep watch
 Whether Mr Coe in the particular circumstances here, owed a duty of care to Mr Kennedy as a ski
Issues
buddy while participating in a guided, back-country heli skiing?
Law PRE-WRITE – Establishing a Duty of Care:
 The modern law of negligence is based on the “general public sentiment of moral wrongdoing for
which the offender must pay” (Donoghue)
 CJ McLachlin in Childs: Legal neighbourhood is “restricted” to “persons who are so closely and
directly affected by my act that I ought reasonably to have them in contemplation as being so affected
when I am directing my mind to the acts or omissions which are called into question (Donoghue) –
this concept, sometimes referred to as proximity, remains the foundation of the modern law of
negligence
 In determining whether a duty of care should be imposed, the court is being asked to determine, as a
matter of law, whether it is fair and just to impose the cost of the Ps loss (Childs)
 Anns/Cooper established a 2 part test for determining whether a DoC arises:
o (1) is there a “sufficiently close relationship between the parties” or “proximity” to justify
imposition of a duty and,
o (2) are there policy considerations which ought to negative or limit the scope of the duty, the
class of persons to whom it is owed or the damages to which the breach may give rise
 the first stage focuses on factors arising from the relationship between the parties, while the second is
concerned with the effect of recognizing a duty of care on other legal obligations, the legal system and
society more generally (Cooper)
 would recognition of the DoC create a specter of unlimited liability to an unlimited class? Are there
other reasons of broad policy that suggest that the DoC should NOT be recognized? (Cooper)
 the P bears the burden of establishing a duty of care, but once she establishes a prima facie DoC under
the 1st part of the test, the evidentiary burden shifts to the D to show that there are policy
considerations that negative or limit the scope of the duty (Childs)
 in Cooper, the court indicated that where a relationship was within one of the recognized categories of
relationships previously found to give rise to a duty of care, it is NOT necessary to conduct a full
analysis under the Anns test
 Does this case fall within a relationship previously recognized as giving rise to a duty of care?
o The circumstances in these cases are NOT sufficiently analogous to those where a person
volunteers to be a ski buddy in the context of a high-risk sport, that is organized with
professional guides and where the expectations and duties of a ski buddy may not be clearly
articulated and vary with the circumstances on the mountain
o It is important to note, that if an alleged duty fits within an established category, generally that
is taken as sufficient proof that there are NO overriding policy considerations which would
negate it
 As a “jealous guardian of individual autonomy” the law does NOT prevent us from participating in
inherently risky endeavors, and there are competing policy issues pertaining to the mitigation and
22
 allocation of risk (Childs)
 As reviewed in (Childs), 3 situations have been identified where courts have imposed a positive duty
to act in the face of an alleged failure to act:
o (1) where a D intentionally attracts and invited 3rd parties to an inherent and obvious risk that
he/she has created/controls
o (2) in the context of paternalistic relationships of supervision and control
o (3) where a D exercises a public function or engages in a commercial enterprise that includes
implied responsibilities to the public at large
 these situations are NOT strict legal categories but factors which can lead to the conclusion that
sufficient proximity exists to give rise to a prima facie positive duty to act (Childs)
 however, in all of these situations, the D is materially implicated in the creation of the risk or his
control of a risk created by others
 2 further concerns – the 1st relates to the autonomy of those affected by the positive action proposed:
o the law does NOT impose a duty to eliminate risk. It accepts that competent people have the
right to engage in risky activities. Conversely, it permits 3 rd parties witnessing risk to decide
not to become rescuers or otherwise intervene. It is only when these 3rd parties have a special
relationship to the person in danger or a material role in the creation or management of
the risk that the law may impinge on autonomy – the autonomy of risk takers is not absolutely
protected, but at common law, it is always respected (Childs)
o the theme of reasonable reliance – a person who creates or invites others into dangerous
situation, like the high-risk sports operator, may reasonably expect that the risk is a reasonable
one or to take appropriate rescue action if the risk materializes
 translating a moral obligation into a legal one requires as a first tep a relationship of proximity that
meets the factors established in the jurisprudence

 NO duty of care in this kind of situation

 Positive obligations:
o Would require 1 person to actively monitor the other person in this ski run
o Something more criteria  it fails because it does NOT satisfies the positive obligations from
Childs  therefore NO closeness and directness and NO proximity  NO duty of care
 Example of law of which court upholds personal autonomy  if you wanna do something super
dangerous, do it  if you impose duty of care here, then this impose crippling imposition on heli-
skiing
o Court is saying you are responsible for yourself – you knew what you were getting into

Analysis  Foreseeability: it was reasonably foreseeable that if Mr Coe failed to performed his alleged duty as a
ski buddy to report Mr Kennedy’s absence or did so negligently, Mr Kennedy would likely have
suffered some injury as a result of a delay in his rescue
 Proximity: referring to the 3 factors in (Childs) – risk control, reasonable preservation of autonomy,
and reasonable reliance – the P submitted that:
o (1) Coe specifically undertook to assume the duties associated with being Kennedy’s buddy
and in this way was implicate in and exacerbate the risk of tree wells by inviting Kennedy to
rely on him as a potential rescuer – risk-control requires the D has been materially implicated
in the creation or control of a risk to which others have been invited
 agreeing to participate as a ski buddy for the purpose of mitigating risks does NOT
mean that the participant is able to control those risks – clearly Coe could NOT
control what Kennedy did on the mountain and what hazards he encountered
 the social host situation in (Childs) indicates that the host would have to be
materially implicated in both the risk itself – continuing to serve alcohol to a visibly
inebriated guest – and the risk of harm to 3rd parties who may be injured by the
intoxicated guest
 a ski buddy who fails to notify the guide of his partner’s absence in a timely way may
affect the speed with which his partner can be found, but he only has limited control
over the potential consequences of the risk himself

23
 Mr Coe did not take effective control over or undertake primary responsibility to
manage or mitigate the risk and consequences of Kennedy falling into a tree well
- moreover, he did NOT know that the risk had actually materialized – nor can it
be said that Mr Coe’s agreement to be Kennedy’s ski buddy put Kennedy in a
worse position
 When Coe agreed to be Kennedy’s ski buddy in the circumstances here, he did NOT
invite Kennedy to rely primarily on him to mitigate the potential risk of injury – Mr
Coe could neither control the inherent risks nor Kennedy’s conduct – any role that
Coe played did NOT place him in a position where he was materially implicated in
the control of the risk of Kennedy falling into a tree well and dying
o (2) Reasonable preservation of autonomy: recognizing a positive duty to act would not
unjustifiably impinge on either Coe’s or Kennedy’s autonomy because they both voluntarily
agreed to assume the responsibility of skiing as buddies
 whatever relationship was created when the 2 agreed to be ski buddies – it was
defined by the guide’s instructions to the group at the top
 Mr Kennedy and Mr Coe never spoke to each other – there is no evidence of
mutual understanding as to what their roles as ski buddies entailed outside of
this context
o (3) the fact that Kennedy in fact skied with Coe rather than someone else indicates that he
relied on Coe’s undertaking
 while it may have been reasonable for Kennedy to rely on Coe to ski with him as his
buddy in the forest, there is NO evidence which suggests that Kennedy’s
expectations went further than that – the 2 men never spoke to each other
 NO duty of care between Kennedy and Coe the 2 ski buddies
Conclusion  None of the factors outlined in (Childs) support the imposition of a psotive duty to act in the
circumstances

 Pay attention to how the duties themselves have been recognized

PROFESSIONAL DUTIES – HEALTH CARE

Police Health Manufacturers Law

 Serve and protect
 Hill: suspect take care
during investigation
 Jane Doe: warn
 General duty of medical
professional
 Special obligation to
Inform re: material risk
 General duties and
additional obligation to
obtain informed consent
(positive obligation)
 Reibl v Hughes
 Paine

 A doctor may be liable in negligence for breaching an affirmative duty to disclose the risks of the proposed treatment
o Special duty of care that arises independently of doctor’s general duty to exercise reasonable care in treating
patients
o Doctor’s must disclose all material risks of proposed treatment  includes low percentage risks, minor
consequence
o Doctors have an obligation to disclose non-material risks that they know or ought to know would be of
particular concern to the patient
24
  Eg. Doc may not have to disclose a 5% risk of minor residual stiffness in the shoulder to an accountant
BUT would have to disclose this risk to a patient who is a professional tennis player
o Patients may choose to rely on their doctor’s judgement and decide what they do NOT wish to be informed of
the risks
o The decision to not fully be informed is the patient’s to make and they must clearly communicate this
o All questions must be answered honestly and fully even if they relate to minor matters or if the answers might
be upsetting
o Doctors who do NOT meet these requisite requirements  breached the requisite standard of care
 Patients must prove that they had been adequately informed – they would NOT have proceeded with
the treatment
 In Reibl v Hughes  SCC rejected the CL test of causation and adopted a subjective/objective test of
causation  the P must prove that a reasonable person in the P’s position would have refused the
procedure if properly performed
 Additional distinct affirmative duty to provide information about the material risks that are
involved
 Duty to inform now:
o Doctor is required to provide the patient with sufficient info to make an informed decision
o Definition of material risk has been broadened to include very remote risks of injury or death
o Courts are less willing to give doctor’s discretion to withhold information because they believe it will be
disconcerting to the patient
o The principles governing the duty to inform govern all healthcare professionals
o Explain material risk that can be understood by the patient  appreciation of the gist of it not technical
language

HAUGHIAN V PAINE (1987) SASKATCHEWAN CA

Facts  P underwent disc surgery that left him paralyzed
Issues
 Informed consent  a surgeon must also where the circumstances require it – explain to the patient
the consequences of leaving the ailment untreated and alternative means of treatment and their risks
 Failure to advise adequately  while it may have been open to the doctor not to recommend these
options by way of treatment – the patient was entitled to be advise that these alternatives were open to
him
 Failure to advise of the risk of paralysis  the risk was small, but non-surgical treatment was
Law available with lack of risk, a significant chance of success and the evidence that the condition disabled
the P significantly  disclosure should have been made
 Sufficient information to make an informed decision
o Risks
o Alternatives
o Anything else that might be relevant

 The P was NOT told that the prospect was that the condition might in a few months improve with the
prospect of recurrence from time to time  if the condition deteriorated, surgery was always an option
in the future
Analysis  NO difference that the respondent may have been under misconception that the P had conservative
management option
 Other aspect of the informed consent  failure of the respondent to warn the P of the possibility of
total paralysis  but it materialized
Conclusion  Judgement for the patient

25
 Full Disclosure: Disclosing some material risks but not others is insufficient (Tremblay v McLauchlin, 2001 BCCA)
 A doctor does NOT have to inform patients that they will be assisted by a resident or other treatment professional
o Less clear if a patient must be informed that an intern or resident will be performing the procedure or a major
part of it
 Fully Answer Questions: Health professionals must answer a patient’s questions fully, even if they related to minor
aspects of the procedure (Sinclaire v Boulton, 1985 BCSC)
o Courts have NOT defined the range of questions that a health professional must answer
 Medical professionals must explain the material risks of the proposed treatment in plain language
o More important for patient to understand the substance of the risks than precise medical terminology
o Martin v Findlay (2008, AR CA)  didn’t matter that the surgeon didn’t use the word “stroke” but described
risk as: death, speech impairment and paralysis
o related issues may arise if patient can’t understand English that well

MANUFACTURER’S AND SUPPLIER’S DUTY TO WARN

HOLLIS V DOW CORNING CORP (1995) SCC

 P underwent breast augmentation
Facts
 It ruptured inside of her a few years later
 Was D liable for failing to inform the surgeon the risk of post-surgical implant rupture inside P’s
Issues
body?
 Lambert: Duty of a manufacturer of a product to warn consumers of dangers inherent in the use of
its products of which it has knowledge or ought to have knowledge
 Good case to look at for the whole “why do we have a duty of care?”
 The duty to warn is a continuing duty – ongoing duty  continues until the end of time
 All warnings must be reasonably communicated
 Use of Donoghue to justify its reasoning: The rationale for the duty to warn  traced back to the
neighbors principle (D v S)
o The warnings must be sufficiently detailed to give the consumer a full indication of each of
the specific dangers arising from the use of the product
o Correct knowledge imbalance between manufacturer and consumer
o The more the danger  the higher the duty is to discharge
 Medical products  the standard of care to be met by manufacturers in ensuring that consumers are
properly warned is high
Law o Medical products are often designed for bodily ingestion/implantation  risks created by
their improper use are substantial
 “learned intermediary”  in exceptional circumstances, a manufacturer may satisfy its
informational duty to the consumer by providing a warning
o highly technical only used by experts
o nature of the product is such that the consumer will NOT realistically receive a direct warning
from the manufacturer before using the product
 do NOT think a manufacturer should escape liability for failing to give a warning it was under a duty
to give by presenting evidence tending to establish that even if the doctor had been given warning they
would NOT have passed on to the patient
consent to surgery:
 would a reasonable woman in P’s circumstances have consented to the surgery if she had known all
their material risks?

Analysis  The P was NOT told that the prospect was that the condition might in a few months improve with the
prospect of recurrence from time to time  if the condition deteriorated, surgery was always an option
in the future
 NO difference that the respondent may have been under misconception that the P had conservative
26
 management option
 Other aspect of the informed consent  failure of the respondent to warn the P of the possibility of
total paralysis  but it materialized
 “learned intermediary” rule is applicable here  Dow is entitled to warn the doctor concerning the
risk of rupture without warning the patient directly  breast implants are not placed into the hands of
the actual consumer  it is the surgeon who obtains it and is in the best position to read warnings
about the implant
o Learned intermediary  so that patients like her are NOT left in a position without
compensation because she was 1 degree of separation removed from the manufacturer
o Manufacturer  Doctor; LI  Patient
o Rather than the manufacturer owing duties to the patient, the manufacturer owes duties to
the doctor and the doctor gives that info to the patient  so long as the doctor discloses
the material to the patient, the patient can sue the manufacturer.
 However if the doctor fails to disclose information, then the patient has a cause of
action against both
 The doctor carries the highest obligation  the general; the affirmative duty to inform
material risk (specific); the duty of care that flows from being a LI
 early warnings suggested that rupture would occur only in extreme cases of violent impact but then the
1985 warning made it clear that a patient would have to alter her lifestyle to avoid rupture
o significant because P decided to enroll in a baker’s course
o a more accurate warning would have reasonably affected her choice of profession  exposing
her to unnecessary risk
 in 1983 they had evidence that ruptures were occurring that were NOT related to early warnings of
abnormal squeezing or trauma
 policy perspective  highly desirable to hold manufacturer to a strict standard of wanring consumers
of dangerous side effects to products
 Dow would have been absolved of liability if the doctor had been adequately warned and NOT passed
on info  intermediary doctrine

Conclusion  Dow did NOT discharge its duty to P by properly warning the doctor

 Cominco Ltd v Westinghouse Can Ltd (1981 BCSC)  manufacturer who hears of a new risk after its product is
distrusted has a duty to warn users as soon as possible
o The P did NOT have to prove that the manufacturer had actual knowledge, provided the manufacturer ought to
have been aware of the new risk
 Totality of the activities/efforts to discharge the burden: If consumers have been adequately informed  the courts
will examine the totality of the manufacturers marketing and promotional activities
o A manufacturer may be held liable despite providing an adequate warning – if that warning has been obscured
or undermined
 Differentiate between manufacturers and suppliers

DUTY OF CARE OWED BY A BARRISTER

 A lawyer’s liability to a client for errors made as a barrister in the course of litigation
 You can be sued in negligence if you’ve made an egregious error

