-1Torts Law Outline

1. An introduction to Tort Law...........................................................................................................9 1. Torts: Basic Terms and Themes...............................................................................................9 a) Doctrine of Legislative Supremacy.........................................................................................9 b) Courts of Equity......................................................................................................................9 c) Rule of Law.............................................................................................................................9 d) Primary Sources of Law...........................................................................................................9 2. Torts Distinguished from Other Areas of Law.......................................................................9 3. A Brief History of Tort Law...................................................................................................10 4. Tresspass and Case: A Brief Review of the Case Law.........................................................10 5. What is a Tort?........................................................................................................................11 a) Deterrence...............................................................................................................................11 b) Compensation/Reparative Theory..........................................................................................11 c) Normative Theories................................................................................................................12 i) Resource Redistribution......................................................................................................12 ii) Retributive Justice..............................................................................................................12 iii) Corrective Justice..............................................................................................................12 iv) No-Fault............................................................................................................................12 d) Three main elements of liability.............................................................................................12 6. Tresspass and Case, the Case Law.........................................................................................12 a) Scott v. Shepherd, [1955-1774] (England).............................................................................12 b) Leame v. Bray, (1803) (Eng. KB)..........................................................................................13 c) Williams v. Holland (1833), 10 Bing. 112,131 ER 848 (CP).................................................13 d) Holmes v. Mather (1875) (Exch.)..........................................................................................13 e) Cook v. Lewis, [1952] (SCC).................................................................................................13 2. The Basic Concept of Remedies in Tort Law..............................................................................13 1. Introduction..............................................................................................................................14 a) Judicial and Extrajudicial Remedies.......................................................................................14 Judicial Remedies...................................................................................................................14 Extrajudicial Remedies...........................................................................................................14 2. Classification of Damages.......................................................................................................14 3. Types of Damages in Intentional Torts..................................................................................14 Nominal......................................................................................................................................14 b) Compensatory........................................................................................................................14 c) Punitive (Exemplary).............................................................................................................14 d) Disgorgement........................................................................................................................14 i) Penarth Dock Engineering Co. v. Pounds, [1963] (Eng. QB)............................................15 3. Intentional Interference With the Person....................................................................................15 1. Basic Principles of Liability....................................................................................................15 a) Volition...................................................................................................................................15 i) Smith v. Stone (1647) (KB)– Tresspass to Land................................................................15

-2b) Intent......................................................................................................................................15 1. Imputed (Constructive) Intent.............................................................................................15 2. Transferred Intent...............................................................................................................15 2. Motive, Mistake and Accident................................................................................................15 a) Motive....................................................................................................................................15 i) Duress..................................................................................................................................16 a) Gilbert v. Stone, (1648)82 ER 539 (KB) – Tresspass to Land, Tresspass to Chattels...16 ii) Provocation........................................................................................................................16 a) Miska v. Sivek(1954) 18 DLR (2d) 363 (Ont CA).........................................................16 b) Mistake..................................................................................................................................16 i) Hodgskinson v. Martin, [1929] 1 DLR 367 (B.C. C.A.)....................................................16 ii) Ranson v. Kitner (1888), 31 Ill. App 241 (Ill. CA)...........................................................16 c) Accident.................................................................................................................................16 d) The Liability of Children and the Mentally Ill......................................................................17 3. Tresspass to the Person............................................................................................................17 1. Battery....................................................................................................................................17 a) Bettel v. Yim (1978), 88 DLR (3d) 543 (Co. CT).............................................................17 b) Non Marine Underwriters, Lloyd’s of London v. Scalera, (2000) (SCC).........................18 c) Smith v. Stone and Gilbert v. Stone...................................................................................18 2. Assault...................................................................................................................................18 a) Holcombe v. Whitaker (1975) (Ala. S.C.).........................................................................19 b) Police v. Greaves, [1964] (Eng. C.A.)...............................................................................19 c) Bruce v. Dyer (1966) (Ont. H.C.)......................................................................................19 3. False Imprisonment...............................................................................................................19 a) Bird v. Jones, (1845) (QB) (Unchallenged for 150 years)................................................19 b) Campbell v. S.S. Kresge Co., (1976) (NS TD).................................................................19 c) Herd v. Weardale Steel, Coal and Coke Co., [1915] (HL)................................................20 4. Tresspass on the Case..............................................................................................................20 1. Malicious Prosecution...........................................................................................................20 a) Nelles v. Ontario, (1989) (SCC)........................................................................................20 b) Abuse of Process...............................................................................................................21 2. Intentional Infliction of Nervous Shock................................................................................21 a) Wilkinson v. Downton, [1897] (Eng. QB)........................................................................21 b) Radovskis v. Tomm, (1957) (Man QB)............................................................................21 c) Samms v. Eccles, (1961) (Utah SC)..................................................................................21 d) Innominate Intentional Torts.............................................................................................22 3. Protection of Privacy.............................................................................................................22 a) Is there a Common Law Tort Action for the Invasion of Privacy?...................................22 i) Motherwell v. Motherwell, (1976) (Alta. CA)...................................................................22 b) The Statutory Protection of Privacy..................................................................................22 ii) Hollingsworth v. BCTV, [1999] (BC CA)........................................................................22 c) Action for Breach of Confidence (Confidential Information)...........................................23 4. The Common Law Tort of Discrimination............................................................................23 a) Bhadauria v. Bd. Of Gov. of Seneca College of Applied Arts and Technology, (1979) (Ont. CA)................................................................................................................................23

-3b) The Bd. Of Gov. of the Seneca College of Applied Arts and Technology v. Bhadauria, (1981) (SCC)..........................................................................................................................23 5. Current Legal Protection from Racial Insults.......................................................................23 a) Assault and Battery.............................................................................................................23 b) Intentional Infliction of Emotional Distress.......................................................................23 6. Objections to a Tort for Racial Insults....................................................................................23 a) Difficulty of Measuring Damages......................................................................................23 b) Difficulty of Apportioning Damages.................................................................................23 c) Fraudulent Claims and “Floodgates”..................................................................................23 Elements of the Proposed Cause of Action............................................................................24 4. Intentional Interference with Chattels........................................................................................24 1. Tresspass to Chattels...............................................................................................................24 a) Fouldes v. Willoughby, (1841) (Ex. Ct.)................................................................................24 2. Conversion................................................................................................................................24 3. Detinue......................................................................................................................................24 4. Permanent Damage to Reversionary Interests.....................................................................24 5. Intentional Interference with Real Property...............................................................................24 1. Tresspass to Land....................................................................................................................25 a) Entick v. Carrington, (1765) (USA CP).................................................................................25 b) Turner v. Thorne, (1960) (Ont. HC).......................................................................................25 c) Harrisson v. Carswell, (1976) (SCC)......................................................................................25 2. Tresspass and Nuisance...........................................................................................................25 Nuisance ....................................................................................................................................26 1. Public Nuisance..................................................................................................................26 2. Private Nuisance.................................................................................................................26 a) Kerr v. Revelstoke Bldg. Materials Ltd., (1976) (Alta. SC)...................................................26 6. Defences........................................................................................................................................26 1. Consent.....................................................................................................................................26 a) Implied....................................................................................................................................27 Wright v. MacLean, (1956) (BC SC).....................................................................................27 b) Exceeding Consent.................................................................................................................27 Agar v. Canning, (1965) (Man. QB), aff’d (Man. CA)..........................................................27 c) Competency to Consent..........................................................................................................27 d) Vitiating Consent....................................................................................................................27 i) Fraud (Deceit).....................................................................................................................27 Hegarty v. Shine, (1878) (Ireland CA)...................................................................................27 R. v. Cuerrier, (1998) (SCC)..................................................................................................27 ii) Mistake...............................................................................................................................27 Toews v. Weisner, (2001) (BC SC)........................................................................................28 iii) Duress................................................................................................................................28 Latter v. Braddell, (1880) (CP)...............................................................................................28 iv) Public Policy.....................................................................................................................28 Nelitz v. Dyck, (2001) (Ont. CA)...........................................................................................28

