Blom 61 Full 2014 - 2015 Joanne Martin

Torts Exam Summary J.
Martin
TORTS CAN
Full Year CAN
TORTS..................................................................................................................................................................................... 4
Types of Civil Liability/Basis for imposing liability:.............................................................................................................................................................4
INTENTIONAL TORTS........................................................................................................................................................ 4
REMEDIES IN INTENTIONAL TORTS................................................................................................................................................ 4
Damages......................................................................................................................................................................................................... 4
Basic Principles Of Liability................................................................................................................................................................... 5
INTENT.......................................................................................................................................................................................................................................................5
MOTIVE.......................................................................................................................................................................................................................................................6
MISTAKE....................................................................................................................................................................................................................................................6
ACCIDENT..................................................................................................................................................................................................................................................6
DURESS.......................................................................................................................................................................................................................................................6
PROVOCATION........................................................................................................................................................................................................................................6
LIABILITY OF CHILDREN / MENTALLY ILL..............................................................................................................................................................................7
INTENTIONAL INTERFERENCE WITH THE PERSON................................................................................................................7
Trespass Torts.............................................................................................................................................................................................. 7
ASSAULT.....................................................................................................................................................................................................................................................7
BATTERY....................................................................................................................................................................................................................................................8
FALSE IMPRISONMENT......................................................................................................................................................................................................................9
MALICIOUS PROSECUTION............................................................................................................................................................................................................10
TORT OF ABUSE OF PROCESS.......................................................................................................................................................................................................10
INTENTIONAL INFLICTION OF NERVOUS SHOCK..............................................................................................................................................................11
INVASION OF PRIVACY....................................................................................................................................................................................................................12
BREACH OF CONFIDENCE..............................................................................................................................................................................................................13
INTENTIONAL INTERFERENCE WITH CHATTELS...................................................................................................................13
TRESPASS TO CHATTELS................................................................................................................................................................................................................14
CONVERSION.........................................................................................................................................................................................................................................14
DETINUE..................................................................................................................................................................................................................................................15
INTENTIONAL INTERFERENCE WITH REAL PROPERTY.....................................................................................................16
TRESPASS TO LAND...........................................................................................................................................................................................................................16
DEFENCE OF CONSENT........................................................................................................................................................................ 17
CONSENT.................................................................................................................................................................................................................................................17
Factors Vitiating Consent..................................................................................................................................................................... 17
FRAUD......................................................................................................................................................................................................................................................17
MISTAKE..................................................................................................................................................................................................................................................17
DURESS....................................................................................................................................................................................................................................................18
PUBLIC POLICY....................................................................................................................................................................................................................................18
CONSENT TO CRIMINAL OR IMMORAL ACTS.......................................................................................................................................................................18
CONSENT TO TREATMENT, COUNSELING AND CARE.....................................................................................................................................................18
DEFENCES RELATED TO THE PROTECTION OF PERSON AND PROPERTY..................................................................19
SELF-DEFENCE.....................................................................................................................................................................................................................................19
Bruce v Dyer...........................................................................................................................................................................................................................................19
D DOESN’T HAVE TO WAIT FOR FIRST BLOW.....................................................................................................................................................................19
DEFENCE OF THIRD-PARTIES......................................................................................................................................................................................................19
DEFENCE OF REAL PROPERTY....................................................................................................................................................................................................20
DEFENCE AND RECEPTION OF CHATTELS............................................................................................................................................................................20
PUBLIC AND PRIVATE NECESSITY.............................................................................................................................................................................................20
APPORTIONMENT OF FAULT IN INTENTIONAL TORTS.......................................................................................................21
DEFENCE OF LEGAL AUTHORITY.................................................................................................................................................... 22
AUTHORITY AND PRIVILEGE TO ARREST WITHOUT WARRANT..............................................................................................................................22
RIGHTS AND OBLIGATIONS IN THE ARREST PROCESS..................................................................................................................................................22
NEGLIGENCE....................................................................................................................................................................... 23
INTRODUCTION TO THE LAW OF NEGLIGENCE.......................................................................................................................23
ELEMENTS OF A NEGLIGENCE ACTION..................................................................................................................................................................................23
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Professor Blom 2014-2015
Torts Exam Summary J. Martin
THE DUTY OF CARE............................................................................................................................................................................... 24

STANDARD OF CARE: REASONABLE PERSON......................................................................................................................................................................24
ANNS TEST / DUTY OF CARE........................................................................................................................................................................................................25
FORESEEABLE RISK...........................................................................................................................................................................................................................26
APPLICATION OF THE DUTY OF CARE TEST........................................................................................................................................................................26
CLAIMS IN RESPECT OF DEATH....................................................................................................................................................... 27
SPECIAL DUTIES OF CARE: AFFIRMATIVE ACTION................................................................................................................27
SPECIAL DUTIES OF CARE & AFFIRMATIVE ACTION.......................................................................................................................................................27
DUTY TO RESCUE................................................................................................................................................................................................................................27
DUTY TO CONTROL THE CONDUCT OF OTHERS................................................................................................................................................................28
................................................................................................................................................................................................................................................................29
THE DUTY TO PERFORM GRATUITOUS UNDERTAKINGS..............................................................................................................................................29
SPECIAL DUTIES OF CARE: MISCELLANEOUS CATEGORIES...............................................................................................30
THE DUTY OF CARE OWED TO RESCUERS.............................................................................................................................................................................30
DUTIES OWED TO THE UNBORN................................................................................................................................................................................................30
PSYCHIATRIC HARM.........................................................................................................................................................................................................................31
A HEALTH PROFESSIONAL’S DUTY TO INFORM.................................................................................................................................................................32
A MANUFACTURER’S AND SUPPLIER’S DUTY TO WARN...............................................................................................................................................32
CLASS ACTIONS PROCEEDINGS........................................................................................................................................................33
SPECIAL DUTIES OF CARE: NEGLIGENT MISREPRESENTATION......................................................................................34
NEGLIGENT MISREPRESENTATION CAUSING PURE ECONOMIC LOSS...................................................................................................................34
NEGLIGENT MISREPRESENTATION AND CONTRACT.....................................................................................................................................................34
SPECIAL DUTIES OF CARE: RECOVERY OF PURE ECONOMIC LOSS IN NEGLIGENCE.............................................36
NEW CATEGORIES OF PURE ECONOMIC LOSS....................................................................................................................................................................36
NEGLIGENT PERFORMANCE OF A SERVICE..........................................................................................................................................................................36
NEGLIGENT SUPPLY OF SHODDY GOODS OR STRUCTURES.........................................................................................................................................37
RELATIONAL ECONOMIC LOSS....................................................................................................................................................................................................38
THE STANDARD OF CARE................................................................................................................................................................... 38
THE COMMON LAW STANDARD OF CARE: THE REASONABLE PERSON TEST...................................................................................................39
FACTORS CONSIDERED IN DETERMINING BREACH OF THE STANDARD OF CARE.........................................................................................39
AN ECONOMIC ANALYSIS OF THE STANDARD OF CARE................................................................................................................................................40
STANDARD OF CARE EXPECTED OF DISABLED PERSONS............................................................................................................................................41
STANDARD OF CARE EXPECTED OF CHILDREN.................................................................................................................................................................41
STANDARD OF CARE EXPECTED OF PROFESSIONALS....................................................................................................................................................41
CUSTOM OF PROFESSION...............................................................................................................................................................................................................42
CAUSATION................................................................................................................................................................................................ 43
THE BUT-FOR TEST...........................................................................................................................................................................................................................43
ESTABLISHED EXCEPTIONS TO THE BUT-FOR TEST.......................................................................................................................................................44
RECENT ATTEMPTS TO MODIFY THE BUT-FOR TEST....................................................................................................................................................44
MULTIPLE CAUSES.............................................................................................................................................................................................................................46
ISSUES IN ASSESSING THE PLAINTIFF’S LOSS.....................................................................................................................................................................47
REMOTENESS OF DAMAGE................................................................................................................................................................. 49
DIRECTNESS VERSUS FORESEEABILITY.................................................................................................................................................................................49
MODIFICATIONS TO THE FORESEEABILITY TEST............................................................................................................................................................50
INTERVENING CAUSES....................................................................................................................................................................................................................51
DEFENCES IN NEGLIGENCE............................................................................................................................................................... 53
PARTICIPATION IN A CRIMINAL OR IMMORAL ACT........................................................................................................................................................53
PROOF OF NEGLIGENCE....................................................................................................................................................................... 53
RES IPSA LOQUITAR...........................................................................................................................................................................................................................53
THE TORT LIABILITY OF PUBLIC AUTHORITIES.....................................................................................................................54
THE NEGLIGENCE LIABILITY OF PUBLIC AUTHORITIES...............................................................................................................................................54
STATUTORY PROVISIONS AND TORT LIABILITY...............................................................................................................................................................55
NUISANCE................................................................................................................................................................................................... 56
PRIVATE NUISANCE..........................................................................................................................................................................................................................56
PUBLIC NUISANCE..............................................................................................................................................................................................................................57
STRICT AND VICARIOUS LIABILITY............................................................................................................................................... 58
STRICT LIABILTY FOR ESCAPE OF DANGEROUS SUBSTANCES..................................................................................................................................58
VICARIOUS LIABILITY......................................................................................................................................................................................................................58
DEFAMATION............................................................................................................................................................................................ 59
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ELEMENTS OF A DEFAMATION ACTION.................................................................................................................................................................................59

DEFENCES...............................................................................................................................................................................................................................................59
REMEDIES...............................................................................................................................................................................................................................................59
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(1) Read question quickly, (2) Read fact pattern carefully, (3) Identify the possible actions and defences > type these out, (4) set out
elements of each tort & tie in facts, match to cases > discuss difficulty in proving some elements, (5) set out elements of each defence & tie
in facts, match cases, (6) consider damages more time: talk about policy! (7) (floodgates argument; chill on press, activity, speech; need to
protect judicial and quasi-judicial decision-makers from pressure); reliability v credibility.
TORTS
Differences between intentional torts and negligence:
Intentional Torts Negligence
 Basic structure is centuries old  Modern tort
 Narrow in scope  Broad in scope
 Restricted, defined by rules: precise, narrow, rigid  General in application
 Closely defined fact patterns and particular  Discretionary concepts like reasonableness /
categories of damage foreseeability
 No transition – still not a cohesive system of general  Transition to general concept of unlimited
principles. Static – marked by number of duties arising from relationships
convention/conservatism
Types of Civil Liability/Basis for imposing liability:

1. Absolute Liability: Does not exist in torts anymore. P must prove loss only.
2. Strict Liability: (no fault, but still liability). P doesn’t need to prove negligence or intentional breach. Limited in
Canada. P must prove only loss. Example is vicarious liability: e.g. of an employer for an employee’s wrongful
conduct (theory: the employer creates a situation where the risk arises).
3. Negligence (fault-based): failure to take reasonable care to prevent foreseeable harm to another person (or to
property). P must prove loss and that the D acted negligently.
4. Intentional (fault-based) torts: If intention is proved, D must disprove intent and negligence.
Intentional Torts
REMEDIES IN INTENTIONAL TORTS
FOUR categories of judicial remedies: 1) damages, 2) injunctions, 3) declarations, 4) specific restitution

Damages
1. Nominal: no loss has occurred, but rights have been infringed (e.g. trespass to land. Often small $ value, but not
always; purpose is to redress the violation of a legal right the law deems worthy of protection even without harm
(Mediana ship-damaged-have-to-use-reserve)
2. Compensatory: principal is total compensatory package is “that sum of money which will put the party who has
been injured … in the same position as he would have been in had he not sustained the wrong …” (Livingstone
1880). Provocation can reduce compensatory damages.
 General: tied to the tort itself, incapable of being quantified. P does NOT need to prove (i.e. loss of limb).
Monetary evaluation is a philosophical/policy exercise: not logical but awarded amount must be fair and
reasonable.
 Special: specific loss that P must prove, and that can be exactly quantified at time of trial. Incl. past or future
expenses or (estimated) future lost income.
 Non-pecuniary: (non-money, e.g. emotional/pain and suffering). SCC has capped non-pecuniary to $300K
ish. Only relevant in personal injury cases. Does not apply to libel.
 Aggravated: the way the tort was made caused extra injury, e.g. injury to dignity. Focuses on victim.
Requires D to have acted in an outrageous way. Still compensatory in the sense that a loss is being
compensated for e.g. gross breach of trust (BP v BW incest-victim-sued-father-civilly)
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3. Punitive (exemplary): like aggravated (D’s outrageous behaviour) but designed to punish/denounce, not
compensate. Can be tied to profit made from wrongdoing e.g. cutting down neighbour’s tree for view.
 Should only be assessed when aggravated + general/specific compensatory is insufficient to punish. Size
should be the lowest sum that accomplishes this goal (Whiten v Pilot Insurance Co house-burned-down-
insurance-company-refused-to-pay). Should not punish civilly if already punished by criminal court.
The Mediana (1900 HL) (ship-damaged-have-to-use-reserve)

REFERENCE FOR THE DIFFERENCE BETWEEN NOMINAL AND COMPENSATORY DAMAGES. DIFFICULTY IN ASSESSING
GENERAL DAMAGES.
Mediana ran into one of four lightships that the harbour authority maintained. Lightship out of commission – had to use a
reserve ship they maintained. D argued they didn’t lose anything (beyond repair costs) – you had a spare. Is the P eligible to
receive damages? Lord H insists that it is not nominal damages – exist where there has been no loss; nominal sum is awarded
to recognize the infringement on P’s rights. P submitted the cost of maintaining reserve ship – question to jury: if they were
able to maintain real operations, is it a real loss? Judge said they should get real loss: not nominal. Valued loss at 74 days
worth of maintenance costs of the reserve ship.
B (P) v B (W) (1992 Ont Gen Div) (incest-victim-sued-father-civilly)

IF D HAS BEEN CRIMINALLY CONVICTED, MUST TAKE INTO ACCOUNT. NOT AN ABSOLUTE BAR TO PUNITIVE DAMAGES, BUT
WILL HAVE INFLUENCE. PUNITIVE DAMAGES ARE EXCEPTIONAL – D HAS TO HAVE DONE SOMETHING PARTICULARLY
AWFUL.
Father convicted of incest; additional charges related to rape were stayed. Daughter filed civil suit for assault and battery. If D
has been criminally convicted, are punitive damages available? Judge dealt with and awarded non-pecuniary general,
aggravated and punitive (for rape – charges had been stayed so not double punishment) damages separately. Judge alone
decides on punitive damages.
Whiten v Pilot Insurance 2002 SCC (house-burned-down-insurance-company-refused-to-pay)

PUNITIVE DAMAGES WILL ONLY BE WARRANTED IN THE CAE OF VERY SERIOUS MISCONDUCT. NO LIMIT ON PUNITIVE
DAMAGES.
D Company failed to pay the claim P made under their policy when house destroyed by fire. D alleged P intentionally burned
house down despite expert evidence to the contrary. When should punitive damages be awarded? Do not award punitive
damages unless it is demonstrably necessary to deter or denounce beyond what the compensatory award will already do. If
compensatory damages are large enough, may not see an additional award of damages.
Basic Principles Of Liability

** Defendant only liable for his/her conduct if it was voluntary (Smith v Stone, carried-onto-land-not-trespass), and
intentional (can be imputed or transferred intent). Intent = subjective with reasonable person (objective) as evidentiary
support.
VOLITION
Requisite element of volition: requires D to exercise control over physical actions, directed by his or her conscious mind.
Involuntary actions include reflex reactions, convulsions, movements during sleep and unconsciousness (Stokes v Carlson,
1951). *Law starts with a strong presumption that people are in control of their actions; burden on defendant to rebut
presumption if actions were involuntary.
Smith v Stone (1647) (man-carried-onto-land)

NO TRESPASS IF DEFENDANT WAS CARRIED ONTO LAND BY FORCE OF OTHERS > INVOLUNTARY ACTION.
Smith bought an action in trespass against Stone. Stone’s defence was that he was carried onto Smith’s land involuntarily, by
the force and violence of others. Involuntary trespass.
INTENT
Defendant’s action giving rise to tort must have been intentional. Intention ≠ motive. P must prove on BOP that D intended
to bring about consequences/results of his actions. Intent need not be blameworthy, hostile > can be praiseworthy but still
intentional (motive does not matter). Two exceptions:
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 Imputed intent: intent extends to situations where D may not have desired specific consequences but they were
certain/substantially certain to result. (e.g. D plants a bomb to kill boss  would be liable for injuries to other
workers)
 Transferred intent: D intends to commit an intentional tort against one party, but unintentionally commits an
intentional tort against P. (e.g. throws a punch at A but hits B instead. Liable for battery to B). What matters in tort is
that you intended to do the act, not the person it is directed against – so we move the intention.
MOTIVE
D’s reason for wanting a result to occur. Generally not an element of the cause of action, can be used in assessing damages.
P must prove that D’s actions were intentional, but P does not need to prove motive.
 Praiseworthy motive is not a defence (on its own), but can be an element of valid defence (defence of public
necessity).
 Motive is an essential motive of some intentional torts, e.g. malicious prosecution where P must prove that D acted
maliciously.
MISTAKE
When the defendant does something intentionally but their actions have factual (Ranson v Kittner, shot-dog-thought-wolf)
or legal (Hodgkinson v Martin, official-ejects-man-from-premises) consequences that were not contemplated. Are not valid
defences to intentional tort, though mistakes in law can reduce/eliminate punitive damages (Hodgkinson).
Hodgkinson v Martin (1929 BCCA) (official-ejects-man-from-premises)

MISTAKE OF LAW IS NOT A FULL DEFENCE. MISTAKE DOES NOT MITIGATE LIABILITY, BUT IT MAY REDUCE DAMAGES. Action
for trespass to the person. Martin (Deputy Minister) honestly believed he had the legal authority to remove P from property.
Court found elements of tort met because Martin acted intentionally despite his mistake of fact [BCCA]. Reduced damages.
“The sincere yet mistaken belief of the defendant in the propriety of his illegal action is no excuse … yet it is a mitigation of
his liability which must be taken into consideration where not the slightest injury has been occasioned to the P’s person,
clothing or reputation”.
Ranson v Kittner (1889) (shot-dog-thought-wolf)

HOW MISTAKE IMPACTS DAMAGES – P ENTITLED TO COMPENSATORY (VALUE OF DOG) BUT MISTAKE REDUCES/IMPACTS
AGGRAVATED OR PUNITIVE DAMAGES
Appealing judgment that found them responsible for the value of the dog (mistaken for a wolf) killed. “Appellants are clearly
liable for the damages caused by their mistake, notwithstanding they were acting in good faith.”
ACCIDENT
Distinguished from mistake by absence of intent. Refers to any situation where someone unintentionally and without
negligence injures someone else. D cannot be held liable in intentional torts or negligence for injuries caused by accident.
DURESS
Defendant acted intentionally but did so under extenuation circumstances (reasonable person test). Not a full defence but
may factor into damages.
Gilbert v Stone 1648 (threatened-by-mob-takes-horse)

DURESS IS NOT A FULL DEFENCE. Gilbert bought an action in trespass and theft of gelding against Stone. Stone’s defence was
that twelve armed men threatened him; in fear of his life, Stone trespassed and took P’s horse. Court found duress is not a full
defence [England].
PROVOCATION
Where in response to provocation, D experiences sudden loss of self-control. D must prove in order to mitigate damages
that provocation was i) close in time to the tort and ii) it affected their actions. (Miska v Sivec Ont CA, crazy-guys-road-rage-
window – no provocation because of time lag). Depends on province whether provocation reduces punitive damages only, or
compensatory as well.
Miska v Sivec (1959 Ont CA) (crazy-guys-road-rage-window)

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PROVOCATION IS DETERMINED BY WHETHER THE CONDUCT WOULD HAVE CAUSED A REASONABLE PERSON TO LOSE SELF-
CONTROL. AND HOW IMMEDIATE THE EVENTS WERE PRIOR TO THE ASSAULT (MUST HAVE OCCURRED AT THE TIME OR
IMMEDIATELY BEFORE THE ASSAULT).
Road range incident result in S shooting M. Appeal based on trial judge not considering provocation when awarding damages.
CA says that there must be evidence of provocation; defined provocation strictly with objective test: 1) whether the conduct
would have caused a reasonable person to lose self-control and 2) where the two incidents occurred sufficiently close in
time. Appeal failed and was dismissed w/ costs. BC Negligence Act allows provocation to be used to reduce both
compensatory and punitive damages – other jurisdictions will only reduce punitive damages.
LIABILITY OF CHILDREN / MENTALLY ILL

Governed still by general principles of liability in intentional torts. Voluntary and intentional? Different tests applied, rely on
CC s 16(1) that establishes mental illness as legit defences. TEST: does D “appreciate the nature and quality of their action?”
For intentional torts, no vicarious liability for people in trust of children (parents, teachers etc) or mentally ill. Must be
established they were party to the wrongful conduct OR negligent in failing to supervise or control the child. BC Parental
Liability Act – parents are responsible for damage by children specific to property damage.
INTENTIONAL INTERFERENCE WITH THE PERSON
Trespass Torts
ASSAULT
A direct and intentional act that causes a person to (reasonably) apprehend immediate harmful or offensive bodily contact.
[actionable per se]
Elements of Assault:
1. P must have apprehension of imminent physical contact that is harmful or offensive to reasonable person
2. D must have subjective intent to create this apprehension
Possible Defences:
 Consent [volenti fit non injuria, “to a willing person, injury is not done”]
 Self Defence
 Partial defences: provocation, mistake
Assault is a trespass tort. i) Intentional creation in the mind of another of a ii) reasonable apprehension of iii) immediate,
wrongful conduct.
Words alone, without some overt act, cannot give rise to assault (Holcombe – doctor-threatens-ex). A conditional threat can
still be assault if the condition is unlawful or unjustifiable (Holcombe). D must have the right to demand what they do. D is
liable if there is a “threat of violence … and … a present ability to carry this threat into execution.” This is assault, even if the
threat is conditional (Police v Greaves – NZ-police-knife-threat). Courts have increasingly focused on the impression created in
P’s mind.
SUBJECTIVE / OBJECTIVE APPREHENSION TEST: Did P in fact i) apprehend the immediacy of the physical contact and ii) was
that apprehension reasonable?
Holcombe v Whitaker (1975 Ala) (doctor-threatens-ex)

WORDS ALONE CANNOT CONSTITUTE AN ASSAULT, BUT CAN GIVE MEANING TO AN ACT. OVERT ACTION + WORDS TAKEN
TOGETHER MAY CONSTITUTE AN ASSAULT. D IS NOT FREE TO COMPEL P TO BUY HIS SAFETY BY COMPLIANCE WITH A
CONDITION HE HAS NO LEGAL RIGHT TO IMPOSE. PERSON WHO THREATENS BATTERY MUST SEEM TO HAVE THE POWER
TO DO IT.
Appeal – was there evidence that a finder of fact could find assault? D twice threatened to kill P if sued for annulment by P,
had no right to impose such a condition. P was rightfully terrified in her mind. D told her if she went to court he would kill her.
D claimed that was not assault, because it was a mere conditional threat of violence and because no overt act was involved.
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Said he was not in a position to hurt her (other side of door). P was terrified enough to take steps to protect herself – met
vital component of the tort of assault – apprehension of physical harm.
Police v Greaves (1964 NZCA) (police-domestic-call-knife-threat)

THREAT OF VIOLENCE (ACCOMPANIED BY DEMONSTRABLE INTENTION TO ASSAULT) + PRESENT ABILITY TO CARRY OUT
THREAT = ASSAULT.
Police answered call, threatened with knife, withdrew to get support. Police had a right to be there and to enter. Assault
covers not only the immediate apprehension of being stabbed, but covers that you are forced not to do something you have
a legal right to do. Critical component is a reasonable belief that D will follow through with threat to harm.
BATTERY
A direct, intentional and physical interference with the person of another that is either harmful or offensive to a
reasonable person. [actionable per se]
Elements of Battery:
1. Intentional physical interference with another person
2. Harmful or offensive to a reasonable person
3. Non-consensual
4. Intentional
5. Direct
Possible Defences:
 Consent [volenti fit non injuria, “to a willing person, injury is not done”]
 Self Defence
 Partial defences: provocation, mistake, duress
 Defence of 3rd party (property, necessity, legal authority)
P must only prove that D directly interfered with his person. D must prove conduct was neither negligent or intentional.
Deliberate interference that is neither harmful or offensive is not battery. The physical interference must be intentional, but
injuries caused need not be intentional, (Bettel v Yim, store-owner-shook-kid-broken-nose). Concern is protecting individual’s
dignity and personal autonomy (Scalera, bus-driver-sexual-assault-Q-of-consent). With battery, including sexual battery, P
must establish elements of tort on BOP, then onus shifts to defendant to establish defences like consent (Scalera). Surgery or
blood transfusion is battery if performed without consent. Sport violence outside rules can be seen as battery. No limitation
period for actions based on misconduct of a sexual nature when P was a minor (BC – Limitation Act).
Bettel v Yim (1978) ON Co Ct (store-owner-shook-kid-broken-nose)

DEFENDANT IS LIABLE FOR ALL CONSEQUENCES OF INTENDED HARMFUL OR OFFENSIVE PHYSICAL INTERFERENCE (EVEN
UNINTENDED CONSEQUENCES, SO LONG AS PART OF SINGLE TRANSACTION). SUBJECTIVE INTENT TO CAUSE BODILY HARM
NOT NECESSARY. Defendant Yim grabbed 15yo P Bettel and intentionally shook him to extract confession. Bettel suffered
broken nose. Yim argued he did not intend to cause the main injury. Court found defendant does not need to intend actual
bodily harm > to meet elements of tort, D need only intend physical interference that reasonable person would consider
harmful or offensive (shaking). Premium on autonomy of individual. *Thin skull rule applies [still responsible for injuries even
if the P is predisposed to physical injury – you take your victims as you find them].
Non-Marine Underwriters Lloyd’s of London v Scalera (2000) SCC (bus-driver-sexual-assault-Q-of-consent)

DEFENDANT HAS BURDEN TO ESTABLISH DEFENCE OF CONSENT > LAW PRESUMES OBJECTIVELY HARMFUL OR OFFENSIVE
SEXUAL CONTACT = NON-CONSENSUAL (P NEED NOT ESTABLISH LACK OF CONSENT).
Victim brought sexual battery claim against bus driver – he said consensual, she said not consensual. Bus driver’s insurance
company did not want to defend P against claim because his actions were intentional (policy exclusion  no coverage for
intentional acts). Court found in favour of the insurance company. McLachlin J emphasized tort of battery is aimed at
protecting autonomy of individual, and P does not have burden of establishing sexual act was non-consensual > onus goes to
D to explain his actions (in best position to put this evidence forward). Policy arguments: placing onus on P would take steps
backward in law re: not trusting victims (esp. women/young children); no floodgates argument because no evidence that onus
on D would bring greater number of sexual assault cases than onus on P.
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Judges were unanimous that the sexual battery claim fell within the insurance exception for bodily injury caused by an “intentional act” but
they were divided on the question of whether, in a sexual battery case, the issue of P’s consent or apparent consent goes to the claim itself
(P having to prove that D was aware, of the offensive nature of what D did) or is a true defence that D must plead and prove (reasonable
belief that P was consenting). The majority thought the latter was the right view of the law as it applies in sexual contact cases. No distinct
tort of sexual battery in Canada. Dealt with according to traditional rules of battery in torts.
FALSE IMPRISONMENT
The direct and intentional imprisonment of another person. [actionable per se without proof of damage]
Elements of False Imprisonment: Possible Defences:
1. Intentional total restraint of P’s movement (either by  Consent [volenti fit non injuria, “to a willing
physical means or psychological or by asserting person, injury is not done”]
authority)  Lawful authority
2. Without lawful authority  Partial defence: mistake
Must intend to restrain. Doesn’t matter if you think you have a right to do so. Must be complete restriction on P’s physical
liberty (Bird, can’t-cross-bridge). Doesn’t require awareness on the part of the person imprisoned (Murray (1998) UK-police-
team-surround-house). Can be physical or psychological (D must have intended to give the impression that P was not free to
go). Need not be in a room/building. Doesn’t need to be physical, i.e. can be i) barrier or physical means ii) implicit or explicit
threat of force, or iii) implicit or explicit assertion of legal authority (Campbell, off-duty-cop-store-detective). Actionable
without proof of damage. Protects a person’s individual liberty. Not false imprisonment if P has a reasonable and safe means
of escape (even if this is by accident – no liability). Defence: Legal authority, consent (e.g. miner’s consent was valid defence
for coal co. in Herd v Weardale (miner-prevented-from-leaving-mine) b/c D adhered to terms of confinement and didn’t
violate P’s statutory rights). Punitive damages increasingly being awarded. Guilt of person imprisoned MIGHT reduce
damages.
Bird v Jones (1845 QB) (can’t-cross-bridge)