DEMARCO V UNGARGO (1979, ONT HC)

Law  Public policy and public interest do NOT exist in a vacuum  they must be examined against the
background of a host of sociological facts of the society concerned
 An attorney must exercise reasonable care, skill and knowledge in the conduct of litigation and

27
 must be properly diligent in the prosecution of the case
 A lawyer is NOT immune from action at the suit of a client for negligence in the conduct of a client’s
civil case in court
 You can’t be faulted for a bad judgement call
 You can be liable when you make egregious errors: limitation periods, not filing on time,
misrepresenting the law, or not doing what the case requires of them.
 If you make a poor argument  does not mean you will be responsible

 Notes and question missed: Job of a lawyer is to make a judgement call

o Folland questions the standard from Demarco that potentially reduces the standard

STANDARD OF CARE

 Main Question – The Standard: What is reasonable in the circumstances?  Law. What would a reasonable
person situated in the same situation do?
 Is there a breach? Did the person act in a reasonable manner in the circumstances?  Factual proof of
negligence –“the negligence act”  this is what negligence revolves around
 Arland v Taylor
 Once it is established that the D owed a duty of care to the P  becomes necessary to formulate the standard of care
and to determine whether that standard was breached
 The standard of care determines how the D should have acted
 Negligence has 2 meanings – 1 narrow and 1 broad:
o Narrow meaning  refers only to the questions of standard and breach
o Broader meaning  cause of action as a whole
 Carelessness  breached the standard of care
o Very open-ended
o Question of whether the standard of care has been breached should be resolved by the court before the question
of factual causation
 Issues of standard of care and breach  raise questions of law and fact
o Law: For the judge to determine the standard of care and determine factors that need to be considered
o Fact: Then trier of fact apply those factors to the case and determine whether the D met the standard

COMMON STANDARD OF CARE – THE REASONABLE PERSON TEST

ARLAND V TAYLOR (1955) ONT CA

 P was injured in a MV accident
Facts
 At trial – the jury held that the D had NOT breached the standard of care
Law  Determine weather and conditions – ask yourself the questions:
o Would I have done that?
o Was that reasonable for him to do?
o What precautions would I have taken that he did not?
 The standard of care by which a jury is to judge the conduct of the parties in a case of this kind under
consideration is the care that would have been taken in the circumstances by a “reasonable and
prudent man”  legal standard – fixed and immutable
o Reasonable person  mythical creature of law by which the conduct is standard by which
the courts measure the conduct of all other persons and find it to be proper or improper in
28
 particular circumstances as they may exist from time to time
 He is NOT extraordinary or unusual, he is not a superhuman or a genius; he does not
have extreme foresight  he is ordinary
 He is NOT required to display the highest skill of which anyone is capable
 He is a person of normal intelligence who makes a prudent guidance to his
conduct; He does nothing that a prudent man would NOT do, and does NOT
omit to do anything a prudent man would do
 His conduct is the standard adopted in the community by persons of ordinary
intelligence and prudence
 He is free from over-apprehension and over-confidence
 Subjective element
o Standard of foresight of a reasonable man  impersonal test
 It eliminates the person equation and idiosyncrasies of the particular person whose
conduct is in question
 Factual standard changes from time to time and place to place

 Ryan v Victoria (City) (1999) SCC

o Standard of care  conduct is negligent if it creates an objectively unreasonable risk of harm
o To avoid liability  a person must exercise the standard of care that would be expected of an ordinary,
reasonable and prudent person in the same circumstances
o Measure of what is reasonable depends on the facts of each case – including:
 The likelihood of known or foreseeable harm
 The gravity of that harm
 The burden or cost which would be incurred to prevent the injury
o One may look to external indicators of reasonable conduct  custom, industry practice, statutory or
regulatory standards

FACTORS DETERMINING STANDARD OF CARE

 2 most important factors:

o probability of injury
o the potential severity of injury

Factors Determining Reasonableness

 probability of injury (Bolton v Stone)

 severity of harm (Bolton v Stone)
 cost of risk avoidance (Vaughn v Halifax Dartmouth Bridge Comm)  this must be balanced out with the first 2
factors
 social value/utility (Watt v Hertfordshire County Council)  determine what’s reasonable in the circumstances
based on the social utility of your work (eg. You’re driving an ambulance and driving in a reckless manner in order
to save a life – this changes what is reasonable in the circumstances)
 those considerations are balanced against the private and social costs of avoiding the risk and social utility of the D’s
conduct
o these considerations must be assessed at the time of the alleged breach rather than in hindsight
o the real question is: how a reasonable person in the D’s circumstances would have acted at the relevant time
o Denning: “we must not look at the 1947 accident with 1954 spectacles”
29
BOLTON V STONE
 Probability and severity of the harm

 P was walking on a road adjacent to a cricket ground when she was struck and injured by a ball that
Facts
had been hit out of the ground
Issues 

 If injury to another person from the D’s acts is reasonably foreseeable  the chance that injury will
result is substantial and it does NOT matter in which way the duty is stated
 Reasonable men take into account the degree of risk and do NOT act on a bare possibility as they
would if the risk were more substantial
Law
 What a man must NOT do, and what a careful man tries to NOT to do  is to create a risk which is
substantial
 Were they reasonable in the way they built the field?  they put up a fence, low risk, low standard

 it was readily foreseeable that an accident that that happened to the respondent might occur during one
of the appellant’s cricket matches
o balls have been driven into the public road from time to time – it was obvious that if a person
happened to be where a ball fell  that person would receive injuries which might or might
not be serious
 on the whole  that part of the road where a ball could fall there would often be nobody and seldom
Analysis any great number of people  the chance of a person ever being struck even in a long period of years
was very small
 Oliver J considered whether the appellants’ ground was large enough to be safe for all practical
purposes  held that it was  this is a question of fact, NOT law
 This case is NOT far from the border-line  if this appeal is allowed, that does NOT mean that every
case where cricket has been played on a ground for a number of years without accident or complaint
those who organize matches there are safe to go on in reliance on past immunity

PARIS V STEPNEY BOROUGH COUNCIL (1951)

 P was walking on a road adjacent to a cricket ground when she was struck and injured by a ball that
Facts
had been hit out of the ground
 Whether an ordinarily prudent employer would supply goggles to a 1 eyed workman whose job was to
Issues knock bolts out of chassis with a steel hammer while the chassis was elevated on a ramp so that the
workman’s eye was close to and under the bolt
 The standard of care  an ordinarily prudent employer would take in all the circumstances
 The court has to form its own opinion of what precautions the ordinarily prudent employer would take
 You take your plaintiff has you find them  if they only have 1 eye than you have to supply them with
goggles  you have to see what the harm is like
 If you can avoid risk without significant cost  then that is the reasonable thing to do
Law
DISSENT:
 The duty to take reasonable precautions against injury is one which is owed by the employer to every
individual workman
 The condition of the appellant was a relevant fact to take into account
Analysis  an ordinarily prudent employer WOULD take the precaution of supplying goggles to a 1 eyed man
 For the judge to weigh up the risk of injury and the extent of the damage and to decide whether, in all
the circumstances – including the fact that the workman was known to be 1 eyed and might become a
blind man if struck  an ordinarily prudent employer would supply goggles
 It is a simple and inexpensive precaution to take to supply goggles and a 1 eyed man would be less
likely to decline wearing these goggles than a 2 eyed man

DISSENT:
30
  In considering the precautions which an employer ought to take for the protection of his workmen it
must be right to take into account: (1) the likelihood of an accident happening; (2) the gravity of the
consequences
 The more serious the damage which will happen if an accident occurs – the more thorough are the
precautions which an employer must take

VAUGHN V HALIFAX-DARTMOUTH BRIDGE COMM (1961) NSSC

 Cost of risk avoidance

 A bridge operated and maintained by the D was painted

Facts  Flecks of paint were blown by the wind onto nearby cars  the owner of one of those cars sued in
negligence
 Whether an ordinarily prudent employer would supply goggles to a 1 eyed workman whose job was to
Issues knock bolts out of chassis with a steel hammer while the chassis was elevated on a ramp so that the
workman’s eye was close to and under the bolt
 No amount of ordinary care would prevent the dripping paint nor the likelihood of it being carried by
the wind varying distances up some 100s of feet
 It was inevitable that paint should fall on the cars in the parking lot in question and during the painting
operations in early July
 No policy was established of warning car owners or the dockyard authorities in advance of painting
operations – though the D knew of the danger to them implicit in such operations
 Nor could it be said that the D could NOT have asked for permission to post warning signs at the
Analysis
parking lot or communicated via press or radio similar warnings of danger from painting expected to
be done in the neighbourhood of that lot
o Neglect in this regard was overcome by the provision of a man in the dockyard charged with
the duty of wiping fallen paint from the parked cars
 Notable that precautions in either of these regards would have entailed relatively little expense in view
of the shortness of the painting season  would have probably prevented or at least minimized the P’s
damage

LAW ESTATE V SIMICE (1994) BCSC

 Cost of risk avoidance

 P sued the D doctors in negligence claiming that her husband died because of their failure to provide
Facts timely, appropriate, and skillful emergency care
 The D’s had not initially taken a CT scan
Issues  The issue of the allocation of limited and costly resources

 If it comes to a choice between a physician’s responsibility to his or her individual patient and his/her
Law
responsibility to the medicare system overall  the patient takes precedence
 Doctor’s testified that they feel pressure/constraint from the BC Medical Insurance Plan and by the
BC Medical Association standards which restrict their requests for CT scans
Analysis o CT scans are limited and costly to use
o There are budget restraints on them

WATT V HERTFORDSHIRE COUNTY COUNCIL (1954)

 Social utility

Facts  P sued the D doctors in negligence claiming that her husband died because of their failure to provide
timely, appropriate, and skillful emergency care
31
  The D’s had not initially taken a CT scan
Issues  The issue of the allocation of limited and costly resources

 Measuring due care  balance the risk against the measures necessary to eliminate the risk
Law o Must balance the risk against the end to be achieved
 Balancing the risk against the end
Analysis  The risk involved in sending out the lorry was NOT so great as to prohibit the attempt to save life

STANDARD OF CARE – INDIGENOUS AWARENESS WEEK – SPECIAL LECTURE

 Reasons is a defining features of law  device of the reasonable person
 TRC  recognition and revitalization of indigenous laws
 An indigenous reasonable person
 When you speak its going to matter who is listening and who is not listening
o Indifference and disengagement are the most effective forms of silencing
 Indigenous legal reasoning keeps being displaced for many years by state actors
 Look to the reasonable person definition in Arland
o The reasonable Cree person uses Cree traditions to make reasonable and personable decisions
o Adopted in a Cree community of ordinary intelligence and prudence
 First: Cree had reasonablely functioning legal traditions
o Reasoning process
o Reasonable Cree people may disagree with these standards
 4 background principles that guide Cree reasoning:
o (1) interrelatedness  the truth claim – we’re all interrelated in nested relationships on different relationships
with each other – imbedded and connected
 going to understand this if you are a reasonable Cree person
 human and family relationship
 like ordinary people she will not always live up to her ideals
o (2) generosity and whole heartedness  peace between peoples; acts of vulnerability, kindness and generosity
and hospitality
o (3) education and guidance  teaching and support is the most effective way of setting community standards
and how they have affected others and what they have done wrong
o (4) case by case reasoning  reasonable person bares a resemblance to the Chiefs and spiritual leaders –
thinking through the range of complexity of Cree legal principles on a case by case basis
 may disagree sometimes of how things should be implemented and decided
 would a reasonable Cree person want to go through popular political, and legal Canadian thinking?
o Would the reasonable Cree person be welcomed, be safe to the Canadian press and legal community?
 Trauma narrative
 Would a reasonable Cree person find Canadian state law reasonable?  NO

STANDARD OF CARE CASE STUDY – WALKER ESTATE 2001 SCC 23

 Established duty of care between Walker and the Red Cross

 What do these parties have to do to each other to be reasonable in the circumstances?
 In this moment in time, the medical community had NOT concluded that HIV AIDS was blood borne
 Is this reasonable as a screening protocol in the circumstances?
o At the time – discrimination and equality concerns were at the front of peoples minds because of the Charter
coming into effect with trying to bring equality to all people; at the time the Canadian Red Cross did NOT
want to bring gay people into the mix because they thought this was discriminatory.
o There was NO idea of how to prevent this death
 What was the Standard of Care?
o Was this reasonable?
32
 o Was there a breach?
o What the US Red Cross did  what was known in the medical community and identify the risks and the
symptoms and it would be enough to encourage self-selection; the error made by the judge in this case was
NOT how a medical person would view it but how would a lay person view it.

SPECIAL CASES IN STANDARD OF CARE

FIALA V CECHMANEK (2001) ALTA. CA

 MacDonald went for a run and during his run he suffered from a sevre maniac episode diagnosed later
as bipolar disorder type 1
 He was yelling obscenities at the D, the owner and operator of the car, jumped on the car’s trunk and
roof – he then broke through the sunroof of the car and began choking the D
 TJ held that MacDonald had NO control over his behavior and was incapable of appreciating either
Facts the nature or quality of his actions
o Without warning or notice, there was a sudden change in MacDonald’s condition and as a
result – MacDonald had NO ability to reason or to appreciate his duty of care to others
o MacDonald was NOT aware of his mental disorder before the incident occurred

Issues  The issue of the allocation of limited and costly resources

Law  Linden in Canadian Tort Law  persons suffering mental illness may NOT have to comply with the
reasonable person standard – the theory is that it is unfair to hold people liable for accidents they are
incapable of avoiding
o Mercy is NOT shown to defendants whose minds are clouded because of drugs or
drunkenness
o Only when the inadequacy amounts to a serious mental illness that the excuse is countenanced
 Negligence law is concerned with fault associated with falling below the requisite standard of care in
the circumstances
o Negligence law is concerned with wrongdoing
o Ought to be an element of moral blame in all conduct which tort law deems as negligent and
hence liable for damages
 Although compensation of victims for tort is very important – what is a tort?
 Concerns about the erosion of the objective reasonable person standard have NOT prevented courts
from taking age or physical disability into consideration  such consideration should NOT prevent
consideration of a D’s mental illness
 Connolly: BCSC held that there could be NO liability in the absence of foreseeable harm
o Because the D’s bipolar disorder prevented him from foreseeing the injury that could result
from driving his car at a high rate of speed while the P’s arm was pinned inside the car – he
could NOT be held liable
 Exceptions granted to children and the physically disabled  exceptions to the mentally ill are NOT
unreasonable – they must be narrowly defined
 Balancing act of compensation goal and exceptions to persons who should not be held liable
 To find negligence  the act causing damage must have been voluntary and the D must have
possessed the capacity to commit the tort  this burden is on the Defendant

In order to be Relieved of Tort Liability when a D is afflicted suddenly and without warning with a
mental illness, that D must show either on a BoP:
 (1) as a result of their mental illness  the D had NO capacity to understand or appreciate the duty of
care owed at the relevant time
 (2) as a result of mental illness  the D was UNABLE to discharge his duty of care as he had NO
meaningful control over his actions at the time the relevant conduct fell below the objective standard
of care
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  this test will preserve the notion that the D must have acted voluntarily and must have the capacity to
be liable  fault will still be an essential element of tort law
 MacDonald’s mental illness was incapacitating
Analysis  He was not driving a vehicle and there was NO way he could have foreseen the onset of his manic
episode or taken preventative measures to avoid its result
Conclusion  MacDonald has satisfied both tests to relieve him of liability

STANDARD OF CARE EXPECTED OF CHILDREN

JOYAL V BARSBY (1965) MAN. CA

 Infant ran out onto busy highway into the side of the D’s motor vehicle and suffered grievous injuries
 Her and 2 younger brothers had left their home to cross the highway and enter a park on the opposite
side
 Her father had ensured that she was diligent when crossing the highway “Stop, Look, Listen”  infant
Facts
P was conscious of the traffic danger inherent on the busy highway
 Hearing the fog-horn of the truck the infant P and her other brother stepped back onto the shoulder
 When the D was less than a car length away from the infant P  the infant P suddenly started to run
across the highway from E to W  she was struck by the door handle and sustained severe injuries
Issues  Whether the infant was guilty of contributory negligence?