-4e) Ex Turpi..................................................................................................................................28 Hall v. Hebert, (1993) (SCC)..................................................................................................28 John Bead Corp. v. Soni, (2002) (Ont. CA)...........................................................................28 Tallow v. Tailfeathers, (1973) (Alta. CA)..............................................................................28 Can. Cement LaFarge Ltd. v. B.C. Lightweight Aggregate Ltd., (1983) (SCC)....................29 f) Consent to Treatment and Counselling...................................................................................29 Malette v. Shulman, (1987) (Ont. HC).......................................................................................29 The Burden of Proof and Consent Forms...................................................................................29 Competency to Consent..............................................................................................................29 i) Minors.................................................................................................................................29 C. v. Wren, (1986) (Alta. CA)................................................................................................30 ii) Adults.................................................................................................................................30 Substitute Consent......................................................................................................................30 Informed Consent: Battery or Negligence?...............................................................................30 Reibl v. Hughes, (1980) (SCC)...............................................................................................30 2. Self Defence..............................................................................................................................30 Wackett v. Calder, (1965) (BC CA)...........................................................................................30 3. Defence of Third Parties.........................................................................................................30 Gambriell v. Caparelli, (1974) (Ont.Co.Ct.)...............................................................................31 4. Discipline..................................................................................................................................31 R. v. Dupperon, (1984) (Sask. CA)............................................................................................31 5. Incapacity.................................................................................................................................31 6. Defence of Real Property........................................................................................................31 MacDonald v. Hees, (1974) (NS SC).........................................................................................31 Depue v. Flateau, (1907) (Minn. SC) ; Dunn v. Dom. Atlantic Ry. Co., [1920] (SCC)............31 R. v. Haverstock, (1979) (Co. Ct.)..............................................................................................31 Bird v. Holbrook, (1828) (CP)....................................................................................................31 7. Defence of Recapture of Chattels...........................................................................................32 8. Necessity....................................................................................................................................32 a) Public......................................................................................................................................32 Surrocco v. Geary, (1853) (Cal. SC)......................................................................................32 R v. Dudley v. Stevens, (1884) (Eng.)....................................................................................32 b) Private.....................................................................................................................................32 Vincent v. Lake Erie Tpt. Co., (1910) (Minn. SC).................................................................33 9. Apportionment of Fault..........................................................................................................33 7. Intentional Interference with Economic Interests.......................................................................33 1. Deceit (Fraud)...........................................................................................................................33 Derry v. Peek, (1889) (HL).........................................................................................................33 2. Injurious Falsehoods................................................................................................................34 Slander of title (like defamation)................................................................................................34 Slander of Goods........................................................................................................................34 Ratcliffe v. Evan.....................................................................................................................34 Proctor v. United Steelworkers...............................................................................................34

..... Strict and Vicarious Liability............. Fletcher.........38 5.........................................................................................Ct..........................................) v........................................................................ (1964) (Ont..................... (1964) (Ont........ [1947] (HL)........................ Toronto Stock Exchange.....................36 Posluns v.............................40 9........38 2............ (1999) (SCC)..... Bright & Co..................................................38 4...............................................................................................................39 Principal-Agent Relationship.........................................38 6...............G..............39 B............................................................................ Themes and History......................................38 b) Cattle Tresspass.................................................................................................................. Metro Toronto........................ Interference with Contractual Relations.........................38 3...........38 Acker v.............................. Hoban.............40 i) General Duty of Care Test..................................................35 Rookes v...................................37 Gertsen v...................... Terms......... Default of the Plaintiff............................................................ (1979) (SCC)..................................A............................. (1992) (SCC)........................................................ (1970) (NB CA)................................................ Govt of Sask................... v........................ Vegetable Producers’ Marketing Bd..................................37 8.........................................................40 2......40 a) Duty of Care............ Man................................................... Toronto Stock Exchange..............................39 Master-Servant Relationships.............. (HL).......................40 ..............................................................................38 Defences to Rylands v......... Kerr..... (2001) (SCC).................. Barnard...... Apotex Inc. Statutory Authority................... Escape of Dangerous Substances........... v...................................................................................................................................................)..........................................40 671122 Ontario Ltd......................................................................................... (1868) (HL)............................ HC)..................................................................................................................................... [1939] (SCC).................17 of the Libel and Slander Act............37 Gershman v............................................................................... Intimidation..........................................................................................................38 3............................ Liability for Animals.............................35 Ciba-Geigy Canada Ltd......................................................................... Elements of Negligence......40 1.................. HC)............................................... J......... CA)........... Potash v........................(P.....................34 3.....................................38 2............................................................................................................................................... Kerr.............38 1....................38 a) Dangerous Animals......................... v................................................................................. Common Benefit...................................................................................................................................36 5......................................................................... Sagaz................. Negligence...... Passing Off.37 Rylands v.............................. United Dairies......................................................................................................35 4.......36 6........................34 Wilts v....36 Posluns v..................................37 Read v..................... Act of God.................39 T................................ Curry........................................................................... Intentional Interference by Unlawful Means.......................................................... Act of a Stranger...............................................................................39 Independent Contractors............................................................................ HC)...........................................................................37 1.... (1976) (Man........................ (1973) (Ont.................... Consent........................................................................-5s.............................................................38 Richard v.......................... Co............................................ Fletcher ........ Vicarious Liability...35 Central Can.... Lyons & Co... Conspiracy.....36 7........................................................................................................................... (1973) (Ont...........

..........................................................42 B....................53 i) Reasonable Person Test......................................................................................................................60 Wagon Mound No..............................................................50 E..................................................................... Manufacturer’s or Supplier’s Duty to Warn................................................................ v............. Taylor............................................................. Ltd.....................................55 A............................................................... Kanellos (1973) (SCC)......43 iv) Special Duties of Care........................... Persons with Disabilities..................................................................................................... Professionals............................57 A.. Owed to the Unborn......................55 B............................................................................................ Materially Increased Risk................................ Nervous Shock (Witnesses)......................................................................................................................................................................................................................53 b) Standard of Care................58 A.......................................57 Ter Neuzen v.........................................48 D..............63 ...................................60 A....63 Price v............................................... Milawski (1977) (Ont............................... Best (1979) (Ont..... Weide Tot........................................................ Economic Analysis......................................................................... Korn (1995)..51 F........................... Foreseeable Risk......................)................................................................................................................................... [1961] (Privy Council)............................................... Barrister’s Duty of Care............................................57 C........57 c) Causation.........61 C............................57 Heeney v............................................ Health Professional’s Duty....................................................................................-6M’Alister (or Donoghue) v..............40 A...............62 Bradford v........................................................................................................................................... Wagon Mound Two – Possibility of Injury....................... Children.................................................................................................................... (1963) (Man CA)................................. Independently Sufficient........................................................................46 B...................................................................................................................59 d) Remoteness of Damages.............................42 A.................... Kinds of Injury..42 iii) Affirmative Duties..............57 v) Custom.....................................)................... Owed to Rescuers.............................................................................................................................................53 A........................... Control of Others’ Conduct....................................57 B..60 ii) Foreseeability Test Modified...................................................................................................... Overseas Tankship (U........................................................................................46 A.......................60 B................................................. CA)......... Material Contribution Test............................................................................................................................K................. Rescue...................................60 i) Directness vs..........................................................................................................62 iii) Intervening Causes.....................................55 iii) Special Standards of Care.................. Thin Skulled Plaintiff Rule............................) Ltd...........................A................... (SCC).... Stevenson (1932)(HL).........63 Oke v...............................................................................................................A.................................53 ii) Factors Considered for Breach.......................................................................1............................................. C. C.........................................41 ii) Modern Law of Duty Origins – Anns/Kamloops..... Morts Dock & Engineering Co.................56 iv) Degrees of Negligence....41 B...................................... Foreseeable Plaintiff.................................................................. But-for Test............................................56 C........58 B............................................................................................................ Note on Products Liability................... Foreseeability................................................................................41 A........................................................................ Independently Insufficient...........................................53 Arland v.....................................................57 i) The Cause-in-Fact.............58 ii) Multiple Causes............................................................ [1955] 3 DLR 358 (Ont.........................46 C..................................................................................................................................................Negligence of Another Person.......................