PARTIAL RESTRAINT OF P’S PHYSICAL LIBERTY DOES NOT AMOUNT TO FALSE IMPRISONMENT; FALSE IMPRISONMENT
REQUIRES COMPLETE OBSTRUCTION, TOTAL RESTRAINT OF MOVEMENT. P was trying to pass through public highway when
D stopped him. P could have left in another direction, so no imprisonment. Policy consideration: CL reluctant to frame torts in
ways that are vague – opens people up to too much liability – floodgates every time there’s a detour. Difficult to draw line
between trivial obstruction and true false imprisonment.
Campbell v SS Kresge Co (off-duty-cop-store-detective)

IMPRISONMENT NEED NOT BE PHYSICAL CONFINEMENT > IMPRISONMENT CAN BE BROUGHT ABOUT BY IMPLICIT OR
EXPLICIT ASSERTION OF LEGAL AUTHORITY > MUST SIMPLY RESTRAIN P’S FREEDOM OF MOVEMENT. Police officer working
as security guard was tipped off P shoplifting. Took her inside and found she had nothing. She was given impression that she
was not free to leave and there was intention of D to confine her. P suffered panic and trauma as a result. Used position as
police officer to intentionally detain P, preventing her from leaving store.
Herd v Weardale Steel, Coal & Coke Co Ltd (1915) (miner-prevented-from-leaving-mine)

NO FALSE IMPRISONMENT IF P CONSENTED TO RESTRAINT (E.G. WORKING IN MINE, FLYING ON PLANE) Herd worked in
mine owned by R. Herd claimed imprisonment when employer prevented him from using cage elevator to leave mine before
end of his shift. Court found Herd consented to restraint in mine until end of his shift [House of Lords].
Ward v. City of Vancouver (2007) (suspected-pie-thrower-detained)

INVESTIGATIVE DETENTION MUST BE BRIEF. POLICE DO NOT HAVE LEGAL AUTHORITY TO DETAIN A PLAINTIFF FOR MORE
THAN A BRIEF TIME IF THEY LACK REASONABLE AND PROBABLE GROUNDS FOR FULL ARREST. Cameron Ward, high-profile
civil rights lawyer, attended visit by PM Chretien in Chinatown. Police alerted of pie-thrower, and Ward somewhat matched
description of the pie-throwing suspect. And officer observed Ward moving quickly through the crowds > detained him. Ward
started screaming to attract attention of nearby media. Ward arrested for breach of peace, and placed under investigative
detention for assault/attempted assault with pie > taken to jail. Ward held in jail for approx 4 hours after PM left the area.
Court found Ward was falsely imprisoned by police from the time PM left area to the time he was released from jail > the
police had lawful authority to arrest Ward for breach of peace and detain him until PM left, but the police did not have
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authority to detain him for 4 hrs after PM left because they lacked reasonable and probable grounds for full arrest
(investigative detention for assault was not brief, therefore unlawful). [BCSC]
MALICIOUS PROSECUTION
A baseless, improper & unsuccessful prosecution of P, which causes actual damage to him. [not actionable per se]
4 Necessary Elements of Malicious Prosecution (Nelles):
(1) Charge must be initiated by the defendant (e.g. Crown Prosecutor)
(2) Proceeding must have been terminated in favour of the plaintiff (e.g. stay of proceeding > charges dropped a
few weeks in, right before trial; acquittal; or conviction overturned by appellant court)
(3) Absence of reasonable and probable cause (e.g. Crown Prosecutor subjectively believed the accused was
probably guilty, and reasonable CP would objectively believe the accused probably guilty > honest belief in
probable guilt of accused, and reasonable belief in probable guilty of the accused > “substantial likelihood of
conviction”)
(4) Malice > defendant acted for an improper purpose (including but not limited to spite, ill will, vengeance > e.g.
securing private collateral benefit, coercing person into desired course of conduct, shifting blame for causing
damage to property to an innocent person)
(5) Proof of Damage (e.g. loss of reputation, loss of liberty, financial loss)
Possible Defences:
Partial immunity (lack of malice)
High BOP for P (must establish malice, no reasonable grounds and that they suffered loss/harm). Requires proof of damages
> not actionable per se. D must be driving force behind initiation or prosecution of action but D could also be a responsible
party for initiating proceedings by lying to police or Courts, wrongfully pressured them into laying charges. Malice requires
proof that prosecutor was trying to harm in some way or for some reason outside of justice. Delicate balance between
freedom of individual citizens from groundless prosecutions (damage to reputation, loss of liberty, financial loss) and public
interest in effective, uninhibited prosecution of wrongdoers > tort strongly favours public interest (scope of liability is limited).
Overzealous prosecution does not make malicious prosecution.
Nelles v Ontario (1989 SCC) (nurse-maliciously-prosecuted-for-children’s-deaths)

CROWN PROSECUTORS DO NOT HAVE FULL IMMUNITY FROM MALICIOUS PROSECUTION CLAIMS > BUT CROWN
PROSECUTORS HAVE PARTIAL IMMUNITY > SCC ADDED MALICE CRITERIA TO THE TORT. Nurse charged with 1d murder of 4
children in hospital. Charge approved by Crown Prosecutor, and case brought. But then CP realized there was not enough
evidence. Issue was whether CP should have full immunity. SCC decided CPs cannot have full immunity but can have limited
immunity with addition of requisite malice. SCC rejected full immunity because: (1) undermines the rule of law, (2) risks
decreasing public confidence in CPs, (3) a victim who has suffered severe damages should be compensated, (4) high burden of
proof on plaintiff so no floodgates scenario, (5) it would be wrong to bar someone whose Charter rights have been violated
from seeking a remedy. Policy rationale for partial immunity/addition of malice: if you are not acting in good faith, you do not
deserve immunity. [SCC]
Miazga v Kvello Estate (2009 – SCC) (child-sexual-abuse-case-later-recanted)
AN HONEST BUT MISTAKEN BELIEF THAT THERE WERE REASONABLE AND PROBABLE GROUNDS DOES NOT SUPPORT A
FINDING OF MALICIOUS INTENT. MALICE COULD NOT BE INFERRED WHEN PUBLIC PROSECUTORS DO NOT HAVE
REASONABLE AND PROBABLE GROUNDS. Miazga was Crown prosecutor on child sexual abuse case and was sued for MP
when victims recanted later. The subjective test of personal conviction of guilt of accused does not apply to prosecutors.
Inconsistent with their role to determine whether there is sufficient evidence for court to make finding. On appeal it was
found that there was no direct evidence of malicious intent on part of Miazga. Public v Private Prosecutor Test Public
prosecutor: Whether there was reasonable grounds to initiate and continue prosecution. Private prosecutor: standard is
whether they reasonably believed the accused’s guilt. Reasonable prospect of conviction is the standard prosecutorial test.
TORT OF ABUSE OF PROCESS

Misuse of civil proceedings for collateral or illicit purpose other than the resolution of the claim. [not actionable per se]
Four elements: 1) D brought on a civil action 2) D did so for some extrinsic purpose 3) D undertook, or threatened to
undertake some overt act, other than the litigation itself, to further the improper purpose 4) P consequently suffered a loss.
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No need to demonstrate absence of reasonable and probable cause but #3 difficult to prove. “Bad actions” are typically
covered by courts awarding costs (rather than giving rise to abuse of process tort). Unsettled area.
Crawford Adjusters v Sagicor [2013] UKPC 17 (hurricane-contractor-sued-in-civil-action)

MALICIOUS PROSECUTION SHOULD NOT BE CONFINED TO CRIMINAL / QUASI-CRIMINAL PROCEEDINGS, BUT SHOULD
EXTEND TO BRINGING OF CIVIL ACTIONS W/O REASONABLE GROUNDS AND WITH MALICE. ESSENCE OF TORT IS
INAPPROPRIATE, MALICIOUS USE OF LEGAL PROCESS > INSURANCE COMPANY COULD BE SUED IN CIVIL ACTION FOR
MALICIOUS PROSECUTION. NEEDS TO MEET TEST OF REASONABLE CAUSE AND MALICE.
Hurricane swept through Caymans – ruined housing. Surveyor/Construction supervisor falsely accused of fraudulently inflating
costs for building. Was sued by the VP of one of the insurance companies for alleged breach of contract, conspiracy to commit
fraud etc. Fairly early on exculpatory evidence was uncovered, but they proceeded with lawsuit notwithstanding. MP
generally limited to criminal and quasi-tribunal situations, but in this case PC said the essence of the tort is the inappropriate,
malicious use of the compulsion of legal process. You can sue in libel for what is said in a legal proceeding > somebody who
brings a baseless civil claim should be liable if it meets the test of lack of reasonable cause, and malice. Not binding to
Canadian courts, but perhaps may be persuasive.
INTENTIONAL INFLICTION OF NERVOUS SHOCK

Intentionally causing another person severe mental suffering or something that is virtually certain to cause harm (psychiatric
injury). [not actionable per se]
Thin skull rule does not apply. Damages – in Canada there is generally no compensation for the shock itself, only physical
illness (as it was caused by physical means Radovskis, child-rape-shocked-mom). Innominate intentional tort: some argue
Wilkinson (joke-husband-injured) established an “unnamed” intentional tort for all unjustified, intentionally-inflicted bodily
injuries (nervous shock being but one example). Liability for psychiatric injury tantamount to physical injury is clearly
actionable whether it’s negligent or intentional. D will be liable if conduct targets a known vulnerability of P ( Timmermans v
Buelow, landlord-threatening-letters-knew-delicate-emotional-state). P must establish mental injury would come to a person
of “ordinary fortitude” (Mustapha, flies-in-water-bottle).
3 Necessary Elements of Infliction of Nervous Shock:

1) P must prove outrageous or extreme conduct on the part of D. Can be a single event (Wilkinson, joke-husband-
injured) or a pattern of behaviour such as emotional abuse.
2) Proof of actual intent or ‘constructive intent’ to cause harm of the kind suffered. Can be actual or imputed
intent, but if harm is “less than standard”, must be actual intent (Wainwright, strip-search-visiting-son-prison)
a. D need not intend nervous shock. Sufficient if D acted in reckless disregard, or it was reasonably
foreseeable that profound distress would ensue (Wilkinson)
b. Doesn’t matter if more harm was done than was anticipated (Wilkinson).
3) P must prove nervous shock in form of visible and provable illness –must be some physical or psychological
manifestation of injury. Severe emotional distress is insufficient (Radovskis, child-rape-shocked-mom).
Wilkinson v Downton (1897 QBD) (joke-husband-injured)

NERVOUS SHOCK CANNOT HAVE A MERELY MENTAL ORIGIN, MUST INVOLVE A PHYSICAL RESPONSE IN THE P. D MUST
HAVE INTENT TO DO OR SAY SOMETHING INTRINSICALLY SHOCKING. THE DAMAGE MUST BE REASONABLY FORESEEABLE
BY D (MANIFESTED IN PHYSICAL SYMPTOMS).
Treated as an intentional tort. D told P that husband was injured and P became physically ill. Found to be malicious, even
without intent or motive to be malicious. Deliberate prank. Court imposed liability on the basis of the D’s constructive intent
to shock and harm the P.
Wainwright v Home Office (mother-and-son-strip-searched-at-prison)

WAINWRIGHT DID NOT OVERRULE WILKINSON, SIMPLY ASSERTS THAT NEGLIGENCE WOULD BE A SUFFICIENT CAUSE OF
ACTION MAKING NERVOUS SHOCK UNNECESSARY. INJURY NOT TANTAMOUNT TO PHYSICAL INJURY – HAVE TO INTEND TO
HUMILIATE OR CAUSE SUFFERING.
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Woman and son were visiting another son in prison and were strip-searched. They sued for invasion of privacy and nervous
shock based on Wilkinson. Court found they went beyond what prison had right to do. However, unlike Wilkinson, the judge
characterizes the precedent as an intentional negligence case. Court unwilling to impute intention to the D, and because
harm is “less than standard” actual intent is required.
Radovskis v Tomm (1957 Man QB) (child-rape-shocked-mom)

EMOTIONAL DISTRESS IS NOT COMPENSABLE (HARM HAS TO BE VISIBLE AND PROVABLE TO BE COMPENSABLE). ILLNESS
MUST BE A NATURAL OR DIRECT CONSEQUENCE OF THE WRONGFUL ACT. 5 year old was raped by D, mother claimed
medical expenses, lost wages and mother’s nervous shock. Was found that there was no measurable damages (i.e. physical
illness) and dismissed. D convicted criminally.
Samms v Eccles (1961 Utah) (unwanted-sexual-advances-in-Utah)

EMOTIONAL DISTRESS IS COMPENSABLE IN AGGRAVATED CIRCUMSTANCES.
D kept calling and making indecent proposals (sexual requests), exposed self. S sues, claiming emotional distress resulting
from E's conduct. Court deemed there was intention in the action that a reasonable person could foresee as harmful. D was
held liable. Court noted that medical evidence is not required. Severe emotional distress is recoverable if the defendant
intentionally engages in conduct towards the plaintiff that is objectively or subjectively harmful. This is determined by:
→ 1. Objective harm: with the purpose of inflicting emotional distress
→ 2. Subjective harm: outrageous and intolerable actions that any reasonable person would know to be harmful
INVASION OF PRIVACY
Statutory tort (modeled after common law tort) under BC Privacy Act, s.1: it is a tort actionable without proof of damage
for a person willfully and without claim of right to violate the privacy of another.
Willfully = narrow definition to the intention to do an act which the person doing the act knew or should have
known would violate the privacy of another (Hollingsworth, outed-for-bald-surgery-on-TV).
Without right of claim = means an “honest belief in a state of facts which, if it existed, would be legal justification
or excuse” (Hollingsworth.)
[actionable per se]
BCCommon Law RSBC
Privacy Act, Torts:1996, c373 – supplement p149
 Intrusion Upon Seclusion:
P need not prove damage, four elements
but must prove that the set
D’s out in Jones
violation of vprivacy
Tsige i)was
intentional act (willfully);
intentional (including accidental
recklessness), ii) no of
violations
lawful justification, iii) reasonable person would find intrusion “highly offensive, distressful,
privacy are not actionable; defendant can raise defence of mistake (honest and reasonable mistake a “claim of right”). Phumiliating etc.”
entitled toand iv) has to beexpectation
a reasonable harmful, butofproof is not
privacy required
given (Jones v Tsige, T-looked-at-J’s-banking-records).
the circumstances. Privacy may be violated by eavesdropping or
1.
surveillance – “may” means violations of privacy include but are not limited to eavesdropping and surveillance, s. 1(4)
2. Possible Defences:
 Consent,
Hollingsworth v BCTVs.2(2)(a)
(1999 BCCA) (outed-for-bald-surgery-on-TV)
 Claim of right (reasonable, honest but mistaken belief)
 Lawful defence of person or property (“incidental to the exercise of a lawful right of defence of person or
12
property”) s. 2(2)(c)
 Legal authorization, s. 2(2)(b)
 Reasonable police investigation s. 2(2)(d)
 Publication of information in public interest or fair comment, s. 2(3)(a)
 Privileged communication in “accordance with the rules of law relating to defamation”, s. 2(3)(b)
IN BC IT IS A STATUTORY TORT TO VIOLATE THE PRIVACY OF ANOTHER PERSON WILLFULLY OR WITHOUT CLAIM OF RIGHT.
A PERSON IS NOT LIABLE UNDER THE PRIVACY ACT WHEN THEY ACT IN HONEST AND REASONABLE BELIEF, AND WITHOUT
KNOWLEDGE THAT THEY ARE VIOLATING THE PRIVACY OF ANOTHER.
P, Hollingsworth signed release for D to film hair transplant surgery for training purposes only. Dr gave it to BCTV. BCTV not
held liable because they had no duty to check that they were allowed to use it and Dr said P had consented.
Jones v Tsige (2012 Ont CA) (bank-worker-creeps-on-boyfriend’s-ex’s-bank-info)

No Privacy Act in Ontario. Tort of intrusion upon seclusion (not saying they are recognizing a tort of privacy). Set out 4 privacy
torts: 1) intrusion upon seclusion 2) public disclosure of embarrassing private facts about P 3) appropriation for D’s advantage
of p’s likeness or name. All three need to be intentional or reckless, without lawful justification and highly offensive causing
distress, humiliation etc. Tsige looked at Jones’ banking action a number of times over a period of years. Concern about
floodgates so cap set for non-pecuniary damages max at $20K. Damages are for BREACH, not necessarily the effects (if there
is fault on P). Existing legislation had not occupied the field yet and so it was appropriate to recognize through a common
law tort. Sharpe J.: “it is appropriate for this Court to confirm the existence of a right of action for intrusion upon seclusion.
Recognition of such a cause of action would amount to an incremental step that is consistent with the role of this Court to
develop the common law in a manner consistent with the changing needs of society”.
Silber v BCTV [1986] 2 WWR 609 (BCSC) (furniture-store-owner-loses-it-on-TV)

NATURE AND DEGREE OF PRIVACY A PERSON IS ENTITLED TO IS IN RELATION TO WHAT IS REASONABLE IN
CIRCUMSTANCES, GIVING DUE REGARD TO THE LAWFUL INTERESTS OF OTHERS. NOT A VIOLATION OF PRIVACY – MATTER
WAS FAIR COMMENT OF PUBLIC INTEREST. Stacey’s Furniture had labour dispute – local TV station filmed picketing. Silber
told news crew to keep off property – attacked reporter when he saw him filming in parking lot. Footage aired on news. Sued
for violation of his privacy. No reasonable expectation of privacy in a parking lot visible to the street. Matter was fair comment
of public interest.
Motherwell v Motherwell (1976) – Alberta SC (mentally-unstable-woman-harasses-family)

INVASION OF PRIVACY VIA TELEPHONE IS A NEW SUBSET OF TORT OF PRIVATE NUISANCE. WHERE STATUTES HAVE NOT
CREATED A CIVIL CLAIM IN PRIVACY, PRIVACY CLAIMS MAY BE ACTIONABLE AS A NUISANCE. HOWEVER, THIS SHOULD
ONLY BE AVAILABLE TO LANDOWNERS. D continually harassed her brother, sister-in-law and father via telephone and mail.
Ps brought action against D for invasion of privacy and nuisance. Court determined that invasion of privacy through the abuse
of telephone system = a new category of privacy nuisance b/c it involves substantial and reasonable interference with Ps use
and enjoyment of property. Note: no statutory tort of privacy in AB so this is a common law approach to invasion of privacy.
Watts v Klaemt (2007) – BCSC (neighbour-eavesdrops-gets-woman-fired)

PERSISTENTLY EAVESDROPPING AND RECORDING ANOTHER PERSON’S TELEPHONE CONVERSATIONS CONSTITUTES AN
INVASION OF PRIVACY IF DONE WILFULLY AND WITHOUT CLAIM OF RIGHT. DEFENCE OF EX TURPI CAUSA NOT VALID B/C
DEFENDANT WAS NOT TRYING TO PROFIT FROM HER WRONGDOING.
Klaemt recorded neighbour’s calls – heard call where mother told Watts how to cheat welfare – she was fired from Ministry of
Social Services. Watts brought action against Klaemt for invasion of privacy under s.1 Privacy Act. Court found intentionally
eavesdropped in circumstances where he knew or ought to have known he was violating her privacy. Didn’t give damages for
future or past earnings wage loss – all caused by her own conduct. Awarded her compensatory damages of $30000 for her life
being shattered – avowedly not the economic loss of her job. Punitive damages of $5000. Judge came up with an amount to
reflect that there was a serious invasion of privacy without somehow compensating someone who did violate rules and did
deserve to lose her job.
BREACH OF CONFIDENCE
Tort action (broader than privacy) used to protect the privacy of both sensitive business and personal information. To
recover for breach of confidence, the P has to establish:
1) The information was confidential in nature.
2) It was disclosed in circumstances creating an obligation of confidentiality.
3) Its unauthorized use was detrimental to the confider.
INTENTIONAL INTERFERENCE WITH CHATTELS
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Concerned with interferences with rights of possession, distinct from property law (concerned with who has rights to
property, ownership). Whether you are committing a tort depends on who owns property, so property law is relevant.
Triggered when right to possession has been interfered with. Chattel torts were intended to give claims to people who may
not be owners, but rightfully have possession of property. In other words, they cover someone’s interest in the property.
Area in need of reform but no urgency as chattels are not generally worth much (not worth taking to SCC).
Tort Key Elements Remedy

Trespass Damaged / minor unauthorized use / movement of Damages
chattel
Detinue P must ask for item back / D must refuse (also covers Order to return chattel or Damages
unintentional loss) (at time of judgment)
Conversion Serious harm to P’s right to the chattel Damages (at time of conversion)
Full value of chattel (forced sale)
Action on the Case P does not have possession/ immediate right to Damages?
possession
TRESPASS TO CHATTELS
[actionable per se] Where D directly and intentionally interferes with chattel in possession of P. Physical harm (or damage)
to property. Provides a remedy for any direct and intentional interference with chattels in the possession of another.
Elements:
1) direct and forceful interference (i.e. intentional act – not necessary to prove intention to harm) and
2) affected goods were in P’s possession.
Use when there is damage without destruction (if destruction  then conversion is better action)
No requirements to make further use of chattel (distinct from conversion) (Fouldes v Willoughby, horses-on-ferry)
Defences: absence of intent
Remedy: loss in market value or cost of repair
Fouldes v Willoughby (1841 Ex) (horses-on-ferry)

A SIMPLE REMOVAL OF A CHATTEL, W/O ANY INTENTION OF MAKING ANY FURTHER USE OF IT, MAY FIND AN ACTION FOR
TRESPASS, BUT IT IS NOT SUFFICIENT TO ESTABLISH CONVERSION.
P boarded a both with 2 horses. P behaved badly and D said he wouldn't carry the horses. P refused to take them off, so D took
them from P and led them to the shore. They went to a hotel. The next day P sent for them, but they said he could only get
them if he paid for their keep, and if not they would be sold to pay for the keep. The horses were sold by auction. Case
dismissed because he sued for conversion and hotel had no intent to make horses their own or assume rights over them.
May have been trespass.
CONVERSION
[historically actionable per se, but some dispute now ] Using property in a way that seriously interferes (or deprives) the
owner (or whoever has immediate right of possession) of possession. Conversion only available for tangible property (not
for land).
 When someone has “dealt with” your property. Intention to interfere with possession is NOT necessary, just intent to
exercise dominion, (e.g. mistaken conversion in Mackenzie v Scotia Lumber, raft-adrift-mistake).
 Cannot be conversion if person exercising dominion over it has rightful possession. Right to possession is relative. Usually
a matter of contract (ownership/title), not “who last had it”
Recapture and Replevin: see Law and Equity Act, s57 – enables court to order surrender of property sought by another, even
while the action is still pending, though if action fails, P will be liable for costs.
Mackenzie v Scotia Lumber Co. (1913 NSSC) (raft-adrift-mistake)

CONVERSION DEFINED AS USING OR TAKING OVER SOMETHING AS IF IT WERE YOUR OWN (EXCLUSIVE DOMINION OVER
THE PROPERTY). HOWEVER, IF CHATTEL IS RETURNED, P IS ENTITLED TO NOMINAL DAMAGES ONLY. STRICT LIABILITY TORT.
14
Ps raft floated away; two of the Ds rafts floated away. D sent employees to retrieve his rafts, the employees brought back all
three. D used the P’s raft for a short period of time before realizing mistake. He returned the raft to the P at that time. If
chattel is returned, is the P eligible to receive damages in conversion? YES, CONVERSION: D used chattel as if it were his
own, even if it was for short period of time. D was held vicariously liable for his employee’s actions. However, the P is only
entitled to receive nominal damages – can’t receive the chattel back and the full value of the chattel as well.D was
373409 Alberta Ltd. (Receiver of) v Bank of Montreal (2002 SCC) (endorsed-cheque-went-bankrupt)
ACTION IN CONVERSION MAY BE BROUGHT BY THE RIGHTFUL HOLDER OF A CHEQUE AGAINST A WRONGFUL
DISPOSSESSOR. HOWEVER THEIR ABILITY MAY BE MITIGATED IF THEY WERE AUTHORIZED BY THE RIGHTFUL HOLDER.
Lakusta was director of numbered company and Legacy Holdings. He received a cheque for the sale of a vehicle payable to
numbered company. Altered the cheque by adding ‘/Legacy’ and deposited it into the Legacy account. Receiver of numbered
company suing bank for conversion for depositing the cheque into Legacy’s bank account.
An action in conversion may be brought by the rightful holder of cheque against a wrongful dispossessor (bank); re: strict
liability action. Case and fact specific. References BOMA case where bank was held liable for converting cheques received
from the company’s accountant fraudulently. Only the dealing itself must be intentional; not an awareness of the
wrongdoing. Lakusta had provided BMO authorization – he endorsed cheque and that was within his scope of authority as
sole director/shareholder of numbered company.
Aitken v Gardiner (1956 Ont HC) (stolen-sold-share-certificates)
REMEDIES FOR CONVERSION. DAMAGES FOR CONVERSION SHOULD BE CALCULATED FROM THE DATE OF CONVERSION.
HOWEVER, ADDITIONAL RECOVERY MAY BE AVAILABLE FOR CONSEQUENTIAL LOSSES/DAMAGES.
D unknowingly purchased stolen share certificates – sold some before the action came to trial. Share value had risen
significantly. Could the D be liable in detinue sur trover? Judge ordered remaining certificates returned, both conversion and
sur trover available. Conversion gives value at time of conversion. Detinue sur trover gives value at time of trial.
Consequential losses calculated (she may not have sold them so she would have enjoyed the increase in value) – allows P to
recover damages which she may have sustained that are “not too remote”.
Conversion damages = Value at conversion + Consequential losses
Consequential losses = losses related to the loss of use + increased value of property
Century 21 Case
DETINUE
[actionable per se] Wrongful detention of something; refusal to give something back; use it when there is INABILITY or
REFUSAL to return chattel.
DETINUE SUR BAILMENT: (bailment is a temporary transfer of possession, not ownership)  LENT
 e.g. when bailor asks bailee for their property back, and they don’t have it or they refuse to give it back.
 Unless the bailee could prove that they have lost the property by no fault of their own, they were “estopped from
denying that they have it” (i.e. treated as if they still had it), and they had to pay for the value of the property. P must
first ask for their property back before suing
 A bailee’s negligence is no defence
DETINUE SUR TROVER: (for suing people who have your property, but aren’t “bailees”)  FOUND
 Every instance of detinue sur trover is a conversion, but not every conversion is detinue sur trover
Defences:
 “no fault” in losing item
Remedy: damages need to be proven by P, are calculated at the date of the trail. Court has discretion for remedies ( General
& Finance Facilities, hired-out-crane-ended-up-at-salvage-yard)
 Value of chattel assessed (at time of trial) + damages for its detention
 (giving choice to P) [Return of chattel OR recovery of its value as assessed (at trial)] + damages for its detention
 Return of chattel + damages for its detention
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General & Finance Facilities Ltd v Cooks Cars (Romford) Ltd (1963 CA) (won’t-return-crane)
DAMAGES IN DETINUE IS BASED ON VALUE OF THE CHATTEL AT THE TIME OF JUDGMENT BECAUSE IT IS A CONTINUING
TORT. BECAUSE OF THE POTENTIAL FOR SPECIFIC RESTITUTION, VALUE OF THE CHATTEL AND THE DAMAGES FOR
DETENTION MUST BE ASSESSED SEPARATELY.
Claimants issued writ for “return of mobile crane or its value and damages for detaining the same”. Cooks Cars received crane
from salvage company and refused to give it to General Finance. Appealing that the damages were inaccurately assessed;
should the J have independently assessed value of the crane and consequential loss? D still in possession and refuses to
return  both detinue sur trover and conversion are available. Yes, he should have assessed separately because: detinue
allows for specific restitution AND consequential losses (conversion)/damages for detention (detinue) are available in both
causes of action, irrespective of the potential for an equitable remedy (return of the chattel).
Aitken v Gardiner (1956 Ont HC) (stolen-share-certificates)