 Question for the jury whether the infant exercised the care to be expected from a child of like age,
Law intelligence or experience

DISSENT:
 The infant P was partly responsible for this regrettable accident  she was thoroughly trained on the
Analysis dangers of the highway, had experience with the traffic and without first looking had suddenly left a
place of safety for a place of danger
 40% contributory negligent

 intelligence, experience
 cognitive skills are different  children cant reason through consequences in the same way; their attention is different
 Marlow BCSC 2018  para 14 – 17 are the clearest articulation of the principles
o Para 16  another authority – standard of care is NOT one of perfection, but whether the reasonable prudent
person would act
o Para 17  SoC of a child is different than the SoC of an adult
o Para 44  conclusion – she did NOT breach the standard of care of using the roadway
o This is construed differently than the Joyal case

STANDARD OF CARE EXPECTED OF PROFESSIONALS

WHITE V TURNER (1982) ONT. CA

 the Defendant plastic surgeon performed breast reduction operation on the P
Facts  P suffered post-operative complications and her breasts were scarred and poorly shaped
 P claimed D was negligent in performing the operation

Issues 

Law  Courts recognize that professionals may make mistakes during their practice which do NOT amount to

34
 negligence
 The mere fact of a poor result (surgery does not succeed, lawyers losing a case) does NOT mean
there has been negligence
 To succeed in an action against a professional person, P must prove on a BoP:
o Bad result that was brought about by
o Negligent conduct
 If a plastic surgeons work complies with the custom of his profession and other surgeons  he will
escape civil liability for his conduct even where the result of the surgery is LESS than satisfactory
 If on a BoP the breast augmentation surgery was performed in a substandard way by the D  he was
negligent
 2 reasons why D did not remove sufficient tissue which were negligent in the circumstances:
o (1) the operation was done too quickly
o (2) the suturing was started before a proper check was made of whether enough tissue had
been removed
 the D performed the operation in 1 hour and 35 minutes  described by another doctor as very fast
Analysis o another doctor said he could not imagine the procedure could be properly done in that time
frame  he said that “detail takes time” and the necessary attention to detail was NOT done
in this case
 it was found that the check of the amount of tissue removed before closing  another doctor
testified this was standard practice  therefore D was negligent in NOT doing this standard
check
 when D went to close up the suture  he noticed there was a lot of tension in the skin  and then he
chose to do nothing about it
Conclusion  D performed this operation too quickly  actionable negligence

 Ter Neuzen v Korn  physicians duty to conduct their practice in accordance with the conduct of a prudent and
diligent doctor in the same circumstances
o General practioners are required to exercise the standard of care of a reasonable, competent general practioner
 this includes knowing their limits and when to refer patients to a specialist
 Layden v Cope  the P had previously suffered from gout went to 2 general practioners in a small town – after 9 nine
days the P was referred to a specialist and his condition had worsened to the point where he had to get his leg
amputated.
o The general practioners of a small town still hold the same liability
o They should have considered other diagnoses when the P’s condition did NOT improve and referred him to a
specialist much sooner
 Professionals like lawyers are subject to codes of ethical conduct
o These codes can be relevant to determining the duties owed in a professional relationship and identifying what
the professional is required to do or refrain from doing
o A violation of the provisions of such code is NOT automatically a breach of the standard of care

DEGREES OF NEGLIGENCE

 Gross negligence  requires something less blameworthy than criminal negligence but something worse than ordinary
tort negligence
o SCC defined gross negligence  a very marked departure from the standards by which responsible and
competent people habitually govern themselves
o Confined to 2 statutes:
 Liability of a municipality for injuries caused by snow or ice on sidewalks  s. 44 of the Municpal Act

35
  Liability of medical professionals who provide medical assistance during emergencies  s. 2 of the
Good Samaritan Act

TER NEUZEN V KORN (1995) SCC

 P contracted HIV as a result of artificial insemination in January 1985
 The risk of such infection was not widely known in North America when the procedure was
Facts performed
 Expert evidence established that the physician had adopted standard medical practices in this regard

Issues  Whether it was open to the jury to find that the standard practice itself fell short of the standard of care

Standard of care and evidence of standard practice

 Customary in the circumstances?  the custom need not be perfect, but it CAN’T be fraught
with obvious risk – that’s whats reasonable in the circumstances; if it’s deeply flawed with
obviosus risks  you cannot rely on this
o Customary practice acorss the discipline – this is the standard UNLESS this custom
should not be one in the circumstances
 It is well-settled that physcians have a duty to conduct their practice in accordance with the conduct or
a prudent and diligent doctor in the same circumstances
 Doctor’s behavior must be assessed in light of the conduct of other ordinary specialists  who
possess a reasonable level of knowledge, competence and skill expected of professionals in Canada
 Conduct of physicians must be judged in the light of the knowledge that ought to have been
reasonably possessed at the time of the alleged act of negligence
 The medical profession as a whole is assumed to have adopted procedures which are in the best
interests of patients and are NOT inherently negligent
o A doctor will NOT be found liable if the diagnosis and treatment given to a patient correspond
to those recognized by medical science at the time – even in the face of competing theories
Law o They make a finding of fault where a violation of universally accepted rules of medicine have
occurred  the courts should NOT involve themselves in controversial questions of
assessment having to do with diagnosis or the treatment of preference
 Conformity with common practice will generally exonerate physicians of any complaint of negligence
 there are certain situations where the standard of practice itself may be found to be negligent
o This will only be where the standard of practice is fraught with obvious risks
 Courts should NOT involve themselves in resolving scientific disputes which require the expertise of
the profession
 Where there are obvious existing alternatives which any reasonable person would utilize in order to
avoid risk  one could conclude that the failure to adopt such measures is negligent
 General rule  where a procedure involves a difficult or uncertain questions of medical treatment 
scientific or highly technical matters that are beyond the understanding of the judiciary  it will NOT
be open to find a standard medical practice negligent
o Exception: if a standard practice fails to adopt obvious and reasonable precautions which
are readily apparent to the ordinary finder of fact  then it is NO excuse for a practioner
to claim that they were merely conforming to a negligent common practice
o Question of law if a standard of practice is negligent
 The court held that a new trial should be ordered for the STI portion  HIV falls within a more
Analysis general class of STIs  the D might be held liable for the transmission of HIV if he could have been
held liable for the transmission of 1 of those other infections

CAUSATION

36
But-For the breach, would have the injury would have been caused?

 Causation is a factual inquiry – it requires that the P to establish that the Ds breach of the standard of care caused the
injury or loss suffered (Clements)
 Causation is assessed using the but-for test  the P must show on a BoP that “but for” the D’s negligent act, the
injury would NOT have occurred The D’s negligence was necessary to bring about the injury  the injury would
NOT have occurred without the D’s negligence (Ediger)
 P must show on a BoP that BUT FOR the Ds negligent act, the injury would NOT have occurred (Clements,
Kauffman)
 The BUT FOR test must be applied in a robust, pragmatic, common sense fashion (Clements)
 Causation need not be determined by scientific precision – don’t need to determine 100% that this breach
caused the loss – it is a practical question of fact that is best answered by ordinary common sense (Snell) The
legal or ultimate burden remains with the P – but in the absence of evidence to the contrary adduced by the D  an
inference of causation may be drawn although positive or scientific proof of causation has NOT been adduced (Snell)
 The question of whether an inference is warranted in a particular case falls within the discretion of the trier of fact to be
determined with reference to all the evidence (Ediger)
 Causation need not be proven with a scientific or medical certainty – courts should take a “robust and
pragmatic approach” to the facts guided by common sense principles  The trier of fact may draw an inference of
causation even without “positive or scientific proof” if the D does NOT lead sufficient evidence to the contrary (Snell)
 It is NOT necessary for the P to establish that the Ds negligence was the sole cause of the injury – as long as D is part
of the cause of an injury, the D may be found liable to the P for the whole of the losses flowing from the injury, even
though their act alone was NOT enough to create the injury (Athey v Leonati)
 When the evidence IS NOT THERE  draw an inference that need NOT be proven with scientific accuracy –
you’re looking at what the evidence shows you and it doesn’t directly say there’s fault but common sense,
pragmatism allows you to draw an inference from the actions (Atney, Snell)
 Causation may be established on the basis of an evidentiary inference (Athey)  some evidence connecting the breach
of duty to the injury suffered may permit the judge, depending on the circumstances, to infer that the Ds negligence
caused the loss (Snell; Athey) – Benhaim v St Germain confirms this is an appropriate application of the “BUT FOR”
test
 In cases of causal uncertainty  the causation analysis seeks to balance 2 considerations: (1) ensuring that Ds are held
liable for injuries only where there is a substantial connection between the injuries and their fault, on the one hand, and
(2) preventing defendants from benefitting from the uncertainty created by their own negligence, on the other (St
Germain)
 If causation CANNOT be established on the evidence, the TJ need NOT draw an evidentiary inference and can simply
find that causation has NOT been established (St Germain)
 But-For  if there is no evidence  inference  if this doesn’t work  reverse onus (Cook v Lewis)  if this
doesn’t work AND there’s multiple parties  material contribution

Damages & Causation:

 The basic principle of tort law is that the D must put the P back in the position she would have been in had the Ds
tortious act not occurred (Athey)
 The corollary of this principle is that the D need NOT compensate the P for any loss NOT caused by his/her negligence
or for deliberating effects of a pre-existing condition which the P would have experienced anyway (Athey)
 Assessment of Damages: Thin Skull and Crumbling Skull rule  you take your victim as you find them. Thin Skull
accounts for conditions that are latent or fixed. Crumbling Skull accounts for deteriorating or active conditions. The
core behind both ideas is the same: the Ps pre-existing condition is part of their original position (TWNA v Clarke)
 No difference between the Thin Skull and Crumbling Skull in terms of tort liability

37
 (1) As a general rule, a P CANNOT succeed unless she shows as a matter of fact that she would NOT have suffered
the loss “BUT-FOR” the negligent act or acts of the D. A TJ is to take a robust and pragmatic approach to
determining if a P has established that the D’s negligence caused her loss. Scientific proof of causation is NOT
required. (Clements)
(2) Exceptionally, a P may succeed by showing that the D’s conduct materially contributed to the risk of the Ps
inquiry where (a) the P has established that her loss would NOT have occurred “but for” the negligence of 2 or
more tortfeasors, each possibly in fact responsible for the loss and; (b) the P, through NO fault of their own, is
unable to show that any one of the possible tortfeasors in fact was the necessary of “but for” cause of her injury –
because each can point to one another as the possible “but for” cause of the injury, defeating a finding on causation
on a BoP against anyone (Clements)
(3) In some cases where the facts do NOT permit an easy application of the “but-for” standard (eg. Where there are
multiple negligent Ds) – the law will assess causation according to different standards; the material contribution
test  provides that where a P can provide that 2 Ds were negligent, but is unable to prove which of the Ds caused
the loss, BOTH Ds will be held liable for negligently causing the loss UNLESS they were able to disprove
causation on a BoP (Cook v Lewis; Clements)

 Burden: the P need NOT prove that the D’s negligence was the sole, immediate, direct or even the most important
cause of their loss
o Rather  the P only has to establish that the D’s negligence was a cause
o Standard: BoP
o Courts have modified the accepted burdn and standard of proof in narrow categories of cases to prevent a
perceived unfairness of to achieve a public policy goal
 Causation involves 2 issues:
o What test of causation governs the situation? – the general test of causation is the But-For Test
o Based on the facts – can the P prove on the BoP that the D’s breach of the standard of care was a cause of
his or her loss?  cause-in-fact test
 Causation is the element of negligence that links the D’s breach of the standard of care to the P’s loss/harm  factual
connection
o It is important therefore to state with precision the alleged breach of the standard of care and the injury in issue
o The P may have 2 or more distinct sets of injuries each of which must be separately analyzed in terms of
causation
 To facilitate analysis it is helpful to focus initially on each distinct loss or category os losses suffered by the P and
determine if it is attributable to a single tortfeasor or to 2 or more tortfeasors
o Divisible loss  refers to a loss that can be attributed to the conduct of a single tortfeasor
 A shoots C in the legl B shoots C in the stomach; C dies of both shots  each injury caused by A and
B were divisible and the death of C was indivisible
 Traditionally courts have used a single cause analysis  negligent D, there has been an absconding tortfeasor, a
contributorily negligent P or an innocent, pre-exisitng or naturallt occurring contributory cause
 Even if the D negligently cause the P’s loss  the D will NOT be held liable if that loss is too far removed from, or too
remote a consequence of, his or her negligence
 Test: The standard test for factual causation is the but-for test
o If the P’s injury would NOT have occurred but for the D’s negligent act, then that act is a cause of the injury
o D’s negligence is “causally effective”
o If the P’s injury would have occurred regardless of the D’s negligent act – then that act will generally NOT be
held to be a cause

38
 But-For  if there is no evidence  inference  if this doesn’t work AND multiple parties  reverse onus (Cook v
Lewis)  if this doesn’t work  material contribution
o Reverse onus  gives Ds more of a chance to absolve themselves of liability, just an evidentiary shift 
strike the balance between not opening the floodgates and also compensating those being harmed (Cook
v Lewis)
o For material contribution the jusge does not know who it is, but they do not care due to policy reasons
o Inference is structured the same as material contribution because you’re making an evidentiary leap, however
its not as much of a leap as material contribution

KAUFFMAN V TORONTO TRANSIT COMMISSION (1959) O NT. CA

 D’s were found negligent at trial  “the D in acquiring an escalator of radical departure in hand-rail
Facts design, did NOT sufficiently test of cause to be tested by a qualified expert the coefficient of friction
and contour of the Peedle Motor Stair Handrail”  failing to test the handrail – this was the breach
 fundamental principle  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
 illustrates how precise you need to define the breach at issue – but because the breach was
Law
characterized as failure to test the handrail and there was NO evidence that the people on the escalator
even tried to hold the hand rail  you gotta have the evidence to support BUT-FOR – is there an
actual factual link?
 there was a total lack of evidence that the man immediately ahead of the P or the 2 reckless youths
ahead of him were grasping or attempted to grasp the hand rail before or in the course of the scuffle
and consequent falling – there is no evidence to show that the handrail was tested because nobody
Analysis
grabbed it  so with the BUT-FOR test, there is no evidence
 no evidence to justify a finding that the type of hand rail in use at St. Clair Ave station was a
contributing cause of the P’s unfortunate and serious accident

BARNETT V CHELSEA & KENSINGTON HOSPITAL (1969) QB

 2 men go to a hospital and they are throwing up severely
 the hospital does not admit or treat them  this is the breach
Facts
 the man dies
 the hopstial did NOT have the antidote for arsenic on hand
Law  but for the decision NOT to admit them, would the loss have occurred?

 the unavailability of the antedote was the cause of death – the failure to admit was NOT the cause of
death
Analysis  you must be specific in defining what the breach is
 BUT-FOR the hospital not having the antidote on hand, the man would NOT have died  but because
the breach is related to NOT admitting him, there is not causation related to this breach.