...............................................................................65 ii) Personal Injury............................................75 Gagnon v...........75 A...............................................................................................................................75 Walls v........................... [1963] (HL)....................................... (1978) (Ont.................................73 Glanzer v...............71 A...................................... Pre-Contractual Misrepresentations......................................................73 Beebe v................................75 Galaske v... [1977] (BC SC)........ Death of a Dependant Family Member.................... V.............. (1969) (NB CA)....................................................................................................................................................... (2000) (BC CA).......................................................... (1977) (BC SC)............... Coia........................................................................................................................................................... [1932] (HL) ....................................................... Shephard........ Dickman...............................75 i) Development of the Defence........................................................................................................... Mussens Ltd.............................................................70 iv) Property Loss..........................................................................................................................64 i) Introduction................................................................ Leclerc (1977) (CA)...76 iii) Apportionment of Loss.... Specific Categories of Negligence............68 Non-Pecuniary Loss...72 Hedley Byrne & Co.......................................63 Hewson v.......................................... (1979) (Ont.....................69 A............. Red Deer (1976) (Alta......................G.............................68 Considerations Relevant to Both Heads of Pecuniary Loss.................................................69 C.................................................................................................................................. Preliminary Issues...........................63 Block v...................................73 ii) Negligent Misrepresentation/Contract..... Defences................................... The Purpose of Damage Awards in Negligence..............................76 . Beaulieu............... Robb.................................72 i) Causing Pure Economic Loss.............. Heller & Partners Ltd.......69 B......................... (1980) (SCC)............................................................................... Ont.................................74 a) Contributory Negligence............................... Stevenso.......................72 a) Negligent Misrepresentation.... v.................................................................................. Bedwell [2002] (Alta QB)..-7Papp v............ Survival Actions................ (1994)(SCC) .................................................................................................................................70 D..................................................67 Pecuniary Loss: Lost Earning Capacity...................70 v) Collateral Benefits....64 A........................................................75 ii) Conduct Constituting Contributory Negligence.............................................. (1922) (NY CA)...............................................66 Principles Underlying Damages..............................................64 B.................................................................... CA)..........74 4..............64 e) Assessment of Damages............................................................................72 Kieth Plumbing & Heating Co....75 Lewis v.......... Ernst & Young (1997) (SCC)........ v............................................. The Doctrine of Subrogation.............................................................................................. Best................... v.................................................72 Hercules Management Ltd..............................................69 iii) Survivor and Dependent Claims.. Keller............................................................................................................64 Tong v................66 Pecuniary Loss – Future Care........................... O’Donnell....................75 Heeney v.......................74 B..................................................... Concurrent Liability in both Tort and Contract......................... Todd............................................73 Deraps v....................................................... (1999) (Ont............. CA)..............................................................73 A........................... Trial Division).................................. Newport City Club Ltd..................................................... V................................................................................................................................ Fatal Accidents Legislation...................................................72 Donoghue v...................................................................................72 3......... Martin [1951] (Alta SC)..... Death of the Family Provider....73 Caparo Industries Plc........................................................................... CA).. (1990) (HL)..................................................................

-8Negligence Act, RSO 1990, c.N.1......................................................................................76 Bell Canada v. Cope (Sarnia) Ltd., (1980) (ON CA).........................................................76 Boma Manufacturing Ltd. v. CIBC, (1996) (SCC)............................................................76 Mortimer v. Cameron, (1994) (SCC).................................................................................76 Ryan v. Victoria (City), (1999) (SCC)...............................................................................77 Chamberland v. Fleming, (1984) (Alta QB).......................................................................77 b) Voluntary Assumption of Risk...............................................................................................77 Dube v. Labar, (1986) (SCC).............................................................................................77 Dyck v. Manitoba Snowmobile Assn., [1985] (SCC)........................................................77 Allen v. Lucas, (1971) (Sask CA)......................................................................................77 c) Ex Turpi – Participation in a Criminal or Immoral Act.........................................................77 Hall v. Hebert, (1993) (SCC)..............................................................................................77 John Bead Corp. v. Soni, (2002) (Ont. CA).......................................................................78 d) Inevitable Accident ................................................................................................................78 Rintoul v. X-Ray and Radium Indust. Ltd., [1956] (SCC).................................................78 e) Limitations..............................................................................................................................78 Bannon v. Thunder Bay (City) (2002) (SCC)....................................................................78 5. Proof of Negligence...................................................................................................................79 a) Burden of Proof......................................................................................................................79 Wakelin v. London & South Western Ry. Co. (1886) (HL)...............................................79 b) Exceptions..............................................................................................................................79 i) Statutes and Shifting Burdens of Proof...............................................................................79 MacDonald v. Woodard, (1974) (Ont.Co.Ct.)....................................................................79 AG Ont. v. Keller (1978) (Ont. CA)...................................................................................80 ii) Directly Caused Injury: Unintended Tresspass.................................................................80 Dahlberg v. Naydiuk, (1969) (Man. CA)...........................................................................80 iii) Multiple Negligent Defendants.........................................................................................80 Cook v. Lewis, [1952] (SCC).............................................................................................80 Wotta v. HaliburtonOil Well Cementing Co., [1955] (SCC).............................................80 c) Res Ipsa Loquitur....................................................................................................................80 Fontaine v. British Columbia (Official Administrator), (1997) (SCC)..............................81 10. Role of Statutes...........................................................................................................................81 a) Introduction..............................................................................................................................81 b) Express Statutory Causes of Action.......................................................................................81 Tresspass to Property Act, RSO 1990, c.T.21 (casebook, p.608)...............................................81 Competitionn Act, RSC 1985,c.C-34 (casebook p.609) ............................................................81 Trachsler v. Halton, [1955] (HC)...............................................................................................81 c) The use of Statutes in Common Law Negligence...................................................................81 R. in Right on Can. V. Sask. Wheat Pool, (1983) (SCC)...........................................................81 Horsley v. MacLaren, (1972) (SC).............................................................................................82 Rintoul v. X-Ray and Radium Indust., [1956] (SCC)................................................................82 Bux. V. Slough Metals Ltd., [1973] (CA)..................................................................................82 Varcoe v. Sterling, (1992) (CA).................................................................................................82 London Passenger Tpt. Bd. V. Upson, [1949] (HL)...................................................................82 11. Tort Liability of Public Authorities – See Handout..................................................................82

-9-

1. An introduction to Tort Law • • • The Law of Torts governs the relations between individuals, not between individuals and the state. It is an area of Private Law. The Law of Torts is primarily Common Law driven, and case based, although statute and equity are important. Equity is especially important in determining remedies.

1. Torts: Basic Terms and Themes a) Doctrine of Legislative Supremacy 1. Where a statute is enacted in any area, it is supreme over the Common Law, but still remains critical for interpreting statute. 2. Gaps in statute are addressed through Common Law. 3. Legislation is subject to political bias and subject to repeal, while this is theoretically untrue of Common Law. 4. Stare Decisis – we stand on precedent to give the law predictability, consistency, certainty and uniform application. o Precedents may be binding, persuasive or distinguished. 5. This allows flexibility and adaptability to new situations. b) Courts of Equity • Unfair results in Common Law caused the creation of Courts of Equity under Chancellors, who were supposed to be the “conscience” of the law. • A discretionary power to suspend Common Law decisions. • The Courts of Equity eventually became established and more rigid that the rigid Common Law system it was supposed to correct. • Judicature Act, 1880s, combines the 2, introduced equitable principles into the Common Law. c) Rule of Law • • • The law is the highest authority, everyone is subject to the law. All citizens are equal before the law and under the law. This ensures stability and good government and supports rationality and an ordered society. Retroactive actions can be of no force, and are void.

d) Primary Sources of Law • Cases, statutes, regulations, decisions of panels and tribunals.