REMEDIES FOR DETINUE. IF D NO LONGER HAS GOODS IN POSSESSION, DETINUE SUR BAILMENT IS AVAILABLE ONLY IF IT
CAN BE SHOWN TO HAVE WRONGFULLY PARTED WITH THE GOODS. D bought stolen share certificates belonging to P and
sold them. P asserts 1) D must have chattel in his/her possession and 2) if the D no longer has possession, he/she parted with it
wrongfully. D submitted that detinue sur trover is restricted to bailors. What constitutes detinue? Sur trover covers ‘purely
tortious wrongs’; including wrongful conversion and wrongful detainer. Sur bailment only covers agreement b/w amenable
parties; available only if D had right to immediate possession and improperly departed with it. D had no right to possession;
therefore only detinue sur trover should have been available.
INTENTIONAL INTERFERENCE WITH REAL PROPERTY
TRESPASS TO LAND
Direct, intentional (or negligent) and physical interference with land in the possession of another. [actionable per se]
Elements of Trespass to Land:
(1) Defendant intentionally and directly intruded onto the land in possession of the plaintiff
a. Defendant personally enters onto land in possession of plaintiff without permission
(e.g. entering through door that says “no admission”)
b. Defendant places an object on the plaintiff’s property without their permission
(e.g. delivery of parcel to wrong address (Turner v Thorne (box-delivery-wrong-house), dumping garbage
on plaintiff’s land)
c. Defendant does not leave property when the plaintiff has revoked permission
(e.g. disorderly patron or fan ejected from bar or sporting event)
Possible Defences:
 Consent (“license” to enter; implied or explicit)
 Necessity (committing trespass to prevent harm to public, trespasser, possessor, or third party; e.g. trespassing to
prevent spread of fire or to prevent damage, to save life of stranger drowning in the possessor’s property) > but
not settled if necessity is a full or partial defence
 Legal authorization
Entick v Carrington (1765 CP) (broke-in-to-find-seditious-material)

BEFORE THE STATE CAN ENTER PRIVATE PROPERTY IT MUST HAVE A PROPER PURPOSE > MODERN INCARNATION = POLICE
MUST HAVE REASONABLE AND PROBABLE GROUNDS THEY WILL FIND EVIDENCE OF OFFENCE. Entick had seditious material
on his property. Carrington, acting on authority of Secretary of State, broke into Entick’s property to get papers. Court found
Carrington liable for trespass > actionable w/o proof of damage where defendant did not have “some positive law” (e.g.
taxes) that “empowered or excused him”.
Turner v Thorne (1960 Ont HC) (box-delivery-wrong-house)
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TRESPASSER IS LIABLE FOR ALL CONSEQUENCES THAT FLOW FROM THEIR TRESPASS, WHETHER OR NOT THOSE
CONSEQUENCES ARE FORESEEABLE. P sustained serious injuries in garage when he tripped over boxes mistakenly left there by
defendant Thorne, a courier delivery driver, several hours earlier. Court found Thorne liable for Turner’s injuries because he
trespassed onto property and it was a trespass to leave the packages in the garage (wrong delivery location). Continuing
trepass in leaving items on the property. Also could be a claim of negligence.
Trespass Act: Trespass prohibited (s.4), defences (s.4.1), courts may order compensation (s.11).
DEFENCE OF CONSENT
CONSENT
Complete defence where D is required to prove they were reasonably under the apprehension that consent was given. D
must prove that P agreed to the act giving rise to the tort. If there is consent there is no tort. Participating in an activity where
there is no malice, ill will, or negligence a person accepts consent to consequences.
Wright v McLean (1956 BCSC) (mud-throwing-boys-hit-in-head)

CONSENT TO AN ACTIVITY IS VIEWED AS CONSENT TO THE NORMAL RISKS OF THAT ACTIVITY.
Boys were throwing mud at each other; P drove by on his bike and stopped to join “want to fight?”; boys continued throwing
mud at each other. P was hit in the head with something; undetermined if it was a mud ball or rock. How narrowly is consent
construed? Harm suffered when consented to, within limits is not a cause of civil action. Court found the P voluntarily
participated in mud fight; no ill will on the part of the Ds and acts were ‘within the limits of the game’.
Agar v Canning (1965 Man QB) (hockey-game-injured-eye)

PLAYERS ENGAGED IN SPORT ACCEPT RISKS OF THE ACTIVITY. HOWEVER, SOME LIMIT MUST BE PLACED ON THE
IMMUNITY OF PLAYERS ON A CASE AND FACT SPECIFIC BASIS – DEFINITE RESOLVE TO CAUSE INJURY NOT COVERED BY
CONSENT.
Hockey game, D took possession of puck, P attempted to hook him and in doing so, hit D in the back of the neck. D retaliated
by hitting P with blade of stick between nose and eye. Are torts within sports covered by implied consent? Those engaged in
sport generally accept the risk of injury (Wright) and waive their rights to action, provides immunity to players engaged in
sporting events. Circumstances showing a definite resolve to cause injury should not fall within scope of implied consent.
R v Jobidon (1991) SCC (continued-punching-head-after-unconscious-during-bar-fight)

COMBATANT’S VITIATED CONSENT IF THEY “INTENTIONALLY APPLY FORCE CAUSING SERIOUS OR NON-TRIVIAL BODILY
HARM TO EACH OTHER” Court incorporated a common law concept in the statutory language of CC s.265(1)(a) which
specifies that assault is limited to situations in which force is applied to another without consent.
R v Paice (2005) SCC

CLARIFIED THAT CONSENT WILL ONLY BE NEGATED IF THE ACCUSED BOTH INTENDS AND CAUSES SERIOUS BODILY HARM.
Latter v Braddell (1880 CP) (housemaid-pregnancy-exam-against-her-will)

AT COMMON LAW, DURESS REQUIRES THE THREAT OF PHYSICAL VIOLENCE. PSYCHOLOGIAL PRESSURE IS NOT SUFFICIENT.
Housemade forced by employers to undress and undergo a pregnancy examination against her will. She sues for battery.
Defending doctor claims consent. Does duress negate consent? No distinction between consent and reluctant obedience. No
evidence of threat or coercion, no claim exists.
Factors Vitiating Consent

Where consent procured by improper bases vitiates consent, consent was not “real”. Consent will be disregarded where it
was based on misapprehension of the nature of the act OR when it should not be a defence for reasons of public policy.
FRAUD
Requirements for fraud to vitiate consent from P, 1) D was aware of, or responsible, for P’s misapprehension. 2) Fraud must
relate to the nature and quality of the act, not collateral matter (R v Williams, creep-singing-teacher) 3) Concealment of
significant risk of serious bodily injury (R v Cuerrier, consent-to-sex-vitiated-by-undisclosed-HIV-status)
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MISTAKE
Only vitiates consent if D was responsible for P’s mistaken belief. D’s mistaken belief that P consented is no defence. ( Toews,
nurse-administered-immunization-to-child-mistaken-belief-parents-consent-held-liable)
DURESS
Consent obtained by threats; requires overt threats of physical force (Latter v Braddell (housemaid-pregnancy-exam-against-
her-will)
PUBLIC POLICY
If consent is procured in a particularly bad way, may be disregarded on policy grounds. Usually involves 1) proof of inequality
between parties and 2) proof of exploitation (by community standards).
People are free to consent to many things, but there is a point to where people are consenting to things that are destructive
(i.e. assisted suicide) or S&M.
CONSENT TO CRIMINAL OR IMMORAL ACTS

One cannot recover in tort law for the consequences of their own illegal or immoral conduct. Ex turpi causa non oritur action.
Purpose is to protect integrity of legal system (stops someone gaining on an illegal act). Wouldn’t apply to someone seeking
compensation for physical injuries. Should be used to preserve the integrity of the legal system.
CONSENT TO TREATMENT, COUNSELING AND CARE

To be valid, consent must:
1. Have been given voluntarily
2. Relate to specific procedure or treatment that is undertaken
3. Be based on a full and frank disclosure of the nature of the intervention and its risks
 Patients can place constraints on their consent; their express prohibitions cannot be overridden or ignored
 If person is incompetent, then consent passes to next of kin, must be in good faith and in patients’ best interest.
Health Care Consent to Treatment Act

 Statute provides direction regarding who can give consent on another’s behalf; distinguishes between different types of
medical care
 s.4 outlines rights for consent and refusal
 s.16 set up a temporary substitute decision maker
Infants Act, s.17

Infants are able to provide consent if the health care provider has explained the nature and consequences and the reasonably
foreseeable benefits and risks of treatment to the infant and they are satisfied the infant understands
Exceptions to General Principles of Consent
Courts have relaxed the strict requirements in two situations:
1. Unforeseen medical emergency where it is impossible to obtain patient’s consent; right to intervene without consent to
preserve patient’s health or life
2. General consent has been given to a course of treatment, operation, counseling – implied consent to any subsequent
procedures that are related / incidental to treatments
Marshall v Curry (1933 NSSC) (hernia-operation-discovered-testical-needed-removing)

A DOCTOR MAY ACT WITHOUT CONSENT (WITHOUT REFUSAL) TO SAVE THE LIFE OR PRESERVE THE HEALTH OF A PATIENT.
Patient agreed to have hernia removed. Upon beginning surgery, doctor found testicle was grossly diseased, removal was
required to cure hernia and ensure health of patient. P takes action in battery for $10,000. D asserts that implied consent was
given with his desire to have the hernia cured. Does implied consent apply to wholly unrelated operations?
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P does not make surgeon his representative to give consent; P and D could not have foreseen the circumstances. It is
surgeon’s duty to act in order to save the life or preserve the health of a patient. Risk of closing up in order to obtain
expressed consent. Found that operation was necessary and unreasonable to postpone the removal to a later date.
Reibl v Hughes (1980 SCC) (heart-surgery-ruined-retirement)

EXTENT OF PHYSICIAN’S OBLIGATION IS CONTROLLED BY AN APPLICATION OF PRINCIPLES RELATING TO DUTY OF CARE,
THE STANDARD OF CARE AND CAUSATION
P not told that surgery designed to unblock that surgery designed to unblock his carotid artery carried a significant risk of
stroke. Manifested, left him paralyzed. SCC imposed liability on the D surgeon for his failure to secure P’s informed consent.
Liability was based on the tort of negligence.
Malette v Shulman (1987 Ont HC) (JW-blood-transfusion-doctor-proceeds-anyway)

THE DOCTRINE OF INFORMED CONSENT DOES NOT EXTEND TO INFORMED REFUSAL. THEREFORE, A CLEAR DENIAL OF
CONSENT WAS SUFFICIENT TO CONSTITUTE BATTERY.
P injured in car accident, arrived at ER, card indicated in purse that she was JW, Dr began blood transfusions. P’s daughter
arrived hours later and confirmed mother would not want transfusion, D only stopped when patient was stabilized. P sued in
negligence and battery. Does the doctrine of consent extend to informed refusal? Court found that obvious purpose of card
was to speak in circumstances when she could not; daughter confirmed religious intent. No rationally founded basis
(evidence) for the doctor to ignore that restriction. D argued doctrine of informed consent extended to informal refusal:
Doctor will not be held liable for the decisions of patients made on moral/religious grounds.
DEFENCES RELATED TO THE PROTECTION OF PERSON AND PROPERTY
SELF-DEFENCE
Can use reasonable force to repel actual violence or threat of immediate violence (Wackett v Calder (bar-fight-instigated).
Elements:
1. D honestly and reasonably believes that assault/battery is imminent. Subjective and objective test (why both?
Because if only honest, could be paranoid and neurotic / only reasonable could use law as defence even if they
weren’t actually scared)
2. Amount of force used to avert risk was reasonable in all of the circumstances
 Force should be proportionate to the threat or likely harm but court recognizes there may not be much time for
reflection given immediacy of threat (Wackett – not required to “weigh the niceties of the blow”)
 Mere battery: in practice, will be a defence to physical injury but theoretically, can use it for mere battery as well (have
to demonstrate battery was reasonable in response to assault/battery anticipated).
 Pre-emptive: shouldn’t have to wait to have bodily integrity violated before taking defensive action
 Obligation to withdraw: The law is a restrictive instrument, not an instrument of obligation, law is hesitant to impose
those duties
Wackett v Calder (1965 BCAA) (bar-fight-instigated-by-little-guy)

SELF DEFENCE IS AVAILABLE ONLY IN EMERGENT SITUATIONS BUT DOES NOT ALLOW THE D TO CONTINUE IN EXCESS OF
REASONABLE AND NECESSARY FORCE.
P determined to lack credibility as witness. D asserted P invited him to engage in fight; P continually striked the D, he was
smaller, at one point struck him “in futile way”. D punched P twice until “he didn’t get up so fast” and went back into bar; P’s
cheekbone broken. Action dismissed against D. P was not staggering but was belligerent and persistent. If you’re entitled to
self-defence, court will generally provide the individual under threat a broad set of actions to do so (will not be held down to
a measure of the “weight of his blows”).
Bruce v Dyer
D DOESN’T HAVE TO WAIT FOR FIRST BLOW.
DEFENCE OF THIRD-PARTIES
Same requirements as in self-defence, with requirement that use of force be reasonable (Gambrielli v Caparelli)
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Gambriell v Caparelli (1974) On Co Ct (son-gets-in-fight-with-neighbour-mom-defends-him-with-garden-tool)

PHYSICAL FORCE CAN BE USED TO DEFEND A THIRD PARTY (IRRESPECTIVE OF YOUR RELATIONSHIP WITH THEM).
THRESHOLD OF REASONABLENESS/EXCESSIVE FORCE STILL APPLIES.
Son of D washing car in driveway, P backed into son’s car, altercation, P ended up on top of D with hands around D’s son’s
neck. Mother came out and hit P with a garden tool 3x on shoulder and once on head. Did D apply excessive force? No special
relationship required with victim, right to defend oneself or others with reasonable force from imminent threat, honest and
reasonable belief (though mistaken) would justify this force. Mother not liable – reasonable response and amount of force.
DEFENCE OF REAL PROPERTY

You have a right to defend property using reasonable force. (McDonald v Hees entered-motel-room-mistakenly-occupier-
goes-nuts). Defence has to be reasonable and proportionate. Courts will look at circumstances – barbed wire, dogs, etc are
fine (spring loaded weapons, traps, deliberately vicious dogs not okay). Less likely to regard something as reasonable if there
is evidence of malice (Bird, spring-gun-shows-malice). Rights to property are extensive – but not absolute. Even trespassers
have rights (Tutinka v Mainland Sand & Gravel, kids-on-bikes-discover-hill-removed). Owner must take steps to ensure
trespassers safety while on property.
MacDonald v Hees (1974 NSSC) (entered-motel-room-mistakenly-occupier-goes-nuts)

TO UTILIZE THE DEFENCE OF PROPERTY, D MUST HAVE REQUESTED P TO LEAVE THE PROPERTY AND PROVIDED
REASONABLE OPPORTUNITY TO DO SO. THEN THE D IS FREE TO USE A REASONABLE DEGREE OF FORCE TO REMOVE THE P.
(REQUEST NOT REQUIRED FOR FORCIBLE INTRUDERS).
P takes action in assault for injury, loss and damage – D forcibly removed P from motel and caused physical injury (lacerations
to head). D contents that he did not assault the P, alternatively that his force was justified in law and the application of force
was in response to unlawful entry on his property. What is required to utilize the defence of property?
Accepted that P mistakenly thought he was invited to enter – rejected D’s claim of self-defence. After requesting trespasser
to leave the premises and providing a reasonable opportunity to do so “it is lawful for any occupier of land, or for any other
person with the authority of the occupier, to use a reasonable degree of force in order to prevent a trespasser from entering
or to control his movements or to eject him after entry.” No force required if forcible entry – can apply force immediately
but CANNOT use excessive force. Found no forcible entry and D did not provide reasonable opportunity for P to leave. Force
was excessive.
Bird v Holbrook (1828 CP) (spring-gun-shows-malice)

THE LEVEL OF FORCE TO DEFEND YOUR PROPERTY MUST BE REASONABLE (DOES NOT INCLUDE SPRING GUNS). RIGHTS TO
PROPERTTY ARE EXTENSIVE – BUT NOT ABSOLUTE.
D owned tulip garden, set up spring gun and trip wires without notice. P attempted to help servant girl recover bird, he called
several times to occupant with no response. Jumped into garden, gun went off, seriously injuring P. Does not specify the form
(cause) of action. What level of force is acceptable to protect your property?
No man can do indirectly what he is forbidden to do directly; could not have shot the P himself and could not have detained
him. Example of excessive force. Court also finds no notice – D purposely set up the gun with the intent to injure (testified
that notice would prevent him from catching the thief).
DEFENCE AND RECEPTION OF CHATTELS

Similar to defence of real property; can only defend property from someone immediately attempting to take possession or
from someone who recently took possession (hot pursuit). Owner must first request his/her property before using force.
However where object was forcefully taken, D can use force to retrieve it without asking first. Cannot use defence after
they’ve been dispossessed; must rely on the courts or on recaption. Very limited common law privilege exists to trespass
(without damage) on another’s land to recapture chattels.
PUBLIC AND PRIVATE NECESSITY

Allows an individual to intentionally interfere with the property rights of another for the public interest – typically in case of
threats or acts of nature. Must be reasonable, cannot cause more damage than necessary. It is a complete defence –
mitigating liability for any resulting damages. Mistake of fact as to the apparent necessity will not negate the defence.
Defence cannot apply to an individual who negligently caused or contributed to the emergent circumstances. Statutes often
grant public works broad powers to invade property. Homeless squatters could not invoke defence of public necessity to
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privilege their entry into vacant homes owned by Council – plea would excuse all sorts of wrongdoings ( London Borough of
Southwark v Williams).
Public necessity: acting to prevent imminent + serious harm to public (fire, danger of spreading, trespass okay)
Private necessity: act to preserve own interest // can’t be a defence to murder
Surocco v Geary (1853 Cal) (house-blown-up-to-save-city-in-fire)

BURDEN OF PROOF LIFES WITH THE D TO DEMONSTRATE THE DEFENCE OF PUBLIC NECESSITY.
P’s house and property were blown up by the D during a fire for the apparent necessary purpose of saving the buildings
adjacent; D was mayor of San Francisco. Who determines public necessity? D pleads defence of necessity for the public
purpose: preventing spread of fire. Onus of proof on the D to demonstrate necessity; facts of this case established necessity
of the actions taken by D to save neighbourhood from fire (all wooden buildings).
Vincent v Lake Erie Transport Co (1910 Minn) (boat-docked-in-storm-damages-dock)

DEFENCE OF PRIVATE NECESSITY A COMPLETE DEFENCE. HOWEVER, INDIVIDUALS CAN STILL BE HELD LIABLE FOR THE
REASONABLY FORESEEABLE DAMAGES. NO CORRESPONDING CANADIAN CASE LAW.
D lawfully docked at the P’s dock to discharge cargo. Large storm throughout the night – could not get a tugboat to tow D
boat from the dock. Kept the lines holding the ship to the dock in place to prevent the boat from drifting away – boat damaged
dock due to storm. Is private necessity a complete defence?
Actions preserved their own property at the expense of another – they are responsible to the extent of the injury inflicted
(outcome was reasonably foreseeable). Dissent found D had exercised due care and could not have anticipated the severity of
the storm. Legally in position at the dock, D should not be liable for damages resulting from contractual relationship.
APPORTIONMENT OF FAULT IN INTENTIONAL TORTS
QUESTION OF FACT: i.e. determined by jury if there is one. NOT a question of CAUSATION but rather it’s about who is most
BLAMEWORTHY (at fault?)
Legislation applies only where two or more parties have contributed to the same loss or injury. Framed in terms of whether
the loss or injury is “indivisible”.
 JOINT TORTS: Where two or more people commit one tort, each liable for P’s whole loss because each of them
did the tort – joint and several liability.
 SEVERAL CONCURRENT TORTS, INDIVISIBLE HARM: two or more people commit separate/independent torts
that, combined, cause INDIVISIBLE HARM. Still joint and several liability.
 SEVERAL CONCURRENT TORTS, DIVISIBLE HARM: Each tortfeasor responsible for the damage that their tort
caused (several liability, not joint).
Common law holds all parties liable as joint tortfeasors.

 D’s were jointly and severally liable for all the damages.
 P can collect full amount how they choose; limits the risk to the P so that they could collect against a D with money
should the other D be broke.
 Common law did not establish a way to share the liability among the defendants.
 Under common law, no way to apportion fault in contributory negligence – became complete defence for
Negligence Act, s.1 apportions fault between P and D, similar to apportionment b/w co-D’s
 However, when s.1 applies (P is partly to blame) then liability is not joint, only several
 P can collect from D’s based on their apportionment only
Application to Intentional Torts:

 The Act specifically applies to negligence cases – whereby the concept of fault is nearly universally relevant
 In intentional torts, the concept of fault must be applicable for apportionment to apply
o Framed in terms of whether the loss or injury is “divisible” – applies only to indivisible losses
o If strict liability, then concept of fault and apportionment is not relevant
Bains v Hof (1992) BCCA (three-young-men-set-fire-to-farm)
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Harm considered both physically and emotionally to the family. Bains’ took action in trespass to land (intentional tort). Judge
apportioned fault – ring leader (50%), enthusiastic follower (40%), reluctant follower (10%).
DEFENCE OF LEGAL AUTHORITY
Defence to intentional torts including false imprisonment, battery, trespass to chattels, conversion, trespass to land. Early
common law made few distinctions between the authority of citizenry and various enforcement officials. Statutory provisions
greatly expanded the power of police to act without prior judicial approval. Accused must be given opportunity to submit
peacefully before force is used. Can only use as much force as is reasonably necessary to subdue suspect. Mistake of fact will
not negate this defence.
1. Is what D did actionable, aside from the defence of lawful authority? [Legal authority to do the act implicitly means
you’re not liable for doing it.]
2. Was D acting pursuant to a legal right or duty? (legal authorization)
3. If so, does the authorizing legislation expressly or impliedly exempt D from tort (or other) liability? (legal privilege)
4. Did D lose the privilege by failing to act correctly? Even if police are authorized and privileged in making arrest, may still
be held civilly liable for failing to inform suspect of reasons for arrest or for using excessive force.
 For policy reasons a statute may exempt a D from liability even for unauthorized acts (eg. Police Act s. 21). Employer
(Crown) would be sued in tort instead.
Susan Heyes Inc. v Vancouver (City) 2011 BCCA 77, (sued-Canada-Line-for-nuisance)

PROTECTED BY STATUTE IF THEY ACTED IN A REASONABLE WAY
Nuisance (unreasonable interference with the use and enjoyment of your property): TJ said Act protected them except they
did not build it in a way that limited nuisance (should have gone underground) – statute only protects in the “non-nuisance”
way. Overturned on appeal – unreasonable to not allow them to choose the most cost-effective method of construction. Read
statute more broadly to determine what was “reasonable” action – should not be stripped of statutory protection.
AUTHORITY AND PRIVILEGE TO ARREST WITHOUT WARRANT

DEFENCE AGAINST FALSE IMPRISONMENT, BATTERY, ASSAULT. GOVERNED BY CC S 494 (ANYONE) AND 495 (PEACE
OFFICERS
Two sets of statutory provisions:
 Limited powers of arrest for “ANYONE” under CC s. 494
 Any one may arrest without warrant
 A person whom he finds committing an indictable offence, or
 A person who (on reasonable grounds) believes has committed a criminal offence, and is escaping
from and freshly pursued by those with lawful authority to arrest.
 Owner of property – have to find them committing offence and arrest can happen then and there
or later on
 Powers of arrest without warrant FOR PEACE OFFICERS CC s. 495
 Summary (less serious) offences can only be peace officer who “finds committing” an offence or is escaping
and pursued (s 495(1)(b)), where this means both actually finds committing and/or apparently committing
(R v Biron, drunk-patron-resists-arrest) – won’t know if arrest is valid until trial, so can read in the idea of
“apparently” to statute.
 Indictable incl. hybrid offences: citizen who “finds committing” (s 494(1)(a)) or peace officer who believes
on reasonable grounds (obj. + subj. reasonable) that P has committed or is about to commit (s 495(1)(a)) –
broader discretion because of the seriousness of the crime
Peace officers: Police Officer, Sheriffs, Mayors, Commercial Pilots, Fishery Officers, (not store detectives)
 “Justifying provision” CC, s 25 is PROBLEMATIC b/c it only applies to persons who are “authorized” … Courts
generally say that s 25 is independent and can even protect those acting w/o authority
 Courts held that Peace Officers can be privileged under s 25 even if not authorized by law if they make a mistake of
fact + act on reasonable grounds BUT not if it’s a mistake of law (Frey)
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RIGHTS AND OBLIGATIONS IN THE ARREST PROCESS

Police required to have reasonable or probable suspicion before asking for ID. Must provide reason for arrest.
Koechlin v Waugh and Hamilton 1957 Ont CA, (rubber-soled-shoes)

POLICE REQUIRED IN ARREST TO 1) HAVE REASONABLE/PROBABLE SUSPICION (OR OTHER RECOGNIZED POWER) BEFORE
ASKING FOR ID (NO GENERAL RIGHT TO ID) AND 2) PROVIDE REASON FOR ARREST.
Arrested late at night, walking in road. Issue – were police justified in arresting Koechlin? Failure to inform of reason can give
rise to false imprisonment action and/or entitlement to resist arrest. Not obliged to identify yourself to police.
Use of reasonable force:

 suspect must have opportunity to submit peacefully before any force is used; if suspect resists, then only as much
force as reasonably necessary may be used. Even if a mistake of fact, police protected.
 Fleeing suspect: CC s 25(4), peace officers can use force likely to cause death or grievous bodily harm, if less violent
force won’t stop ‘em. Requires reasonable grounds that such force is necessary, officer must have ability to arrest
w/o warrant, must be protecting himself or 3rd party from imminent or future death or grievous bodily harm.
Negligence
INTRODUCTION TO THE LAW OF NEGLIGENCE
ELEMENTS OF A NEGLIGENCE ACTION