RICHARD V CNR
 You have to be precise in the way you characterize the breach
 The but-for test is anchored in the breach itself

EDIGER V JOHNSTON (2013) SCC

Facts  Ediger suffered persistene bradycardia during her birth and caused severe and permanent brain
damage  sufferes from spastic quadriplegia and cerebral palsy
 Cassidy sued Johnston, the obstetrician who delivered her  alleging that her injuries resulted from
negligence associated with an attemot to deliver her using a mid-level forceps procedure
 TJ found that Johnston breached the standard of care expected of him in the circumstances by:

39
 o failing to ensure that back-up surgical staff would be immediately available to deliver Cassidy
by C-section upon complications arising from mid-level forceps delivery and
o by failing to inform Cassidy’s mother about the material risks associated with the forceps
procedure
 Johnston determined that Mrs. Ediger’s pregnany was high risk and induced her at 38 weeks
 Dr Johnston determined that the baby was in deep arrest with its head postioned sideways  eh
elected to proceed with a mid-level forceps rotation to deliver the baby
 A mid-level forceps delivery is the riskiest type of delivery that obstetricians are permitted to attempt
because it takes place when the baby is at the beginning of the birth canal
 Dr Johnston did NOT anticipate that anything would go wrong with the procedure and therefore did
NOT inform Mrs. Ediger of the potential risks associated with it  these risks included bradycardia
which may in turn cause severe brain damage
 Prior to initating the forceps procedure, Dr. Johnston did NOT inquire into the availability of an
anaesthetist or OR staff to assist with an emergency C-section in the event that complications were to
arise during the forceps attempt
 In the end  Cassidy was delivered approx. 20 minutes after Dr. johnston’s failed forceps attempt –
approx. 18 minutes from the onset of bradycardia
 Cassidy suffered severe and permant brain damage, she lives her life with spastic quadriplegia and
cebereal palsy, she has a life expectancy of 38 years
 whether the TJ committed a palpable and overriding error in determininig that Cassidy’s injury was
caused by these breaches?
o Decision: No such error
 Did Dr Johnston’s breaches of the standard of care cause Cassidy’s injury?
o Did the TJ err by concluding that Dr. Johnston;s attempted forceps delivery caused the
Issue
persistent bradycardia?
o Did the TJ err by concluding that Dr. Johnston’s failure to arrange for “immediately
available” surgical back-up caused Cassidy’s injury?
o Did the TJ err by condlucing that Dr. johnston’s failure to advise Mrs. Ediger of the material
risks of a mid-level forceps procedure caused Cassidy’s injury?
 Causation is assessed using the but-for test  the P must show on a BoP that “but for” the D’s
negligent act, the injury would NOT have occurred
o The D’s negligence was necessary to bring about the injury  the injury would NOT have
occurred without the D’s negligence
 Causation is a factual inquiry  TJ’s causation finding is reviewed for palpable and overriding error
 Incumbent on the judge to weigh the evidence before her and determine whether the P had proven
causation on a BoP
 TJ found that the standard of care required Dr Johnston to take reasonable precautions that would have
been responsive to the recognized risk of bradycardia and the severe damage to the baby that results
when bradycardia persists  the evidence shows that Dr. Johnston did NOT take these precautions
Law and therefore his failure to have back-up immediately available caused Cassidy’s injuries
 Dr Johnston was required before he initated the steps of the procedure – to take reasonable
precaustions that would have been responsive to the recognized risk of bradycardia  finding of
causation
 The breach was the failure to prep an OR with a ready for the hospital staff to start the C-section at a
moments notice, NOT the actual use of forcep
 Para 36 and 41
o Para 36  look at the evidence but you can draw a little bit of an inference
o Causation isn’t about scientific proof – we don’t need 100% certainty, the judge can draw an
inference
 Para 28
Analysis  Johnston had a duty to meet the requisite standard of care by arranging for surgical back up to be
“immediately available” before attempting the mid-forceps procedure
 Johnston had a duty to obtain Mrs. Ediger’s informed consent
 Dr. LeGresley testified that Dr. Johnston applied both forceps blades but abandoned the procedure
because he was unhappy with the placement of the 2nd blade  this sequence of actions the TJ
40
 concluded would have created the space necessary for the umbilical cord to be trapped and
compressed
 P proving causation on a BoP”
o Dr Shone and F testimony regarding the physical effects and distortions of labour contractions
as well as the timing of the steps leading up to a cord compression – were consistent with
what occurred here
o Multiple experts testified that mid-level forceps procedures are potentially dangerous and
carry the risk of acute cord compression
o The close proximity in time of the forceps attempt and the bradycardia supported the
conclusion that the forceps attemot was connected to the cord compression
o Holmes J concludes, that although she could not be certain of the precuse mechanics leading
to cord compression  the only reasonable inference from all the evidence is that mid-
forceps attempt likely caused the cord compression that in turn cause the bradycardia
 Injury begins within 10 minutes  chances are very high that the baby would be uninjured
 It is beyond dispute that Johnston did NOT take precautions to ensure that, in the event of bradycardia
 Cassidy could have been delivered by C-section without injury
o Johnston took no steps before beginning the mid-level forceps procedure to have surgical
back up immediately available even though there was no emergency that precluded him from
doing so
 If Dr Johnston were correct with the standard of care  Mrs. Ediger’s primary concern was for the
health of her baby and found no doubt that Mrs. Ediger would have undertaken a risk to herself in
order to avoif a risk to the baby  she could have underwent the C-section
Conclusion  The TJ did NOT err  appeal is allowed with costs to Cassidy

Example:

Reckless driving case – 2 men who were extremely intoxicated in the middle of the night in a relatively unpopulated part of
the city and they were driving recklessly and they were extremely drunk and a woman who was crossing the street was
severely injured – both drivers were propelled out of the vehicle – they were the only car on the road, and the ambulance
wa called in quick enough time that it was there car that caused the loss – but no one can tell who was driving – there was
no traffic cameras in this intersection so there was NO cameras to capture the injury.

 There was a significant loss

 There is already a recognized duty of care as drivers to pedestrians on the road
 There is a standard of care  what is reasonable in the circumstances as a driver? – no both of them were unreasonable
and both of them breached the standard of care
 Causation 
o Who is the registered owner?
o But for the decision to enter a car that only drunk people are driving, would the injury have occurred?
o There was a witness  she recalled the 2 men speeding by, 1 of the men moons her – as it happens, one of the
men was light skin and one of the men was dark skin  so in the absence of this evidence, but-for is hard to
execute – the law allows you to draw inferences from the evidence
o You don’t have certain proof  but you have evidence from a witness that she saw ahead of time that the bum
was a dark skin man, so you can infer that it was a light skin man. – you have enough there that more likely
than not, the light skin man was driving.
o From D v S  we are not leaving the injured woman without any compensation
o We have enough here that we can draw a reasonable, pragmatic inference even though we can’t prove for
certain  how the inference works

CAUSATION AND FACTUAL INFERENCE

41
 Establishing causation in difficult factual situations

SNELL V FARRELL (1990) SCC

 Dr Farrell performed a cataract operation on Snell
 during the surgery Darrell noticed a slight discoloration of the eye – upon further examination he
found no other signs of bleeding
 after waiting 30 min he proceeded with the operation
Facts
 following the surgery there was blood in the eye – this eye went blind
 neither expert witness was willing to state with certainty what caused the P’s blindness or when the
damage occurred
 Farrell was found negligent in trial
 Whether the traditional approach to causation is NO longer satisfactory in that Ps in malpractise cases
Issue
are being deprived of compensation because they cannot prove causation where it in fact exists?
 Legal/ultimate burden of proof  determined by the substantive law – “upon broad reasons of
experience and fairness”:
o The onus on the party who asserts a proposition, usually the P
o That where the subject matter of the allegation lies particularly within the knowledge of 1
party, that party may be required to prove it
Law  Causation need not be determined by scientific precision – don’t need to determine 100% that
this breach caused the loss
 The legal or ultimate burden remains with the P – but in the absence of evidence to the contrary
adduced by the D  an inference of causation may be drawn although positive or scientific proof of
causation has nOT been adduced
o The P’s case need NOT be based on a firm medical conclusion
 In many malpractise cases  the facts lie particularly within the knowledge of the D
 In these circumstances, very little affirmative evidence on the part of the P will justify the drawing of
an inference of causation in the absence of evidence to the contrary
 Dr Farrel was negligent in continuing th operation and that doing so greatly increased the risk of the P
suffering the very injury that befell her  the continuation of the operation was more than likely the
Analysis cause of her blindness
 By continuing the operation  he made it impossoble for the respondent or anayone else to detect the
bleeding which is alleged to have caused the injury  in these circumstances it was open to the TJ to
draw the inference that the injury was caused by retrobulbar bleeding – there is no evidence to rebut
this inference

Conclusion  Farrell is negligent – dismiss appeal

BENHAIM V ST GERMAIN (2016) SCC

 Marc Edmond died of lung cancer at 47
 His wife brought an action against his physicians
Facts  His doctor took an x-ray of his lung in 2005 and repeatedly did not send him for more tests or follow
ups including CT scans until 2007 when his tumour had grown in size and his cancer had reached
Stage 4
 is the trier of fact required to draw an adverse inference of causation against the D?
Issue
 did the TJ err in law by failing to draw an adverse inference of causation?
Law  In some professional liability cases, the D’s negligence may undermine the P’s ability to prove
causation  the P may lead some affirmative evidence of causation
 Standard of review  correctness for questions of law and palpable and overriding error for findings
of fact and inferences
 These decisions require a trier of fact to draw an adverse inference of causation against a D physicians
where the D’s negligence has undermined the P’s ability to prove causation and where the P adduced
42
 at least “some” or “very little affirmative evidence” of causation  this adverse inference of
causation may discharge the P’s burden of proving causation; the D nay resist the inference my
leading evidence to the contrary
 The question of whether an inference is warranted in a particular case falls within the discretion
of the trier of fact to be determined with reference to all the evidence (Ediger)
 Causation need not be proven with a scientific or medical certainty – courts should take a
“robust and pragmatic approach” to the facts guided by common sense principles
o The trier of fact may draw an inference of causation even without “positive or scientific
proof” if the D does NOT lead sufficient evidence to the contrary
o An example of the “but-for” analysis
 In cases of causal uncertainty, both parties face the difficulty of attempting to establish facts in the
absence of complete info – how should this difficulty be distributed between P and D:
o Ensuring that Ds are held liable for injuries only where there is a substantial connection
between the injuries and their fault on the one hand
o Preventing Ds from benefitting from the uncertainty created by their own negligence on the
other
o An adverse inference may be available in such circumstances while leaving the decision on
whether to draw tat inference to the TJ of the fact finding process  governed by ordinary
principles of causation
 The TJ causation analysis was based on all the evidence  she made NO palpable or overriding error
Analysis
in finding that the P had failed to establish causation on BoP

 Athey v Leonati  you don’t have to be the only contributor OR the only/sole reason for the loss.
o But if they are central contributing reasons
o The breach may not be the sole cause, so long as it is a cause that is central or significant/contributing cause
o P had a pre-existing back condition and was in a car accident
o The driver’s in the accident didn’t cause the harm, the pre-existing back condition did  courts say NO, you
don’t have to be the ONLY cause of the harm and therefore causation is already established

CLEMENTS V CLEMENTS (2012) SCC

Facts 
Issues  material contribution for causation analysis?
Law  2 or more parties that breached the standard of care  and both contributed in some way but we don’t
know who specifically  they are ALL to blame  BOTH materially contributed to the risk and the
harm
 the court says how much we should avoid material contribution at all costs UNLESS:
o (1) you tried BUT-FOR and it didn’t work  you even tried the inferences and it didn’t work
o (2) you have multiple negligent Ds and they all contribute in some way to the loss
 avoid it unless you’re forced to apply it
Analysis 

Class 12 Review Exercise

 You know there is harm and you know there is a duty of care.
 Standard of care:
o Reasonableness? What was reasonable in the circumstances?
 Probability of injury; severity of harm  it is reasonable that in an OR, all necessary steps of cleaning
and sterilization to ensure that it is immaculate is presumed and therefore it is presumed that a
reasonable person working in an OR would: wash their hands, wear their proper gowning, not go in if
they’re sick
43
  Hospital: Strict sterilization and cleanliness procedures info for staff about asymptomatic; post-care
instructions if they get symptoms
 Mesh Products: free from contaminants and notify purchasers if there is contamination; stricter
packaging requirements
o Was there a breach?
 Since Group A Strep is transmissted “almost always” occurs as a result of human-to-human contact
which was confirmed by both medical micorbiologists  therefore we can provide an inference that
there was a breach of the hospital staff in the OR because this bacterium cannot be transmitted in any
other way
 There is NO evidence that we can’t prove it, we cant disprove it so we can’t say that there was a breach
 So the court assumed there was a breach to go through the causation analysis
 Causation?  factual inference tht something happened and it was something in control of the hospital – pragmatic and
robust inference that something must have happened based on a common sense and logical reasoning
o To make “but-for” work here  it does not need to be the sole cause, it needs to be a contributing cause from
Atney v Leonati
o Court says no causation because there is NO causation  NO breach, no causation – it is about attributing fault
for the loss to a wrong doer.
 Evidence:
o What is established? 
 Carriers asymptomatic
 Mesh didn’t affect others in Canada
 OR tested negative for contaminants
 bacterium is allowed to colonize in part of the human body that is ordinarily sterile; it does not have
the ability to survive outside of a human host
 manner of transmission is through contact with another person – skin-to-skin or through coughing
 mesh was contaminated in the OR
 same OR staff for both surgeries and staff tested negative
 procedures for staff to sterilize themselves before entering the OR
o opinions:
 Dr Lansbury: infected staff member; lapse in technique; contamination of wound; unlikely from the
mesh
o what is NOT established?
 Nurses who prepared the Ps for surgery  it is not clear that these are the same nurses as the surgical
daycare ward nurses who were swabbed and tested negatively
 Were there people who come into contact with the Ps before/during/after surgery?