2. Torts Distinguished from Other Areas of Law • • Latin for twisted, crooked. Civil wrongs causing harm to the person, property, reputation of a person, addressed through monetary damages. • Torts are “infinite and various”. They can be divided into intentional and negligence torts. • Tort law falls under provincial legislation. • The proving of a Tort depends on the establishment of the elements of liability. • Tort law examines the existence of involuntary obligations between one or more parties. • The plaintiff must establish the liability of the defendant on the balance of probability. Types of Torts: 1. Wrongful conduct of the defendant, with or without intent. (Each Tort has its own definition of wrongful conduct). 2. Causation of harm by this wrongful conduct (cause and effect). Other injuries without causation do not apply.

- 10 Harm to the plaintiff For Intentional Torts, wrongful conduct and causation must be proven harm is assumed. For negligence, the plaintiff must prove harm. If the plaintiff proves harm, focus then shifts to assessment of damages, how the defendant must compensate the plaintiff. • Parties may agree on damages, but still go to trial on liability. (I agree your medical bills are $5000, but I shouldn’t have to pay them). • This can also go the other way. (I did it, but you want too much money). Tort actions follow the rules of civil procedure: A writ (breve) is produced ( or a statement of claim). • Many Tort decisions are subsequently overturned, legislated against or altered. • The aggrieved party must carry and initiate the action. (including finance, until recently). • He plaintiff is motivated by compensation. • Backward looking, tries to put people into the position they would have been in had the Tort not occurred. • The obligations enforced by Tort law are established by policies to protect the public good. • Tort law must involve a harm. Breach of trust, etc. are equitable, not Tort. Equitable remedies are discretionary. • Restitution law is one of obligations. It treats obligations which do not fit into contract or Tort law. There are three branches of obligation law: 1. Contract 2. Tort 3. Restitution • Unjust enrichment • Commenced and financed by the plaintiff • Different from restitution as a remedy in contract law 3. A Brief History of Tort Law • • • 1066 – Norman conquest by William rules were arbitrary and focused on dealing with immediate matters only, no law. William allowed people to keep their laws, and established Common Law. (Blood money, payment instead of feuding). o Public/private split, public crimes can no longer be resolved by payment. o Establishment of the writ system, caused by the chancelry, the claim would have to fall within the writ to be valid. Originally, only actions with the force of arms against the King’s peace and trespass on the case were valid. Trespass | V Direct | V Intentional Torts | V Violent Acts, Theft Trespass with force Tresspass on the case | V Indirect | V Negligence | V No Force 3. • •

4. Tresspass and Case: A Brief Review of the Case Law Standard writs were developed that a plaintiff could buy to bring a case. These were trespass. If a new writ had to be developed for an action, it was an on the case action. • Eventually, people didn’t need writs. They can now just plead the facts of their case. Basis for applying liability: • Fault for compensation •

- 11 Automobile accidents and workman’s comp. Do not need proof of fault to be compensated, just proof of harm. Flaws in the fault principle o If fault cannot be proven, an innocent victim who has been harmed would receive no compensation.  Insurance distributes economic liability beyond the Tortfeasor.  Fault ignores dispute resolution and community values.  Those with few resources would have few occasions for redress.  Damage assessment is speculative rather than substantive. A projection may not be accurate.  Unmerited attempts at recovery may be encouraged.  Fault-based proceedings take 5-7 years to be decided, then one must still pursue the judgment this is slow and expensive. o

The Tort system is still based on fault. There is a 2-step test: 1. Duty of care and proximity. 2. Policy – to extend or limit duties people have to one-another. • Increasing the scope of duty can increase the scope of liability. There are 4 types of torts: 1. Intentional Torts • Based on faults. • Tresspass with force. • Direct and forceful interference with a person or their property. • Usually have to prove intent to cause harm. 2. Negligence • Failure to take care to prevent harms where there is a duty to do so. 3. Strict Liability • Prove the harm and causal connection, but not intent or negligence. • Usually based on policy for public goods. 4. Absolute Liability • Conduct causing harm is liable. • No need to prove intent or negligence, just causation. • No fault, no causation. • Not found in tort, but found in some regulations. 5. What is a Tort? • • There is a difference between criminal and Tortious acts. Many tortuous acts are also criminal acts. o Negligence – criminal negligence o Deceit – fraud o Battery – assault The tort action may be stayed to pursue a criminal charge. Criminal burdens of proof are higher, even if a criminal action fails, the tort action may succeed.

• •

a) Deterrence • • Most tortuous conduct is spontaneous, careless. There is no forethought for deterrence to affect. Potential liability costs may be weighed against the cost of avoiding damages, people may make a decision to pay damages rather than be safe if it’s cheaper (efficiency). This means those with more resources can take more risks. Victims are also never fully restored. (A payout doesn’t give me back the ability to walk.)

b) Compensation/Reparative Theory • • This is a primary function of Tort law. Designed to restore the plaintiff to the position they would have been in had the tort not been committed.

Therefore. then the firecracker exploded and blinded the plaintiff. gives money for loss. – The action is not immediate. punish or nullify moral fault. o If everyone got personal disability insurance. Usually quicker. The direct action of the defendant extends only to the first intervening act. Ratio: For an action under trespass. Wrongful conduct 2. • • • • c) Normative Theories i) Resource Redistribution • To reapportion resources more equally ii) Retributive Justice • Imposes liability on a blameworthy actor to penalize. Causation of harm by this conduct 3. The goals or compensation and deterrence may in fact be at odds with each other.The writ of trespass requires proof of injury and force. Dissent: Blackstone. It was consequential. The intervening actors were not considered free agents as they were reacting to the danger caused by the defendant. Fair faced victims tend to get more money. This judgment allows liability to be extended into infinity. this is not a case of trespass. Shepherd. o Doesn’t pay as much as was lost. or do the intervening acts represent a break in causation? Analysis: Nares. the Forensic Lottery o Socio-economic and racial differences affect damages. Damages lottery o Litigation is not a speedy form of recovery. subject to the opinion of the court of this case. . Where would it end? This could be a definite policy problem. iii) Corrective Justice • Attempt at proportionality between the extent of the wrongdoing and the extent of the remedy. but you get less. . d) Three main elements of liability 1. the rest get nothing. J. Winning and losing seem random. [1955-1774] (England) Facts: The defendant lit and threw a firecracker into a crowded marketplace. it is one of trespass on the case because the damage was not direct. o Do we want to encourage revenge? Those with more resources are better able to pursue revenge. Tresspass and Case. Damages are paid in one lump sum. iv) No-Fault • A plan instead of liabilities. the liability is for all of the consequences that flow from the act. the Case Law a) Scott v. o A handful get a lot. Eisen. The jury found a verdict for the plaintiff with lb. maybe a system based on long-term care would be more effective. Loss. Issue: Was the harm direct and consequential. injury or harm as a result 6.12 • • This is the primary reason plaintiffs will litigate.. o Compensation requires going after the deep pockets. but you can’t sue. deterrence looks to the morally culpable. J. There were 2 intervening acts.100 damages. There is a direct causal link between the defendant’s tortious act and the plaintiff’s injury because the defendant gave the mischievous quality to the squib. everyone would be more likely to be compensated.