Negligence has 3 core elements:
1. DUTY OF CARE: did D owe a duty of care to P?
2. STANDARD OF CARE AND BREACH: what was the standard of care owed by D to P? Did the conduct in question fall
short of that standard?
3. CAUSATION: was the loss suffered by P caused by D’s failure to meet required standard of care? // was the breach
the cause of the loss // cause-in-fact?
4. REMOTENESS OF DAMAGE: was loss suffered sufficiently proximate // was the loss reasonably foreseeable or was
it too remote?
5. ACTUAL LOSS: is the loss in question recognized by the Courts as recoverable?
6. DEFENCES: is there a defence available to D? // ex. Contributory negligence // P voluntary assumption of risk
Damage Fact
Fact, Law or Mixed?
Duty Law
Breach Mixed EXAM: Need to address all five issues despite the fact that
Causation Fact (legal standard) judgments often run them together. Issues can often overlap.
Remoteness Law Both duty and remoteness are foreseeability issues.
Burden of proof in a civil action is the balance of probabilities. Where the parties are found to be equally liable (50/50), the P
will lose (because the P has the onus of proof).
Onus of proof in negligence: The P has the initial onus of proof to show the D was negligent, by showing that 1) the 6
elements are present, and that 2) negligence has occurred. Once the P has met their burden, the onus switches to the D to
prove defences (i.e. contributory negligence) and refute the P’s case to the point where the D case is more than 50%
believable.
Control devices in negligence:

DUTY OF CARE: negligence can’t be established unless D owes the P a DoC in respect of the P’s interests. Allows judge to
regulate application and extent of negligence liability. Can exclude it from activities/kinds of losses/exclude certain persons.
Requires foreseeable harm and proximity (Donoghue, snail-in-bottle) [what kind of harm? What kind of P?] Issue of law –
judge decides (so can be appealed, because it’s a question of law)
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REMOTENESS OF DAMAGE: Damage was caused, but was unforeseeable. Negligent act may have utterly improbable
consequences – causation can’t be denied but fairness may dictate D be sheltered from responsibility. Court may hold
consequences are too remote and not compensable by D. (Thin skull is not an example of remoteness). [ Point of law –
remoteness established by Judge and therefore appealable]
Possible Defences:
1. CONTRIBUTORY NEGLIGENCE: partial defence leading to a proportionate reduction in quantum of damages
2. VOLUNTARY ASSUMPTION OF RISK: complete defence arises where P consents to D’s negligence and its
consequences
3. ILLEGALITY: denies a claim, such as one for future earnings, that would subvert the integrity of the legal system (ex
turpi scausa)
4. INEVITABLE ACCIDENT: in spite of indications to the contrary, the loss was caused not by his fault but by an
inevitable accident
Dunsmore v Deschield 1977 Sask QB, (shattered-lenses-pierced-eye)

P playing touch football, collided with another player/glasses to shatter & damage his eye. P ordered impact-resistant
(‘Hardex’) glasses from optometrist (D). P suing both optometrist and Manufacturer of Hardex (Imperial) for negligence. D
claim contributory negligence.
WAS THERE CONTRIBUTORY NEGLIGENCE BY THE P?
 DUTY OF CARE: foreseeable harm for sending non-hardex lenses, not testing them
 BREACH: was the standard of the reasonable optician met? Because of their professional/industrial position, both were
held to a higher standard of care than normal. Supplier didn’t take reasonable care to make sure they sent the right ones.
Optometrist: didn’t test lenses to ensure they were hardex when he sold them (but indemnified=no cost)
 CAUSATION: if they had supplied the right lenses, would it have made a difference? But for test in action. Not an exercise
in determining what happened, but what would have happened. Factual issue, turns on evidence as to how resistant
hardex lenses are. Can only be liable if the tort made the injury btw no injury and injury. Approach based on BOP
 REMOTENESS: NOT AN ISSUE
THE DUTY OF CARE
STANDARD OF CARE: REASONABLE PERSON

Objective standard determined by what ordinary people do and what judges believe they ought to do. Not a standard of
perfection, but reasonable person is more alert to risk, cautious by nature than most. Focus is on D’s conduct but no
consideration given to thought process or subjective awareness of danger of his actions.
Donoghue v Stevenson 1932 House of Lords, (snail-in-bottle-duty-of-care)

MANUFACTURER OF PRODUCTS OWES A DUTY OF CARE TO THE ULTIMATE CONSUMER. MUST TAKE REASONABLE CARE
WHEN PROCEEDING WITH ACTIONS OR OMISSIONS THAT YOU CAN REASONABLY FORESEE HARMING YOUR NEIGHBOUR.
NEIGHBOURS ARE PERSONS WHO ARE REASONABLE FORESEEABLE AS BEING AFFECTED BY YOUR ACTS OR OMISSIONS.
CUTY OF CARE IS NOT OWED TO THE WORLD AT LARGE – IT IS OWED TO YOUR NEIGHBOURS. PROXIMITY IS NOT CONFINED
TO PHYSICAL PROXIMITY.
Donoghue and a friend were at a café in Glasgow. Donoghue's companion ordered and paid for a bottle of ginger beer for
Donoghue. The ginger beer was in an opaque bottle. Donoghue drank some of the - snail discovered in a state of
decomposition. Donoghue later complained of stomach pain and her doctor diagnosed her as having gastroenteritis and being
in a state of severe shock. Donoghue sued Stevenson, the manufacturer of the drink, for negligence.
NEIGHBOUR PRINCIPLE: “Who, then, in law is my neighbour? The answer seems to be – 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 in question.”
OPAQUE BOTTLE // SHE DIDN’T BUY IT HERSELF

Is there liability in negligence for injury caused by another in the absence of a contract?
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The parties injured by defective products can now sue in the line of duty of care, action need not be based on contractual
relationship.
Lord Buckmaster dissent: gave traditional view of the law, made argument it would be an undue burden on legal system to
administer this kind of tort. Mullen v Barr Court did not allow negligence in the case of a mouse getting into a bottle:
“Indistinguishable from the present excepting upon the ground that a mouse is not a snail.”
Winterbottom v Wright (1842) 299 n7, (mail-coach-driver-injured)

D PROTECTED BY PRIVITY OF CONTRACT – NO LEGAL RELATIONSHIP BETWEEN P AND D. INFLUENCED BY PUBLIC POLICY –
FLOODGATES ARGUMENT.
P Winterbottom drove a coach for Postmaster General. D Wright was contracted to maintain coaches. P injured when coach
collapsed.
Hedley Byrne v Heller (1964) HL, (ad-agency-sues-bank-for-negligent-misstatement)

DUTY OF CARE COVERS NEGLIGENT MISSTATEMENT. PURE ECONOMIC LOSS COVERED BY DUTY OF CARE (BUT CONFINED
TO NEGLIGENT MISSTATEMENTS) – ESTABLISHED PURE ECONOMIC LOSS CATEGORY.
Advertising agency asked to do work for client on credit. P asked D bank (with client’s approval) for credit reference – bank
gives good reference, but states that no responsibility is assumed. Client goes bankrupt. P claims D should have not given
reference. Negligent misstatement / assessment of credit worthiness by bank given to potential creditor. Court said that a duty
of care exists when you realize that someone is looking to you for advice, and you give it negligently (although bank was
acquitted). Negligent statements are now covered under duty of care (always included fraudulent statements).
ANNS TEST / DUTY OF CARE

Non-physical damage, pure economic loss, government liability – all are cases where the duty issue is not clear cut.
Principles have to be framed in not so broad ways as was used in Donoghue - two-stage approach created in the Anns
Test.
Anns (negligent-building-inspection-duty-of-care-test). Negligent inspection of building resulted in structural
inadequacies. Homeowners sued local government for failing to catch issues – is there any duty owed by local
government to potential buyers of houses?
Presumptive (prima facia) duty of care exists IF:

1. A sufficient relationship of proximity or neighbourhood exists between the alleged wrongdoer and the person who
has suffered damage, such that foreseeability of harm is obvious (carelessness on the part of the former is likely to
cause damage to the latter);
2. There are no considerations relevant, which may reduce or limit the scope of any imposed duty (floodgates
argument; government should not be reliable for their policy choices [have resp. in public law as well as private] –
democratic process elects them to make policies [not for courts to second guess government policy])
DIFFERENCE BETWEEN KAMLOOPS AND COOPER

Kamloops (negligent-failure-to-enforce-by-law) SCC case. Public office was liable in this case – distinguished from Cooper
(registrar-of-mortgage-brokers-Eron) by proximity because it involved only one house (rather than multiple potential claims
in the Eron case). One act of negligence, injuring one party. In Cooper it was one act of negligence that Cooper involved
financial loss, Kamloops involved building safety. Hard to show proximity in situations of regulating a broad sector of
economic activity (between government and all the people who have stake in activity). Courts will be reluctant to find
proximity, as they were in Cooper.
USE ANNS TEST IN CANADA BUT FOR INFORMATION:

English HL didn’t like Anns test (SCC loves it). Repackaged it with the Caparo test:
1. harm must be reasonably foreseeable as a result of the defendant's conduct (as established in Donoghue v
Stevenson),
2. the parties must be in a relationship of proximity, and
3. it must be fair, just and reasonable to impose liability.
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Cooper v Hobart 2001 SCC, (registrar-of-mortgage-brokers-Eron)

LACK OF PROXIMITY BTW THE MORTGAGE REGISTRAR AND THE PLAINTIFF— RESIDUAL POLICY CONSIDERATIONS: EST A
PRIVATE LAW DUTY THAT WOULD CONFLICT/IS INCOMPATIBLE WITH DUTY TO THE PUBLIC—CAN’T HAVE BOTH (WOULD
ESSENTIALLY CREATE A PUBLIC INSURER).
Eron Mortgage was a BC company governed by Mortgage Brokers Act, a BC Statute. They had thousands of investors. At time
of their suspension of their license, Eron owed $180 million to its investors. P (Cooper) sued the D, who was Registrar of
Mortgage Brokers for negligence for failing to suspend Eron Mortgage Corp’s license soon enough; she claims she would not
have had the same magnitude of loss had it been suspended earlier. Did the D owe a duty of care to P
FOR CASES OF PURELY ECONOMIC LOSS, COOPER CLARIFIES ANNS TEST for duty in ‘new’ categories (non-physical
damage, pure economic loss,
1) Was the harm that occurred the reasonably foreseeable consequence of the defendant’s act/Prima Facie duty of
care?
 Basic question: is it appropriate in this type of relationship to insert a DoC? This first stage focuses on factors
arising from the relationship P and the D, include questions of policy in the broad sense of the word
 Need foreseeability + proximity (meaning: Generally used to characterize the relationship in which a duty of
care may arise, and second, sufficiently proximate relationships are identified through the use of categories
which are not closed)—policy considerations part of proximity
 If foreseeability and proximity established here, prima facie duty of care arises
2) Are there reasons, notwithstanding the proximity test established, that tort liability should not be recognized
here?
 These are residual policy considerations not tied to the relationship between the P and D
 Eg: does the law already provide a remedy? Would unlimited liability be created by the recognition of a DoC,
other broad policy reasons? In this case holding the Registrar responsible establishes a conflict between a
private law duty and duty to the public – you can’t have both because it would essentially create a public
insurer
FORESEEABLE RISK
Reasonably careful person avoids creating a foreseeable risk of injury to others. Not enough on its own to establish a finding
of negligence, but is an essential component of liability.
APPLICATION OF THE DUTY OF CARE TEST
Moule v New Brunswick Electric Power 1960 SCC, boy-stepped-from-one-tree-to-another-over-power-lines-electrocuted

POWER COMPANY OWED A DUTY TO NEIGHBOURHOOD KIDS NOT TO EXPOSE THEM TO RISK OF ELECTROCUTION IF THEY
CLIMBED TREES NEAR THEIR POWER LINE. DUTY IS EASILY ESTABLISHED – DID THE COMPANY TAKE REASONABLE
PRECAUTIONS AND THUS MEET THE STANDARD OF CARE? FOUND THAT THEY DID, NEGLIGENCE ACTION FAILS BECAUSE IT
WAS “SUCH AN UNLIKELY EVENT” - TOO FREAKISH AN ACCIDENT, TOO REMOTE. POWER COMPANY COULDN’T HAVE
FORESEEN THAT THIS MIGHT HAVE HAPPENED
10 yo P was injured when he climbed a maple tree and came into contact with D’s power lines. D had taken some steps to
reduce danger. Maple tree had been trimmed of branches on side facing power lines – not possible to climb tree directly from
the ground. P had initially scrambled into an adjacent spruce tree with help of some boards nailed onto its trunk – makeshift
ladder. From there he crossed over to the maple tree by way of a wooden platform. He then climbed the maple with the help
of more nailed boards and straps – all construction seemed to be the work of children in area. When he was high in the maple,
he stepped on a rotten branch and fell in such a way as to come into contact with the tree and live wires at the same time.
Amos v New Brunswick Electric Power 1976 SCC, boy-climbing-tree-wires-obscured-tree-bent-electrocuted

Power lines hidden in tree branches, boy climbed tree and tree trunk or branch swayed enough that the tree came into contact
with live wires. Children were known to play in the area. Severely injured by electrocution (he was burning in tree).
DISTINGUISHED FROM MOULE – was easier for kid to contact wire, tree went through wire and was obscured by leaves. Not
as strong precautions as taken in Amos. BREACH IN STANDARD OF CARE? Depends on whether enough was done to reduce
the risk. In establishing what is reasonable – the greater the risk, the more should be done to avoid it. High duty of care in this
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case because it is obviously bad for children to get electrocuted, and obvious that they could climb the tree, so should do
everything they can to prevent. CONCLUDED IN MOULE THEY HAD TAKEN PRECAUTIONS, IN AMOS THEY HADN’T (had done
virtually nothing – allowed tree to grow up and be obscure wires. Trimmed trees every four to seven years)
Palsgraf v Long Island Ry Co 1928 NY, fireworks-explode-train-station-injured-3rd-party

DUTY OF CARE TO PASSENGER BOARDING TRAIN, BUT NO DUTY TO P. Not a foreseeable risk: would have had to known
there were fireworks in package to anticipate potential risk to p. MUST ASK DUTY QUESTION WITH RESPECT TO EVERY
VICTIM: Can breach DoC to one but not another, because the other is not foreseeably at risk. Was negligent (vis a vis the
passenger being pushed) but not liable in negligence vis a vis Ms. Palgraf.
Employees of Long Island Railroad helping man get on train, guy dropped his package (fireworks), blew up and scale hit P on
other side of platform
CLAIMS IN RESPECT OF DEATH
Common law:
 If a P had a claim (some tort that had been committed) before they died, the claim died with them. Estate couldn’t go
after torts against the deceased.
Two statutes altered that common law position (both in supplement):

In BC: Estate Administration Act – an estate may continue or may bring an action for all loss or damage for the
person or property of the deceased in the same way the deceased could have. Estate inherits the tort claims.
EXCEPT:
 Estate cannot claim for damages for pain and suffering to the deceased - s.59(3) EAA
 Can’t claim for death itself
 Can’t claim for lost earnings after death
Also: estate is answerable for the debts of the deceased – which can include tort liability
 Family Compensation Act
 Statutory compensation claims under this act are for the benefit of the surviving family
 (in most jurisdictions called the Fatal Accidents legislation)
 gives immediate family a claim for their loss for having their family member killed
 Indirect way of claiming for the earnings – limited to the loss that the family member can show
 Grief is not part of claim
Would likely be combined into one action.
SPECIAL DUTIES OF CARE: AFFIRMATIVE ACTION
Misfeasance: negligent conduct

Nonfeasance: the failure to take positive steps to prevent harm to others
SPECIAL DUTIES OF CARE & AFFIRMATIVE ACTION
Court has only created an affirmative DOC in certain cases – a duty to act
 Based on detrimental reliance – where an individual has taken responsible for someone, inducing them to rely on
this duty
 Consider: what is the source of the duty? How far does the duty go/what is the limit on it?
DUTY TO RESCUE
 Common law did not recognize a duty to rescue / a duty to assist another individual when they are in a “perilous”
situation:
o Too difficult to define when someone is required to come to someone else’s assistance
 General principle: Based on the nature of the parties’ relationship, parties must take all reasonable steps to assist
o That is, a duty to act is not absolute; D required only to take reasonable care for another’s safety
 A duty to act will be assumed where a positive action begins; liability for negligent conduct will follow
o Based on an objective test of the reasonable person in the position of the D under the circumstances
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o Not a duty to rescue; only a duty to act

 If you start to rescue, you may be liable for not rescuing competently but if you change your mind and don’t
complete the rescue, won’t be held liable
 Negligence distinguishes between conduct that makes things worse and conduct that fails to make things better. If it
only fails to make things better, the cause of the injury is the accident and not the failure of the D to rescue
 Good Samaritan Act: No liability for emergency aid unless gross negligence.
Osterlind v Hill 1928 Mass, (drunk-guy-rents-canoe-drowns)

CONFIRMS COMMON LAW PRESUMPTION: NO POSITIVE DUTY TO COME TO THE AID OF A PERSON (OR A PERSON’S
PROPERTY THAT IS IN DANGER). Even if everything was true, the claim is rejected. Case draws a hard line with respect to the
duty to act; raises moral issues regarding the connectedness of the predicament and the person.
Hill rented a “frail and dangerous” canoe to Osterlind and his friend when they were intoxicated and “manifestly unfit to go
upon the lake in the canoe”. Canoe tipped, Osterlind called for help for approximately half hour. Eventually drowned.
Osterlind’s estate taking action against Hill 1) for renting them the canoe 2) failing to rescue them. Is there a duty to rescue?
 Unlike case cited, the intestate was not in a helpless condition at the time he rented the canoe; he was capable of
exercising care since he hung to the side of the canoe for approx. ½ hour
o Have not alleged an incapacity “bad enough” – must be extremely drunk for this to apply
o Finds no duty to refrain from renting a canoe to an intoxicated person
 No right to be rescued; no parallel duty / obligation on Hill to respond to the intestate’s outcries
 Case decided on the pleadings; no reference to the evidence (as written in the allegations)
 Court is reluctant to say that there is a positive duty to rescue (issues of endangering oneself etc.)
 Good law still as far as not having an obligation to do something if you see someone drowning (and you have nothing to
do whatsoever with it)
Matthews v MacLaren 1969 ON HC, (two-men-die-after-falling-off-MacLaren’s-boat) (we revisit this case in the SCC)
POSITIVE DUTY TO RESCUE EXISTS IN SPECIAL RELATIONSHIP WHERE THE D HAS IN EFFECT UNDERTAKEN SOME
RESPONSIBILITY FOR THE P’S SAFETY BUT ALL ELEMENTS OF NEGLIGENCE MUST STILL BE CONSIDERED – LACK OF
CAUSATION WILL NEGATE A BREACH OF THE STANDARD OF CARE.
Duty:
 Matthews fell overboard due to his own misfortune or carelessness; not due to the negligence of the D
 Negligence law holds no general duty to come to the rescue of a person who finds himself in peril from a source
unrelated to the D
 But, does a “special relationship” exist between carrier and passenger? Yes, per legislative intent found in the
Canada Shipping Act and a civilized community; duty to assist where it is possible to do so without putting the crew
or the passengers in danger
o Relevant that Act was amended due to similar case; where ship did not go back for overboard crew member
o Boat owner/operator undertakes a responsibility by taking passengers out onto their boat
Standard/Breach:
 Expert evidence show M should have tunred boat around; he was an incompetent operator and negligent in his
operation of the boat
 Aggravated by the PO testimony that M’s ability to drive was impaired by alcohol
Causation:
 However, based on the conditions present, not demonstrated on a BoP that M’s negligence was the cause of M/H’s
deaths – per facts regarding COD, Horsley’s death (younger man) and that Matthews was entirely unresponsive,
proper boat operation would not have resulted in survival
Held that the D’s negligence was not the cause of Matthew’s death and there can be no liability.
DUTY TO CONTROL THE CONDUCT OF OTHERS

 Raises issue of how far a duty to intervene extends – is there a duty to physically intervene?
 Keep in mind that if a duty to act is found, it is not absolute; Ds are required only to take reasonable care for
another’s safety
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o For example, where a bar owner took reasonable steps to dissuade someone from driving while intoxicated;
they took all reasonable steps and therefore were not held liable
Crocker v Sundance Northwest Resorts Ltd 1988 SCC (drunken-tube-racer)

C and friend entered tubing competition, did not appreciate they were signing a waiver. On day of competition, got drunk
again. After C won first race, C drank more. SNR owner asked C if he was in any condition to compete again. At top of hill for
2nd heat, SNR manager suggested that C should not race. C flipped off tube, was rendered a quadriplegic. SNR held 75% liable;
C was contributorily negligent. Does a ski resort have a duty to prevent an intoxicated person from using its facilities? Is the
resort liable for failing to prevent C from participating in the race? Similar to Osterlind.
Childs v Desormeaux (party-guest-DUI-girl-paralyzed)

A SOCIAL HOST AT A PARTY WHERE ALCOHOL IS SERVED IS NOT UNDER A DUTY OF CARE TO MEMBERS AT THE PUBLIC
WHO MAY BE INJURED BY A GUEST'S ACTIONS, UNLESS THE HOST’S CONDUCT IMPLICATES HIM OR HER IN THE CREATION
OR EXACERBATION OF THE RISK.
Is the host at a party liable for the actions of an inebriated guest who left their party? Do the hosts owe a duty of care to
parties that might be injured by the inebriated person’s conduct? Social host category is materially different from commercial
hosts. Differences: 1) CH have direct control over alcohol consumption of patrons. 2) CH governed by strict legislative rules
(no such laws exist for private parties). 3) Contractual relationship between CH and patrons - financial incentive to ply with
liquor, but social host does not. Established duty of care of commercial hosts does NOT extend to social hosts. As this is a
novel case, it must go through two stage Anns test to determine if a duty is owed.
Anns Test:
1) Are the two parties proximate enough for a duty to be established? Must be foreseeable that D’s actions could cause harm
to P. // McLachlin J. determined there was no foreseeability in this case (even though hosts knew Desormeaux was too drunk
to drive, knowing was not enough to make them liable for consequences.)

SITUATIONS WHERE A DUTY OF CARE EXISTS: Considerations in imposing duty of care in nonfeasance:
D attracts/invites P into risky situation D implicated in creating/controlling risk
D has responsibility to supervise/control P Autonomy of individual [in favour of not imposing DoC]
D has public responsibilities Reasonable reliance
Public authority
CH  public responsibility
NONFEASANCE: When the conduct alleged against D is a failure to act, then foreseeability alone cannot establish a duty of
care. P argued: by organizing the party, hosts created a risky situation [and so failure to act does not protect them from
liability]. Court found hosts did not create a "risky situation" (therefore their failure to act was merely nonfeasance). She laid
out considerations in imposing duty of care in nonfeasance (see second column above).
Second step of the Anns test (public policy) not considered: no foreseeability established here, and therefore no duty was
owed.
Jane Doe v Metropolitan Toronto Police 1998 ON Gen Div, (failure-to-warn-led-to-rape)

POLICE DEPARTMENTS OWE A DUTY OF CARE TO THE PUBLIC AT LARGE TO PROTECT. THIS PUBLIC DUTY CAN GIVE RISE TO
A PRIVATE LAW DUTY TO ACT/WARN POTENTIAL VICTIMS OF A REASONABLY FORESEEABLE RISK OF CRIME OR HARM.
P sued police after being attacked by a serial rapist – he had raped four other women on the 2 nd and 3rd floor of apartment
buildings in the vicinity by entering through the window. Negligence claim based on failure to warn.
PO chose not to warn for fear of displacing rapist – leaving him free to re-offend elsewhere. Not accepted by TJ – believed real
reason was to prevent hysteria and panic and that PO’s believed rapes were “less violent” than those committed by previous
serial rapist. P would have taken steps to warn herself had she been warned. DUTY: Per Police Act the MTCP has a duty to
prevent robberies and other crimes, including duty to warn potential victims of a foreseeable risk of harm. FORESEEABILITY:
Knew there was a serial rapist, knew he was likely to strike again. Proximity: distinct group of potential victims
(neighbourhood, types of apartment, white, single females). BREACH: Legitimate reason may exist not to warn but only where
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risk of warning was greater than risk of not warning. Would not excuse a failure to protect – other means of notice were
available.
THE DUTY TO PERFORM GRATUITOUS UNDERTAKINGS

Per Thorne the common law did not require an individual to honour a gratuitous promise, but once the D begins to perform a
gratuitous undertaking, he or she may be held liable in negligence for positively injuring the P (worsening the P’s original
position). Such as where the D: Lulled the P into a false sense of security // Denied the P other opportunities for aid // Put the
P in a more precarious physical position. If a person undertakes to perform a voluntary act, he is liable if he performs it
improperly (misfeasance), but not if he neglects to perform it (nonfeasance).
Thorne rule remedied by:
 Classifying the D’s conduct as misfeasance (rather than nonfeasance)
 Using K law (creating obligations)
 Imposing liability for pure economic losses
Smith v Rae 1919 ON CA, (doctor-didn’t-attend-birth-baby-died)
NO TORTIOUS DUTY TO ACT (TO FULFILL GRATUITOUS UNDERTAKINGS).
Mr and Mrs Smith arranged with Dr Rae to deliver their baby mid-November. Labour began December 2 – Doctor not
available. Baby died during delivery. Is there a duty in tort to perform an obligation?
Wife can’t sue in contract (contract was with her husband) – her claim must be made in tort. DUTY: no action available for
nonfeasance. Doctor owed no duty to fulfill a gratuitous promise to act (attend the birth). STANDARD: DR not negligent in
failing to attend given his other responsibilities and the info he’d received.
Zelenko v Gimbel Bros Inc 1936 NYSC, (woman-died-in-department-store-after-being-isolated-in-infirmary)

ONCE A GRATUITOUS UNDERTAKING HAS BEGUN, THE D OWES A DUTY NOT TO MAKE THE SITUATION WORSE FOR THE P.
THEY ARE NOT REQUIRED TO “SOLVE” THE SITUATION OR RESCUE THEM BUT BECAUSE HE BEGAN HELP, BECAME A DUTY
OF MISFEASANCE RATHE THAN NONFEASANCE.
Deceased P died in D’s store. D attempted to assist by placing P in infirmary w/o medical care. Could have called ambulance or
left the P in the store where someone else would have helped her. Did the D have a duty to assist?
Nonfeasance – therefore the D was under no duty to assist the P. Once you begin a course of action, must follow through –
can be negligent where no duty existed. Do not owe a duty to save, but a duty not to make things worse.
Soulsby v Toronto 1907 ON HC, (gates-open-no-gatekeeper-assumed-clear-hit-by-train)

IF A PERSON UNDERTAKES TO PERFORM A VOLUNTARY ACT, HE IS LIABLE IF HE PERFORMS IT IMPROPERLY (MISFEASANCE),
BUT NOT IF HE NEGLECTS TO PERFORM IT (NONFEASANCE).
City put a gatekeeper at the train tracks during busy seasons in the park. Kept gates closed when trains approaching. P found
gates open but no gatekeeper – assumed it was safe to cross. Was hit and seriously injured. P argued that even if the City was
under no duty to establish the gate and employ a watchman, once they undertook this duty he was entitled to rely upon it. No
duty imposed by statute. Reasonable reliance: duty of care may exist where the City continuously and consistently operated
the gate throughout the year. If watchmen were missing, then it would be a case of misfeasance. Not enough action to justify
reliance  nonfeasance. Partially fault of victim, should have taken due care.
SPECIAL DUTIES OF CARE: MISCELLANEOUS CATEGORIES
THE DUTY OF CARE OWED TO RESCUERS