REMOTENESS

 Final stage of the negligence analysis – Remoteness: (1) policy; (2) foreseeability; (3) reasonableness
 Foreseeability is the method and reasonableness is the way in which foreseeability is applied.
 Goal: to establish cause in law, legal causation  remoteness is cause in law – should this person be held liable?
o Even though someone has caused the harm factually, for policy and legal reasons, we are not going to hold
them liable
o It is entirely rooted in policy – open ended, broad, policy question.
 Liability will be denied if the connection between the breach and the loss was too remote  remoteness decides if the
D is liable
44
 Remoteness is a rule of fairness
 Close relationship between the issues of remoteness and causation
o Causation is concerned with the factual connection between the D’s breach and the P’s loss
o Remoteness is concerned with the legal connection between the D’s breach and the P’s loss
 Difference between causation and remoteness:
o Causation is an exercise in facts and logic  even if the law is set aside it remains possible to sensibly ask the
question “did the D’s conduct cause the P’s loss?”
o Remoteness concerns questions of legal context  whole purpose of remoteness principle is to cut off the
logical inquiry at some point  that cut-off point is based on policy
 Remoteness is like duty of care in that it controls the scope of liability through public policy

DIRECTNESS TEST:
 Directness is the test for remoteness  the P’s loss would NOT be too remote to be recoverable if it was a direct result
of the D’s carelessness (Re Polemis and Fruness, Withy & Co [1921])
o Directness: close temporal and spatial connection between the D’s breach and the P’s loss

FORESEEABILITY TEST:
THE WAGON MOUND (NO. 1); O VERSEAS TANKSHIP (UK) LTD V MORTS DOCK & ENGINEERING
(1961) PC
Facts  The appellants – charters of the wagon Mound carelessly permitted oil to spill into Sydney Harbour
while fueling up
 The oil was carried to the respondent’s wharf
 Respondent employee’s were welding  some molten metal fell, igniting a rag that was floating on
some debris
 The burning debris either directly ignited the floating oil or ignited it after first setting the oil-soaked
pilings of the wgarf ablaze
 The respondent’s wharf was severely damaged from the ensuing fire
Issues  Whether the appellants are liable for the fire damage?
Law  Polemis Directness test should no longer be good law
 A man must be responsible for the probable consequences of his act
o To demand more is too harsh and to demand less is to ignore that civilized order requires the
observance of a minimum standard of behavior
o A man should be responsible for the natural/necessary or probable consequences of his act 
because the acts are natural/probable  it is judged by the standard of a reasonable man that he
ought to have foreseen them
 Essential factor in determining liability  whether the damage is of the kind that a reasonable man
should have foreseen
 Embedded notion of foreseeability  it’s NOT too remote if its foreseeable
 Anchors foreseeability as the remoteness analysis
 (1) decisive shift away from directness to foreseeability
 (2) 638  emphasis on D v S principles – broader concern in Donoghue is still relevant in remoteness
 (3) what we’re concerned with in remoteness is injustice  bottom of pg 637-8.
o Injustices have to be avoided  policy guides this analyais and is principally concerned with
justice and injustice
o It’s a moral call  who do we think is right and who do we think is wrong?
o Justice and morality grounds the analysis
o Justice, morality, fairness
Analysis  The D did NOT know and could not reasonably be expected to have known that it was capable of being
set afire when spread on water  too remote

45
HUGHES V LORD ADVOCATE (1963)
Modifications to the foreseeability test
Facts  The D’s employees left a paraffin lamp and an open manhole unattended
 8 year old boy knocked the lamp into the manhole and the vaporized paraffin that escaped from the
broken lamp caused an explosion
 the boy fell into the manhole and was badly burned
Issues 
Law  A D is liable even if the damage may be way worse than was foreseeable
 D can only escape liability if the damage can be regarded as differing in kind from what was
foreseeable
 You don’t have to foresee with precision the exact chain of events (you don’t have to foresee the extent
of the damage), all you have to foresee is the type of harm suffered
 2 principles:
o (1) not necessary to foresee the exact event that gives rise to the loss, only necessary to
perceive the type of loss/harm  don’t have to perceive the exact accident, you just have to
perceive that the harm would occur  you’re trying to perceive the possibility that the harm
would occur, and the way you get there does not matter
o (2) D can be held liable even if the damage is greater than is foreseen
Analysis  Reasonable person could not have seen tis specific sequence of events  but this is NOT a barrier
 The cause of the accident was a known source of danger – the lamp – but I behaved in an unpredictable
way
 The essential step in the respondent;s argument is that the explosion was the real cause of the injuries
and the explosion was unforeseeable
 This accident was caused by a known source of danger but cause in a way which could NOT have been
foreseen
 Was the igniting of paraffin outside the lamp by the flame a foreseeable consequence of the breach of
duty?

THIN-SKULL PLAINTIFF RULE

SMITH V LEECH BRAIN & CO (1962)

Thin-skull rule
Facts  P’s husband was a galvanizer employed by the Ds
 The articles to be galvanized were lowered into a tank containing molten metallic zinc and flux  the
method used depended on the size of the article
 Ps husband operating the crane and using the corrugated iron sheet supplied when a piece of molten
metal or flux struck nd burned his lip
 Some time later the spot where he burned began to ulcerate and he later developed cancer and died
Issues
Law  A tortfeasor takes his victim as he finds him  if a man is negligently run over it is no answer to the
suffers claim for damages that he would have suffered less injury or no injury at all if he had not an
unusually think skull or an unusually weak heart
Analysis  The question is where these Ds could reasonably foresee the type of injury which he suffered – the burn
 what in the particular circumstances the amount of damage he suffers as a result of the burn depends
on the characteristics and constitution of the victim

MARCONATO V FRANKLIN (1974) BCSC

Thin-skull rule

46
 Facts  Female P suffered minor physical injuries in a car accident caused by Ds negligence
 Following thr accident she developed pain and stiffness
 She became depressed, hostile and anxious  the accident triggered a personality change
Issues 
Law  Implicit that a wrongdoer takes his victim as he finds him and that he takes his victim with all the
victim’s peculiar susceptibilities and vulnerabilities

Analysis  they arose because of her per-existing personality traits  she had a peculiar suspectibility or
vulnerability to suffer much greater consequences from a moderate physical injury than the average
person
 Marconato was predisposed by her personality to suffer the consequences which she did suffer as a
result of the modest physical injury caused by the accident and it was that predisposition which brought
on the unusual consequence of the injury

Thin-Skull vs Crumbling Skull `

 Thin-Skull rule: The legal question is whether the D should be held responsible for carelessly cracking a skull that,
while weak, might otherwise have survived?
o The position of a P with a crumbling skull is significantly different  his skull was not only thin but
doomed to damage  the question here is whether the D should be held responsible for hastening the onset of
an injury that eventually would have occurred un any event  YES, damages available, but ONLY to the
extent that the D worsened the Ds condition
 (eg. If the breach caused the Ps skull to crumble 2 years earlier than expected then the Ds liability is
limited to that period)
 crumbling skull rule  you do not have to return the P to a position that was better than he was
originally in
 the action by the D is the same  but the harm caused for different people (thin skull rule  you had a pre-existing
condition that made the harm more significant)  so therefore
 Thin-Skull and Crumbling really come into damages and a bit of remoteness but it also comes into causation if it’s
absolutely critical to make BUT-FOR work

Class Example:

 3 parties, driver passenger and other passenger

o the husband is driving, wife is in passenger seat
o when they run out of gas they call for help and park on the side of the road and sit there waiting
o the road they were on is a winding road that is poorly lit and the night was really dark, it’s misty, dark and its
rainy
o they are parked on the side listening to music
o wife turns on hazard lights on but husband says no and turns them off
o a 3rd party comes around and was driving recklessly drunk and hits them
o wife suffers significant injuries because she was rendered a quadrepeligic
 how would you assign causation? Did the husband breach the standard of care? If so can he be found to causaully
contribute to the loss?

THE POSSIBILITY OF INJURY

THE WAGON MOUND (NO. 2); O VERSEAS TANKSHIP LTD V MILLER STEAMSHIP CO. (1967)
47
  same facts as other Wagon Mound No. 1 case
Facts  Ps were owner of 2 boats who were damaged in the harbor fire
 Fire is not probable but possible  complicates the foreseeability question
Issues  What is the precise meaning of the words? Foreseeable” and “reasonably foreseeable”?
 Clarifies Wagon Mound 1  same fire but different complaint
 The standard is one of real risk  the D must not foresee the harm but that damage is a possible
consequence of their actions
 Combined effect of No 1 and 2: could the D reasonably foreseen this specific harm as a consequence of
their actions?  you’re still drawing the link between the breach and the loss  what was reasonably
foreseeable in the circumstances?
o The standard is one of real risk of harm
 Crucial finding by TJ was that the damage was NOT reasonably foreseeable by those for whose acts
the D would be responsible  an inference from the other findings
 Before Bolton v Stone  2 categories for cases:
o (1) before the event the risk of its happening would have been regarded as unreal  a mere
possibly which would never occur in the mind of a reasonable man
o (2) there was a real and substantial risk that something like that event which happens might
occur and then the reasonable man would have taken steps necessary to eliminate that risk
Law
 it does NOT follow that, whatever the circumstances may be, it is justifiable to neglect a risk of such
small magnitude  a reasonable man would only neglect such a risk if he had some valid reason for
doing so (eg. It would involve considerable expense to eliminate the risk)
o he would weigh the risk against the difficulty of eliminating it
o it is justifiable NOT to take steps to eliminate a real risk if it is small and the circumstances are
such that a reasonable man, careful of the activity of his neighbor, would think it right to
neglect it
 possibilities of damage must be significant enough in a practical sense to require a reasonable man to
guard against them
 if a real risk is one which would occur to the mind of a reasonable man in the Ds position and which he
would NOT say is far-fetched and if the criteria’s is to be what reasonable man would have done in the
circumstances then he would NOT neglect if action toe limiate it presented NO difficulty, involved
NO disadvantage and required NO expense

 it Is clear in these circumstances that the reasonable man would have foreseen and realizes and
prevented the risk
 the discharge of so much oil would have taken considerable time – the vigilant ship’s engineer would
have noticed at an early stage
Analysis o the findings show he ought to have known this oil could be ignoted on water and he ought to
have known this happened before
o the most that be used to justify inaction: he would have known that this could happen in very
exceptional circumstances  but this does NOT mean that a reasonable man would dismiss
such risk form his mind and do nothing when it was easy to prevent it

ASSINIBOINE SOUTH SCHOOL DIVISION NO. 3 V GREATER WINNIPEG GAS CO (1971) M AN. CA
 ski sled got away at 30 mph over a snowbank and accorss a parking lots and hit a school and struck a
gas-riser pipe
Facts
 the pipe was fractured below the pressure regulator and shut off valve  gas escaped and went to the
boiler room of the school and caused an explosion – damaging the school
Issues  was the damage done by the son and the farther reasonably foreseeable?
Law  liability depends upon whether rhe damage is of a kind as a reasonable man would have foreseen
 one need not envisage the precise concentration of circumstances which led up to the accident
 (1) It affirms all the principles from above cases
 (2) foreseeability is a very broad concept  they open things up significantly
 (3) they clarify the Hughes principle  you just have to foresee it in general terms  they relax the
48
 Hughes standard
 (4) you don’t have to be the ONLY caused for remoteness to be funneled
 it Is clear in these circumstances that the reasonable man would have foreseen and realizes and
prevented the risk
 the discharge of so much oil would have taken considerable time – the vigilant ship’s engineer would
have noticed at an early stage
o the findings show he ought to have known this oil could be ignoted on water and he ought to
have known this happened before
Analysis o the most that be used to justify inaction: he would have known that this could happen in very
exceptional circumstances  but this does NOT mean that a reasonable man would dismiss
such risk form his mind and do nothing when it was easy to prevent it
 this is a foreseeable type of damage  it is generaly foreseeable
 it is a possible harm and there is a real risk of it happening
 it is reasonably foreseeable for happening
 fore

MUSTAPHA V CULLIGAN OF CANADA (2008) SCC – READ THIS***

 P sues for psychiatric injury sustained as a result of seeing the dead flies in a bottle of water supplied
by the D
 Mustapha saw a dead fly in an unopened replacement bottle
 He became obsessed with the event, and its revolting implications for the health of his family
Facts
 The P developed a major depressive disorder with associated phobia and anxiety
 man finds a decomposing fly in a bottle of water  exact same situation as D v S
 the extent of the harm he suffered was significant  he was unable to carry on normal life in its
entirety  a complete and total collapse of every aspect of his life
 was the damage done by the son and the farther reasonably foreseeable?
Issues  Whether the breach also caused the Ps damage in law or whether it is too remote to warrant
reconvery?
Law  The remoteness inquiry asks whether “the harm is too unrelated to the wrongful conduct to hold the D
fairly liable?”  it is the foresight of the reaosonable man which alone can determine responsibility
 Possibility alone does not provide a meaningful standard for the application of reasonable
foreseeability
 The degree of probability which would satisfy the reasonable foreseeability requirement was described
in Wagon Mound no. 2  as a “real risk” ie. One which would occur to the mind of a reasonable man
in the position of the D, and which he would not brush aside as far fetched
 The remoteness inquiry depends: on the degree of probability required to meet the reasonable
foreseeability requirement, but also upon whether or not the P is considered objectively or
subjectively
 In deciding whether the particular vulnerabilities of a person is taken into consideration of a
person of “ordinary fortitude”  the law expects reasonable fortitude and robustness of tis citizens
and will not impose liability for the exceptional frailty of certain individuals
 Unusual or extreme reactions to events caused by negligence are imaginable but NOT reasonably
foreseeable
 The law of negligence seeks to impose a result that is fair to both Ps and Ds and that is socially
acceptable – in this quest it draws the lien for compensability of damage, not at perfection, but at
reasonable foreseeability
 If the evidence demonstrates that the D knew that the P was of LESS than ordinary fortitude – the Ps
injury may have been reasonably foreseeable to the D
 In order to show that the damage suffered is NOT too remote to be viewed as legally caused by
Culligan’s negligence, Mustapha must show that it was foreseeable that a person or ordinary
fortitude would suffer serious injury from seeing the flies in the bottle of water he was about to install
 this is the same duty of care as D v S
 ordinary prudent person is important in this case  foreseeability has to be assessed from the
49
 reasonable person standard.
o Extraordinary not ordinary prudence  not too extreme
o If you know that your neighbor is not of ordinary fortitude, then you can foresee that the harm
on them will be more extreme  you have to anticipate the results in a non-ordinary way
 This reaction wasn’t reasonably foreseeable – you can’t expect the water company to foresee all the
possible reactions to possible harm – at the same time you want the water company to ensure that dead
bugs and animals aren’t in their water bottles
 There was NO evidence to suggest that Culligan knew of Mustapha’s particular sensibilities
 There is NO evidence that a person of ordinary fortitude would have suffered injury from seeing flies
in the bottle
 It is an ERROR to apply a subjective standard of taking into account the Ps previous history and
particular circumstances in determining if it was foreseeable that the Ds conduct would have injured a
Analysis person of ordinary fortitude
 the facts in this case are so extreme  really profound anxiety in all aspects of his life  his life was
essentially destroyed
 Arbel does NOT like this case  she finds the answer unsatisfying – the courts don’t do well with the
frailties of human beings  it wasn’t expected that this kind of breach would give rise to this type of
harm because the foreseeability of the harm (ie. Remoteness) is determined on reasonableness.
 P failed to establish that it was reasonably foreseeable that a person of ordinary fortitude would have
Conclusion
suffered personal injury  his claim must fail

REMOTENESS: INTERVENING CAUSES

 P’s loss was caused by D’s breach and a subsequent intervening act
 Intervening Act  one that causes the P’s loss after the original D’s breach has taken effect.
o Novus actus interveniens  a new intervening act
o 3 categories based on their nature and moral blameworthiness :
 (1) intervening acts that were naturally occurring or non-culpable were generally held NOT to break
the chain of causation (eg. A contractor could NOT escape liability because its shitty work resulted in
property damage following an unusual scary thunderstorm);
 (2) negligent intervening acts were held to break the chain of causation  absolving the original
tortfeasor of liability;
 (3) deliberately wrongful or illegal acts invariably broke the chain of causation UNLESS the original
tortfeasor had a specific duty to prevent the act (eg. A careless driver could NOT be held liable for the
fact that the pedestrian whom they ran down was robbed while lying by the side of the road)
o this elaborate categorization has been replaced by a more general principle: the within the scope of risk test 
within the scope of risk put into motion by the D – then it’s an intervening act
 This elaborate categorization has been replaced by “The “Within the scope of the risk” Test
 The application of the test can cause some difficulties
 Some courts analyze the issue in terms of whether the loss caused by the intervening act was within the scope of the
risk created by the original tortfeasor.
 Other courts ask whether the intervening act itself was within the scope of the risk created by the original tortfeasor