but the defendants shot at the same time. they don’t. won at appeal to the Supreme Court. 3. c) Williams v. The plaintiff was deprived of the services of his son. Held: The plaintiff. The plaintiff must prove this. In a trespass case. that it was an accident. 4. 10 Bing. Ratio: In a case of negligent trespass. It is direct and with force.. In an action on the case. 112. Analysis: 1. and had to pay doctors’ bills. Lewis. all consequences are tortious. nor negligence. Cook. 2. who was also his servant. Bray.) Facts: A horse went out of control and hit a woman even though its owner tried to steer it away from her. the onus is shifted to the defendant to prove the lack of negligence and wilfulness instead of the plaintiff having to prove they were. not trespass. This defines whether it is trespass or case. Issue: If the action is direct. while hunting.131 ER 848 (CP) Facts: The carriage of the defendant struck the carriage of the plaintiff. KB) Facts: The defendant drove his horse-drawn carriage into the plaintiff’s carriage. 2. She sued for negligence and trespass. the plaintiff would have to establish causation. Held: Held for the plaintiff in trespass. (1803) (Eng. but not negligent or wilful. The Basic Concept of Remedies in Tort Law . or if it is direct but not wrongful. In trespass you are not limited to reasonable foreseeable circumstances. Analysis: The plaintiff received an injury by the direct force of the defendant. Holland (1833). Mather (1875) (Exch. Where negligence is direct. not on the case because it was direct and with force. The defendant must prove that it was neither negligent nor wilful. The case was thrown out as non-suited – the judge said it should have been framed as an action on the case. Issue: Can an action on the case be brought on the case where negligence is direct? Ratio: There is no authority that says where direct negligence should be tried. The plaintiff’s horse panicked. Lewis. The jury found that one of Cook or Akenhead shot Lewis. so there is no telling which one shot Lewis. he jumped out of the carriage and broke his collarbone. injuring his son and damaging the carriage. Ratio: The intent is not a factor in cases of trespass with force of arms.13 b) Leame v. the plaintiff can choose whether to bring an action on the case or of trespass. it is considered and accident and is not actionable. [1952] (SCC) Facts: The plaintiff is suing for damages following being shot and injured by the defendant. e) Cook v. This is a case of negligent trespass. it doesn’t matter whether the defendant meant to or not. d) Holmes v. is it actionable? Ratio: If an act is not of direct force. nor wilful. This is a case on trespass.

C.) A small award ($50) to recognize a legal right the law protects when there is no real harm. Pilot Insurance. • Ignoring an injunction puts the person in contempt of court. b) Mandatory Injunction – Makes the person do something. or without proof of loss. 2. damages. • These are discretionary. emotional loss.) d) Disgorgement • Takes away from the defendant benefits that he obtained as a result of his own wrongdoing.(P. • May still have to pursue creditors’ remedies to recover the money. b) Non-pecuniary – Cannot be measured.) v.. General Damages – Cannot be calculated at the time of the trial. 2.(W. Classification of Damages a) Pecuniary – Can be measured (monetary). Canterbury City Council. 2. which can lead to imprisonment. 4. • Grants the plaintiff a legal right to money. a) Judicial and Extrajudicial Remedies Judicial Remedies 1. Used for retribution and deterrence. B.(1989)) questioned as to their purpose and effectiveness (Whiten v. Special Damages – Can be calculated exactly at the time of the trial. (Dodd Properties v. (non-monetary). Types of Damages in Intentional Torts Nominal • • b) Compensatory • • • Compensate for actual loss. B. 3. Livingstone v. Order of Specific Restitution • Makes the person restore a “pre-existing condition or return an object”(p. 3. 1. Introduction Establishing liability is only a means to achieving a remedy. Recapture of Chattels Re-entry onto land Abatement of Nuisance 2. Insurance Grour of B. . 3. Only awarded for torts that are actionable per se. c) Punitive (Exemplary) • • • • • Designed to hurt the defendant. (Vorvis v. To place the injured party in the same place she would have been had the tort not occurred. Declaration • A formal statement of a person’s legal rights. Rawyards Coal Co. Damages • Available in most Tort actions. Injunction • Directs someone to do something.14 1. pain and suffering. traditionally an equitable remedy. a) Prohibitive Injunction – Keeps the person from doing something.24) Extrajudicial Remedies 1.

The judge said it was the trespass of these other men. Intentional Interference With the Person 1. there was no volition on his part because he was carried there by other men against his will. and only for the actions of hurling.15 • Available in some cases (including breach of contract) but not others (assault. trespass to land. • Used to establish intent when there is no simple intent. trespass to chattels. Refers to a person’s desire “to bring about the results or consequences of his act. • Historically limited to battery. • Objective intent – what a reasonable person would conclude. • Applied when someone intends to commit an intentional tort against the plaintiff. Motive. Pounds. especially in assessing damages. Subjective intention – The actual intention in the mind of the actor. QB) The defendant profited by leaving his pontoon boat at the plaintiff’s dock for eight months. battery. b) Intent • • • Desire to produce the result that follows the act. because he did not have the volition. Basic Principles of Liability A defendant is only liable if volition and intent are shown. He had to give up the money he saved by not having to rent other space. v. not the defendant. Mistake and Accident a) Motive • • • • • Motive is an essential element of some torts. casting and shooting. [1963] (Eng. rather than his desire to do the act itself”(p40). The plaintiff in an action must prove the defendant’s conduct was intentional and voluntary. Stone (1647) (KB)– Tresspass to Land • The defendant was sued for trespass. An act is voluntary if it is directed by the defendant’s conscious mind. or intends to commit one tort against the plaintiff and commits another against him. false imprisonment) i) Penarth Dock Engineering Co. and “those unintended consequences that are certain or substantially certain to result from it”(p41). a) Volition • • • Desire to do an act. Imputed (Constructive) Intent • Intent includes both the desire to bring about the consequences of an act. (Pilot Insurance). 2. ie: malicious prosecution. . but not the blameworthiness of their motive. He claimed that while he was on the plaintiff’s property. false imprisonment. i) Smith v. (p.40) Volition is rarely an issue in cases because it is rarely in question except with children and the insane. 3. 1. assault. • Objective intent – what a reasonable person would conclude. 2.. The reason for wanting something to occur. Motive is taken into account in several ways. Transferred Intent • Imposes liability for the unintended consequence of an act. • Used to establish intent when there is no simple intent.

The judge found that the mistake was not a valid defence for the intentional interference with the plaintiff. The defendant was in his house with the door locked when he shot the plaintiff. The plaintiff chased him to his house. annoyance.A. The defendant. a) Miska v. Provides an incentive for people to exercise great care not to make mistakes. (Policy Concern). He defendants argued they were hunting wolves. The appeal was dismissed with costs. The Jury found for the plaintiff. 31 Ill. forcibly removed the plaintiff from his offices. Stone. The Test: Did the plaintiff’s conduct cause the defendant. Policy argument. Tresspass to Chattels • • The defendant plead not guilty of trespass to land and stealing money because he was threatened by 12 armed men who would injure him if he did not. the dog looked like a wolf. This is not a defence to an intentional tort. nominal damages. we could be encouraging people to seek retribution for past provocations. Sivek(1954) 18 DLR (2d) 363 (Ont CA) • The plaintiff sued for damages after being intentionally shot by the defendant. CA) • • • The plaintiffs sued the defendants for killing their dog. sudden passion. It is simply a factor the Courts will consider in assessing damages. as a reasonable person. Provoking behaviour: Insulting or abusive conduct or language. Duress is only a defence in criminal law.. to lose his power of selfcontrol? (Objective test) • • • • • • b) Mistake • • • Occurs when the defendant intended the consequences of his act. 2) He failed to tell the jury they should take provocation into account in assessing damages. The Court found that this was not a valid defence because the plaintiff cannot receive satisfaction from the party who did the threatening. where one has to react immediately to danger. They are liable for the dog. find that the mistake was a mitigating factor. The second was dismissed because the judge found there was no provocation. c) Accident . Duress did not negate volition nor intent. only used in damages. He was not entitled to do so. App 241 (Ill.) • • The plaintiff sued for damages for trespass to the person. Only matters as a defence in cases of self defence and defence of a third party. He reduced the damages awarded to $10. That they were acting in good faith does not change that they caused harm to the plaintiff’s property. i) Hodgskinson v. The defendant appealed on 2 grounds: 1) The judge told the jury the defendant had to show the force he used was in self defence and not excessive. Provocation usually reduces damages if accepted as a defence. if we allow people the defence of provocation when the provocation is not immediate. (1648)82 ER 539 (KB) – Tresspass to Land. He did. a Deputy Minister. There was evidence of bad blood between the parties. but thought that the consequence would have a different “factual or legal significance than that contemplated”(p45). however. a) Gilbert v. The first ground of appeal failed.C. and it was an honest mistake. but he thought he was. Kitner (1888). Martin. The judge found this was no defence. C.16 i) Duress • An inoperable defence. The defendant argued selfdefence. ii) Provocation • A partial defence. lack of self control. ii) Ranson v. [1929] 1 DLR 367 (B.