If the rescuer gets hurt is anyone liable for that?
Horsley v McLaren
NO DUTY AT COMMON LAW TO RESCUE OR AID ANYONE IN DISTRESS. FURTHERMORE, "A PERSON WHO IMPERILS
HIMSELF BY HIS CARELESSNESS MAY BE AS FULLY LIABLE TO A RESCUER AS A THIRD PERSON WOULD BE WHO IMPERILS
ANOTHER."
Did McLaren’s negligence in attempting to rescue Matthews induce Horsley to risk his life?
→ Any duty to Horsley must stem from the fact that the new situation of peril was created by McLaren's negligence
which induced Horsley to act
→ Maclaren failed to comply with established rescue procedure
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→ However, Maclaren's actions were not faulty enough to induce Horsley to risk his life
→ Errors in rescue were errors in judgment and not negligence
→ Appeal dismissed
DUTIES OWED TO THE UNBORN

Common law does not ascribe status of “person” until a child is born alive.
1. PRECONCEPTION WRONGS:
 D carelessly causes a parent to suffer injury that detrimentally affects a subsequently conceived child. Causation
is problematic.
2. WRONGFUL BIRTH AND WRONGFUL LIFE:
 Physician fails to inform a woman that she faces an unusually high risk in giving birth.
 Negligently performs tests to detect abnormalities.
 Arndt case, note 3 p386 (gave birth to severely disabled child after she contracted chicken pox during pregnancy.
Rare consequence. Physician found negligent for failing to inform the mother of risks and offer option of
abortion. No viable action could be brought for child’s claim of wrongful life. Father’s claim recover the costs of
child was dismissed. Court accepted mother could claim for additional expenses of rearing a disabled child  her
action failed on issue of causation. P could not prove that RP in her position would have abortion if informed of
very small risk of birth defects.)
3. WRONGFUL PREGNANCY:
 Sterilization not performed properly.
 Traditionally a healthy child is seen as a “blessing” and its birth cannot be treated as a legal harm.
 Changes – courts moving to greater recovery of costs of rearing unplanned child, but only where the parent’s
primary reason for not wanting to have the child was financial Kealey v Berezowski (1996 ONSC)
4. PRE-NATAL INJURIES:
 Injuries sustained in utero.
 Dobson v Dobson – baby born at 27 weeks. Child sued mom for negligently causing car accident. SCC held that
liability was impossible because the D did not owe a duty of care to her son prior to his birth.
 Policy considerations: prima facie duty of care
 Fails on policy of second branch of Anns/Kamloops because of intrusion into bodily integrity, privacy and
autonomy in the rights of women
PSYCHIATRIC HARM
No SCC ruling on this tort. Resolved Mustapha on the issue of remoteness rather than Duty of Care. Nervous
shock/psychological harm does not include day-to-day emotional upsets. Narrowly defined so that recognized psychiatric
illness required for liability.
Concerns: easy to feign, damage to psyche less worthy of protection than damage to one’s body.
ENGLISH POSITION:
Primary Victim: Liability for psychiatric injury is possible as long as it was reasonably foreseeable that the P might
suffer physical injury as a result of D’s negligence, even if the foreseeable injury never materializes. (Paige v Smith)
Secondary Victim: People not placed in physical danger  cannot recover for the careless infliction of nervous shock
unless psychiatric illness itself was reasonably foreseeable and Alcock’s 3 part test is satisfied.
CANADIAN POSITION:
Canadian Courts reject the distinction between primary and secondary victims
General: is it foreseeable that a person of reasonable fortitude might suffer this type of injury? If this standard is
met, thin skull rule applies.
Bystander: Is it foreseeable that a reasonably robust person might suffer this type of injury + proximity.
Alcock v Chief Constable of South Yorkshire Police (1991 HL)

A PERSON SUFFERING NERVOUS SHOCK MUST HAVE REASONABLE PROXIMITY TO THE EVENT THAT CAUSED THE SHOCK IN
ORDER TO CLAIM FOR DAMAGES.
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A stadium accident was caused by the police negligently allowing too many supporters to crowd in one part of the stadium.
Many alleged to have seen their friends and relatives die in the crush (in person and on live TV) and claimed to suffer
psychiatric harm or nervous shock after the incident.
Secondary Victims Test:

1. PROXIMITY OF RELATIONSHIP:
 must show a sufficiently proximate relationship to that person
 presumed to exist between children and parents, spouses, fiancées
 other relationships including siblings must prove ties of love and affection
2. PROXIMITY TO ACCIDENT/EVENT:
 Must perceive “shocking event” with his own unaided senses  eye witness, or hearing the event or viewing its
immediate aftermath
3. MEANS OF PERCEPTION:
 Would usually exclude witnessed on TV or informed of by a third party
POLICY ARGUMENT: Courts don’t recognize grief (mere loss of loved one is not something the law can compensate).
Floodgates.
Devji v Burnaby (1998 BCSC)

DISTINCTION BETWEEN LEARNING ABOUT ACCIDENT AND WITNESSING ACCIDENT (FORMER IS OUTSIDE REACH OF
LIABILITY).
Recovery denied because the plaintiffs (parents and siblings of deceased) saw her body in the hospital four hours after the
fatal traffic accident occurred.
Page v Smith (1995 HL)

IF YOU’RE THE PRIMARY VICTIM, AS LONG AS SOME KIND OF PHYSICAL INJURY IS FORESEEABLE IT DOES NOT MATTER IF
INJURY IS PHYSICAL OR PSYCHIATRIC.
The claimant had suffered from chronic fatigue over a period of time and was in recovery when he was involved in a minor car
accident due to the defendant's negligence. The claimant was not physically injured in the collision but the incident triggered
his CF and had become chronic and permanent so that he was unable to return to his job as a teacher. He was successful at his
trial and awarded £162,000 in damages.
Provided some kind of personal injury was foreseeable it did not matter whether the injury was physical or psychiatric. There
was thus no need to establish that psychiatric injury was foreseeable. Also the fact that an ordinary person would not have
suffered the injury incurred by the claimant was irrelevant as the defendant must take his victim as he finds him under the
thin skull rule.
Mustapha v Culligan of Canada (2006 ON CA)

Suffered from a major depressive disorder after seeing a dead fly and half of a dead fly in his bottled water. Mustapha was the
primary victim because he changed the water. Ruling didn’t go with Page v Smith.
Failed on remoteness: Is it foreseeable that somebody might be totally horrified? Yes. But Court established the test of “a
person of ordinary fortitude” rather than basing it on straight foreseeability.
A HEALTH PROFESSIONAL’S DUTY TO INFORM

If a health professional does something without consent = BATTERY, unless it’s an emergency (Marshall)
If consented, but was misinformed about the nature of operation or procedure= LACK OF INFORMED CONSENT = BATTERY
But if Doctor did not inform of the risks = NEGLIGENCE
Reibl v Hughes  as long as there is consent there is no battery

Negligence test:
DUTY: prima facie, so not an issue
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BREACH: Dr has to provide ALL relevant information regarding risks of procedure, non-treatment, alternate
treatment. What is relevant is based on circumstances, but statistical probability is not an excuse for non-disclosure if
it is relevant to the patient (Haughian v Paine).
CAUSATION: (Modified Objective Test) – Have to show failure to inform caused harm. Would a RP in the position of
the P elect to not have surgery?
Can’t use subjective test because the P will always testify that the failure to warn was the determining factor in their
decision to take a harmful cause of action.
Haughian v Paine (1987 Sask CA)

THERE MUST BE ADEQUATE DISCUSSION OF THE CONSEQUENCES OF LEAVING AN AILMENT UNTREATED (AND
ALTERNATIVES).
BECAUSE THE PLAINTIFF/APPELLANT WAS NOT INFORMED OF THE RISK, HE COULD NOT GIVE INFORMED CONSENT.
Patient had surgery that left him paralyzed. Second operation partially alleviated the paralysis. Plaintiff argued that defendant
surgeon failed to get informed consent from patient (husband): to inform the patient that there were risk-less alternatives.
Does informed consent require the disclosure of medical risk to the person consenting?
Even though risk is low, statistics are only one factor of many that constitute risk. Court ruled that RP would not have chosen
surgery. Appeal allowed, judgment for plaintiff.
A MANUFACTURER’S AND SUPPLIER’S DUTY TO WARN
Hollis v Dow Corning Corp (1995 SCC)

A MANUFACTURER IS HELD TO A HIGHER STANDARD OF CARE, AND CAN ONLY BE SAID TO HAVE DISCHARGED ITS DUTY TO
THE CONSUMER IF IT INFORMS A "LEARNED INTERMEDIARY" WHO IN TURN INFORMS THE CONSUMER, AND THE
KNOWLEDGE OF THE INTERMEDIARY APPROXIMATES THAT OF THE MANUFACTURER.
Plaintiff had breast implant surgery. Implants ruptured, and plaintiff needed corrective surgery to remove implants. Literature
warned of rupturing during surgery, but not during normal use (post-surgery). Plaintiff sued surgeon and manufacturer (Dow
Corning). If a manufacturer does not adequately warn users of its products of the risks, is it liable for injuries caused by the
materialization of those risks?
Trial:
→ Action against surgeon dismissed: risk of injury that materialized was not well-known.
→ Action against Dow successful: liability based on implant being negligently manufactured.
BC Court of Appeal:
→ Allowed appeal and ordered new trial on surgeon’s liability
→ Dow liable: not due to negligent manufacturing, but due to failing to warn of risks of rupture even though had knowledge.
1. Duty of care and standard of care:

→ There is a duty to warn: requirement to warn of dangers that could arise from the ordinary use of the product.
→ Manufacturers have more knowledge of defects and risks of using the product.
→ When there is a learned intermediary, duty of care to consumer can transfer from manufacturer to intermediary.
However manufacture still has duty of care to the intermediary.
→ Dow’s warning to surgeon was inadequate. Dow had knowledge of risk of post-surgery rupture (Dow had received
a number of unexplained rupture reports).
2. Did breach cause injury:

→ Would she have consented to operation if she knew risks?
⇒ Objective test? Subjective test? It is dependent on adequate information being given. Policy reasons:
manufacturers have to be held to high standard due to imbalance of knowledge. USED THE SUBJECTIVE
TEST => would she had undergone the surgery knowing the risk?
⇒ because not trying to protect doctor but a manufacturer who is trying to sell a product
→ Application of facts to case:
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⇒ Plaintiff testified that she would not have had the operation if property warned of risks
⇒ Dow warned doctor only of dangers of extreme use, even though had evidence of dangers of regular use
Policy 1: Manufacturer would benefit (profit) from under-emphasizing the risks

→ So they have a higher duty
→ Duty to warn can be discharged by passing info to intermediary
Policy 2: If intermediary doesn’t pass info on, that is about the duty of the intermediary
→ Because it is desirable for the plaintiff to be able to recover
→ If Dow had properly warned surgeon, would surgeon have properly warned plaintiff?
Holding: Appeal dismissed. Court of Appeal’s decision stands.
CLASS ACTIONS PROCEEDINGS
Procedural device, not new law. A D has committed similar wrongs in relation to many people (usually a negligence claim) or
breaches of regulatory statutes (banks who overcharge their customers for instance).
FINISH THIS SECTION FROM BRENDAN’S NOTES
SPECIAL DUTIES OF CARE: NEGLIGENT MISREPRESENTATION
NEGLIGENT MISREPRESENTATION CAUSING PURE ECONOMIC LOSS

In cases of negligent representation, the reasonable foreseeability component of the Ann’s test is replaced with “reasonable
reliance.”
Hercules Management Ltd v Ernst & Young (1997 SCC)

H hired E to prepare financial statements; the statements were required by statute. H claimed that E was careless in preparing
the statements and that, as a result, H suffered:
→ A. Economic loss as a result of relying on the statements in other investments
→ B. Economic loss based on their existing shareholdings
At trial, the court found in favour of E (no duty of care was owed). On appeal, the court affirmed trial decision.
Did Ernst & Young owe Hercules a duty of care? Is the duty of care test in cases of negligent representation and pure
economic loss the same as in cases of negligence causing physical damage?
Ann’s Test:
I. Prima Facie Duty of Care?
 Reasonable reliance: determining whether P’s claim stems from their detrimental reliance on the D’s negligent
statement.
o Reliance on the statement of representation of another will not, in all circumstances, be reasonable
 Proximity: There is proximity when there is reasonable reliance:
1. The D ought reasonably to foresee that the P will rely on their representation
2. Reliance by the P would in the circumstances be reasonable
Therefore, YES, Duty of Care.

II. Policy Considerations
 Fear of indeterminate liability
 Auditor reports may be reasonably relied upon by many parties, not just the appellants
HOLDING: decision in favour of D. Duty of care owed, but was negated for policy reasons.
Kripps v Touche Ross
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A wanted to issue debentures (form of bond)—had to go to TR to get a prospectus, auditor’s report required by statutory law
—C bought a million dollars worth—lost the money, some assets were overvalued. Kripps sued Touche Ross (company was
bankrupt).
Claim SUCCEEDED: investors were the class of person the debentures were to be prepared for, there was no other
expectation (duty, no indeterminate liability—big liability is ok, TR knew the purpose and who would rely).
P does not have to prove that they would not have bought, only that is was material to the decision.
Applicable to all categories of NMR (relevance to decision is enough).
NEGLIGENT MISREPRESENTATION AND CONTRACT
BG Checo International Ltd v BC Hydro & Power Authority (1993 SCC)

TORT LIABILITY AND CONTRACT LIABILITY ARE NOT MUTUALLY EXCLUSIVE. HAVE TO LOOK AT WHETHER THE K LIMITS THE
TORT LIABILITY. PRIVATE ORDERING CAN EXCLUDE TORT LIABILITY. P CAN SUE IN EITHER TORTS OR CONTRACT.
Checo bidded BC Hydro tender, and was told that the land would be cleared. Turned out to not be the case. Statement was
negligent: said right of way would be cleared when they ought to have known that it wouldn’t. Was a negligent misstatement.
LAW OF CONTRACTS  looking for breach of terms for breach of K [put the party in the position it would have been in had
the K been completed]
Was too late to rescind the K – the work had been done.
LAW OF TORTS  looking for negligent misstatements for tort remedy [put the P in the place they would have been in had
the representation never happened]. Tort law could be contracted out of.
Checo argued that they would have never entered into K at all, which would mean they would have gotten all the $ they lost
for ANY REASON, not just related to the right of way. BCH liable for everything that went wrong (at trial level they were
successful). SCC ruled that had the tort not been committed, the company would have still bid on the K, but they would have
increased their bid. 15% profit margin was added. Checo got damages in the amount of what the clearing cost them, plus their
15% mark-up.
Queen v Cognos Inc. (1993 SCC)

CONTRACTUAL PROVISIONS ABOUT TERMINATION HAVE NO BEARING ON THE PRE-CONTRACTUAL STATEMENTS ABOUT
THE NATURE OF THE EMPLOYMENT OPPORTUNITY. CONTRACT TERMS DID NOT EXCLUDE OR LIMIT TORT LIABILITY.
Respondent Cognos advertised an accounting position. Appellant already had a good job, but applied and got an interview.
Respondent said the job was associated with a big project, even though project had yet to secure funding. Appellant moved to
Ottawa. 18 months later, the Respondent terminated the Appellant’s employment. Appellant sued for negligent
misrepresentation. Should the Hedley Byrne test apply to representations made by an employer to a prospective employee
in the course of an interview?
At trial: Yes, there was a "special relationship" and there was negligent misrepresentation. On appeal: upheld trial
decision .
WHO WON? Decision in favour of Appellant: The Respondent’s manager had acted carelessly in making statements
during the Appellant’s job interview.
MAJORITY 1: The tort here was independent of the contract and the liability was not limited by an exclusion clause in the
contract
The Hedley Byrne test for negligent misrepresentation applies to representations made by an employer to a prospective
employee in the course of an interview.
MAJORITY 2 (Iacobucci): Applied the Hedley Byrne test, which has 5 general requirements:
[which are the elements of the torts of negligence: duty  breach  causation  damages].
1. There must be a duty of care based on a “special relationship” between the representor and the representee.
2. The representation in question must be untrue, inaccurate, or misleading.
3. The representor must have acted negligently in making said misrepresentation.
4. The representee must have relied in a reasonable manner, on said negligent misrepresentation.
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5. The reliance must have been detrimental to the representee in the sense that damages resulted.
Claimed that had the negligent misstatement not been made to me, I would have stayed where I was. Compensation is for
loss of that good salary for that period of time.
DISTINGUISHABLE FROM BG CHECO:

In BG Checo, there was a misrepresentation as a clause in the contract
Concurrency question:
⇒ In BG Checo, there was an impermissible concurrent liability in tort and contract (an exception to the general rule
of concurrency)
⇒ In the case at bar: there is no concurrency
→ Plaintiff argument here is NOT: that Cognos negligently misrepresented the amount of time he would be
working on the project or the conditions under which his employment could be terminated (i.e. that Cognos
breached a common law duty of care by negligently misrepresenting his security of employment with
Cognos)
→ Argument IS: Cognos negligently misrepresented the nature and existence of the employment
opportunity being offered (contractual provisions didn’t deal with that, so it’s not like an exclusion clause)
→ Therefore: “it is the existence, or reality, of the job being interviewed for, not the extent of the
appellant’s involvement therein, which is at the heart of this tort action.” In the agreement, there is no
express provision dealing with the respondent’s obligations with respect to the nature and existence of the
project.
FURTHER, IN THE CASE AT BAR

→ Cognos recognizes that it owed a duty of car to interviewees not to make negligent misreps
→ It was foreseeable that the appellant would rely on the information given during the interview in order to make career
decision -- it was reasonable reliance
→ The Cognos interviewer didn’t make any caveats
→ The agreement signed 2 weeks later did not amount to a valid disclaimer
Intrawest Corp v No 2002 Taurus Ventures Ltd (2006) BCCA

CONTRACT HAD CLAUSE THAT SAID “THIS IS THE ENTIRE AGREEMENT BETWEEN THE PARTIES, THERE ARE NO OTHER
TERMS … EXPRESS OR IMPLIED.” QUESTION FOR COURT OF APPEAL WAS WHETHER THAT CLAUSE BARRED ANY ATTEMPT
TO SAY THAT P WAS MISLED IN PRECONTRACTUAL DISCUSSIONS. COURT FOUND THAT THE P HAD CONTRACTED OUT
THROUGH THE EXCLUSIONARY CLAUSE. TORT CLAIM NOT ALLOWED.
SPECIAL DUTIES OF CARE: RECOVERY OF PURE ECONOMIC LOSS IN NEGLIGENCE
5 Categories of claims:
1. Negligent Misrepresentation
2. Independent Liability of Statutory Public Authorities
3. Negligent Performance of Service
4. Negligent Supply of Shoddy Goods or Structures
5. Relational Economic Loss
NEW CATEGORIES OF PURE ECONOMIC LOSS

Martel Building Ltd. v Canada (2000 SCC)
IN THE CONTEXT OF ECONOMIC LOSS, A DUTY OF CARE DOES NOT EXTEND TO CONTRACTUAL NEGOTIATIONS.
P leased building to D. D led P to believe it would be amenable to renewing the lease on certain terms. When P extended the
offer, D rejected and eventually did not renew its lease with P. P claims breach of duty to negotiate in such a way as to avoid
causing the P pure economic loss.
Anns Test:
 Stage One: There is a prima facie duty of care (Foreseeability and Proximity)
 Stage Two (Policy): Failed at second stage: Held against a duty of care to conduct negotiations with reasonable care
so as not to injure the financial position of the opposite party. Various policy considerations against recognizing such
36
a duty. (Parties who are in negotiations are looking after their own interests, not each others, and a tort duty would
be inconsistent with that basic standard).
 Other Possible Policy Considerations: Economic interests are less compelling than bodily security, indeterminate
liability, economic losses often arise in commercial context as inherent business risk.
Young v Bella (2006) SCC

P was negligently reported as a potential child abuser by the D university. D owed the P a duty of care – court applied the
analysis from Martel and Cooper. Clear proximity. P’s claim was for both personal injury and economic loss, the court did not
analyze the case as one about pure economic loss. Used Martel (for concept of new category of pure economic loss), not
Hedley Byrne (didn’t say something to her that she relied on), it was spreading false information to third parties that caused
the loss.
NEGLIGENT PERFORMANCE OF A SERVICE

Only cases where a service provider can be held negligent to a third party beneficiary are lawyers (e.g. a will made out
incorrectly deprives beneficiary of inheritance).
Anns/Cooper Test + Either Detrimental Reliance OR Voluntary Assumption of Responsibility
BDC Ltd v Hofstrand Farms Ltd (1986 SCC)

P MUST COME WITHIN A LIMITED CLASS IN THE REASONABLE CONTEMPLATION OF A PERSON IN THE POSITION OF THE
APPELLANT (First stage of Anns test).
A courier company (BDC LTD) was contracted by the B.C. government (NOT Hofstrand, otherwise he could sue in contract) to
deliver an envelope to the Registry Office in Prince George. The envelope had to be delivered on time otherwise the plaintiff
(Hofstrand Farms) would lose the right to sale of land to a third party. The envelope was delivered too late and the plaintiff
lost the right to sell the land to the third party and consequently sued the courier company for economic losses flowing from
the failure to secure the sale as a result of the late delivery. Was there a Duty of Care owed by the courier company to its
customer(s)? No tort duty to be on time.
SCC held that BDC was not held liable for pure economic loss of the plaintiff - no duty of care because there is no proximity.
Court applied Cooper/Anns test but added to foreseeability.

 Foreseeability of the Plaintiff? -> No knowledge of the plaintiff or its interests
 Proximity? -> There is insufficient proximity according to Justice Estey.
 Reliance -> Hofstrand didn’t decide the courier, so there is no reliance on the courier.
 Why? -> Too large of a class of plaintiffs thus creating the spectre of indeterminate liability.
James v British Columbia (2005 BCCA)

RELATIONSHIP OF PROXIMITY DOES NOT NECESSARILY REQUIRE RELIANCE OR ANY ACTION ON THE PART OF THE
PLAINTIFF, VOLUNTARY ASSUMPTION OF RESPONSIBILITY OF D IS ENOUGH. CURRENTLY: APPLY COOPER. POLICY STAGE:
RELIANCE OR ASSUMPTION? IF EITHER, SHOULD ALLOW RECOVERY.
The plaintiff’s employer held a logging license from BC, which contained a provision that prevented the employer from closing
its sawmill without approval from the Minister of Forests. Upon renewal of the license, the Minister inadvertently omitted the
protective clause. The logging company subsequently closes the sawmill. Plaintiff sued BC for negligent Performance of a
Service (omitting the clause). Where is the Detrimental Reliance on behalf of the Plaintiff on the BC government that would
establish a link for Pure Economic Loss?
 There was no Reliance established but reliance was not necessary when proximity is replaced by something else
(foreseeability on behalf of the service provider).
 Plaintiff was merely a passive beneficiary of the BC licensing. However, in negligent performance of service cases causing
economic loss, as distinguished from negligent misrepresentation, the detrimental reliance necessary for establishing
proximity may be replaced by something else such as a unilateral voluntary assumption of responsibility (by the BC
Government) for the benefit of the plaintiff. Plaintiff successful. Awarded damages.
 Note: Opens liability up greatly to third parties where no contractual relationship initially existed.
NEGLIGENT SUPPLY OF SHODDY GOODS OR STRUCTURES
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Historically, if P suffers pure economic losses as a result of the D’s carelessness but is unable to establish privity in contract,
losses were generally not recoverable.
Winnipeg Condominium Corp No 36 v Bird Construction Co (1995 SCC) (exterior-condo-walls-fell-off)

THE BUILDER OR A STRUCTURE, OR THE MAKER OF A CHATTEL, OWES A TORT DUTY OF CARE IN RESPECT OF PURE
FINANCIAL LOSS SUFFERED BY A SUBSEQUENT OWNER OF THE PROPERTY AS A RESULT OF HAVING TO DEAL WITH AN
UNKNOWN (WHEN THEY BOUGHT THE PROPERTY), DANGEROUS DEFECT.
P took ownership (a subsequent purchaser) of a condo that D built under contract with a 3rd party. Problems arose with the
exterior walls and P had to repair it. P is suing in negligence.
Where a contractor (or any other person) is negligent in planning or constructing a building, and where that building is found
to contain defects resulting from that negligence which pose a real and substantial danger to occupants of the building, the
reasonable cost of repairing the defects and putting the building back into a non-dangerous state are recoverable in tort by
the occupants.
Stage One: FORESEEABILITY AND PROXIMITY

 Is there a relationship of Proximity? Yes, because it is foreseeable that defects will cause injury and the lack of
contract privity does not change foreseeability.
Stage Two: Are there residual policy considerations to negate/limit tort liability? No
 No risk of indeterminate amount: limited to reasonable amount to fix building defects.
 No risk of indeterminate time: limited to life of building. Eventually age will be blame and it will be more difficult to
establish causation.
 Caveat emptor does not apply. Purchaser not in best position to bear risks of emergent defect.
STATUTORY LIMITATIONS
Limitation Act: 15 years from the breach of the date of duty
New Home Warranty: Assurance Fund to deal with problems that neither K nor tort can deal with
RELATIONAL ECONOMIC LOSS

Where D, as a result of negligently damaging property belonging to a third party, also causes a pure economic loss to P with
whom the third party had a relationship. Category where there is no Duty of Care unless there are circumstances that take it
outside the rule of non-liability.
Example: construction company cuts power line belonging to municipality. Construction company may be liable for losses
sustained by municipality. Should the company also be liable to a factory that had to shut down because it didn’t have power?
Indeterminate liability means that courts have to balance between allowing victims to recover compensation for their losses
and protecting D from crushing liability.
Bow Valley Husky (Bermuda) Ltd v Saint John Shipbuilding Ltd (1997 SCC) (offshore-drilling-fire)
INDETERMINATE LIABILITY IS SUFFICIENT REASON TO DENY DUTY OF CARE.
HOOL and BVI decided that they would form a separate company Bow Valley Husky Bermuda (BVHB) in order to go into the
business of off-shore oil production. The new company became the owner of the off-shore drilling rig. BVHB entered into a
construction contract with Saint John Ship Building (SJSB). BVHB wanted to use an anti-pipe freezing system manufactured by
Raychem. This system, however, became flammable under certain conditions. Both SJSB and Raychem failed to warn the BVHB
about this possibility. HOOL and BVI maintained a contract with BVHB for the hire of the rig and for day rates paid if the rig
was out of service. Can HOOL and BVI recover economic losses from SJSB or Raychem?
McLachlin J: there is the problem of indeterminate liability that must be overcome and if not that is sufficient reason to deny
a duty of care under the circumstances.
The plaintiffs tried to argue that there were factors that addressed the problem of indeterminacy in this case, but McLachlin
was not prepared to accept any of them. There simply was no rationale basis to allow recovery to the plaintiffs and to deny it
to others (e.g. other investors, employees and suppliers of the rig).
38
A fire broke out because of the improper use of the pipe system and substantial damages occurred.
RELATIONAL ECONOMIC LOSS IS NOT RECOVERABLE DUE TO POLICY CONSIDERATIONS, SUBJECT TO CERTAIN EXCEPTIONS:
1. Claimant has interest in damaged property (not really an exception because it is consequential to P’s property)
2. General average cases (maritime law where cargo owners all have to chip in when only a portion of the cargo is
damaged – so each cargo owner is considered as having a reasonable claim against the wrongdoer who caused the
damage).
3. Claimant and property owner in joint-venture (Norsk Pacific).
4. Other exceptions may be recognized using Anns Test (not closed categories but incremental approach required – use
Anns test but be restrictive in policy stage).
Policy reasons, besides indeterminacy, of why the courts are so cautious to allow recovery for relational pure economic
loss claims:
a) Economic interests have customarily been seen by the common law as less worthy of protection than either bodily
security or property,
b) May be more efficient to place the burden of economic loss on the victim, who may be better placed to anticipate
and insure its risks, and
c) Confining economic claims to contract discourages a multiplicity of lawsuits.
THE STANDARD OF CARE
Standard of care: refers to behaviour required of D to satisfy DoC. Determines how D ought to act.
 Generally, D must act according to standard of care expected of a reasonable/prudent person