BRADFORD V KANELLOS (1973) SCC

Facts  the appellants who are a couple were customers in the respondents restaurant in Kingston
 they were seated at the counter of the restaurant where a flash fire occurred
 the grill was equipped with an automatic fire extinguisher system and when it became operative –
discharged CO to the heated area to extinguish the fire
 no damage was done by the fire
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  the fire extinguisher made a hissing/popping noise when it operated – this caused an unidentified
patron to shout that gas was escaping and that there was going to be an explosion this caused panic
in the restaurant
 during the panic – the wife was pushed over or fell from her seat and she sustained injury
Issues 
 it should NOT be held that the person guilty of the original negligence resulting in the flash fire on the
grill ought reasonably to have anticipated the subsequent intervening act or acts which were the direct
Law cause of the injuries and damages suffered by the P
 something that was NOT set into motion by act of the D  intervening act  within the scope of risk
test
 the purpose of the fire extinguisher was to guard against flash fires
 the wife’s injuries were sustained as a result of the hysterical conduct of a customer which occurred
when the safety appliance properly fulfilled its function

DISSENT:
 the person guilty of the original negligence ought reasonably to have anticipated such subsequent
intervening negligence and to have foreseen that if it occurred the result would be that his negligence
Analysis
would lead to loss or damage
 the owners – the respondents – did anticipate that such negligence as leaving the grill in a dirty/greasy
condition would cause a fire and frequently warned the cook of this
 any reasonable person knew that a greasy grill might well take fire and that in such event a CO2 fire
extinguisher is put into action and that this fire extinguisher makes a hissing and popping sound
 the person yelling “gas” acted in a very human and usual way and that their actions are foreseeable
and were part of a natural consequence of events
Conclusion  Appeal dismissed with costs

PRICE V MILAWSKI (1977) O NT CA

P injured his right ankle playing soccer and went to emergency department of hospital
He told D, Dr Murray that he heard his ankle crack and thought it was broken
Dr Murray sent him for x-rays but instructed the techs to x-ray his right foot, not his right ankle
After examining the x-rays, Dr Murray informed the P that there was NO fracture and his ankle was
sprained
Facts  BUT his ankle was infact broken
 Went to another doctor – Dr Carbin – who telephoned the hospital and found that the x-rays were
negative  Dr Carbin did NOT order new x-rays, eben though he had a machine and tech available to
him
 Eventually P went to another doctor who performed surgery and he was left with permanent
disabilities
Issues 
The foreseeability argument
 Intervening act of negligence
 a person doing a negligent act may in circumstances lending themselves to that conclusion be held
Law
liable for future damages arising in part from the subsequent negligent act of another and in part from
his own negligence – where subsequent negligence and consequent damage were reasonably
foreseeable as a possible result of his own negligence
 it was reasonably foreseeable by Dr Murray that once the information generated by his negligent error
got into hospital records  other docs subsequently treating the P might well rely on the accuracy of
that info (ie. That the x-ray showed no fracture of the ankle)
Analysis
 it was also foreseeable that some doctor might do so without checking , even though to do so in the
circumstances might be a negligent act
 the later negligence of Dr Carbin compounded the effects of the earlier negligence of Dr Murray
Conclusion  TJ was correct in holding that each of the appellants was liable to the P and that it was NOT possible
to try an apportion the extent to which each was responsible for the Ps subsequent operation and
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 permanent injury

 Should a driver who leaves his keys in his or her car be held liable if the car is stolen and the thief negligently causes a
car accident? Would the police be able to recover against the driver if they were injured while attempting to catch the
car thief?
 In Tong v Bedwell (2002) Alta QB  the D was stopped at an intersection. A hoodlum smashed the windshield of his
car
o He later returned to find that his car had been stolen
o He also later discovered that the theif had crashed his car into the P’s vehicle
o The P sued the D in negligence for the cost of repairs
o The court held that while it was reasonably foreseeable that the Ds car would be stolen if he left the keys
in it  it was NOT reasonably foreseeable that the thief would drive in such a manner as to cause
damage

CHINSANG V BRIDSON (2008) ONT SUPERIOR COURT OF JUSTICE

Facts 
 was there any negligence on the part of the D Bridson?
o Decision: YES
Issues
 Was the motor vehicle accident of April 2, 2001 the cause of the injuries and/or mental conditions?
o Decision: YES
 In Mustapha  the test for determining whether the damages were caused in law by the Ds breach –
whether it was foreseeable that a person of ordinary fortitude would suffer the serious injuries
suffered by the P from the motor vehicle accident of April 2, 2001
o Burden is on the Plaintiff to meet this test
o SCC found that remoteness depends on 2 factors in Mustapha:
 (1) the degree of probability required to meet the reasonable foreseeability
requirement 
 principle of law that responsibility is determined by the “foresight of the
Law reasonable person”
 degree of probability which satisfies the reasonable foreseeability test is a
“real risk – one which would occur to the mind of a reasonable man in the
position of the D”
 (2) whether the P is considered an objective or a subjective test  it is an objective
test  is it foreseeable that a person of ordinary fortitude would have sustained the
kind of mental injuries suffered by this P?
 Remoteness is a question of law to be determined by the TJ  whether the breach also caused the
Ps damages in law or whether they are too remote to warrant recovery
 It is sufficient if one can foresee in a general way the class or character of injury which occurred
Analysis  The evidence of 3 doctors was that the P sustained a mild traumatic brain injury
 Dr Reekum spoke to a “real risk” and the objective approach in stating that the mild brain injury
caused by the collision manifested itself in the neuro-cognitive test results of Dr Fulton and the
development of depression and chronic manjor depression typically sets in within 12-18 months of
trauma
 Can conclude that a mild brain injury resulted directly from the collision  the most heavily damaged
area of the motor vehicle where the P was sitting
 The jury accepted that the Ps minor brain injury was caused by the accident together with the
cognitive deficits and the resulting partial disabilities and loss of competitive advantage in the job
market
 The injuries and mental conditions and partial disability obviously found by the jury as caused by the
collision are such that a person of ordinary fortitude would have a real risk of suffering the same or
similar types of injuries from a collision involving similar head trauma
52
  The injuries meet the objective tests of real risk and person of ordinary fortitude
 The brain injury, cognitive deficits and resulting partial disability were all foreseeable
 The extent and exact nature of the partial disability from the P’s right hemisphere brain injury is
reasonably foreseeable as a real risk from the head trauma
Conclusion  The injuries found are NOT too remote

Remoteness Case Study:

 3rd party liability  Hughes and the Wagon Mound standard  the gym teacher and school could not have foreseen
that this harm would have occurred they could have foreseen this harm
o the father was NOT an intervening act
o the court holds the teacher and school district accountable just shy of $1 million

NEGLIGENT LIABILITY OF PUBLIC OFFICIALS

 claims brought against public officials – the fact that judgement will be satisfied from public funds does create
controversy
 money spent satisfying tort judgements must either be drawn away from other uses (eg. Health care and education) or
generated through higher taxes
o 2 schools of thought: (1) public officials should be subject to the same rules as private actors and the financial
burden of misadventure be borne by society as a whole rather than by individual victims; (2) other
commentators emphasize the tremendous extent to which modern gov’t is exposed to potential liability and
insist upon special exemptions
 Two Issues:
o the doctrine of vicarious liability  depending on the circumstances, an emplpyer may be vicariously liable for
the torts of its employee – if an employee commits a tort in the course of employment responsibility may be
imposed on the employee personally and on the employer vicariously
 the victim may recover damages from one, the other or both even if the employer didn’t do anything
wrong
o whether an employer can be held directly liable for its own negligence
 important to determine whether the public authority was exercising a statutory duty or a discretionary
power
 statutory duty  a public authority CANNOT be held liable for simply doing what it was
required to do – liability may be imposed if the public authority performed its task carelessly
or if it failed to perform its duty at all
o duties that are phrased broadly, or are owed to the public at large are LESS likely to
give rise to liability
 discretionary power  situation is more complex in a case involving a discretionary power
where the public authority had the authority but not the obligation to act in a certain way
o the court here is concerned with substituting its own choices for that of the legislature
 Principle: yes you can sue public authorities, they have to be accountable, however we can’t sue public authorities for
policy, we can only sue gov’t authorities for the operations
o policy  the decisions the gov’t makes, the gov’t needs to govern – you CANNOT sue the gov’t for policy.
o operations  the manner in which these decisions are being made – you can sue the gov’t in the way they
make these decisions

53
JUST V BRITISH COLUMBIA (1989) SCC
Distinguish between policy matters and operational matters
 man and his daughter were waiting for the traffic to move forward on the highway to whistler when a
huge boulder came crashing down on their car
 the daughter was killed and the man was seriously injured
 he brought an action against the respondent contending that it had negligently failed to maintain the
highway properly
Facts  highway 99 is a major communter road between Vancouver and Whistler – it was said that the
climatic conditions of freezing and thawing created a great risk of rock falls
 Department of Highways had set up a system of inspection and remedial work upon rock slopes along
highway 99 – Mr Eastman was responsible for inspecting rock slopes and making recommendations
about their stability together with another geotech engineer

 the approach that should be taken by courts when considering the liability of gov’t agencies in tort
Issues
actions
Law  D v S  when you have a serious loss, you don’t want to leave them uncompensated
 Making the decision  policy; executing the decision  operations
o (1) how high level is the decision? (ie. All highways need to be cleared in this way  policy)
o (2) discretionary decisions  broad discretionary powers given by statute  operations are
the mechanics of how the policy is executed – the more specific you get, the more likely you
are in the operation camp
 ***the line between policy and operations is not an easy line to draw  the court’s themselves
recognize it is not a clear line
 the role the gov’t  role to protect the public, unworkable to have gov’t entirely immune from
liability
 from Barratt v District of North Vancouver  the Municipality cannot be held to be negligent
because it formulated one policy of operation rather than another
 once a policy to inspect is established then it must be open to a litigant to attack the system as not
having been adopted in a bona fide exercise of discretion and to demonstrate that in all circumstances
it is appropriate for the court to make a finding on the issue
 often gov’t agencies were and continue to be the best suited entities and indeed the only orgs
which could protect the public in the diverse and difficult situations arising in so many fields
o the Crown is NOT a person and msut be fre to govern and make true policy deicisins without
becoming subject to tort liability as a result of those decisions
o differentiate between “policy” and “operation”  the duty of care should apply to public
authority unless there is a valid basis for its exclusion – a true policy decision undertaken by a
gov’t agency constitutes a valid basis for exclusion
o policy  if a high level person is making the decision
 a gov’t agency in reaching a decision pertaining to inspection must act in a reasonable manner which
constitutes a bona fide exercise of discretion  they must specifically consider whether to inspect and
if so, the system of inspection must be a reasonable one in all the circumstances
 once the policy to inspect has been made, the court may review the scheme of inspection to
ensure it is reasonable and has been reasonably carried out in light of all the circumstances,
including the availability of funds, to determine whether the gov’t agency has met the requisite
standard of care
o a true policy decision may be made at a lower level provided that the gov’t agency establishes
that it was a reasonably decision in light of the surrounding circumstances
 duty of care owed by the Crown is the same as from an individual BUT the standard of care imposed
upon the Crown may NOT be the same as that owed by an individual
o eg. An individual is expected to maintain their sidewalk or driveway reasonably while a gov’t
agency may be responsible for the maintenance for 100s of miles of highway  the frequency
and the nature of inspection required for the individual may well be different from that
required of the Crown
o the gov’t agency should be entitled to demonstrate that balanced against the nature and
54
 quantity of the risk involved, its system of inspection was reasonable in light of all the
circumstances including budgetary limits, the personnel and equipment available to It
and that it had met the standard of care imposed on it – manner and quality of how the
gov’t executes its functions and therefore you’re more likely in operations than in policy.
 as a general rule, the traditional Duty of Care will apply to a gov’t agency in the same way that it will
apply to an individual
o are the parties in a relationship of sufficient proximity to warrant the imposition of a duty of
care  in the case of a gov’t agency exemption from this imposition of duty may occur as a
result of an explicit statutory exemption
o a gov’t agency will be exempt from the imposition of a duty of care in situations which arise
from its pure policy decisions
 what is a policy decision?  decisions are made by persons of a high level of
authority in the agency but also properly made by persons of a lower level of authority
 characterization of a policy decision  rests on the nature of the decision and
NOT on the characterization of the actors
 decisions regarding budgetary allotments for departments or gov’t agencies will be
classified as policy decisions
 policy decision is open to challenge on the baisis that it is NOT made in in the bona
fide exercise of discretion
o if after due consideration it is found that a Duty of Care is owed by a gov’t agency and no
exemption by way of stature or policy-making decision is found to exist – a traditional torts
analysis ensues
 the requisite standard of are to be applied to the particular operation must be assessed in light of all
the surrounding circumstances including budgetary retraints and the availability of qualified
personnel and equipment
o
 the public authority had settled on a plan which called upon it to inspect all slopes visuallt and then
conduct further inspections of those slopes where the taking of additional safety measures was
warranted  the product of administrative direction, expert or professional opinion, technical
standards or general standards of care
 they were NOT decisions which could be designated as policy decisions – they were manifestations of
the implementation of the policy decision to inspect and were operational in nature  they were
subject to review by the Court to determine whether the respondent had been negligent or had satisfied
the appropriate standard of care
Analysis
 since the matter was one of operation the respondent was NOT immune from suit and the negligence
issue had to be canvassed in its entirety

DISSENT:
 absent evidence that a policy was adopted for some ulterior motive and NOT for a municipial purpose,
it is NOT opem to a litigant to attack it, nor is it appropriate for a court to pass upon it
 if a court assumes the power to review a policy decision which is made in accordance with the statute,
this amounts to a usurpation by the court of a power committed by statutre to the designated body
 the appellant was entitled to a finding of fact
Conclusion
 new trial ordered

R V IMPERIAL TOBACCO CANADA (2011) SCC

Policy/operational distinction was NOT straightforward to apply in practice till now
 during litigation against Imperial Tobacco for the harms caused to smokers and the costs of their
health care on the British Columbia gov’t, IT brought a 3rd paryy claim against the Gov’t of Canada
Facts  this 3rd party claim alleged that Canada owed a duty of care to consumers and to tobacco companies
and that Canada was liable inter alia negligently misrepresenting the ehalth attributes of “light” or
“mild” cigarettes
Issues  the approach that should be taken by courts when considering the liability of gov’t agencies in tort
55
 actions
What constitutes a policy decision immune from judicial review?
 2 approaches to the problem:
o (1) focuses on the discretionary nature of the impugned conduct  public authorities should
be exempt from liability if they are within their discretion, unless the challenged decision is
irrational
o (2) policy nature of protected state conduct  policy decisions are conceived as a subset of
discretionary decisions, typically characterized as raising social, economic and political
considerations  these are sometimes called “true” or “core” policy decisions – they are
exempt from judicial consideration and cannot give rise to liability in tort provided they are
neither irrational nor taken in bad faith (bad faith  deceit, bribary)
 a variant of this is the policy/operational test in which “true” policy decisions are
distinguished from “operational” decisions which seek to implement or carry out
settled policy
 the policy/operational approach is the dominant approach in Canada
 on the one hand – it is important for public authorities to be liable in general for their negligent
conduct in light of the pervasive role that they play in all aspects of society.
o Exempting all gov’t actions from liability would result in intolerable outcomes
 On the other hand – the Crown is NOT a person and must be free to govern and make true policy
Law decisions without becoming subject to tort liability as a result of those decisions
 To protect all gov’t acts that involve discretion unless they are irrational casts the net of immunity too
broadly
 The current Canadian approach holds that only “true” policy decisions should be protected as opposed
to operational decisions
 Protected policy decisions described as “discretionary legislative of admin decisions and conduct that
are grounded in social, economic, and political considerations”  decisions and conduct based on
these considerations cannot ground an action in tort
 Policy decisions are always discretionary, in the sense that a different policy could have been chosen –
but not all discretionary decisions by gov’t are policy decisions
 Core Policy decisions  protected from suit are decisions as to a course or principle of action that
are based on public policy considerations such as economic, social, and political factors will be
readily identifiable – provided they are neither irrational nor taken in bad faith
 Where it is plain and obvious that an impugned gov’t decision is a policy decision  the claim
may be properly struck down on the ground that it CANNOT ground an action in tort. If it not
plain and obvious, the manner must go to trial
 There are “true” or “core” policy decisions that should be immune from liability
 para 90 – most important
 if these decisions are made irrationally or in bad faith – you can still attack them
 prima facie duty of care recognized
 the representations on which the 3rd party claims rely were gov’t policy to encourage people who
continued to smoke to switch to low-tar cigarettes  this was a “true” or “core” policy in the sense
of a course or principle of action that the gov’t adopted
Analysis
 Canada developed this policy out of concern for the health of Canadians and the dinvidual and
institutional costs associated with tobacco-related disease
 It is plain and obvious that the alleged representations were matters of gov’t policy with the result that
the tobacco companies claims against Canada for negligent misrep  struck out
Conclusion 

 there is no duty of care by the city of Vancouver to conduct their construction in a certain way for small business
owners on Cambie – provided they conducted their construction in a reasonable way in the circumstances (ie. Staffed
as many workers as possible, had adequate signage)