trying to make him confess.C. self defence. battery is the actual contact. Fleming. don’t need to prove harm.17 • • A situation where the defendant injured the plaintiff. p. in Law of Torts. Tresspass to the Person There are three main forms of Trespass to the Person 1. defence of property. • Actionable per se. but this is tempered by another test. d) The Liability of Children and the Mentally Ill • • • While children and the mentally ill are subject to the rules of liability in intentional torts. This constitutes battery. The action is framed as assault. 2. but in Canada an assault can include battery. ie. While he was shaking him. If the defendant intentionally commits violence or threats of violence. but the defendant did not see who threw it. 4th Ed. Jostling in a crowd. • Plaintiff must prove it is direct and with force. etc. The defendant is only liable if they failed to “provide reasonable supervision of the child”. writes. Analysis: 1. 2. etc. 88 DLR (3d) 543 (Co. He said this was an accident. It should have been battery: “The intentional infliction upon the body of another of a harmful or offensive contact”(p50). Assault is the threat of violence. the defendant hit the boy on the nose with his head. or show that there was no intent and no negligence. His testimony did not fit any of the defences to battery. (asleep. For it to be battery. whether the defendant could “appreciate the nature and quality”(p48) of their actions. Battery 2. • Not all contact is battery. An accident. (1971). “it is not necessary that the actor intended to inflict bodily harm. 3. since we have seen the legal is complete without it”(p51). CT) Facts: The plaintiff’s son was throwing lit matches into a convenience store. but without intent or negligence. necessity or legal authority. 3.. A bag of charcoal caught fire. and a . consent. The defendant grabbed the plaintiff’s son and shook him. anaesthetised. The action will proceed as battery. and B. Yim (1978). The defendant testified that he intended to grab the boy and shake him. Parental responsibility legislation in Ontario. The cause of action arises when the victim realises the harm has occurred. Assault 3. requires that defendants prove there was enough supervision or that the damage was unintentional. The defendant must have intended that the contact occur.). the defendant must have directly injured the boy. The defendant intended to grab the boy but did not mean to hit his head. Manitoba. False Imprisonment 1. a) Bettel v. An accident is distinguished from a mistake by the absence of intent. • The plaintiff doesn’t have to have been aware of the battery at the time it occurred. causing him to fall to the floor and bleed. • Defendant must raise defences.28. Issue: Did the defendant commit battery on the plaintiff’s son? Rule: 1. are seen as just part of life. • Requires volition and intent. There is no liability for accidental harm. Battery An intentional infliction of harmful or offensive contact on another person. Parents are not liable for torts committed by their children unless they were negligent in supervising or controlling the child.

(2000) (SCC) Facts: Vincent Scalera was a bus driver who had an affair with a minor who worked in a store on his route. Issue: Does the onus rest on the plaintiff to prove she did not consent in a case of sexual battery? Rule: 1. After she came of age. Sexual touching is not everyday contact. like consent. There is no need or justification to change this rule. He court found it did not. The test is volition and intent. claiming she did not consent. 2. Stone and Gilbert v. The defendant had insurance which may have had to cover the damages payment. Lloyd’s of London v.18 more serious harm than he intended happens to his victim in the course of this. 3.. • Intentional creation in the mind of another of a reasonable apprehension of an imminent battery (harmful or offensive contact). It runs contrary to the criminal code’s provisions against victim blaming in sexual assault cases. 2. 533 p. so he is in the best position to present evidence to explain his behaviour. Conclusion: Damages awarded to the plaintiff. cannot constitute assault. the defendant must bear the brunt of this. Scalera. The argument that battery must involve “harmful or offensive” contact does not justify shifting the burden of proof to the defendant (p57). • Even if the defendant lacks the ability to carry out that harm. the defendant appealed. COPE (Sarnia) Ltd. The defendant was liable for all injuries the defendant’s son suffered as a result of the incident. If they are there. without some overt act. Tresspass is a rights-based tort. This argument is advanced to protect people from nuisance lawsuits caused by everyday contact. The defendant is also the only person who really knows whether he thought there was consent. Ratio: There is nothing exceptional about sexual battery that should make it necessary to change the traditional rules of battery cases. 19 Ottawa L. Placing a rule on sexual battery that is not present in any type of battery otherwise places an unfair burden on sexual battery plaintiffs. It has been stated that conditional threats. It is a singling out of a person. . b) Non Marine Underwriters. To change the onus of proof to the plaintiffs would put an unfair burden on sexual battery cases. Assault The intentional creation in the mind of another of a reasonable apprehension of immediate physical contact. Stone • • Is Stone any more blameworthy in Gilbert than in Smith? It doesn’t matter. There is nothing about sexual assault that justifies the creation of a new rule. The insurance company is trying to prove that the act was intentional so they don’t have to pay. (Sullivan. The burden then shifts to the defendant to present a defence. the defendant is liable. However. (1980). c) Smith v. “Tresspass to the Person in Canada: A Defence of the Traditional Approach” (1987). (Pointing an unloaded gun at someone).562. • Fear is not required (but it really really helps). This was a case of transferred intent. the courts have begun to reconsider these limitations and focus instead on the impression created in the plaintiff’s mind”(p61). and words alone. the plaintiff sued the defendant for battery. 11 CCLT 170 (Ont HC). The traditional rule in rights-based torts is that the plaintiff must prove “direct interference with her person”(55). Bell Canada v. Rev. he intended to commit one tort and he committed another.

J. If you simply provide them with information. so she left.19 • • • Imminence. or provocation. Whitaker (1975) (Ala. a) Bird v. the threat was imminent.. must not be too far in the future. S. He told her she should come inside to avoid further embarrassment. you are not responsible for what they do). They prevented him from doing what he had a right to do. She took a cart. not a “partial obstruction of his will”. (1976) (NS TD) Facts: The plaintiff went Christmas shopping at K-Mart. b) Police v. C. but you can have one without the other. It is not false imprisonment if there is a reasonable means of escape. Issue: Is this assault if the threat was conditional? Ratio: A threat that gives a condition interfering with the “lawful occasions” of the threatened person or constitute an assault.) Facts: A doctor tries to break down his wife’s door.C. Reasonable = Available to the plaintiff without danger. put some things in it. False Imprisonment • • • • • Derived from the writ of trespass. If an obstruction causes damages. The threatened harm must be immediate. so a security guard stopped her outside the store. self defence. This may provide the basis for defences of consent. Actionable per se.A. but couldn’t get the attention of a clerk. no actual force or restraint was used on him. Dissent: Lord Denman CJ – The plaintiff was stopped with force and made to go in a direction he did not want to go. Dyer (1966) (Ont. Jones. b) Campbell v. doesn’t have to be great harm. . Assault is usually followed by battery. Imprisonment must be total.. a remedy may be found in negligence (Sue insurance companies) or public nuisance. c) Bruce v.Imprisonment must be a total restraint of a person. Greaves. (Only if you order someone to do it. she demanded to know . How long is less important. The plaintiff was free to go in any direction except the one he wanted. When she went in. She reasonably thought he could harm her. Issue: Does this constitute false imprisonment? Ratio: Patteson. Kresge Co. H. (1845) (QB) (Unchallenged for 150 years) Facts: The plaintiff was trying to use a public highway. and she reasonably apprehended the harm. You can be liable for false imprisonment if you order someone else to wrongfully imprison someone. combined with his show of force. but it can’t be false imprisonment without total restraint.) Facts: Drunk defendant points a knife at police and tells them to get out or he’ll stab them. saying he’ll kill if she divorces him. The defendant argued it was not assault because the threat was conditional.C.) Ratio: The threat of violence has to be such that a reasonable person would apprehend imminent harm. He was prevented from going in the direction he wanted by the defendant and his agents.S. Someone said they saw her shoplifting. who were policemen. [1964] (Eng. a) Holcombe v. 3. Ratio: The defendant cannot threaten to harm the plaintiff if she does something she has a legal right to do. S.