 Objective test, only modified in exceptional circumstances (e.g. if the driver of a car is a professional car racer, then
“reasonable car racer”
 Both a question of law (what factors are considered, what standard should be) and question of fact (breach)
 Qualifications on general reasonable person test, to be considered in assessing D’s conduct
 Determine limits of reasonableness, define reasonable behaviour in circumstances of case
3 main FACTORS IN FINDING STANDARD OF CARE:
Basic rule: D must act according to SofC of a reasonable person

 Early statement of rule found in Blythe v Birmingham Waterworks (1856): An act/omission to do something a
reasonable man would do or doing something a reasonable/prudent man wouldn’t do.
 Would a reasonable person in position of D acted same way? In Canada, leading case is Arland v Taylor (1955) –
affirms Blythe
1. The PROBABILITY AND SEVERITY of the harm;

 Basic rule: Greater the risk associated with a particular activity -> higher the SoC.
 PROBABILITY: when determining whether D failed SoC to be expected, consider test from Bolton v Stone:
 Was risk of damage so small that a reasonable person in D’s position (considering matter from point of
view of safety) have thought it ok to not take steps to prevent danger?
 Not liable if you take all precautions that RP would take in the circumstances to prevent damage likely to arise.
Not reasonable to expect you to guard against “fantastic and far-fetched” risks (Bolton)
 SEVERITY: If probability of harm/injury resulting is severe, there is unreasonable risk (Paris v Stepney Borough
Council)
 You must consider not only the risk of the injury but the severity as well
2. The COST OF RISK AVOIDANCE;
3. The SOCIAL UTILITY or value of the conduct
 Basic rule: When determining SoC, consider cost of risk reduction and social value of conduct
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 Even if probability/severity of potential loss are high, D may be excused if activity is socially important
 If cost of precaution is low, more likely to find negligence (Vaughn v Halifax-Dartmouth Bridge)
 Patient’s health is higher priority than the cost to tax-payers [so even though test was expensive Dr still negligent in
failing to order the expensive test (Law Estate v Simice)]
THE COMMON LAW STANDARD OF CARE: THE REASONABLE PERSON TEST
Arland v Taylor (1955 ON CA) (car-accident-establishes-RP-test)

THE STANDARD OF CARE USED TO JUDGE CONDUCT IS BASED ON WHAT THE CONDUCT OF REASONABLE PERSON WOULD
BE.
Plaintiff injured in motor vehicle accident. The jury was asked (charged) to put themselves in the place of the driver in deciding
whether standard of care was breached. At trial: Jury held that defendant did not breach standard of care. Plaintiff appealed,
based on judge’s charge to the jury. Can the judge charge the jury to use a subjective test? Is the standard of care by which a
jury is to judge the conduct of parties in a case of the kind under consideration the care that would have been taken in the
circumstances by a reasonable person?
FACTORS CONSIDERED IN DETERMINING BREACH OF THE STANDARD OF CARE
Bolton v Stone (1951 HL) (cricket-ball-hit-woman)

DEFENDANT IS NOT NEGLIGENT IF THE DAMAGE TO THE PLAINTIFF WAS NOT A REASONABLY FORESEEABLE CONSEQUENCE
OF HIS CONDUCT. The plaintiff was hit by a cricket ball that had been hit out of the ground; the defendants were members of
the club committee. The ball flew out of the ground, hitting the claimant, Miss Stone, who was standing outside her house in
Cheetham Hill Road, approximately 100 yards (91 m) from the batsman.
Life requires judging risks. No one can avoid creating some risks and accepting others. If risk associated with activity is
high/unavoidable, may be reason to prohibit it altogether. A small risk of small damage is not negligent (reasonable person in
D’s position would be OK with not taking steps to prevent danger). Don’t look at cost of fence.
Court drew distinction between foreseeable risks that are substantive and material and foreseeable risks that are highly
unlikely or mere possibilities.
Vaughn v Halifax-Dartmouth Bridge Comm (1961 NSSC) (painting-bridge)

IF COST OF PRECAUTION IS LOW, MORE LIKELY TO FIND NEGLIGENCE. A PERSON IS LIABLE IN NEGLIGENCE WHEN THEY DO
NOT TAKE REASONABLE STEPS TO ADDRESS/AVOID THE RISKS OF THEIR ACTIONS. Bridge operated and maintained by
defendant was painted. Flecks of paint blew off by wind onto nearby cars. Owner of one of those cars sued in negligence.
Defendant argued that it took all necessary measures to prevent or minimize injury to the plaintiff. What would a reasonable
person have done to avoid the risk of paint falling onto cars? Bridge owners did nothing but there were additional steps at
minimal cost that they could have done. P gave evidence of extra steps.
Many different actions that a reasonable defendant could have taken (not difficult, not expensive):
→ Warning car owner
→ Posting signs
→ Moving cars
→ Wiping paint off cars promptly
Law Estate v Simicie (1994 BCSC) (doctors-didn’t-order-CT)

A PHYSICIAN’S RESPONSIBILITY TO THE PATIENT OUTWEIGHS THEIR RESPONSIBILITY TO THE MEDICAL SYSTEM OVERALL
(THE SEVERITY OF THE STANDARD OF HARM OUTWEIGHS THE COST.)
Plaintiff sued defendant (doctors) in negligence: Claimed her husband died because of failure to provide timely, appropriate
and skilful emergency care; Doctors had not taken a CT scan; Issue of the allocation of limited and costly medical resources.
Does the physician’s responsibility to the patient outweigh his or her responsibility to the medical system overall? Patient’s
health is higher priority than the cost to tax-payers so even though test was expensive, Doctor still negligent in failing to order
the expensive test.
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Watt v Hertfordshire County Council (1954 CA) (firefighter-injured-by-jack)

WHETHER A PERSON IS NEGLIGENT INVOLVES TAKING INTO ACCOUNT THEIR PARTICULAR SITUATION AND BALANCING
THEIR NEED TO DO THEIR (PUBLIC) DUTY WHILE AT SAME TIME AVOIDING UNDUE RISKS TO OTHERS, WHETHER TO
EMPLOYEES (WATT) OR BYSTANDARDS (PRIESTMAN) Watt, a fireman, was sent out on a truck to help a woman who was
trapped under a heavy vehicle. The regular truck which carried a heavy jack was not available and there was nothing on the
truck to lash it to. The truck stopped suddenly at a red light and Watt was injured. Watt was unsuccessful at trial, which he
appealed.
Can be permissible for D to run high risk b/c social utility of conduct outweighed cost of D’s conduct. Lord Denning states that
another factor must be considered: one must balance the risk against the end to be achieved. He states that the saving of "life
or limb", which the firemen were doing, justifies taking a considerable risk and here the risk outweighs the risk that was taken
by the fire department. “In measuring due care you must balance the risk against measures needed to eliminate the risk. You
must balance the risk against the end to be achieved.”
AN ECONOMIC ANALYSIS OF THE STANDARD OF CARE

Negligent if [Burden < Injury x Probability]
There is a moral aspect to it, but also for reasons of social order and humanity.
Useful for property damage (stripping D from ill-gotten gains), but not safety/personal injury.
United States v Carroll Towing Co (1947 2d Cir) (barge-floated-away-sank)

PROPOSED A TEST TO DETERMINE THE STANDARD OF CARE FOR THE TORT OF NEGLIGENCE.
Appellant owned a barge that was moored to end of a pier. Appellant chartered a tug company, Carroll Towing Co. (Appellee)
to drill out one of the barges. Appellee went aboard the barge and readjusted its mooring lines. The barge broke free of the
mooring lines due to this readjustment. The Barge hit a tanker, and the tanker’s propeller broke a hole in the barge. The barge
careened, dumped her cargo, and sank. No one was aboard at the time. Appellee argued that if someone was aboard the
barge to observe it leaking after it broke free, the cargo and the barge could have been saved. Should appellants be held
partly liable for damage to the barge and for the lost cargo by not having an attendant aboard the barge when it broke
free from the pier?
Proposed formula: [Burden < Injury x Probability].
The Hand formulation provides that an actor is in breach if the burden of taking measures to avoid the harm would be less
than the multiple of the probability of the kind of incident in question times the gravity of the harm should it occur, or B<PxL.
STANDARD OF CARE EXPECTED OF DISABLED PERSONS

Must have capacity to commit tort
Physically disabled person is required to meet SOC of reasonable person with same disability (Carroll v Carolla).
Mental disability: if D is suddenly and without warning struck with mental illness, they are absolved of liability if they show
on BOP:
1. Because of illness, D had no capacity to understand DOC owed at that time; OR
2. D was unable to discharge DOC as they had no meaningful control over their actions at the time the relevant conduct
fell below the SOC (Fiala v Cechmanek).
Fiala v Cechmanek (2001 Alta CA) (bi-polar-episode-attacked-driver)

A PERSON WITH A SERIOUS MENTAL ILLNESS IS NOT BEHOLDEN TO THE REASONABLE PERSON TEST.
MacDonald, one of the defendants, was running, and had a manic episode (bipolar disorder). Jumped on roof of defendant’s
(Cechmanek’s) car, broke through sunroof and started choking Cechmanek who inadvertently pressed on gas pedal, ran car
into plaintiff. Plaintiff was injured. Did the defendant, who had a serious mental illness, breach the standard of care owed to
the plaintiff?
Persons with mental illness may not have to comply with the reasonable person standard:
→ Because it is unfair to hold people liable for accidents they are incapable of avoiding
→ Does not apply to drug or alcohol users, only for serious mental illness
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Other view that it is about compensation, therefore the mentally ill should not be held to lower standard
→ 1. Persons who caused the accident should be liable
→ 2. Hard to determine extent of mental illness
→ 3. Holding them to same standard would encourage caregivers to take adequate precautions
→ 4. Erosion of objective standard
Onus is on the defendant to show damage caused wasn’t voluntary and that they did not possess the capacity to commit the
tort
TEST – Must show, on the balance of probabilities:
⇒ 1. Because of mental illness, defendant had no capacity to understand duty of care owed
⇒ 2. Because of mental illness, defendant was unable to discharge duty of care, as they had no meaningful control
over their actions at the time the relevant conduct fell below the objective standard of care
→ Preserves the idea that defendant must act voluntarily and have capacity to be liable.
STANDARD OF CARE EXPECTED OF CHILDREN

SOC adjusted to be appropriate to an individual child considering age, intelligence and understanding (still objective).
BUT, if child is involved in adult-like activity (i.e. driving), held to a higher SOC (reasonable adult).
No vicarious liability for parents, except if they “carelessly failed to monitor or control the child’s conduct.”
Joyal v Barsby (1965 Man CA) (child-hit-by-car-behind-truck)

CHILDREN ARE NOT HELD LIABLE IF THEY ARE INCAPABLE OF UNDERSTANDING OR OBSERVING THE STANDARD OF CARE.
Large truck approached child with horns sounding. Child, 6 years old, moved towards truck without looking for traffic in other
direction. After thinking the children had stopped, kept on driving. Child ran into defendant’s vehicle (that was following truck)
and suffered grievous injuries. Was the child contributorily negligent?
Cite this case for like age/intelligence/experience.
STANDARD OF CARE EXPECTED OF PROFESSIONALS

Higher SOC than reasonable but unskilled person, i.e. the SOC is appropriate to the particular profession. “Mere errors” are
not negligence.
 Relies on expert evidence to establish SOC (unlike e.g. driving cases, where judges are presumed to know what the SOC
is).
 Surgery: SOC are unique to each individual specialty: accepted practice of surgeons (White v Turner)
 P must prove not only a bad result but also that it was caused by negligent conduct. Poor result does not necessarily
mean there has been negligence.
Volunteers in health care NOT held to professional SOC (expected to know limits and ask professional where necessary). If
they suggest they have professional skills, they will be held to that standard.
White v Turner (1981 ON HC, affd 1982 ON CA) (breast-reduction-performed-negligently)

PROFESSIONALS HAVE A DUTY TO PERFORM ACCORDING TO THE SOC OF HIS PROFESSION.
Defendant (D) performed breast reduction surgery on the plaintiff (P). P suffered post-operation complications and breasts
were scarred and misshapen. P sued D claiming negligence in performing the operation and in not adequately disclosing
medical risk. Was the doctor negligent in performing the operation?
The standard of care is higher than that of reasonable, but unskilled person. The SOC appropriate to that profession must be
observed. Determining what this standard is often established only by expert evidence.
Mere error in judgment by a professional person is not negligence -> Poor result does not necessarily mean there has been
negligence. P must prove not only a bad result but also that it was caused by negligent conduct.
Reasonable person test:

 Did the surgeon perform operation in a substandard way?
 Plastic surgery has its own standards unique to the specialty
D did not remove enough tissue, for two reasons:
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1. Operation was done too quickly (should have taken min 3.5 hours, took only 1.5. Experts said too fast to take adequate
care).
2. Suturing started before proper check was made of whether enough tissue removed. Standard practice is to make only a
few sutures and then verify the bulk of the breasts; No evidence that defendant did the standard check (no notes,
inconsistencies in written report).
CUSTOM OF PROFESSION
SOC expected is that of a prudent and diligent doctor in same circumstances. Specialists assessed in light of conduct of other
ordinary specialists, who possess reasonable level of knowledge, competence and skill expected of professionals in Canada.
Must exercise degree of skill of an average specialist in his field.
Ter Neuzen v Korn (1995 SCC)

IN SCIENTIFIC CASES, LIVING UP TO THE CUSTOM IS SUFFICIENT TO ELIMINATE LIABILITY IN NEGLIGENCE.
EXPERT ADVICE IS NEEDED TO EVALUATE THE "CUSTOM" STANDARD OF CARE IN SPECIALIZED CASES SUCH AS THOSE
INVOLVING MEDICAL CARE.
Ter Neuzen became infected by HIV as a result of her participation in Korn's artificial insemination program from 1981 to
1985. Not warned of risk of HIV infection. Prior to January 1985, there was no test available for detection of HIV in semen or
blood in Canada, and medical literature did not mention AI as a mode of transmission of HIV before September 1985. Korn
was not aware that HIV could be transmitted by AI until July 1985. Is living up to the customs of a profession enough to
eliminate liability in negligence?
Expert evidence established that Korn's AI practice, as well as recruitment and screening of donors was in keeping with
general practices in Canada at the time. Used fresh semen (later found out that frozen would have been fine but no one
knew that at the time of infection). Screening process: didn’t screen adequately for sexually transmitted diseases in a generic
sense. The evidence was that his screening was in keeping with what the average specialist did at the time. Korn was found
negligent at trial, but this was overturned on appeal.
When dealing with a regular DOC issue, the judge/jury will intuit the SOC and then applies it to the D and D’s action/non-
action.
When dealing with a medical expert, they need expert evidence as to what the competent professional would have done. The
jury/judge needs to be bound to that evidence, unless the mistake is “obviously fraught with risk.” [sponge in the patient
case: even though no one counted sponges at the end of the operation, the judge said that it needed to be done because it
was a practice that was “fraught with risk”.]
CAUSATION
Was the loss suffered by the P caused by D’s failure to meet required standard of care?
Two issues:
(1) What test of causation governs the situation? [standard but-for or special test]; and
(2) can P prove on balance of probabilities that D’s breach of the standard of care was a cause of his or her loss?
Causation links D’s breach of the SOC to the P’s loss and provides a justification for the imposition of liability.
*** Causation is a matter of YES or NO (yes causation / no causation): Cannot apportion causal responsibility.
Either the D is causally responsible or he is not. But you can apportion liability for damages. ***
Question in Causation: What is the loss that the tort caused the P to suffer?
 Whether a particular injury was caused by the tort is but-for; compare the (real) post-tort situation with the
(hypothetical) non-tort situation, and if the injury would not have occurred but-for the tort, causation is proved.
 Two problems:
 Difficulties of fact: the exact connection of one event to another may not be known
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 Difficulties of making educated guesses about what might have happened if the tort hadn’t been committed, or
guesses of what will happen in future
o Typically problems of estimating what P would have done, how much P would have earned, etc.
 The factual causation issues usually revolve around alternative causes or cumulative causes:
 Alternative causation issue: if you take the tort away, not sure if it would have made any difference
o In the one-D scenario, the alternative causation issue is deciding whether P’s injury was caused by D’s tort or
by some other cause
o In the multiple-tortfeasor scenario, problems of alternative tortfeasors are rare (Cook v Lewis being a
notable exception)
 Cumulative causation issue: extracting the tort from the other factors that led to the injury
THE BUT-FOR TEST

The general test of causation in negligence is but-for test (subject to modifications and exceptions).
Kauffman v Toronto Transit Comm (1959 ON CA, affd 1960 SCC) (train-station- escalator-accident)
IF P’S INJURY WOULD HAVE OCCURRED REGARDLESS OF D’S NEGLIGENT ACT, THEN THAT ACT WILL NOT GENERALLY BE
HELD TO BE A CAUSE.
P stepped onto escalator in D’s subway station and was immediately knocked down by a man (who was knocked down by two
scuffling youths). Very severe injuries were sustained as a result of her fall and the continuing movement upward of the
escalator.
Did the type of handrail in use cause P’s accident?
The evidence did not support but-for causation. No evidence that the type of handrail in use was a contributing cause of P’s
accident. No one was holding the handrail anyway.
Barnett v Chelsea & Kensington Hospital Mgmt Committee (1969 QBD) (arsenic-poisoned-tea)
EVEN IF A SOC IS BREACHED, IT DOES NOT AUTOMATICALLY MEAN THAT THE OUTCOME WOULD HAVE BEEN DIFFERENT.
Three men (Ps) went to D hospital complaining about vomiting for several hours after drinking tea and were told by the nurse
(who was instructed by the medical casualty officer) to go home to bed and call their own doctors. One of the men died of
arsenic poisoning 5 hours later. Was the doctor’s negligence a cause of the man’s death?
P failed to establish, on the balance of probabilities, that Ds’ negligence caused the death of the deceased. It was a timing
question; even if the doctor had not been negligent and had come to the hospital, the treatment would have come too late.
Hansen v Sulyma 2013 BCCA

BUT FOR TEST STILL WORKS WHEN THERE IS MULTIPLE TORTS.
Three negligent parties: the pub (negligent in letting D drink and drive); drunken driver; P’s friend who had parked car without
putting on warning lights (increased chance of an accident happening). BCCA said that all were liable, but apportioned
different degrees. Commercial host = 20%; Drunken driver = 70%; Friend = 10%. Bulk of blame on drunken driver. If you took
any of the D’s out of the picture, the accident probably would not have happened.
ESTABLISHED EXCEPTIONS TO THE BUT-FOR TEST

Three established exceptions to the but-for test:
1. The multiple negligent defendants rule:
 If P can prove that two Ds were negligent, and one had to have caused his loss, and it is impossible to prove which
one, then the burden of proving causation will shift to Ds. Each D will be held liable for negligently causing the loss
unless he can disprove causation on the balance of probabilities. (e.g. Cook v Lewis, hunting-accident)
2. The learned intermediary rule:
 Manufacturers of products that are not directly available to the public, such as prescription drugs, may discharge
their duty to inform consumers by adequately disclosing information to a learned intermediary.
 Hollis v Dow Corning Corp – Dow could not use the learned intermediary rule to shield itself from claims arising from
its own negligence.
3. The objective/subjective test in informed consent cases:
 Hopp v Lepp/Reibl v Hughes – Healthcare professionals have a duty to put patients in a position to make informed
decisions about whether to consent to proposed treatment. The court adopted a special objective/subjective test of
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causation, framed in terms of whether a reasonable person in P’s position would have consented if he/she had
been adequately informed. Exception to the but-for in the sense that you are replacing the actual victim with the
hypothetical RP victim.
RECENT ATTEMPTS TO MODIFY THE BUT-FOR TEST

Single Defendant Causing One Injury:
When you do not know what “in fact” caused the injury  an inference may be drawn if no conclusive scientific proof exists.
It must be able to say that the particular inference is the most likely. If D gives evidence to the contrary, inference can only be
made if weight of combined evidence supports inference of causation (Snell v Farrell).
When you know what brought the accident (but don’t know what would have happened if the tort hadn’t been committed
 Have to say that it is more than probable that the negligence would have caused the injury. It is still the “but for” test.
McGhee v National Coal Board (1972 HL) (coal-dust-on-skin)

HL HELD THAT WHERE A BREACH OF DUTY HAS A MATERIAL EFFECT ON THE LIKELIHOOD OF INJURY THEN THE
SUBSEQUENT INJURY WILL BE SAID TO HAVE BEEN CAUSED BY THE BREACH.
James McGhee was employed to clean out brick kilns and developed dermatitis from the accumulation of coal dust on his skin.
Because there were no shower facilities at his workplace, he would cycle home each day, increasing the risk he would contract
dermatitis. Had his employer provided shower facilities, the coal dust could have been washed off before cycling, reducing the
risk of contracting dermatitis. Due to the limits of scientific knowledge, it was impossible to rule out the possibility that he
hadn't contracted dermatitis during the non-wrongful exposure to brick dust while working in the kiln. He sued his employer
for negligence for breaching its duty to provide proper washing facilities. Did the failure to provide the washing facilities had
caused the rash.
The House of Lords held that the risk of harm had been materially increased by the prolonged exposure to the dust. Lord
Reid stated: "The medical evidence is to the effect that the fact that the man had to cycle home caked with grime and sweat
added materially to the risk."
The material increase in risk was treated as equivalent to a material contribution to damage. The implication of the case
was significant as it meant that a claimant need not demonstrate that the defendant's actions were the "but for" cause of the
injury, but instead that the defendant's actions materially increased the risk of injury, and thus damage, to the claimant.
1) P has to prove D created risk of harm and injury occurred within area of that risk.
2) inference of causation warranted because no practical difference between materially contributing to risk of harm
and materially contributing to harm itself.
Snell v Farrell (1990 SCC) (cataract-patient-goes-blind)

COURTS CAN MAKE FINDINGS OF FACT IN CERTAIN CIRCUMSTANCES → NOT ESSENTIAL TO HAVE A POSITIVE MEDICAL
OPINION TO SUPPORT A FINDING OF CAUSATION. NOT SPECULATION BUT IS COMMON SENSE TO DRAW AN INFERENCE
(WHERE CIRCUMSTANCES PERMIT)
D (Dr. Farrell) performed a cataract operation on P (Mrs. Snell). D noticed a slight discoloration after injecting a local
anesthetic, waited 30 minutes, and proceeded with the operation. Following the surgery, there was blood in the eye (which
eventually cleared but P was blind in one eye). The damage to the optic nerve could have occurred naturally or because of
continuing the operation, and neither expert witness was willing to state with certainty the cause. Must a P in a malpractice
suit prove causation?
Damage to optic nerve could have been caused by continuing operation or could have been natural occurrence. Expert
testimony was that Dr was negligent for continuing with operation after noticing discolouration. TJ concluded Mrs Snell had
established a pf case regarding causation and burden shifted to Dr to disprove causation. Looked at McGhee HL case.
 Question of evidence. Sopinka J disagrees with reversing onus.
 Ultimate burden still lies with P, but in case a like this P must show: [Doctor was negligent] + [here are the types of injury
that could have resulted from that type of negligence] + [my injury is one of those things.] Onus is satisfied by inference.
 Draws a distinction between proving a fact scientifically and proving it legally. Didn’t need a 100% certain – rather needed
only BoP (51%+) to establish fact. Appeal dismissed with costs.
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Resurfice Corp & Hanke (2007) SCC (Zamboni-explosion)

CAN ONLY USE MATERIAL CONTRIBUTION TO THE RISK WHEN THE BUT-FOR IS IMPOSSIBLE.
Hanke put hot water in gas tank, causing explosion, Hanke very badly burned. Not clear how the water hose to fill the tank got
into the wrong tank. Either it was Hanke or someone else. No evidence it had anything to do with the design of the machine.
ABCA reversed the TJ finding and said should have considered that the design of the machine materially contributed. SCC
reversed it back – TJ was quite clear that the design was unrelated to the accident (on the evidence) – you can only use
material contribution to the risk when but-for is impossible to use (which wasn’t this case).
Clements v Clements (2012 SCC) (couple-riding-motorbike-traumatic-brain-injury)

SCC CLARIFIED THAT THE MATERIAL CONTRIBUTION TEST IS A VERY LIMITED AND RARE EXCEPTION TO THE GENERAL “BUT
FOR” TEST.
A nail punctured the tire while Mr. Clements was driving 120-km/h in a 100-km/h zone. This caused Mrs. Clements to fall off
while riding as passenger on the motorcycle. She sustained severe traumatic brain injury, and sued Mr. Clements, claiming
that he was negligent in driving an overloaded bike too fast. Does the usual “but for” test for causation in a negligence
action apply, or does a material contribution approach suffice?
Mr Clements won: matter should be returned to the trial judge to be dealt with on the basis of “but for” causation (shouldn’t
have used material contribution to the risk test).
The MATERIAL CONTRIBUTION TEST (contribution to the risk) is only available in cases of multiple tortfeasors where each
tortfeasor was shown to have been at fault but P could not prove that the injury resulted from the negligence of D1 rather
than D2, D3, etc. Cannot be used when there is only a single tortfeasor (e.g. one tortfeasor and multiple tortious causes).
 As a general rule, 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 D. A trial judge is to take a robust and pragmatic approach to determining if P
has established that D’s negligence caused her loss. Scientific proof of causation is not required.
 If it’s plausible that the accident was caused “but for,” the judge should find it [and not sweat it too much]
 Exceptionally, a P may succeed by showing that D’s conduct materially contributed to the risk of P’s injury, where:
a) P has established that her loss would not have occurred “but for” the negligence of two or more tortfeasors,
each possibly in fact responsible for the loss; and
b) P, through no fault of her own, is unable to show that any one of the possible tortfeasors in fact was the
necessary or “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 of causation on a balance of probabilities against anyone.
 “Material contribution does not signify a test of causation at all; rather it is a policy-driven rule of law designed to
permit plaintiffs to recover in such cases despite their failure to prove causation.”
o Pro-compensation policy
o Corrective justice – wrongdoer has disturbed the balance and the law must restore that equilibrium – “but
for” is satisfied if look at the wrongdoers as a pool
Reasoning – The trial judge erred in insisting on scientific reconstruction evidence as a necessary condition of finding “but for”
causation. Erred in applying a material contribution to risk test (this is a simple single-D case) should have used the but-for
test.
Note – Questions that Clements leaves open are:

1. Whether, in the case of multiple Ds who are liable for each materially contributing to the risk that P would be injured as
he/she was, the liability of each D is joint and several with the others, or several (proportional). Barker favoured the
former view but the SCC did not indicate agreement with that proposition.
Whether, in a one-D scenario, material contribution to risk is unavailable. Sienkiewicz was not accepted by the SCC but not
rejected outright either.
MULTIPLE CAUSES
First: determine if the injuries are divisible. Can the injuries be divided into distinct losses that are each readily attributable
to the conduct of a particular tortfeasor?
Two categories of multiple cause cases:

1. Those involving independent insufficient causes [use the but-for test]
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2. Those involving independent sufficient causes
 If there are other (insufficient) non-tortious causes, D will bear entire burden (Thin Skull Principle)
 If the tort caused the injury but it would have happened in any event, D is liable for a percentage. If P has a 30% chance
of being injured in any event, D is only liable for 70% of the injury (Crumbling Skull Principle)
 If the tort caused the injury, but other (sufficient) non-tortious factor also actually caused same injury, then damages are
reduced (Penner)
 If the claim is about the loss of chance/gain, P recovers only upon proof that there was a better-than-even chance of
avoiding the loss (then P gets compensated for the whole loss)
MULTIPLE DEFENDANTS:
Separate Ds, separate Torts = divisible injury to P

