Law 241 – Torts – MINI-CAN

1. DUTY OF CARE:
The first element of negligence is to determine whether the defendant owed a duty of care to the plaintiff. Since
there does not seem to be an established category that exists for this DOC or an analogous class to an
established duty, this is a novel duty, which requires the application of the Cooper test. The Cooper test asks
whether the harm in question was: 1A reasonably foreseeable, 1B whether the P and D were sufficiently
proximate and 2 if there are any public policy reasons to negate recognizing a DOC.

1. What is the loss complained of?

a. If it is damage to person or property, go to step 4.
b. If the loss is purely economic loss, go to step 5.

2. If the loss complained of is to person or property, how would you characterize the action that caused that
loss: was it an act or an omission?

Note: for RF is DOC analysis, think whether it is a type of injury that is RF as flowing from D’s conduct VS
remoteness analysis RF is concerned with RF of the actual injury suffered by the plaintiff.

a. If it was an act, then apply the following structure (Cooper):

i. 1A: Was the loss reasonably foreseeable?
1. Cooper clarifies that it is sufficient that some kind of harm is reasonably
foreseeable for this requirement
ii. 1B: Are the plaintiff & defendant sufficiently proximate?
1. Consider expectations, representations, reliance, property, interests
2. Look at geographic and relational proximity
3. Castle – Police had knowledge of the perpetrator’s violent history, that he was in
probation and that he assaulted victim on prior occasions YET still released him
into father’s home, where they knew the victim was residing in – this knowledge
created “close and direct” relationship  victim was a narrow group of R’s
potential victims
a. “Finding that a DOC exists in these circumstances will not extend a duty
owed by police to an indeterminate class of persons. The duty will be owed
to victims (or their families) who have a special relationship of proximity
to police that is based on knowledge of the victim, or close and direct
interaction with the victim”
4. Rausch – Actions conducted under a general statute by a statutory officer can give
rise to DOC. Terms in statute creating specific relationships within a narrow class
of person suggests DOC, whereas general obligations of a wide scope suggest
absence of special duty
iii. 2: Are there any policy considerations that could negate DOC, if it is found to exist at
steps 1A & 1B?
1. What is effect of creating this novel duty? Does law already provide a remedy?
Would recognition of DOC create sphere of indeterminate liability?

b. If it was better characterized as an omission, then apply the following structure:

i. 1A: Was the loss reasonably foreseeable?
1. Cooper clarifies that it is sufficient that some kind of harm is reasonably
foreseeable for this requirement
ii. 1B: Are the plaintiff & defendant sufficiently proximate?
1. Reference to Childs is required. The CL is appreciably leery of creating a duty in
omission cases. Childs requires additionally that there be reasonable reliance upon
 the D by the P that would necessitate a positive act. McLachlin CJ in Childs spoke
of 3 categories:
a. Intentional invitation to inherent and obvious risk they created or control;
or
b. Paternalistic relationships of supervision or control; or
c. Exercising a public or commercial function that includes implied
responsibilities to the public at large
2. Look at geographic and relational proximity too
3. Childs – The host creates a place where people can meet, visit and drink alcohol,
whether served on the premises or supplied by the guest. All this falls within
accepted parameters of non-dangerous conduct. More is required to establish a
danger or risk that requires positive action.
4. Kennedy – There needs to be more than simple agreement of ski buddies to give
rise to a DOC to another buddy skier (eg. This may require clear instructions from
guides, clearly defined mutual understanding of their respective responsibilities to
each other)
5. Jane Doe – if knowledge allows the police to know that the plaintiff became a part
of a “narrow and distinct group of potential victims”, then special relationship of
proximity exists
6. Project 360 – police did not hold DOC to nightclub that suffered loss after gang
member shot patron – no evidence to show police knew about the shooting
7. Patrong – victim drive by shooting + police had been following shooter.
Insufficient evidence to show that police knew of Patrong and that he was part of
small victim pool (no DOC)
iii. 2: Are there any policy considerations that could negate DOC, if it is found to exist at
steps 1A & 1B?
1. What is effect of creating this novel duty? Does law already provide a remedy?
Would recognition of DOC create sphere of indeterminate liability?