56
VICARIOUS LIABILITY

 liability may be imposed even though the D did not breach any obligation at all
 may arise under 3 headings: (1) statutory vicarious liability; (2) agency; (3) employment or master-servant relationship
 parents are NOT vicariously liable for their children’s torts
 principal/server relationship and master-servant relationship  it focuses on the individual rather than the gym teacher
– is he operating solely on his own or is he in a pric

Principal-Agent Relationship

 in an agency relationship, the principal authorizes the agent to act on his behalf (eg. A company will empower a person
to enter contracts for its benefit)
 a principal may held liable for an agent’s torts
 an agent may also be an employee  if so, the doctrine of vicarious liability may also arise as a result of that
relationship

TG BRIGHT 7 CO V KERR (1939) SCC

Principal is liable to 3rd parties for the agents torts
 court considered whether the D a wine dealer was vicariously liable for the negligence of its
Facts
motorcycle deliveryman
 the approach that should be taken by courts when considering the liability of gov’t agencies in tort
Issues
actions
 alothought the deliveryman was held to be the D’s agent, the majority concluded that he was NOT the
D’s servant or employee because the D had NO control over the precise manner in which the task was
performed
 respondent superior  he who expects to derive advantage from an act which is done by another for
himm must answer fro any injury which a 3rd person may sustain from it
 the principal is liable to 3rd persons in a civil suit for the frauds, deceits, concealments,
misrepresentations, torts, negligence, and other malfeaseanes and omissions of duty of his agent
in the course of his employment although the principal did NOT authorize or justify or
Law
participate in, or indeed know of such midconduct ot even if he forbade the acts or disapproved
of them
o the limitation: the tort of negligence occurs in the course of agency – the principal is NOT
liable for the torts or negligences of his agent in any matters BEYOND the scope of the
agency UNLESS he has expressly authorized them to be done or he has adopted them for his
own use and benefit
 the agent has to act within the scope of the prescribed agency – if the agent is doing something outside
of the scope of the agency, then its questionable

BAZLEY V CURRY (1999) SCC

Principal is liable to 3rd parties for the agents torts
 P had been sexually assaulted as a young child in a residential care facility for emotionally troubled
youths
Facts
 The Children’s Foundation had done a background check on him when they hired the perpetrator
 As soon as Curry’s criminal conduct was discovered, he was fired
 May employers be held vicariously liable for their employees sexual assaults on clients or persons
Issues within their care?
 Is the employee acting in un
Law  Master-servant relationships  employee-employment relationships:
o (1) did the employer authorize the conduct ?  if they did, the employer’s liable
57
 o (2) even if you’re not acting in an unauthorized way but you’re acting in an authorized way 
you’re liable
 TEST – Employers are vicariously liable for – is the 3rd party vicariously liable?:
o (1) Formally authorize: employee acts authorized by the employer OR
o (2) Informally authorize: unauthorized acts so connected with authorized acts that they may
be regarded as modes of doing an authorized act
 2 steps:
 (1) a court should determine whether there are precedents which
unambiguously determine on which side of the line between vicarious
liability and NO liability the case falls  have other cases resolved these
kinds of situations?  if it gives you a clear answer you’re done. If it does
not…
 (2) if proper cases do NOT clearly suggest a solution, the next step is to
determine whether vicarious liability should be imposed in light of the
broader policy rationales behind strict liability
o considerations:
 opportunity to abuse power,
 did the wrongful act further the employee’s gains,
 was the wrongful act related to a confrontation inherent in the
employer’s enterprise (the nature of the organization/work),
 what was the extent of the power between the victim and the
employee,
 what was the vulnerability of the wrong party
o increasingly, courts are turning to policy for guidance in cases of vicarious liability –
examining the purposes it serves and asking whether imposition of liability in the new case
before them would serve those purposes
 face it head on  you’re bringing in the 3rd party for policy reasons on, so that
compensation is properly given and blame is distributed in the right away
 what is the standard of care an employer should exercise in these situations?  a
mini negligence analysis – comes in
 relevant employer cases are grouped into 3 categories:
o (1) cases based on the rationale of furtherance of the employer’s aims 
 rely on an agency rationale  employee has an implied authority to do the
unauthorized act
o (2) cases based on the employer’s creation of a friction
o (3) the dishonest employee cases
 fairness policy
o in each case  the employer’s enterprise had created the risk that produced the tort 
common theme is that where the employer’s conduct is closely tied to risk that the employer’s
enterprise has placed in the community, the employer may be justly be held vicariously liable
for the employee’s wrong
 a concern to provide a just and practical remedy to people who suffer as a consequence of wrongs
perpetrated by an employee  a person who employs others to advance his own economic interest
should in fairness be placed under a corresponding liability for losses incurred in the course of the
enterprise  the idea that the person who introduces the risk incurs a duty to those who may be
injured lies at the heart of tort law
 principle of fairness  this policy interest embraces a goal:
o effective compensation
 in determining whether an employer is vicariously liable for an employee’s unauthorized, intentional
wrong in cases where precedent is inconclusive, courts should be guided by:
o (1) they should openly confront the question of whether liability should lie against the
employer rather than obscuring the decision beneath demanitc discussions of the “scope of
employment” and “mode of conduct”
o (2) fundamental question  whether the wrongful act is sufficiently related to conduct

58
 authorized by the employer to justify the imposition of vicarious liability
 vicarious liability is appropriate where there is significant connection bwtween the
creation or enhancement of a risk and the wrong that accures thereform, even if
unrelated to the employer’s desires
 where this is so  vicarious liability will serve the policy considerations of provision
of an adequate and just remedy and deterrence
 incidental connections to the employment enterprise – like time and place – will NOT
suffice
 to impose liability for costs unrelated to the risk would make the employer an insurer
 a no no
o (3) consider subsidiary factors when determining the sufficiency of the connection between
the employer’s creation or enhancement of the risk and the wrong complained of
 what is required is a material increase in the risk as a consequence of the employer’s enterprise and
the duties he entrusted to the employee
 the test for VL for an employee’s sexual abuse of a client should focus on: whether the employer’s
enterprise and empowerment of the employee materially increased the risk of the sexual assault and
hence the harm
o test must be applied sensitively to policy considerations that justify the imposition of VL 
fair and efficient compensation for wrong and deterrence
o TJ must see if a duty of care exists

 there must be astrong connection between what the employer was asking the employee to do (the risk
created by the employer’s enterprise) and the wrongful act
 it must be possible to say that the employer significantly increased the risk of the harm by putting the
employee in his or her position and requiring him to perform the assigned tasks
Analysis
 the Foundation is vicariously liable for the sexual misconduct of Curry
 the employer’s enterprise created and foster the risk that led to the ultimate harm
 the abuse was NOT a mere accident of time and place but the product of the specia; relationship of
intimacy and respect the employer fostered

DEFENCES IN NEGLIGENCE

 contributory negligence, voluntary assumption of risk and participation in a criminal or immoral act  pertain to the Ps
own behavior
 inevitable accident  concerned with factual circumstances surrounding the Ds conduct and can be seen as a special
denial of negligence
 Burden of Proof: on the defendant
o Can rely on more than 1 defence
 Vicarious liability  policy tool – we want to find someone who has deep enough pockets to pay – D v S – so that the
harmed party does not remain uncompensated
 Defences apportion liability between P & D
 Also part of normative function of tort law  if we just hold Ds accountable we won’t be able to change peoples
behavior – we want to avoid repetition of careless conduct in the future
o By imposing vicarious liability on a D that has deeper pockets and a broader scope of normative control, you
can change peoples behavior (ie. Holding the City of Vancouver accountable instead of an individual who
planned where to put the sky train stations)

CONTRIBUTORY NEGLIGENCE

59
 It’s not all the Ds fault, the P contributed
 Assigning blame – the D caused the Ps loss, but the P wasn’t innocent and the P also contributed to their loss
 Applies:
o when the P caused some of the accident,
o contributed to the creation of the accident, or
o contributed to the loss
 partial defence  D does not have to pay 100% of the damage award
 Modified objective standard  what would an ordinary prudent person do in this circumstance?
o Modified by: age, realities of the moment (emergency exception), particularities of the duty of care, profession,
BUT does NOT take into account the frailties of the specific person
o Critized by who’s wrong and who’s right
 Fire in the garage case:
o They started the fire and failed to stop it by throwing the snow at it
o But he should have known where the fire extinguishers are at his own service station – he contributed to the
harm – he could have just reached for the fire extinguishers but he didn’t
o Precedent for modified objective standard  it is what is reasonable in the circumstances – the agony of the
moment – he was panicked, there was fire, yes a level headed might have thought to reach for the fire
extinguishers, it is reasonable to be scattered and not act in a reasonable way
o Question: did the P act as a an ordinary prudent person watching his service station go up in flames?  YES
 he was reasonable
 Walls v Mussens Ltd. (1969), 11 DLR (3d) 245 (NBCA) (D negligently caused fire at service station while operating
propane gas torch. P assisted others in shoveling snow onto gasoline-fuelled fire & failed to use fire extinguisher. Snow
may have aggravated fire.) • The “Agony of the Moment” Rule: may be invoked as answer to allegations of CN o
When the P encounters a sudden emergency, NOT created by his own antecedent negligence, the degree of judgment &
presence of mind expected is what would be reasonable conduct in the emergency situation (not what would have been
reasonable in light of hind-knowledge & in calmer atmosphere), and he will not be found contributorily negligent for
taking the wrong course of action. o Test: whether what P did was something an ordinarily prudent man might
reasonably have done under the stress of the emergency (not whether P exercised careful & prudent judgment). •
Decision: P not contributorily negligent. No portion of responsibility for starting fire can be attributed to P. No
antecedent negligence. Emergency created solely by D’s negligence. Agony of the Moment Rule applies


Test for Contributory Negligence:

 (1) Ps conduct  You need to show that the P didn’t do something, and
 (2) did the Ps conduct lead or exacerbate the harm  would the damage would have been lessened if they had done
something

GAGNON V BEAULIEU (1977) BCSC

Contributory negligence – partial defence
 P was riding in the front seat of car when the D came up behind a truck and ran into the rear end of trh
truck while parked at a railroad crossing
Facts
 P was injured in collision  lots of minor to severe injuries
 D maintains that P was not wearing a seatbelt
 Whether or not the P was wearing a seatbelt and if not, whether this constituted negligence
Issues
contributing to the nature and extent of his injuries
Law  In light of modern day knowledge in reduction of danger and injury by using a seat belt  someone
who fails to wear a seatbelt in a car is negligent in that he has failed to take reasonable precautions for
his own safety
 If in the circumstances he is injured in a collision, and if it is established as a fact that in the
circumstances of that collision the wearing of a seat belt provided would have prevented or
60
 lessened the injuries he sustained, then his negligence in failing to wear it has contributed to the
extent of his injuries and becomes contributory negligence
o If it is NOT shown in connection with the particular circumstances of the accident in question
that the wearing of the seat belt would have prevented or lessened the injuries, then the failure
to wear it, while negligent in itself, does NOT constitute negligence contributing to the
injuries
Principles of Contributory Negligence:
(1) Failure to wear a seat belt in accordance with the safety standards is failure to take a step which a
person knows or ought to know to be reasonably necessary for his own safety
(2) If he suffers injuries from an accident and from evidence it is shown that the seatbelt had it been
worn would have prevented the injuries from occurring or lessened th extent of the injuries 
then failure to wear a seat belt is negligence which has contributed to the nature and extent of
those injureis
(3) Onus is on the defendant to satisfy the court not only that the seatbelt was not worn but also
that the injuries would have been preveneted or lessened if the seat belt had been worn
 The P knew or ought to have known that wearing a seat belt including the shoulder harness would
Analysis
reduce the possibility of being injured in a collision

APPORTIONMENT OF LOSS

 The legislation permits the court to divide responsibility for damages between the parties according to their relative
degrees of fault
 Once you’ve found the P has contributed to their own loss, you just approportion loss between the P and the D
 General principle: look at the facts, uf the facts don’t give you an answer  split it 50:50 – “equally at fault”

Negligence Act, RSO 1990, c N 1

 Extent of liability, remedy over:

o Where damages have been caused or contributed to by the fault of neglgect of 2 or more persons, the court
shall determine the degree ij which each of such persons is at fault or negligent and where 2 or more persons
are found at fault or negligent  they are jointly and severally liable to the person suffering loss or damage for
such fault or negligence
 Recovery as between tortfeasors
 Plaintiff guilty of contributory negligence 
o if fault or negligence is found on the part of the plaintiff that contributed to the damages the court hall
apportion the damages in proportion to the degree of fault or negligence found against the parties respectively
 where parties to be deemed equally at fault
o if it is not practical ro determine the respective degree of fault or negligence as between any parties to an action
 deemed to equally be at fault/negligent
 adding parties
o wherever it appears that a person not already a party to an action is or may be wholly or partly responsible for
the damages claimed  such a person may be added as a party D to the action according to the rules of the
court
 jury to determine degrees of negligence of parties
 when P may be liable for costs
o where damages are occasioned by fault/negligence of more than 1 party – the court has power to direct that the
P shall bear some portion of the costs if the circumstances render it just

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MORTIMER V CAMERON (1994) ORCA

 P went to a classmates house after an exam to relax and drink

 P and Cameron were “mildly intoxicated” and joking around with one another
 They were pushing each other back and forth – P was moving backwards and tripped over the raised
threshold to the apartment and fell backwards – as he did, he grabbed Cameron and pulled him
towards him
Facts
 Together they tumbled onto the exterior landing at the top of the enclosed exterior stairway leading to
street level – they hit the wall with little force but it gave way and they fell 10 ft to the ground below
 P suffered significant injuries – he is now a complete quadriplegic
 Initial case is brought against the city and the building company

Issues  The apportionment of liability?