 Each is liable for the injury that they themselves caused
 D1 is liable for the entire damage that D1 causes, D2 is liable for damage his tort caused
Separate Ds, injury to P overlaps = cumulative

 D1 is liable for whole damage he himself did, D2 liable for the additional damage he did
Separate Ds, one indivisible injury to P

 These are several current tortfeasors and are jointly and severally liable for the loss from the injury
 They are entitled to contribution and indemnity as against each other (s.4 Negligence Act)
 However, if P is contributorily negligent, they are only severally liable (each for the portion of the loss equal to
the portion of that D’s fault)
 “but for” test applies to each D  would P’s loss occur “but for” THAT D’s tort?
Separate Ds, one injury to P (injury could have been caused by either, but not both)
 liability can be based on each D’s having materially contributed to the risk of injury, because holding each D
liable is better than P going uncompensated (only applies where the circumstances make it impossible to prove
which D’s tort in fact caused the injury)
 Both D’s held liable (Cook v Lewis)
Joint Ds, one injury to P
 Two or more Ds commit one tort acting together
 Liability is joint and several and the court can apportion fault
 If P gets judgment against one of several joint Ds, P is precluded from starting an action against any other joint
Ds because the tort is a single cause of action
 “but for” the joint Ds –> would not have sustained injury
Athey v Leonati (1996 SCC)

IF THE DEFENDANT’S NEGLIGENCE MATERIALLY CONTRIBUTES TO THE PLAINTIFF’S SINGLE INDIVISIBLE INJURY, THE
DEFENDANT IS LIABLE AND THE PLAINTIFF CAN RECOVER 100% OF THE DAMAGES
Plaintiff had pre-existing back condition. Suffered neck and back injuries in car crash that defendant negligently caused. Doctor
advised to begin exercising at the gym. Plaintiff exercised and sustained a herniated disc, resulting in permanent disability. If
the defendant’s negligence materially contributes to the plaintiff’s injury, is the defendant 100% liable for damages?
Plaintiff required to prove on a balance of probabilities that “the injury would not have occurred but for the negligence of the
defendant.”
Not necessary for the plaintiff to establish that the defendant’s negligence was the sole cause of the injury. As long as
defendant is part of the cause of injury, the defendant is liable (even if his act alone was not enough to create the injury). No
basis for reduction of liability because of pre-existing conditions.
→ Thin Skull doctrine: Makes the tortfeasor liable for the plaintiff’s injuries even if the injuries are unexpectedly severe
owing to a pre-existing condition. The tortfeasor must take his or her victim as the tortfeasor finds the victim, and is therefore
liable even though the plaintiff’s losses are more dramatic than they would be for the average person
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→ Crumbling Skull doctrine: Recognizes that the pre-existing condition was inherent in the plaintiff’s original position. The
plaintiff need not put plaintiff in a position better than his original position; should not have to compensate for debilitating
effects of pre-existing condition that the plaintiff would have experienced anyway; the defendant is liable for additional
damage but not pre-existing damage.
In case at bar: No finding of measurable risk that the herniated disc would have occurred without the accident. What
happened at the gym was not a cause, it was an effect (it was the injury).
Applicable principles: If injuries in vehicle accident cause or contributed to the herniation, then defendant is fully liable.
Plaintiff must prove causation through but for or material contribution test. Trial judge indicated that it was necessary to have
both the pre-existing condition AND the injuries from accident to cause hernation. There may have been other causes, but
material contribution was sufficient.
Nowlan v Brunswick Construction Ltee (1972 NBCA, afd 1975 SCC)

WHEN THERE ARE CONCURRENT TORTS, BOTH CONTRIBUTING TO THE SAME DAMAGE (WHETHER OR NOT THE DAMAGE
WOULD HAVE OCCURRED IN THE ABSENCE OF EITHER CASE), EITHER PARTY CAUSING OR CONTRIBUTING TO THE DAMAGE
IS LIABLE FOR THE WHOLE DAMAGE TO THE PLAINTIFF. IT’S BUT-FOR CAUSATION.
D contractor had been negligent in building P’s house .The D argued that no damage would have occurred but for the
architect’s poor design. At trial, the decision was in favour of the D. CA reversed this and held the D liable. If there are
concurrent torts, is one of the parties liable for the entirety of the damage to the plaintiff?
While the architect’s poor design contributed to the damage, poor workmanship by the D also contributed. The D is a
concurrent wrongdoer and the bad design by the architect does not excuse the liability arising from poor workmanship.
Causing indivisible damage, if you subtract either tort the damage would not have occurred.
ISSUES IN ASSESSING THE PLAINTIFF’S LOSS
When things happen after the tort.

If someone is seriously injured, and then dies the following week in an unrelated manner, the D is no longer responsible for
damages arising from the tort. Basic logic of the compensation – trying to put the P in the position she would have been in
had the tort had not been committed. If the tort hadn’t of been committed, she still would be dead.
Do not include them in the damages for the tort.
Often the trial happens three or so years after the tort, when all factors are known.
Penner v Mitchell (1978 AB CA)

AN ASSESSMENT OF DAMAGES MUST CONSIDER CONTINGENCIES WHICH ARISE FROM NON-CULPABLE CIRCUMSTANCES,
AND REDUCE THE DAMAGES AWARDED ACCORDINGLY.
Trial judge awarded the respondent special damages for loss of income for a period of 13 months following the date of the
accident. During that 13 months, the respondent would have been unable to work for 3 months because she was disabled due
to a heart condition, even if accident had not occurred (she suffered from a heart condition which was unrelated to the
accident). In the case of successive causes of parallel injury, can the tortfeasor rely on a subsequent cause to reduce
damages owed?
The court distinguished Baker v Willoughby:

→ Facts in Baker: the plaintiff was hit by vehicle operated by defendant; Suffered injury to his leg; Shortly before trial, plaintiff
was shot in same leg during another incident; Because of this later injury, the plaintiff had his leg amputated
→ Issue in Baker: In the case of successive causes of parallel injury, can the first tortfeasor rely on the second tort to reduce
damages owed?
→ In Baker, the court had ruled that: The original tortfeasors could only take into account a successive culpable parallel injury
if it reduced the plaintiff’s disability
Does Baker apply?

→ In this case, it is a heart problem rather than being shot
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→ “Accident” also arises in non-culpable circumstances: Contingencies taken in to account in assessing prospective loss of
income should only include those that occur in non-culpable circumstances
→ The rule in Baker only applies to those contingencies which arise from culpable circumstances
Policy reasons: Not taking into account future contingencies arising in non-culpable circumstances would result in plaintiff
being overcompensated. Trail judge erred; plaintiff should not receive damages for those 3 months
→ This would constitute an award for a sum she would not have earned even if the motor accident had not occurred
Post-tort second tort (Baker v Willoughby leading case): It would be wrong for the tortfeasor to be exonerated by a second
tort (even though the 2nd tort would have happened anyway). Tort A and Tort B – how much did each of those torts cause?
You know what the total is at the end so calculation is: at the time you only had Tort A, damage was X; Tort B added Y amount
of added injury. 1st injury is broken leg, 2nd is amputated.
Possible that the amputation is indivisible damage. So D1 would be responsible for the broken leg, but D1 and D2 would both
be responsible for the amputation.
1st injury is broken leg, 2nd is broken arm.
Joint and several.
Structured settlement (Automobile Insurance Act): allows a Court to make an order of periodic payments. Not used very
often. From victims point of view it is not attractive to spend a lifetime yoked to an insurance company. D often is happier to
get it off the books in a lump sum.
Dillon v Twin State Gas & Electric Co (1932 NH) (teen-falls-grabs-wire)

A JURY MUST DETERMINE IF DAMAGES ARE AVAILABLE WHEN A DECEDENT IS KILLED BY THE NEGLIGENCE OF DEFENDANT,
EVEN WHEN DECEDENT WOULD HAVE DIED OR BEEN SERIOUSLY INJURED REGARDLESS OF THE NEGLIGENCE
P (Dillon), sued as the administrator of decedent’s estate. D maintained electrical wires over a public bridge. The decedent and
friends often played on the bridge during the day. On one such occasion, the decedent lost his balance while sitting on a
horizontal girder and instinctively grabbed a hanging wire. The wire was not insulated against contact and electrocuted the
decedent. The Defendant claims exception for a denial of its motion for a directed verdict based on damages.
Should a motion for directed verdict based on failure to claim damages be upheld when the injury caused by defendant in
all likelihood only shortened decedent’s life by a matter of moments?
If claim is about being deprived of a chance to not lose, P recovers only upon proof that there was a 50 + 1% chance of
avoiding the loss (the P gets compensated for the whole loss).
LEGISLATION says that the family can only recover under the Family Compensation Act for loss to them (in other jurisdiction
is Fatal Accidents Act). The estate of the victim can claim for lost earnings, but under s.59 Estate Administration Act (an
estate can sue for all loss and damage for the deceased) but in s.59(3) you can’t get damages in respect of physical
disfigurement or pain and suffering of the deceased. Pointless to compensate them when they are dead anyway.
REMOTENESS OF DAMAGE
NOT A CAUSATION QUESTION. The tort did result from the injury (that is causation). Somehow the damage is really unusual
given the nature of the tort. To what extent can the D say that they aren’t liable because of the remoteness of the damage.
Rule of “fairness”, policy considerations, LEGAL instead of factual link.
D is only liable for reasonably foreseeable consequences of his negligence (Wagon Mound 1). Have to decide whether the
damage suffered is different in kind from the foreseeable kind.
However, it is NOT necessary for the precise manner of the accident to be foreseeable. Instead foreseeability relates to the
type/kind of the harm suffered by P (Hughes).
Any foreseeable physical injury makes D liable for ALL physical injury, including psychiatric consequences that P suffers
(Marconto – change in personality).
If there is no physical injury at all, psychiatric injury is considered too remote if it is such that a person of reasonable fortitude
wouldn’t have suffered it (Mustapha, flies-in-water-bottle).
D is liable for all “possible consequences” if a reasonable person wouldhave taken it into account (Wagon Mound 2).
 This means a serious risk will not be too remote even if there is statistically very small change of happening.
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 Remoteness usually only succeeds where damage linked to a factual thing which the tortfeasor has no awareness of
(e.g. poisoning a well, which leads to a heart attack).
Foreseeeability of harm:
Duty kind - was ANY harm of any kind foreseeable?
Breach of the duty - was it foreseeable that being negligent in this particular way would cause this kind of harm? (focus on
the exact way that they were negligent)
Remoteness - was it foreseeable that this type of negligence would cause this type of harm (to a reasonably robust person)?
England: Paige v Smith - if you can foresee physical injury to him, he is a primary victim (the target of the physical risk) and
once you're a primary victim, there is no distinguishment between psychiatric injury and physical injury.
Canada: rejected concept of primary/secondary. Even for primary victims you have to be able to meet extra test of
foreseeability of psychiatric harm.
TEST: Is it “within the scope of risk”?

 Could be framed as “is the loss within the scope”? or “is the intervening act within the scope?
 Courts are reluctant to hold original D liable for negligence where intervening act is deliberate.
 BUT see Hewson v Red Deer -> supports the argument for the general rule of foreseeability. If the actions of the 3rd
party is foreseeable, even if it is intentional, D is still liable. In a failing-to-prevent case, foreseeability of the 3rd
party’s act decides the three elements of the breach, causation and remoteness of damage all at once.
DIRECTNESS VERSUS FORESEEABILITY

The Wagon Mound (No. 1) (1961 PC (NSW))
IMPOSED A REMOTENESS RULE FOR CAUSATION IN DAMAGE. LIABILITY FOR DAMAGES IS BASED UPON THE REASONABLE
FORESEEABILITY OF THE OUTCOME. REASONABLE FORESEEABILITY, RATHER THAN DIRECTNESS, IS THE PRIMARY TEST FOR
LIABILITY IN NEGLIGENCE. Appellant Wagon Mound (WM) carelessly permitted oil to spill into Sydney Harbour while taking on
fuel. Oil was carried by wind and tide under respondent Morts Dock and Engineering’s (MDE) wharf. MDE’s employees were
using welding equipment. Some molten metal fell and ignited a rag that was floating on some debris. Burning debris ignited
oil and set wharf ablaze. Wharf and equipment were severely damaged. Should a causation analysis adopt the test for
directness or the test of reasonable foreseeability?
At trial:
→ Defendant did not know and could not reasonable be expected to know that it was being capable of being set afire when
spread on water
→ However, oil onto dock did interfere with use of the dock (slipway)
PC held that a party can only be held liable for damage that was reasonably foreseeable. Contributory negligence on the part
of the dock owners was also relevant in the decision, and was essential to the outcome, although not central to this case's
legal significance.
MODIFICATIONS TO THE FORESEEABILITY TEST

Hughes v Lord Advocate (1963 HL)
AS LONG AS THE GENERAL TYPE OF INJURY CAN BE FORESEEN, THERE WILL BE PROXIMATE CAUSE.
Some Royal Mail employees had removed a manhole to work under the road. They had marked it clearly as dangerous. They
took a tea break, and when this happened Hughes, a young boy, went into the manhole to explore. After getting back out, a
lamp was either dropped or knocked into the hole and an explosion resulted, causing Hughes to fall back in where he was
badly burned. The lower court dismissed the case stating that the actual event that led to the injuries was the explosion, and
that it was not foreseeable as it resulted from numerous unlikely events, and Hughes appealed. Does the foreseeability of the
actual event that caused the injury matter, or just the foreseeability of injury?
Holding: what is truly of importance is whether the lighting of a fire outside of the manhole was a reasonably foreseeable
result of leaving the manhole unwatched, and they determine that it was as the lamps were left there. He focuses on the
lamp, and states that the types of injuries that are reasonably foreseeable from lamps are burns, which is exactly what we
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have here. Therefore, the injury is not different in kind from what should have been expected. As long as you can foresee in a
general way the type of injury that occurs then you have proximate cause.
Smith v Leech Brain & Co (1962 QBD)

IF THERE IS A FORESEEABLE RISK OF INJURY, YOU ARE LIABLE FOR THE WHOLE INJURY.
Smith's husband worked in a factory owned by Leech Brain galvanizing steel. He had previously worked in the gas industry,
making him prone to cancer. One day at work he came out from behind his protective shield when working and was struck in
the lip by molten metal. The burn was treated, but he eventually developed cancer and died three years later. The protection
provided to employees during their work was very shoddy. Which test applies – Polemis or Wagon Mound? Does the man’s
special sensitivity matter?
Parker does not think that the decision in Wagon Mound is relevant to this case. He states that the "thin skull" rule
differentiates the two cases, and that this is a case of "taking your plaintiffs as they come" rather than insufficient proximity.
Therefore, as it is found that the burn was a negligent action on the part of Leech Brain as they did not provide ample safety,
and it at least partially led to the development of the cancer, the defendants are liable.
The ruling in Wagon Mound does not apply to cases where the outcome was unforeseeable to a particular plaintiff because of
a condition that he or she had; rather it is used in situations when the foreseeable connection between the action and the
outcome is unreasonable.
For actions in tort, you take a plaintiff as he or she comes - the fact that they have a condition that led to more damages than
normal is not a factor in determining damages (the "thin skull" rule).
Marconato v Franklin (1974 BCSC)

A FINDING OF CAUSATION WILL FOLLOW WHEN NEGLIGENCE AGGRAVATES A PRE-EXISTING CONDITION, RESULTING IN AN
INJURY.
Plaintiff suffered relatively minor physical injuries in a car accident caused by defendant’s negligence. Following the accident,
she developed psychiatric and physical problems. Psychiatric evidence indicated that she had paranoid tendencies before the
accident; but that she had been a good homemaker. The accident triggered a major personality change. Is there a finding of
causation when negligence results in an injury partly because of a pre-existing condition?
Injury arose because of pre-existing personality traits: the consequences could not be foreseen. However, the defendant
could foresee the probability of injury, and the wrongdoer takes the victim as he finds him, with all the victim’s peculiar
susceptibilities and vulnerabilities. The plaintiff’s injuries were unusual, but arose involuntarily.
The plaintiff 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 consequences of the
injury.
The Wagon Mound (No.2) (1967 PC (NSW))

Same incident as Wagon Mound 1, except these were the owners of a ship being repaired at the dock that was damage in fire.
 Reaches opposite conclusion
 In this version, the Ps did not have to avoid the idea of foreseeability – in the first case they had to avoid it
 Referred to Bolton (cricket-accident), which was a case on duty of care. Judge said risk of fire was not unheard of (was
remote and small, but there’s no good reason not to avoid it because the risk of damage was known).
Assiniboine South School Divn. No 3 v Greater Winnipeg Gas Co (1971 Man CA, affd 1973 SCC)
THE TEST OF FORESEEABILITY OF DAMAGE IS A QUESTION OF WHAT IS POSSIBLE RATHER THAN WHAT IS PROBABLE.
Hoffer’s snowmobile ran out of control, striking a gas-riser pipe installed by Greater Winnipeg Gas (GWG). A pipe fractured
and gas leaked into the boiler room of the Assiniboine school. The gas in the school ignited, and an explosion and fire occurred
caused damage to the school. Was the damage reasonably foreseeable and therefore recoverable?
At trial: Court allowed damages to the school against the owners of the autotobaggan (the Hoffers) and GWG (damages
allocation was 50% for each defendant).
Are they responsible for fire at school? Unusual that it hits a gas pipe, but it is all part of the broad category of what was
foreseeable. Test is whether one can foresee in a general way the thing that happened.
Mustapha v Culligan (2008 SCC) (flies-in-water-bottle)

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P MUST SHOW THAT IT WAS FORESEEABLE THAT A PERSON OF ORDINARY FORTITUDE WOULD SUFFER SERIOUS INJURY.
UNUSUAL OR EXTREME REACTIONS TO EVENTS CAUSED BY NEGLIGENCE ARE IMAGINABLE BUT NOT REASONABLY
FORESEEABLE.
Water bottle had dead flies in it and Mustapha suffered a major depressive disorder as a result.
Law of tort imposes obligation to compensate for any harm (including psychiatric) done on the basis of reasonable foresight,
not as insurance
Law of negligence seeks to impose a result that is both fair to the P and D - draws the line at compensability of damage at
reasonable foreseeability.
TJ erred in applying a subjective standard (considered P's previous history, particular circumstances, cultural factors).
INTERVENING CAUSES
Not strictly speaking a remoteness issue, but there is a foreseeability component to it.
When P's loss is caused by Ds breach and a subsequent intervening act
Intervening act = act that causes or contributes to P's loss after original D's breach has taken effect
Ex: blocked sidewalk forces pedestrians to walk on road and one is struck by negligent driver
Both contractor and driver causally contributed to the situation that resulted in P's injuries - should the contractor be held
liable for the injuries that were caused by the driver?
Traditionally intervening cause was said to have severed the causal link between original breach and the intervening cause
Last wrongdoer was held responsible
That doctrine were replaced - intervening acts were then divided into three categories:
1. Intervening acts that were naturally occurring or non-culpable held not to break chain of causation
2. Negligent intervening acts were held to break chain of causation, absolving original tortfeasor of liability
3. Deliberately wrongful or illegal acts broke chain of causation unless original tortfeasor had a duty to prevent the act
Now: general principle --> "within the scope of the risk" test
Two approaches:
1. analyze the issue to see whether the loss caused by the intervening act was within the scope of the risk created by
the original tortfeasor
2. was the intervening act within the scope of the risk created by the original tortfeasor?
Two related issues:

CAUSATION: is it fair to say that D's negligence caused the other person to act?
REMOTENESS: was it reasonably foreseeable to D that the negligence could lead to the ultimate injury suffered by P?
Bradford v Kanellos (1973 SCC)

IF INTERVENING ACT IS BROADLY WITHIN SCOPE OF FORESEEABLE RISK CREATED BY D'S NEGLIGENCE, THEN HE WILL
REMAIN LIABLE FOR RESULTANT DAMAGE. IF INTERVENING ACTS IS NOT FORESEEABLE, THEN D IS NOT LIABLE.
Appellants were customers in a restaurant where there was a grease fire. Fire was extinguished, but on hearing hissing noise
from the supression system, customer yelled that there was going to be an explosion and wife was knocked off her stool and
injured.
Remoteness question whether or not she is knocked off her stool is something they can be held liable for
Against her was there a foreseeable risk of injury?
Martland J: Majority of SCC finds that restaurant was not liable—majority looks at whether the injury itself was foreseeable
(and it was an unforeseeable reaction by a silly customer)
Test: the person guilty of the original negligence ought to reasonably have anticipated such intervening negligence and to
have foreseen that if it occurred the result would be that his negligence would lead to loss or damage.
Spence J: Dissent: if you have a fire, of course its foreseeable that it will trigger extinguisher, and if the extinguisher is triggers
obviously foreseeable that someone might yell gas (panic was caused by the gas). Finds a causal connection all the way along
it was foreseeable that a grease fire could have that result
Causation issue: can you say that the D’s negligence caused the third parties act that caused the harm?
Remoteness question: was this a foreseeable type of harm?
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Fires injure people foreseeable that they cause havoc end result is the foreseeable type of damage that she would suffer
from a grease fire.
Price v Milawski (1977 ON CA)

A PERSON ACTING IN NEGLIGENCE MAY BE HELD LIABLE FOR FUTURE DAMAGES ARISING IN PART FROM SUBSEQUENT
ACTS OF NEGLIGENCE AND IN PART FROM HIS OWN NEGLIGENCE, WHERE EACH SUBSEQUENT NEGLIGENCE AND
CONSEQUENT DAMAGE WAS REASONABLY FORESEEABLE AS A POSSIBLE RESULT OF HIS OWN NEGLIGENCE.
P broke his ankle playing soccer. Went to hospital and told the doctor that he heard his ankle crack and thought it was broken;
Doctor did some X-rays although the foot, not the ankle. He told the P that there was no fracture and his ankle was sprained. P
visited second dr. complaining about swollen ankle. did not order new tests, even though this could be easily done. Family
doctor applied a cast for a strained ankle. Weeks later, tests from a specialist revealed that it was broken, and that the weeks
delayed permanently injured the P. TJ found both Doctors liable for negligence; they appealed on negligence and damages .
Can a person acting negligently be held liable for future damages arising, in part from subsequent acts of negligence, and
in part from his own negligence?
 Argument by Dr. Murray: not foreseeable that such consequences would flow from his initial acts of negligence.
 Held that a person who commits a negligent act may be held liable for future damages arising in part from the
subsequent negligence and consequent damages were reasonably foreseeable as a possible result of his own
negligence.
 No bright line—evaluation of the extent to which your act of negligence made it possible for a subsequent person to do
something and really caused them to do it
 Both doctors negligent
Courts reluctant to hold original defendant liable for negligence where intervening act is deliberate.
Hewson v Red Deer (1976 AB SC)

CANNOT USE THIRD PARTY INTERVENTION (NOVUS ACTUS INTERVENIENS) AS A DEFENCE IF THE DEFENDANT FAILS TO
GUARD AGAINST THE VERY THINGS THAT ARE LIKELY TO OCCUR.
P owned a house near an urban construction site in Red Deer. Tractor used for pushing gravel was operated by an employee of
the city. He left the key in the ignition, the door open. The Tractor ended up crashing up into the home after a mysterious
individual let it loose. Crashes into Hewson home.
The court decided that the incident was caused by some unknown person
→ One cannot use third party intervention as a defence if the defendant failed to guard against the very things that were
likely to occur. The defendant could have secured the tractor further; the tractor was parked in a location accessible to
people living in the area. Therefore:
→ It was reasonably foreseeable that anyone of the people in the area might become aware that the tractor was
being left at the stockpile unattended and might be tempted to put it in motion
→ And thus novus actus interveniens is not applicable
Supports the argument that the general rule of foreseeability still applies. If the actions of the third party is foreseeable,
even if it is intentional, D is still liable. In a failing-to-prevent case, foreseeability of the third party's act decides the three
elements of the breach, causation and remoteness of damage all at once.
CA later reversed - said TJ said there was no evidence of any risk (disagreed on fact, not law so this case still stands).
Can be liable for damage by third party IF the third party's actions were something that you could foresee and that a RP
would have attempted to prevent.
DEFENCES IN NEGLIGENCE
Even if P proves that he was negligently injured by D, damages may be reduced or denied on the basis of a defence.
PARTICIPATION IN A CRIMINAL OR IMMORAL ACT

Ex turpi causa defence precludes damages altogether
Basic rule: No cause of action is available in tort where the P is participating in an illegal act
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However: Because it is a complete defence, courts tend to interpret very narrowly
Hall v Hebert (1993 SCC)

EX TURPI CAN BE A DEFENCE TO NEGLIGENCE, BUT ONLY AVAILABLE WHERE: 1) THE P STANDS TO PROFIT FROM HIS
ILLEGAL ACTIVITY OR 2) COMPENSATION WOULD AMOUNT TO LESSENING THE PUNISHMENT FOR THAT ACTIVITY.
NARROWS APPLICATION OF EX TURPI CAUSA.
Drunk at a party; stalled car while driving home. D agreed to let P attempt a rolling start, slipped car, injured. P sued D for
allowing him to drive while drunk. Can the D raise the defence of ex turpi causa to negate the P's cause of action
 Defence can only operate when the integrity of the legal system is threatened by the claim (i.e. where P is attempting to
profit from his illegal conduct, or when a tort claim is used to circumvent, subvert, or negate a criminal penalty.)
 Doctrine of ex turpi causa can only be used as a defence and cannot be used to negate a duty of care, because it would
inappropriately place an onus on the plaintiff to show absence of illegal or immoral conduct
 The duty of care cannot be selectively applied to heads of damage; and the consideration of illegal or immoral conduct in
duty of care would raise procedural problems where there are concurrent claims.
 Construed as contributory negligence, not ex turpi causa
P was not seeking to profit from his illegal conduct (drinking and driving), nor was he circumventing the criminal law.
However, he was contributorily negligent - therefore the damages were reduced to 50 percent.
PROOF OF NEGLIGENCE
RES IPSA LOQUITAR

“The thing speaks for itself”  infers negligence from the very nature of an accident or injury, in the absence of direct
evidence on how any defendant behaved. Inference of negligence when the accident or event that caused the damage was
something that in the ordinary human experienced does not happen without negligence (and the situation and circumstances
from which the accident arose were under the sole management and control of the D). Circumstantial evidence “speaks” to
D’s negligence and a prima facie case was made out. SCC ruled in Fontaine that it was no longer appropriate to resort to the
maxim of res ipsa loquitur in the case of circumstantial evidence.
Fontaine v BC (Official Administrator) (1997 SCC)

Edwin Fontaine and Larry Loewen went missing over a weekend hunting trip – three months later their truck was discovered in
a river bed at the bottom of an embankment. Loewen’s body was buckled in the driver’s seat, Fontaine’s in the passenger seat.
No direct evidence of what had happened. Fontaine’s widow brought an action under the Family Compensation Act; sought to
base her claim on the doctrine of res ipsa loquitur.
 Court rejected the use of res ipsa loquitur
 Instead proposed the rule:
o P has to prove the harm was under exclusive control of the defendant; and
o That they were not contributorily negligent; then
o A tactical burden is placed on the defendant in which the judge has the discretion to infer negligence unless the
defendant can produce evidence to the contrary.
TJ said the widow had not shown in the ordinary course of events that the accident would not have occurred without
negligence of the driver. Appealed to the SCC that an inference of negligence should be drawn whenever a vehicle leaves the
roadway in a single-vehicle accident. SCC said that this position would virtually subject the D to strict liability. SCC dismissed
appeal and the widow’s claim was denied.
THE TORT LIABILITY OF PUBLIC AUTHORITIES
Municipalities have been held under a duty of care in respect of their inspection of buildings under construction, and their
enforcement of the bylaws once defects are found. The duty is owed to any occupier of the building who is forced to spend
money to remedy the construction defect. The leading case is Kamloops v Nielsen which was negligent failure to enforce. The
BC Legislature responded by giving municipalities immunity for failing to enforce building bylaws Local Government Act. The
Vancouver Charter goes further and absolves the city of any duty of care. Defected building defects can also be noted in the
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land title registry under s.57 of the Community Charter in the supplement after s.695 of the Local Government Act, which
makes it applicable to regional districts as well as municipalities.
THE NEGLIGENCE LIABILITY OF PUBLIC AUTHORITIES