3. If the loss complained of was pure economic loss, and was a result of a negligent misrepresentation
(whether through a positive act or an omission), then apply the following structure:
a. 1A: Was the loss reasonably foreseeable?
i. Cooper clarifies that it is sufficient that some kind of harm is reasonably foreseeable for
this requirement
b. 1B: Are the plaintiff & defendant sufficiently proximate?
i. As necessary part of determining proximity for negligent misrep, required to find that D
and P had “Special Relationship” in Hercules Management. This special relationship
involves
1. Reliance;
2. That reliance being reasonable
ii. Look at geographical or relational proximity
c. 2: Are there any policy considerations that could negate the duty of care, if it is found to exist at
steps 1A & 1B?
i. In cases of pure economic loss, care must be taken to find that duty is recognized only in
cases where class of plaintiffs, the time and amounts are determinate (Imperial Tobacco)

Conclusion: A owed a DOC to B.

2. STANDARD OF CARE
Having established that there is a DOC between _______, the next stage requires assessing the scope of this
duty by assessing the SOC and whether there was a breach of this SOC.

1. SOC is what an ordinary, reasonable and prudent person would have done in the circumstances (Arland).
This is a person of normal intelligence who makes prudence a guide to his conduct, and acts in accord
with general and approved practice (Arland).
2. Establishing the SOC requires a consideration of 3 elements:
a. The probability and severity of the harm
i. Greater risk and greater potential harm means there should be a higher SOC
ii. What precautions would reasonable person take in similar circumstances, having regard
to the probability of harm and severity of that potential harm?
b. The cost of risk avoidance
i. A lower cost of risk avoidance means that there are higher expectations to undertake
precautions
c. The social utility or value of the conduct
i. Higher public benefit of the conduct, more likelihood of excusing the conduct, even if
probability and severity is high

Furthermore, this SOC is raised OR diminished because __________.

Special cases:
 There is no standard of care where: (Fiala v Cechmanek)
o As a result of his or her mental illness, the D had no capacity to understand or appreciate the
DOC owed at the relevant time; OR
o As a result of illness, D was unable to discharge DOC as he had no meaningful control over his
actions at the time the relevant conduct fell below the SOC
 If D has no meaningful control over body, then there is NO SOC
o However, the lower SOC exists for cases psychiatric illness is not diagnosed
o If diagnosed, then question is what the reasonable person in circumstances of the illness would
have done to avoid causing harm (eg. taking medications, avoiding dangerous activities)
 SOC for children: question is “whether the infant exercised the care to be expected from a child of like
age, intelligence & experience” (McEllistrum v Etches)
 Professionals: SOC is that of a reasonable person with the D’s skills, experience and training  they
are held to the professional standard (White v Turner)
o No specific list of recognized professions; generally, if they require specialized skills and
training, and is performing those skills and training, they are held to that professional standard
 Good Samaritan Act [RSBC 1996] Chapter 172
o A person who renders emergency medical services or aid to an ill, injured or unconscious person,
at the immediate scene of an accident or emergency that has caused the illness, injury or
unconsciousness, is not liable for damages for injury to or death of that person caused by the
person's act or omission in rendering the medical services or aid unless that person is grossly
negligent.
o Exceptions: this does not apply if person rendering medical services or aid is employed expressly
for that purpose or does so with a view to gain
 Custom
o Ter Neuzen v Korn - You must accord your standard of care in line with what is expected in
your industry. It is essential to look at it in light of the time at which the case occurred, not when
it was heard
o Waldick v Malcolm – Statutory obligation is very difficult to beat with custom; custom is
influential in determining SOC not determinative
Conclusion: What would reasonable person have done? D did not act to that SOC. Therefore, breach.
3. FACTUAL CAUSATION
Check: Joint tortfeasor (Cook v Lewis)

We must next consider whether this breach of SOC was what actually caused the loss of A. Define the breach
and the loss (the loss was the actual event that occurred, not necessarily the damages/consequences of the
event). The test for factual causation in Canada comes from Mclaren: But for the breach, would the plaintiff
have suffered the loss. This test must be applied using a “robust, common sense application” (Athey, Snell,
Benheim). Thus, there is some flexibility in the judge’s application of the but for test. For instance, although the
legal burden remains in the plaintiff, if there is an absence of evidence to the contrary adduced by the defendant,
an inference of causation may be drawn even though positive or scientific proof of causation has not been
adduced (Snell). It was further clarified that a judge is not required to make the inference made in Snell, but that
the inference is simply available to use by the judge when there is limited facts and evidence (Benheim).

In this case, it must be determined whether apply but for to the specific case at hand.