. To coerce someone. Weardale Steel. Intent counts. He was brought down. then refused to work because he said the work was too dangerous. The plaintiff must prove these are not present. but motive counts. or a main purpose other than a lawful one – Ill will. Tresspass on the Case 1.20 what was going on and demanded to be searched. The security guard. Malicious Prosecution • • • • • • • Derived from trespass on the case. Usually protects prosecution from liability. there has to be a belief in the accused’s guilt. 4. told her he was just trying to get the facts and she was free to go. c) Herd v. • The burden on the plaintiff requires that she prove that the Attorney General or Crown Attorney defrauded the justice system and in the process perverted or abused their office and the “process of criminal justice”. c) There must be no reasonable or probable cause – Subjective. After a long public hearing. She left the store. d) There must be malice. but this doesn’t have to be a physical barrier. He demanded to be brought to the surface. Coal and Coke Co. In the civil context. Threat of arrest or embarrassment is enough.. [1915] (HL) Facts: The plaintiff worked in a mine. b) They must have ended in favour of the plaintiff. He had to wait 20 minutes. vengeance. it is usually limited to bankruptcy and winding-up matters. (1989) (SCC) Facts: The plaintiff was charged in the deaths of 4 babies. negligence and violation of her Charter rights. Usually limited to the criminal context. a) Nelles v.. The initiator of the action must believe it and it must be reasonable to believe it. Errors in discretion or judgment are not actionable. but indirect. She sued several police officers. improperly shift blame. Issue: Did the security guard’s actions constitute false imprisonment? Ratio: There must be a boundary for false imprisonment. Improper institution of criminal prosecution proceedings against an individual. and interference. malicious prosecution. and was told he would have to wait for the regular time. not seeing his informant. damages. the Ontario Attorney General and the Crown for false imprisonment. the charges were dropped. Doesn’t have to be malice. Issue: Did the defendant’s refusal to bring the plaintiff up as soon as he asked constitute false imprisonment? Ratio: Voluntary confinement for a fixed period negates a claim for false imprisonment. • Belief in the subject’s guilt must pass subjective and objective tests. One cannot be harmed by what one agrees to. Motive matters. Ontario. To strike a balance between encouraging people to keep the pace and keeping them from starting frivolous cases. Objective – There has to be a rational basis for this belief. Issue: Are the Attorney General and Crown immune to suits for malicious prosecution? Ratio: There are 4 necessary elements of the tort of malicious prosecution: a) They must have been initiated by the defendant. malice must be present Must establish injury.

Her mother is suing for nervous shock. (1961) (Utah SC) Facts: The plaintiff is a married woman. The plaintiff must prove: 1. Canada) The harm must be a recognized illness or psychiatric disorder.21 • There may also be a violation of the plaintiff’s rights under ss. motive for greater harm may be imputed. The person mustn’t be predisposed to nervous shock. or threatened to undertake. 3. [1897] (Eng. • Proceedings do not have to have terminated in favour of the plaintiff. 7 to 11 of the Charter. Issue: Can the mother of a molested child recover for nervous shock? Ratio: Visible and provable illness resulting from a violent emotion caused by the defendants is a recoverable harm. QB) Facts: The defendant told the plaintiff her husband had been injured in an accident. The illness must be a natural and direct result of the wrongful act. she claimed she suffered nervous shock. That the defendant undertook. (Clark v. 2. The Supreme Court has refused to allow the Intentional Infliction of Nervous Shock in family cases because of flood gates arguments about vindictive prosecution.. b) Abuse of Process • Focuses on the nuisance of civil proceedings for a purpose other than the resolution of the claim. which caused her to vomit. some overt act or threat other than the litigation itself in order to further the improper purpose. b) Radovskis v. • The overt act is usually difficult to prove.500 in punitive damages. and further suffering that caused her weeks of suffering and incapacity and cost her husband money in medical bills. This caused a nervous shock. Where the act is plainly calculated to cause harm. That it was done for some extrinsic process. c) Samms v.500 in actual damages and $1. Eccles. The defendant harassed her from May to December 1957 by phoning her at all hours asking her to have sex with him and once came to her house and exposed himself to her. • For the AG and Crown to be immune to these suits would encourage public confidence in these offices. a 5½ year-old girl. her father is suing for medical bills. lost pay and worry. Ratio: Causing a nervous shock to a person is a tortuous act. 4. a) Wilkinson v. That the defendant brought a civil action. The Attorney General and the Crown are not immune to malicious prosecution. The child is now suing the defendant for trespass to her person. but this would violate equality before the law. Issue: Are the damages for nervous shock recoverable? . As a result. (1957) (Man QB) Facts: The defendant raped the plaintiff. Downton. He was convicted of the rape and sent to jail. This was the first case to recognize the intentional infliction of nervous shock as a tort. 2. That the plaintiff consequently suffered a loss. The defendant said he did this as a joke. Intentional Infliction of Nervous Shock • • • • Usually refers to one shocking event. Tomm. She is suing for $1. The plaintiff has physical symptoms. She was not unhealthy before the incident. but can refer to a pattern.

BCTV interviewed the doctor who did the surgery. In Ontario there is no tort of privacy per se. 3. infecting them with a disease. like poisoning someone. Innominate actions allow these claims to be redressed without disturbing accepted principles of nominate torts. In BC. An action for severe emotional distress can be brought where the defendant intentionally engaged in conduct toward the plaintiff. d) Innominate Intentional Torts • Some see Wilkinson as establishing an innominate intentional tort for all “unjustified” intentionally inflicted bodily injuries (such as nervous shock). Intentional Infliction of Nervous Shock. b) The Statutory Protection of Privacy ii) Hollingsworth v. Issue: Are the three causes of action actionable? Analysis: 1. He sued for defamation. Protection of Privacy a) Is there a Common Law Tort Action for the Invasion of Privacy? • • • • There is no established tort of invasion of privacy in Canada. Privacy Act: BCTV did not violate the plaintiff’s privacy wilfully. (1976) (Alta. setting a trap in someone’s path. Breach of Obligation of Confidentiality: BCTV did not know and should not have known the tape was confidential. but he didn’t know where Mr. The legal approach has been to rely on statutory protection of privacy.22 Ratio: This tort need not be based on negligence. Seven years later. 2. Hollingsworth got hair plugs and consented to have the procedure videotaped for educational purposes. CA) Develops anew category of Tort under nuisance. Privacy is difficult to define and can be problematic. and breach of the Privacy Act. invasion of privacy by way of the telephone. Hollingsworth was. b) Subjective . [1999] (BC CA) Facts: Mr. Manitoba. Hollingsworth had consented to the use of the tape. .Where any reasonable person would have known this would result. It depends on personal attitudes and expectations. Other jurisdictions rely on statute. He gave them the tape for a TV show. In some provinces the Common Law Applies. He said Mr. etc.. No. 3. a) Objective . This should influence the Common Law in these areas and the development of Common Law and statute in other areas. and they had an honest and reasonable belief that the tape was OK to use. creating a statutory tort. BCTV. Saskatchewan and Newfoundland there are privacy acts. • Others see Wilkinson as creating a nominate tort. breach of obligation of confidentiality. but some cases have recognized that privacy is something to be protected. Defamation: BCTV did not lie about the plaintiff. Motherwell. i) Motherwell v. They showed the tape on the 6 o’clock news. • Some intentional conduct is morally blameworthy and likely to cause injury but don’t fall into the traditional named actions. Ratio: A nuisance of this kind must be a real interference with the comfort or convenience of living according to the standards of the average man to be actionable.With the purpose of inflicting emotional distress. The test: 1. In others remedies lie in other torts. and his actions are ones that could be considered outrageous and intolerable according to generally accepted standards of decency and morality.