Just v British Columbia (1989 SCC)
Father/Daughter going to Whistler on sea to sky highway. Rock slide – boulder crashes into car and kills daughter. It was
alleged by father that the BC government was negligent in its administration of the highway, and that they failed to maintain
the highway to a sufficient standard of safety; climatic conditions – freezing and thawing, wind, build up of snow and tree
damage were considered all factors in the rock slide. It was contended that inadequate attention was given to these factors by
the BC government and that a reasonable inspection could have saved the daughter’s life.
 Essential to determine whether or not it was a policy or operational decision of the government
 DoC should apply to a public authority in the same way it would for an individual unless there is a valid basis for its
exclusion;
 Ask: are the parties of sufficient proximity to warrant such a duty?
 A true policy decision may be grounds for exemption, as may be explicit statutory exemption
 What constitutes a policy decision? Rests on the nature of the decision not the identity of the actors (budget, prima facie
policy)
 If no exemption by statute or policy then a traditional torts analysis ensures
 Manner and quality of an inspection system are part of the operational aspect of a government activity.
 Once policy v operational hurdle is surmounted, have to ask, is there a DoC? Because it is a physical loss case; in the
operation of a highway there is clearly foreseeable harm on the part of the users.
 Argument of Province: The duty issue was not the problem—even if there is a foreseeable risk of BH—we were operating
wi the bounds of policy (we have a system of inspection and it is funded to a particular level; can’t call us negligent
because we had a system)
 Argument of Plaintiff: isn’t policy, an operational decision. The shortcoming wasn’t in the actual decisions on spending
money, but on how you designed the inspection system. P would have to show that inspection system was defective
 Court holds that the way in which it is carried out is an operational decision; the decision to inspect is a policy, but you
say you are going to inspect that opens the door to the court to go in and look @ inspection system (system of inspection
must be reasonable—have to be able to defend and say all we have is x amount, and given that this is how much $ there
is, this is what we did) Was the money spent in a reasonable way to protect the public?
 Seems a narrow scope for what is policy; wider breadth for operation but perhaps pulled back in later cases
 If you were a gov’t liability wanting to minimize liability for negligence: making a decision to inspect in this way because
there is no more money. Courts are reticent to interfere with gov’t budget allocation—but if its someone lower down the
chain scrimping then maybe its cool
Sopinka dissent:
 The operation of the inspection program was a policy decision as well. The people charged by the government to inspect
the rock ridge have limited resources to carry out the broader policy decisions.
 Thus in their operations they have to make bona fide decisions as to where they can focus their time and money. These
decisions are within the government’s statutory discretion, and therefore not subject to action.
 For an action to be possible, it must be shown that within the operational decisions of the government’s inspectors,
they performed their duties carelessly
STATUTORY PROVISIONS AND TORT LIABILITY

R v Saskatchwan Wheat Pool (1983 SCC)
Sask Wheat Pool delivered infested wheat to Canadian Wheat Board [infestation not detectable by naked eye; took days to
finish testing; grain had left before infestation confirmed]; seeking damages based on the Canada Grain Act; had to fumigate
the wheat a financial loss.
Sask Wheat Pool: Yes, we did deliver infested wheat but we weren’t negligent [terminal operator—got the grain from
farmers, infestation wasn’t our fault—only going after us because of section in Canada Grain Act]
Where A has breached a statutory duty causing injury to B, does B have a civil cause of action against A? If so, is As liability
absolute, in the sense that it exists independently of fault, or is A free from liability if the failure to perform the duty is
through no fault of his? Claim of Canada is on the basis that there is a breach of statute.
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So what consequence for breach in tort law (beyond statutory consequence)

Disagreed with English view; went with minority American view
Automatic civil liability is NOT included in the statute; thus it shouldn’t be the case
Breach is relevant, but only as evidence of negligence but not a strict finding of negligence
1. Civil consequences of breach of statute should be included in the law of negligence

2. Proof of a tort of statutory breach giving a right to recovery merely on proof of breach and damages should be
rejected, as should the view that an unexcused breach constitutes negligence per se giving rise to absolute liability
3. Proof of statutory breach causative of damages may be evidence of negligence
4. Statutory formulation of the duty may afford a specific and useful standard of reasonable conduct
5. In the case at bar, negligence is neither pleaded nor proven, The action must fail
Breaches of some statutory rules are bound to be negligent—but negligence is a fault-based system—Wheat Board was trying
to get negligence wo fault. No evidence here—couldn’t have anticipated the infestation
NOTE: Ryan v City of Victoria: Ryan riding his bike, wheel fell into the divot to accommodate the railway wheel on the track.
By regulation under the Railway Act, had to be a certain size, guys thrown off his bicycle, injured in public nuisance.
Was wi a permitted range using the Statute as a defence—we were within the rules and that proves we weren’t negligence.
Being outside the rules is some evidence of negligence [Wheat Pool]; but being inside the rules isn’t exculpatory of negligence
—the rule wasn’t designed to prove whether or not you were negligent
Occupier’s Liability Act:

 Look at in supplement
 Single standard of care for occupier’s
 Meant to address that CL for occupier’s liability got overcomplicated and was pre-Donoghue Stevenson with different
duties of care for different categories.
 Old CL had you classify between entrants: invitee and licensees etc (too complicated) and then define the variations of
care to the various
 Standard negligence duty of care (s. 3 – An occupier of premises owes a duty to take that care that in all the
circumstances of the case is reasonable to see that a person or person’s property will be reasonably safe in using the
premises.)
 Statute that is invoked when your client fell down stairs at someone else’s house; was injured in a store; etc.
 Sets up a very limited DoC when a person
 An occupier has no duty of care with respect to risks willingly assumed by that person, other than a minimal duty to not
have intent to do harm or be reckless (not many cases of this)
 Certain cases where people have deemed to have accepted risks (you are entitled to only a limited level of care):
o entering the premises with criminal intent
o trespassers
o recreational entrants on farms, recreational trails where not being charged to come onto property (deemed to
have accepted risks if you are a recreational entrant on those types of property)
NUISANCE
 Distinct cause of action that is not negligence

 Protects your use of property  almost always have an action if there is physical damage to your property
 Primary remedy for nuisance is an injunction
Private: what you do that affects people while they are on their own property
Public: what you do that affects people while they are on public property
If the harm or annoyance is suffered by one or a particular group of people, it is a private nuisance.
Public nuisances are those suffered by citizens generally or by a "substantial" number of members of the public. Hence, a
public nuisance is really just a multiplication of private nuisances.
Farm Practices Act deals with right to farm (neighbours can’t sue for nuisance when the practices are general farming)
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PRIVATE NUISANCE
430909 Ontario Ltd v Huron Steel Products (Windsor) Ltd (1990 ONT HC)
WHAT CONSTITUTES UNREASONABLE INTERFERENCE INCLUDES: SEVERITY, CHARACTER OF LOCALE, UTILITY OF D’S
CONDUCT, SENSITIVITY OF THE USE INTERFERED WITH.
D had a stamping plant that had been in operation since 1947. P had bought an apartment building nearby in 1977, in 1979 D
purchased a press and installed it across the street. P complained of noise and vibrations and brought action for nuisance
claiming loss of rental income and loss of value of the building.
Question is NOT: is the defendant using his property in what would be a reasonable manner if he had no neighbour?
Question IS: is the defendant using it reasonably, having regard to the fact that he has a neighbour?
What constitutes unreasonable interference:

→ 1. The severity of the interference, having regard to its nature and duration and effect;
→ 2. The character of the locale;
→ 3. The utility of the defendant’s conduct;
→ 4. The sensitivity of the use interfered with.
Utility of D’s conduct:

 Importance of the Ds enterprise and value to the community was a factor in determining whether it was unreasonable.
 The judge considered that the steel company could have made improvements that they opted not to make.
 The judge also consider the duration and effect, stating that P must show that the alleged nuisance has caused it damage.
 Decision in favour of plaintiff; noise constitutes nuisance.
No defence to the nuisance creator if you moved to the nuisance (being there first doesn’t make a difference)
Have to be able to say that the character of this neighbourhood is not what it was – neighbourhoods change
The primary remedy for nuisance is an injunction
Tock v St John’s Metropolitan Area Board (1989 SCC)

DEFENCE OF STATUTORY AUTHORITY APPLIES ONLY IF THE DEFENCE PROVES THAT IT WAS PRACTICALLY IMPOSSIBLE TO
AVOID CREATING THE NUISANCE
The Tocks' basement begins to fill with water during heavy rainfall. They notify the Metropolitan Area Board and start
pumping out water. M comes in to find out that it is a blocked sewer. M unblocks sewer, but by the time it drains, the
basement has suffered significant damage.
At trial, the court held that the damage was because of blocked sewer and not rainfall. Therefore it is nuisance.
On appeal, the court reversed the trial decision: No claim in nuisance against municipality for damage that comes from a
service provided by statutory authority unless reasonable due diligence has not been exercised. Is the nuisance claim against
M barred by the defence of statutory authority?
 No negligence at play – storm sewers back up from time to time. Sued in nuisance (because it was interference with your
property, even if it’s not permanent and ongoing)
 Municipality operates sewage system, it malfunctioned, a few people were inconvenience with flooded basements: what
is there recourse?
 But they operate the system under a statute and the judges split three ways
 Majority (Sopinka) view:
 If you are doing something under statute, and there is no practical way to avoid the nuisance, then there is no liability
 The test is: is it practically impossible to avoid the nuisance when you are carrying out the thing you are mandated by
statute to do (so have to read the statute to see what it authorizes and how you can comply with that authorization)
 Yes, they could show that they operating under statute BUT St John’s couldn’t show that it was practically impossible to
avoid sewer backups (onus was on them to show that it was practically impossible)
 Recognizes tension between private rights and an expectation that they be sacrificed for the public good.
 Given that, the onus has to be on defendant to make the statutory authority argument, and that there will be an
incredibly high threshold for it to be successful.
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 → Followed by Ryan v City of Victoria (1999): Def of statutory authority applies only if the def proves that it was
practically impossible to avoid creating the nuisance.
Another example was the Canada Line case in nuisance – also under statute to build
1. La Forest:
→ Stat authority as a defence should be overridden by policy reasons.
2. Wilson et al:
→ Disagreed with La Forest.
→ If statutory authority defence is to be gotten rid of, that is for the legislature.
→ Sets out process of analysis starting with the recognition that the flooded basement does interfere with the use and
enjoyment of the property.
⇒ Once that’s recognized, then check to see if there is a statutory authority that is relevant
⇒ Looks at provisions and their permissive language.
⇒ Nuances statutory authority: Recovery in nuisance should be allowed unless you can show that there was either express
language in the statute allowing interference with P’s space; if there isn’t express language, it may be a necessary implication
from the language of the stat plus a factual finding that the damages is an inevitable consequences of the stat powers.
⇒ Because language of stat is permissive, it had to be done in conformity of private rights; Not done here, so no defence of
stat authority.
PUBLIC NUISANCE
Hickey v Electric Reduction Co (1970 Nfld SC)
PRIVATE ACTION FOR PUBLIC NUISANCE IS ONLY SUSTAINABLE WHERE THE PRIVATE DAMAGE IS PECULIAR, PARTICULAR,
AND DISTINCT FROM THAT OF THE GENERAL PUBLIC.
Fishermen (Hickey: P) seek a private nuisance action against phosphorous plant (D) for pollution of waters, killing fish. P
claimed that it wasn’t just fishers, but that the nuisance applied to everyone. When is a plaintiff permitted to maintain a
private action for public nuisance?
Analysis:
Furlong CJ: → Yes, there could be a public action for private nuisance, but this isn’t one of those situations.
⇒ Public right to fish in the sea: any interference is a public nuisance.
⇒ Pollution is a public nuisance, so this should not be dealt with as a private tort action. You have to suffer a DIFFERENT injury
than everyone else. Different in TYPE, not just different in EXTENT.
Very few successful claims in public nuisance. One example is injunction that AG (BC) applied for against prostitutes in the
West End (blocked prostitution West of Granville). When Chateau Granville complained, McLachlin CJ said that it was up to
the AG to determine the area – an individual property owner could not. Private interests could not be considered (Stein v
Gonzales) (note 3 page 880).
STRICT AND VICARIOUS LIABILITY
STRICT LIABILTY FOR ESCAPE OF DANGEROUS SUBSTANCES

Rylands v Fletcher (1868 HL)
A PERSON WHO FOR HIS OWN PURPOSES BRINGS ON HIS LANDS AND COLLECTS AND KEEPS THERE ANYTHING LIKELY TO
DO MISCHIEF IF IT ESCAPES, MUST KEEP IT IN AT HIS PERIL, AND, IF HE DOES NOT DO SO, IS PRIMA FACIE ANSWERABLE FOR
ALL THE DAMAGE WHICH IS THE NATURAL CONSEQUENCE OF ITS ESCAPE.
Plaintiff owned and operated a mine adjacent to which Defendant constructed a reservoir (which was built over old mine
shafts). The reservoir leaked into the mine shafts and caused a collapse, which resulted in a flood, damaging Plaintiff’s
operation. The plaintiff sued, the matter was brought before an arbitrator to independently establish facts. The trial court
found for Plaintiff; the appellate court affirmed; Defendant appealed to the House of Lords, which also affirmed. Was the use
of Defendant’s land unreasonable and thus was he to be held liable for damages incurred by Plaintiff?
Modern law created a strict liability.
58
If escape is result of the act of a third party, or an act of God, there is no liability.
There is no liability (acc. to later cases) if what you were keeping was a “non-natural” use of the land.
Modern courts now term “non-natural use” as “inconsistent land use” [buildings are natural, but a race track wouldn’t be,
neither is a reservoir.]
VICARIOUS LIABILITY
Rule is not tied to showing that the employer did anything wrong. Not about failing to supervise the employee. Joint and
several liability with the employee.
Is this an employer/employee relationship; have to show that the activity was within the scope of the work. Employee
relationships have to be distinguished from independent contractor [no vicarious liability for what the independent contractor
 so can be a defence]. No single/perfect test but there are factors to determine:
 Extent of control
 Business arrangements between them (did they pay benefits, withhold tax)
 Within the scope of the employment
Vicarious liability is typically used where the P is injured by an employee. An example of liability without fault.
Puts the risk on the person who was in the best position to minimize the risk [watching, instructing, supervising their
employees].
Bazley v Curry (1999 SCC)

A NON-PROFIT ORGANIZATION MAY BE HELD VICARIOUSLY LIABLE IN TORT LAW FOR SEXUAL MISCONDUCT BY ONE OF ITS
EMPLOYEES.
SCC decision on the topic of vicarious liability where the Court held that a non-profit organization may be held vicariously
liable in tort law for sexual misconduct by one of its employees. The decision has widely influenced jurisprudence on vicarious
liability outside of Canada.
Justice McLachlin (as she then was) points out that vicarious liability is a form of strict liability, or no-fault liability. The court
was very openly concerned with policy in this decision as vicarious liability can be used by litigants to "sue into deeper
pockets" even though they may be suing an employer who is not at fault. McLachlin surveyed a number of possible policy
reasons for the imposition of vicarious liability, and adopted two of J. G. Fleming's policy rationales:
(1) providing a just and practical remedy, and
(2) deterring future harm.
The link between what an employee was doing and the “risk created by the employer’s enterprise”. Must be said that the
employer significantly increased the risk. On the facts of this case they found liability on the part of the Children’s
Foundation. Facility was set up to take care of children. Tort was committed by someone who had been hired to be in charge
of children. [Another case where the janitor abused children and the school was not found liable because the janitor was not
hired to interact with children.] An employer has to bear the risks attached to the employer’s enterprise; the risk of
employee’s intentional tort attached is included.
In determining if an employer can be found vicariously liable, the courts will often use the Salmond test, which will find an
employer liable for the actions of an employee, which are:
(1) acts authorized by the employer or
(2) acts which are not authorized by the employer, but are so connected to authorized acts that they may be
considered "modes" of acts authorized by the employer.
The Supreme Court here seems to express frustration at this test. It is possible to view Curry's actions either completely
independently, or as a mode of performing an authorized act. The Salmond test does not give clear criterion for how
differentiate these two. As such, the court clarified the test, saying that the court should consider:
(1) policy reasons in determining that vicarious liability should or should not apply
(2) whether the wrongful act is sufficiently related to the employment to justify imposing vicarious liability.
59
(3) subsidiary factors: opportunity that employment afforded the employee to abuse his power; extent to which
wrongful act may have furthered employer's aims; vulnerability of potential victims to wrongful exercise of
employee's power.
Many cases where it isn’t necessary to go the vicarious liability route – can go straight to a negligence claim against the
employer. Has to be a duty of care owed to the P (but if it is foreseeable physical injury, then it is easy to show). Had reason to
know what employee was doing, so no need to use vicarious liability (although often the two claims are joined), can go
straight to negligence claim. Can make joint actions – that the employer was responsible in vicarious liability, and in the
alternative that they were negligent.
DEFAMATION
Libel and Slander Act
ELEMENTS OF A DEFAMATION ACTION

Sim v Stretch (1936 HL)
Knupfer v London Express Newspaper Ltd. (1944 HL)

D published an article re: a group known as “Young Russia”; claimed that one of them was going to be selected by Hitler as a
puppet leader in a fascist Russian state. Trial, P called a select group of witnesses and asked them who came to mind when
reading the article, and they all said him.
 There is no specific mention of the plaintiff anywehere in the article—allegations being made are wrt a group made up of
thousands of persons found in many countries
 Two questions involved in the attempt to identify the A as the person defamed: can the article, having regard to its
language, eb regarded as capable of referring to the appellant? Does the article, in fact, lead reasonable people who
know the appellant to the conclusion that it does refer to him? Unless the first question is answered in favour of the A,
then the second question doesn’t arise—and where the TJ went wrong was
 Individual members of a group cannot succeed in an action for defamation unless there is something in the statement
that identifies a particular member
DEFENCES
Williams v Reason (1983 CA)
P a rugby player; D a sports journalist, P accused of shamateurism, that is accepted $$ while playing as an amateur. P
successful at trial and on appeal tried to adduce new evidence regarding boot money he had accepted from Addidas
The sting of the libel is the shamateurism; boot money would not be irrelevant to this claim.
QUALIFIED PRIVILEGE
Hill v Church of Scientology (1995 SCC)
Scientology alleged Hill has essentially engaged in professional misconduct, Manning read out the notice of motion, passed it
out in a dramatic fashion. Hill was exonerated and brought a defamation proceeding. Accused that Hill had violated a court
order by conniving to allow someone to see sealed documents that had been taken from the Church of Scientology.
 The legal effect of the defence of QP is that it rebuts the inference that they were spoken with malice
 Qualified privilege attaches
 Where the occasion is shown to be privileged, BF of the defendant is presumed and the D is free to publish w impunity
remarks which can be defamatory –will be defeated if dominant purpose is malice
 Claimed qualified privilege wrt to the reporting of court documents—defeated by the fact he went way beyond what was
necessary; attacking professional responsibility of Hill before an investigation was complete, grandeur on the courthouse
steps
FAIR COMMENT
WIC Radio Ltd v Simpson (2008 SCC)
60
P was against teaching children about homosexuality in schools. Rafe Mair (on the air) imputed that P would condone violence
toward gay people (Defamatory because it lowers her in the esteem of the community). Were WIC and Rafe protected by the
defence of fair comment?
Overruled requirements for fair comment framed in Chernesky--:
The test is not whether Mair actually believed what he said, the test is whether the comment is legitimate – could a person
honestly hold those views.
 Comment must be based on a matter of public interest

 Comment must be based on fact (substantially true or privileged)
 Comment must be recognizable as a comment although it can include inferences of fact
 Could any man honestly express that opinion on the proved facts?
 Even though the comment satisfies the objective test the defence can be defeated if there is malice (has there been
sufficient malice adduced to defeat the defence)
TEST: for fair comment: could any man honestly express that opinion on the proven facts (not a particularly high threshold)
A 2006 B.C. Court of Appeal decision written by then-justice Mary Southin, concluded that Mair defamed Simpson and
couldn't rely on the defence of fair comment. In 2008, the Supreme Court of Canada ruled that Mair had, in fact, defamed
Simpson. However, the Supreme Court used this case to re-define defamation in Canada. Because the old legal test no longer
applied, the Supreme Court found for the appellants Mair and WIC Radio Ltd.
Grant v Torstar Corp (2009 SCC)

Newspaper article, defamatory statement on development of golf course. Toronto Star aired criticisms and passed along
allegations that he was unduly influencing regulatory process. Could not prove these comments.
If they had said that the golf course was a bad idea they would be protected by fair comment. But they made assertions that
he was using his political connections. Sues and gets jury to award $1 million + in damages.
Addressed a gap in defamation law when journalists were publishing things in the public interest that defamed the P (would
not get justification defence if they couldn’t prove it was true which was hard to do).
TEST: The publication must be on a matter of public interest—judge must consider the subject matter of the publication as a
whole (can’t scrutinize Defamatory statement in isolation)—must affect the welfare of citizens not merely be of interest.
Was the publication of the defamatory communication responsible?
Relevant factors:
 Seriousness of the allegation—need to measure the degree of the sting degree of diligence requires should increase
in proportion to the effects on the defamed individual
 Public importance of the matter
 Urgency of the matter—did the public’s need to know require the D to publish it when it did? Considered in light of
what the D knew or ought to have known at the time of publication
 Status and reliability of the source--less trustworthy the source, greater impetus for verification
 Whether the P’s side of the story was sought and accurately reported
 Whether inclusion of the defamatory statement was justifiable
 Whether the defamatory statement’s public interest lay in the fact it was made rather than its truth (reportage)—
repetition rule does not apply to fairly made statements
 Tone of the article may also be relevant
REMEDIES
Hill v Church of Scientology (1995 SCC)
General damages ($300K) were awarded against Manning and Scientology jointly because Manning’s activity was on behalf of
the Church.
61
Aggravated ($500K) and punitive ($800K) was against the Church alone. They had made things much worse – plenty of
evidence that Church had acted maliciously. Claim of justification was maintained long after they realized they had no
evidence. Their persistence in pleading justification added to their aggravated and punitive damages.
62

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Torts Exam Summary J.

THE DUTY OF CARE............................................................................................................................................................................... 24

ELEMENTS OF A DEFAMATION ACTION.................................................................................................................................................................................59

Types of Civil Liability/Basis for imposing liability:

REMEDIES IN INTENTIONAL TORTS

FOUR categories of judicial remedies: 1) damages, 2) injunctions, 3) declarations, 4) specific restitution

The Mediana (1900 HL) (ship-damaged-have-to-use-reserve)

B (P) v B (W) (1992 Ont Gen Div) (incest-victim-sued-father-civilly)

Whiten v Pilot Insurance 2002 SCC (house-burned-down-insurance-company-refused-to-pay)

Basic Principles Of Liability

Smith v Stone (1647) (man-carried-onto-land)

Hodgkinson v Martin (1929 BCCA) (official-ejects-man-from-premises)

Ranson v Kittner (1889) (shot-dog-thought-wolf)

Gilbert v Stone 1648 (threatened-by-mob-takes-horse)

Miska v Sivec (1959 Ont CA) (crazy-guys-road-rage-window)

LIABILITY OF CHILDREN / MENTALLY ILL

INTENTIONAL INTERFERENCE WITH THE PERSON

Holcombe v Whitaker (1975 Ala) (doctor-threatens-ex)

Police v Greaves (1964 NZCA) (police-domestic-call-knife-threat)

Bettel v Yim (1978) ON Co Ct (store-owner-shook-kid-broken-nose)

Non-Marine Underwriters Lloyd’s of London v Scalera (2000) SCC (bus-driver-sexual-assault-Q-of-consent)

Elements of False Imprisonment: Possible Defences:

Bird v Jones (1845 QB) (can’t-cross-bridge)

Campbell v SS Kresge Co (off-duty-cop-store-detective)

Herd v Weardale Steel, Coal & Coke Co Ltd (1915) (miner-prevented-from-leaving-mine)

Ward v. City of Vancouver (2007) (suspected-pie-thrower-detained)

Nelles v Ontario (1989 SCC) (nurse-maliciously-prosecuted-for-children’s-deaths)

TORT OF ABUSE OF PROCESS

Crawford Adjusters v Sagicor [2013] UKPC 17 (hurricane-contractor-sued-in-civil-action)

INTENTIONAL INFLICTION OF NERVOUS SHOCK

3 Necessary Elements of Infliction of Nervous Shock:

Wilkinson v Downton (1897 QBD) (joke-husband-injured)

Wainwright v Home Office (mother-and-son-strip-searched-at-prison)

Radovskis v Tomm (1957 Man QB) (child-rape-shocked-mom)

Samms v Eccles (1961 Utah) (unwanted-sexual-advances-in-Utah)

Jones v Tsige (2012 Ont CA) (bank-worker-creeps-on-boyfriend’s-ex’s-bank-info)

Silber v BCTV [1986] 2 WWR 609 (BCSC) (furniture-store-owner-loses-it-on-TV)

Motherwell v Motherwell (1976) – Alberta SC (mentally-unstable-woman-harasses-family)

Watts v Klaemt (2007) – BCSC (neighbour-eavesdrops-gets-woman-fired)

INTENTIONAL INTERFERENCE WITH CHATTELS

Tort Key Elements Remedy

Fouldes v Willoughby (1841 Ex) (horses-on-ferry)

Mackenzie v Scotia Lumber Co. (1913 NSSC) (raft-adrift-mistake)

Aitken v Gardiner (1956 Ont HC) (stolen-share-certificates)

INTENTIONAL INTERFERENCE WITH REAL PROPERTY

Entick v Carrington (1765 CP) (broke-in-to-find-seditious-material)

Wright v McLean (1956 BCSC) (mud-throwing-boys-hit-in-head)

Agar v Canning (1965 Man QB) (hockey-game-injured-eye)

R v Jobidon (1991) SCC (continued-punching-head-after-unconscious-during-bar-fight)

R v Paice (2005) SCC

Latter v Braddell (1880 CP) (housemaid-pregnancy-exam-against-her-will)

Factors Vitiating Consent

CONSENT TO CRIMINAL OR IMMORAL ACTS

CONSENT TO TREATMENT, COUNSELING AND CARE

Health Care Consent to Treatment Act

Infants Act, s.17

Marshall v Curry (1933 NSSC) (hernia-operation-discovered-testical-needed-removing)

Reibl v Hughes (1980 SCC) (heart-surgery-ruined-retirement)

Malette v Shulman (1987 Ont HC) (JW-blood-transfusion-doctor-proceeds-anyway)

DEFENCES RELATED TO THE PROTECTION OF PERSON AND PROPERTY

Wackett v Calder (1965 BCAA) (bar-fight-instigated-by-little-guy)

Gambriell v Caparelli (1974) On Co Ct (son-gets-in-fight-with-neighbour-mom-defends-him-with-garden-tool)

DEFENCE OF REAL PROPERTY