Think of these issues/facts if required Compare closely with Aristorenas, Snell, Benheim and Athey:

When applying this test, we must note that there is no requirement for scientific precision (Snell). An inference
of causation can be made, especially when there is limited evidence, even though experts were not able to say
with certainty whether the defendant’s breach actually caused the plaintiff’s loss (Snell).
 Expert evidence said that although blindness could have resulted from natural causes, it was more likely
that continuing the operation negligently even after seeing the blood was the cause
 NO EVIDENCE WAS GIVEN TO THE CONTRARY BY THE DEFENDANT

However, the plaintiff is still required to provide some sort of evidence or consideration that indicates that the
defendant’s negligence was the cause of the harm (Aristorenas).

For instance, in Aristorenas, although there was evidence stating that a delay in treatment may increase the risk
of causing the infection, there was no evidence that showed that the specific 3 day delay, in this particular
circumstance, specifically caused the infection in the plaintiff.

This notion was supported in Benheim. The court in this case accepted as fact the statistic that “78% of cancers
discovered fortuitously are at stage 1” and that the plaintiff’s cancer was fortuitously discovered, however, the
court declined to infer from this that the cancer in this particular plaintiff was therefore at stage 1.

In Athey, when dealing with competing causes, there are 3 possible outcomes. If the loss was likely to occur
regardless of the negligent action, then there is no causation. If it was necessary that all the competing causes to
occur in order for the loss to occur, then causation is proven (even if the negligent action only played a minor
rule). If either of the causes could be a sufficient cause of the loss, then factual causation is uncertain. In this
case, apply.

What is the current case more analogous to?

Material contribution may come out in cases of multiple causes, especially when the causes are potential
independent sufficient causes, however, it does not apply in this case.

Conclusion:
Thus, it was shown that “but for” A’s breach of SOC, the loss would not have happened.
4. LEGAL CAUSATION

The next step is to establish legal causation. The principle of remoteness or legal causation examines whether
the harm is too unrelated to the wrongful conduct to hold the defendant fairly liable (Mustapha). It acts to
relieve a defendant’s liability when the connection between the breach of SOC and the loss (which was
factually caused by the breach) is not reasonably foreseeable. In other words, an injury will be sufficiently
related to the wrongful conduct if it is a reasonably foreseeable consequence of the conduct.

The test for legal causation is a two step test:

a) Was there a real risk of the injury being incurred? (Wagon Mound 2)

A real risk is one which would occur to the mind of a reasonable person in the position of the defendant and
which they could not brush aside as far-fetched. This is an inquiry into the likelihood of harm (Wagon Mound
2).
Apply the facts

b) Was the kind of harm one that was reasonably foreseeable? (Mustapha)

In the case of Hughes v Lord Advocate, the defendants were working underground and left an open manhole
unattended with a paraffin lamp near it. The child plaintiff knocked it down, which caused an explosion, sent
the plaintiff down the hole and burned him. Although the situation that caused the explosion may have been
unforeseeable, it was deemed that the explosion did not create an accident or damage of a different type than
what could have been foreseen by the danger of fire.

Thus, where the cause of an accident was a known source of danger, but injury is caused in a unique way which
could not have been foreseen, there is no defense to negligence (Hughes).
Analogize the fact pattern to this case if needed

State the harm and whether it is reasonably foreseeable.

It is also important to note that the extent of the loss flowing from the harm is not relevant; you take the plaintiff
as you find them even with particular vulnerabilities (Smith thin skull principle). Apply to this case.

If there is psychiatric harm:

Despite the eggshell skull rule, however, eggshell personalities are not upheld in the same way as physical
vulnerabilities (Mustapha). Thus, in cases of pure psychiatric harm, we must examine the plaintiff as if they
were a person of ordinary fortitude.

In the event that a psychiatric injury is based upon a physical injury, however, psychiatric injuries may become
more reasonably foreseeable (as opposed to when psychiatric injuries are formed alone) (Marcanato). For
instance, in Marcanato, the plaintiff had a predisposition to paranoid tendencies. The defendant negligently
caused a car accident which resulted in minor physical injuries, which led to symptoms of pain and stiffness
which then led to psychiatric injuries – depression and anxiety. The defendant was held liable for all injuries
including the psychiatric ones in this case. It is important to note that the status of the law is uncertain and it
seems likely that a differing interpretation will be preferred in the future. Nonetheless, currently, this is
applicable. In the particular case at hand, applying Marcanato,.

We must also consider whether there was an intervening cause – is the harm within the scope of the risk?
(Jolley).
Look at Bradford, Price and Chinsang