 A D’s negligence is actionable only with respect to harm that is within the scope of risk that makes the
offending conduct actionable
o A Ps contributory negligence will NOT limit his recovery unless it is proximate cause of his
injury
Law
 The entity that builds the building  the company who builds it, bears liability for the entire lifetime
of the building – it continues forever
 City is under an obligation in these cases because the city should have ensured that the company had
built the building up to spec
 TJ held that Cameron breached DoC to P when he pushed P at the interior landing by the threshold
o P was also in breach of DoC not to harm himself while engaged in horse play
o TJ held that their conduct did not constitute a proximate cause of P’s injuries and that no
liability should attach to them
o The conduct of P and D cannot be treated as a proximate or effective cause of Ps injuries
 Neighter Ds negligence nor Ps contributory negligence entailed a reasonable or foreseeable likelihood
of the risk that befell P  it was reasonable for them to assume that what purported and appeared to
be a properly constructed wall was in fact a properly constructed wall
 The risk that materialized was of a different nature  the risk of falling to the ground through a
defectively constructed and unprotected wall was beyond their reasonable contemplation
o Had the wall been properly constructed and the same sequence of events had occurred – the
wall would have withstood the minimal force that caused the plywood panel to pop out
Apportionment of Liability
 Stingray had the primary burden for maintaining the stairway in a reasonably safe condition
o It was under a legal obligation to take reasonable care to see that persons coming onto the
Analysis
premises were safe while on the premises
o In breach of that duty  Stingray failed to conduct a reasonable inspection to determine the
soundness of this exterior wooden structure and thus permitted a “particularly insidious
condition”
o Stingray failed to comply with the building bylaw
o A substantially greater degree of fault ought to have been attributed to Stingrat for its
departures from the standard of care exacted by the law
o This company was under an ongoing duty to properly inspect these premises – the
circumstances were such as to require affirmative action on its part as an occupier to see that
its premises were reasonably safe for persons in the position of the P
o Had stringray fulfilled its legal duty  the risk created by the city’s negligence would have
been removed
o Stingray had an ongoing breach of the duty of care imposed on it by law
 Liablity: 60% against Stingray and 40% against the city instead of 20:80 respectively
 An example of the mini negligence analysis

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VOLUNTARY ASSUMPTION OF RISK

 Remains a complete defence  courts are more reluctant to use it

o If established, it precludes recovery altogether notwithstanding the fact that the D negligently caused the Ps
injury
o This can easily lead to injustice, this all or nothing approach
 Tends to be limited to situations involving participation in sports
 If you are conducting an illegal act  it’s on you, not me – if you scale my roof and you fall, it’s on you because you
were acting illegally
 Complete defence – absolves you of liability
 Rarely applied for policy reasons

DUBE V LABAR (1986) SCC

Sets a very high threshold for legal test for voluntary assumption of risk
 The P and D were coworkers at a construction site and had been drinking the night before the accident
as well as the morning of
 They were drinking and then went to Haines Junction where they consumed more booze
 They left the bar, found 2 women and drove them ~60 miles toward Whitehorse
 The P had been driving throughout the trip – they stopped to pick up some hitchhikers
Facts  Then some of their friends drove by and stopped and the D got into the driver’s seat  the D said he
was caoable of driving – the D while a passenger had been drinking beer throughout the trip
 The D turned back to talk to the hitchhiker and veered off course – the D tried to correct this but hit
the ditch instead causing personal injuries to the P
 Smaples of Ds breath  0.25 alchocol blood level

Issues  The apportionment of liability?

 Volenti non fit injuria  burden is on the D to prove that the P exoressly or implied agreed to exempt
the D from liability for any damage suffered by the P
o The test is whether the circumstances are such that as necessarily to lead to the conclusion
that the whole risk was voluntarily incurred by the plaintiff
 To constitute a defnce  there msut have been an express or implied bargain between the parties
whereby the P gave up his right of action for negligence  NOT simply whether the P knew of the
risk but whether the circumstances are such as necessarily to lrad to the conclusion that the whole risk
was voluntarily incurred by the P
Law  Did the P give a real consent to the assumption of the risk without compensation? Did the consent
really absolve the D from the duty to take care?
 Volenti will only arise where it is clear that the P 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
Ds part
o An understanding on the part of both aprties that the D assumed NO responsibility to take due
care for the safety of the P and that the P did not expect him to do so
o It also requires an awareness of the circumstances and the consequences of the actions 
NOT open to cases of drunk driving
 The jury’s conclusion that the P consented to bear the legal risk when he entered the car as a passenger
Analysis
knowing of the Ds impairment is a doubtless one that not every jury would have reached
Conclusion  Dismiss appeal with costs to the D

PARTICIPATION IN A CRIMINAL OR IMMORAL ACT

63
 Ex turpi causa defence  does not merely lead to a reduction in damages – it precludes recovery altogether
o It has been narrowly interpreted in recent times

HALL V HEBERT (1993) SCC

 The P and the D got really drunk

 The D stalled his car while driving home
Facts  The P attempted a “rolling start” but lsot control and flipped the car down the steep embankment
 The P was severely injured and sued the D for allowing him to drive in his intoxicated condition

 Whether the D could raise the defence of ex turpi causa non oritur action to negate the Ps cause of
Issues
action?
 The Ps illegal or immoral conduct may constitute a policy reason for holding that the D owed the P
NO duty of care
 In D v S  it does NOT say that the duty us owed only to neighbours who have acted morally and
legally – tort, unlike equity, does not require people come with clean hands or have a certain moral
character in order to bring an action before the court
o The duty of care is owed to all persons who may reasonably be foreseen to be injured by
negligent conduct
 A P should NOT be required to disprove the existence and relevance of their illegal or immoral
conduct  rather it should be for the defendant to establish it
Law
 If ex turpi is used as a defence  possible to distinguish between profiting from a crime and
compensating for personal injuries
 The doctrine OF ex turpi properly applies to tort where it will be necessary to invoke the doctrine to
maintain the internal consistency of the law
o This concern will arise where a given P genuinely seeks to profit from his/her illegal
conduct or where the claimed compensation would amount to an evasion of a criminal
sanction
 The P accepted the physical risk of the injury and the legal risk  abandoning your right to sue
– you have to show these 2 components from the P
 The compensation sought by the appellant is for the injuries received – this compensation can be
Analysis reduced to the extent of the appellant’s contributory negligence but CANNOT be wholly denied by
reason of his disreputable or criminal conduct
Conclusion 

INEVITABLE ACCIDENT

 If its purely an accident then it’s NOT negligence  totally and completely outside you’re control – how much care
you exercised – there is no liability


RINTOUL V X-RAY AND RADIUM INDUST LTD (1956) SCC

Facts  Ouellete was driving a 1952 Dodge motor vehicle owned by his employer the respondent X-Ray and
Radium Industries Ltd
 His service brakes were working properly
 The appellants car was at the rear of the line of traffic – when Ouelette was 150 ft away from the
appellants car he started to apply the brakes but they didn’t work – he tried to apply them again and
they did not work
 The application of the hand brakes reduced the speed of his car but did not stop it and it was still
64
 moving about 6 miles/hour when it struck the appellant’s car
 Whether the D could raise the defence of ex turpi causa non oritur action to negate the Ps cause of
Issues
action?
 A person relying on inevitable accident must show that something happened over which he had
no control and the effect of which could NOT have been avoided by the greatest care and skill
Law  Driving with a defective apparatus if the defect might reasonably have been discovered are negligent
acts which render a D liable for injuries in which they are the effective cause
 no amount of prudence or reasonableness could have prevented this from occurring
 the respondents havw failed to prove 2 matters both of which are essential to establish the defence of
inevitable accident:
o the alleged failure of the service brakes could NOT have been prevented by the exercise of
reasonable care on their part
o assuming such failure occurred without negligence on the part of the repsondents, Ouelette
Analysis could NOT by the exercise of reasonable care have avoided the collision which he claims was
the effect of such failure
 the reposndents made no attempt to rpove that the sudden failure could NOT have been prevented by
reasonable care on their part and particularly by adequate inspection
 the respondents have made NO attempt to show that the defect could NOT reasonably have been
discovered

Conclusion  judgement for the P

MEASLES – REVIEW EXERCISE

Duty of Care:

 big issue on duty: is this a positive obligation or not?

o We’re obliging you to do something that is OUTSIDE the standard conduct that would be expected of you to
do in society
o Raising the question of positive duty
 Arbel is looking for – for a the best answer: recognize that this might be a positive duty, engage in the Child’s
something more factors and arrive at a conclusion
o Whenever you make a judgement call  explain it
o Full duty of care analysis
o Characterize the duty in a way that gets recognized –recognize the duty in the most particularized way that you
can
o “if you don’t vaccinate then don’t take them to the doctor” is part of the response
o duty can be phrased: in the event that you did not vaccinate your child, you must not bring your potentially ill
child to a public place with other vulnerable individuals present
 this is a more appropriate characterization
 the duty that “all children in BC must be vaccinated” is not really a duty that can be imposed  too
impossible
o Continuing into residual policy considerations
o You need to pick an argument and run through it in detail and then at the end you explain your position and
why you chose it and other options as well
 Child’s Something More Analysis:
o Paternalism, supervision, control

65
 o Material risk
o Public function/enterprise  no personal advancement that comes with this, so this doesn’t come into play
 And entity might not profit in such a way
 Public function is relevant in a different way  not a direct thing with the Child’s factors
 Policy considerations relevant at stage 1:
o How is one kid impacting on the others?  generally, living in a society we must conduct ourselves where we
do not spread diseases; implicitly parents get to decide what they want for their medical treatment;
 Residual policy considerations:
o This particular families conduct on society as a whole: overlapping ones are don’t spread disease, how are
health authorieis operating in a way that advance these goals – the ability for people to make decisions for their
own children
 But where do you draw the line?  floodgates concern

If a duty of care has already been recognized – avoid vulnerable places where people might get infected if you opt not to
vaccinate your child?

 Given that the doc warned you and the wanrings from media sources, implicit from your role as a parent is being
somewhat aware of the health of your child –
o Then the conduct here would NOT be reasonable the doc advertised info, explicitly identified what the
symptons would be (Walker Estate)  Walker Estate Canadian flyer did not make someone understand the
symptoms suffered and any alternatives offered  this is NOT the case here
 Taking an unvaccinated child to the doc’s office – factually linked?
o Apply BUT-FOR test  you don’t need 100% scientific precission, they could have contracted measles in the
elevator, walking down the street – the harm could have been caused by other factors not in the waiting room
but the BUT-FOR test is NOT scientific accuracy  ability to draw factual insites satisfies this – use BUT-
FOR wherever possible – however if BUT-FOR doesn’t work, inference might finish the job – do this on the
exam – more complete analysis
o Talk about inference here as well  there are other points of interaction that could have let this harm occur
 Remoteness: how are these policy considerations for figuring out this case? Should THIS party be liable to THIS party?
o Most applied reasoning and more engaged analysis of the facts and how they map onto the law
o You can answer these q differently  “I want to organize the world in this way so that these parties are
negihbours, BUT ON THESE FACTS, THEY SHOULD NOT BE HELD LIABLE
o What is reasonably to foresee in the circumstances with a leukiama patient  bring in thin-skull to the
remoteness analysis
o Athey  thin skull can inform causation
o Q is complicated by somewhat of an intervening act
 Don’t think you can read an intervening act here
o Policy questions and fairness questions can tip this either way – you would have to in a more direct way –

REVIEW – DIVING QUESTION

- Pick a side and argue it persuasively, acknowledge counter arguments and dismiss them
- Acknowledge there is good arguments on both sides, and ground your choice in a principle from Donoghue 
principles can help you resolve a point of authority
- Begin on assumption they are bound by a duty of care

Duty of Care

66
- Want a persuasive answer around closeness and directness
- Analogize between this case and Kennedy v Coe  both had responsibilities to each other, both we engaged in a high
risk sport
o What sank the case?  in Kennedy they were strangers, where as here the 2 men were friends and they were
trained in PADI, this is how you watch out for one another
- Foreseeability – cite Rankin  it is very obvious here, low threshold – no questions asked they are just foreseeable
- Proximity:
o Close and direct  what is the impact of one diver’s conduct on the others? (Hill)
 Positive or negative obligation?  this is a positive obligation – cite Kennedy  they rely on each
other as diving buddies the way that the heli skiers conceptualized themselves
 NOT paternalism, NOT control, supervision – maybe, but a bit of a stretch  they do have
some supervisor responsibilities toward each other – does NOT map on Child’s criteria
perfectly, just acknowledge the way it doesn’t fit, and it is a different, supervisory relationship
different from Kennedy
 You don’t have to recognize it as a positive duty – there is an inherent risk here, we want people to be
autonomous beings  you should still consider Something More criteria (high risk sport where
personal autonomy is an issue)
o Policy is important here that are at stake  they rely on one another – there is a policy rationale that goes back
to the Donoghue principles that they only have each other down there – we want to provide one of them a
remedy for the other
o Waiver: expectations of the parties
- Residual Policy:
o (1) floodgates concern  recognizing a DoC here open the floodgates – a particularized duty between highly
skilled divers with a preexisting diving history that give a no air signal (NOT just “high risk sports” – this
would open the floodgates), chilling effect in involving in risky situations, don’t want to saturate with these
kinds of claims, want to encourage people to go through extensive training to not screw up, should his friend
who is mourning his loss have to pay for this death?
 How would you regulate high risk activities in the future – what kind of duties would the law impose
in the first place
- WRAP UP: “I would recognize a duty of care in x, y, z” – conclude – state what the duty is

Standard of Care

- Weigh expert opinions against each other  which expert opinion is most persuasive in the circumstances? Why is one
expert more persuasive than the other – one is more relevant to the issue, one makes more sense to you than the other
o You have to signal which of the material you’re relying on
- What is reasonable in the circumstances on this kind of dive? What are divers in relation to each other supposed to do
on a dive like this?
- Determining standard is a question of law:
o What is reasonable in the circumstances? (Arland v Taylor)
 Not hold their breath – Fred’s conduct  move to defences – does not inform standard – reasonable
expectation on G part that his partner would NOT hold his breath
 Check their pressure gauge
 Only signal “no-air” if you have no air
 Blurry line between “no” and “low” air
 Avoid panic
o When you have training, you’re expected to do better than when you’re a novice

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- The credentials are basically the same but one person was a diver for 5 years longer  reference their similarities or
differences in expertise
- Ter Neuzen  dealing with a type of behavior that his heavily regulated and is customary in its nature
o Guide analysis for this
o Custom is relevant to figuring out what the standard of care is
- Cite severity of harm and probability of harm
- Direct link between what the standard is and in the facts of this case, the breach

Causation

- Connect the dots in causation

- What is the failure to use the no air signal (duty) and the harm?
o But for (Clements)  but for his failure to use the signal properly caused the other diver to panic and hold his
breath

Remoteness

- Fair, moralily, fairness and just animate the core question of foreseeability
o What is reasonably foreseeable in the circumstances is referend to policy considerations
- Is it reasonably foreseeable that an experienced diver uses the wrong signal – that would give rise to his partner’s
death?  dealing with a specific harm – don’t need to foresee to the precise chain of events, but you do need to foresee
the general requirement
o Not reasonable foreseeable that an experienced diver would their breath and therefore no liability is found
o There is a real risk  even tho its not probable its possible
- Structure arguments around reasonable foreseeability
o Expect whether or not the harm would occur  real risk
o Justice, fairness, policy  do you want to organize the world this way? (Wagon Mound)
o Do you want to hold one guy accountable for another guy’s death because they both screwed up? Is this the
right way to organize the world?
 Or do we want to say in a high risk sport, Fred took a risk
- Intervening causes  central part of the remoteness analysis
o Some recognition that there might be an intervening cause
o Hard pressed to characterize this as an intervening cause
- If the parties know of one another’s tendencies  if the deceased knew of the other’s panic attacks, then this would be
factored into where if it was remote or not
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