It must be imparted in circumstances creating an obligation of confidence. The Code has remedies for Discrimination. “mere insults” are not always considered enough. • Originally an equity action. Damages are not available for mental anguish. The Common Law Tort of Discrimination a) Bhadauria v. b) Difficulty of Apportioning Damages • • The plaintiff’s susceptibility to racial insults may depend on past experiences of racism. • Usually used to protect trade secrets.23 c) Action for Breach of Confidence (Confidential Information) 3 Elements: 1. Objections to a Tort for Racial Insults a) Difficulty of Measuring Damages • Interests are intangible and difficult to measure and prove. Issue: Is there a Common Law Tort of discrimination? Ratio: There is or should be a Common Law Tort of Discrimination. The degree of harm caused by one defendant may be dependant on the degree of harm caused in the past. b) Intentional Infliction of Emotional Distress • • • Recovery is limited to severe distress. She sued at Comon Law instead of filing a complaint under the Ontario Human Rights Code. (1979) (Ont. Bd. Its unauthorised use must be detrimental to the confider. 4. of Seneca College of Applied Arts and Technology. Of Gov. and these are the ones that should be used. and so to protect privacy. 6. including actions in tort. She did not get an interview for any of them. 5. CA) Facts: The plaintiff applied for 10 jobs at the college. and had all of the necessary qualifications. Current Legal Protection from Racial Insults a) Assault and Battery • • Only applies if there is a physical or reasonable threat of harm. • Can also be used for personal information. of the Seneca College of Applied Arts and Technology v. 2. The information in question must have a quality of confidentiality. 3. (1981) (SCC) Ratio: The enactment of the Ontario Human Rights Code forecloses civil law remedies. • These types of damages are routinely assessed for other actions such as invasion of privacy and emotional distress. There must be harm or “extreme or outrageous” upset. She claims this is because she is Indian. Bhadauria.. c) Fraudulent Claims and “Floodgates” • The inconvenience and distress and expense caused by litigation are enough to deter most fraudulent claims. b) The Bd. now supported in law. Of Gov. .

o That the plaintiff understood it as intended to demean through reference to race. • The defendant must prove lack of intent or negligence(accident) in order to raise a successful defence. or destroy or consume them. Innominate tort. • Used to allow owners to take their Chattels back without legal recourse.) Facts: The plaintiff was on a boat and caused a disturbance. Willoughby. • Protects the right to possession. It is unclear whether you can commit battery to get your chattels back. Detinue • Ongoing unlawful detention of a chattel 4. • Doesn’t depend on possession. 2. The horses ran away and later turned up at a stable. o That a reasonable person would recognize such as a racial insult. • To constitute conversion. the party taking the goods must intend to use them. Ejectment (Property. Conversion • The plaintiff’s chattel has to be too damaged or destroyed to return it. Ratio: Where someone carries away goods without the intent to make any claim to them. o At the discretion of the government. Damages are based on the market value of the thing when it was taken. (1841) (Ex. Permanent Damage to Reversionary Interests • When the owner is out of possession when the damage occurs. the plaintiff must prove this.. This proposed tort is seen as a way to balance interests. 1. it is not a conversion but a tresspass. The horses were eventually sold at auction to pay for their keep. 5. Under the Human Rights Code. The stable owner refused to release the horses to the plaintiff until their keep had been paid for. The owner may sue a third party for damage to their Chattels while they are in the possession of a bailee. criminal injuries compensation. His horses were put on shore in the hopes he would follow them. or otherwise exert control over them. not the rights of ownership (although ownership supercedes mere possession). there is discretion as to whether your action will proceed. Intentional Interference with Chattels 1. He did not. Damages were awarded to the plaintiff. Tresspass to Chattels • Touching something that doesn’t belong to you. o Dual systems exist for motor vehicle. a) Fouldes v. Why are racial insults worse than gender insults or any other immutable quality? • • • • 4. The trial judge told the jury to consider conversion. but title. . Ct. bureaucracy. (Fouldes v. Willoughby) 3.24 Elements of the Proposed Cause of Action • The plaintiff should be required to prove: o that language was addressed to him or her by the defendant that was intended to demean through reference to race. • Direct and with force. Intentional Interference with Real Property An owner who is out of possession but has title can bring a number of remedies. Tort law is seen as a supplementary or alternative scheme to Human Rights Legislation. not tort) • To recover property.

b) Turner v. HC) Facts: Thorne mistakenly delivered a load of goods to the plaintiff’s home instead of his business. No damage need be proven. Interference must be intentional or negligence – privacy. (1976) (SCC) Facts: The defendant was charged with trespass for picketing in a shopping mall for four days. It was then appealed to the Supreme Court. (1960) (Ont. 3. He entered the plaintiff’s garage without permission and stacked the goods inside. There is a right to picket. Carrington. property. A trespasser is liable for injuries stemming directly from the trespass. The convictions were set aside by the Manitoba Court of Appeal. • This is called trespass by relation. • Protects the quality of possession. Ratio: Property owners have a right to exclude anyone they wish from their property. an activity they have a right to do. she is the one who is injured. they are deemed to have been in possession from the time they obtained the right to immediate possession. Issue: What is the liability of a trespasser for injuries caused to the possessor of the land as an indirect result of trespass? Ratio: 1. a) Entick v. Carswell. We must defer to the legislature.. • Concerned with the effect of conduct. the plaintiff is entitled to judgment. the wrongful occupation. Thorne. Ratio: The tort of trespass is actionable per se. but there is also a law in Manitoba prohibiting picketing on private property. Where someone is ejected from a public area for picketing. (1765) (USA CP) Facts: The defendant broke into the plaintiff’s house and carried away some papers. When the plaintiff came home. Peaceful entry onto the land and request the occupier to leave. a legal fiction which allows the title holder to date their claim to the land from the time they first obtained the right to the land. 1. That a trespass was by mistake does not relieve the trespasser of liability for the results of the trespass. not the nature of it. he tripped over the boxes and was injured. If a person admits to the trespass.The common areas of a shopping mall are open to the public and therefore more public than private property. Tresspass to Land • • • A wrong against possession – DIRECT. The plaintiff sued the defendants in trespass. the burden is on her to prove a justification. The defendant claimed authority under a warrant from the Secretary of State. possessory interests. She was convicted and fined $10 for each day at County Court. Tresspass and Nuisance • A private nuisance is a substantial and unreasonable interference with the use and enjoyment of land in the possession of another. Dissent: Laskin CJC . If there is no excuse available. . 2. reasonable force may be used to eject them. losses from use of land. • Nuisance is only actionable if there is proof of loss.25 2. • If there is no compliance. • Entitled to mesne profits. 2. Direct and intentional physical intrusion onto land in possession in another. as well as those caused indirectly or consequently by the trespass. If they have the right to immediate possession and they take possession. c) Harrisson v.

• There are 2 main causes of nuisance in tort: 1. demeanor. fly ash and noise. as well as continuing harm. 20 years after it opened. • Used to prevent damage or obtain compensation for damages that have already occurred. • Usually one landowner against another. not to negligence. • Various factors are weighed in. easements.. 2. but the motel closed in 1971. Conduct not leading to damage. Not a tort. Revelstoke set up shop across the street seven years after they opened. • Eg. pollution. water. Consent • • • • • A full defence. For example. The defendants took measures to help the situation. The plaintiff must establish substantial and unreasonable interference. or digging a hole in the highway without permission. 2. . sewage. will flow unless a defence is established. Private Nuisance • Protects the rights of one person. etc. 6. Consent extends to normal risks. SC) Facts: The Kerrs built a motel on a lot chosen for its matural beauty. Nuisance 2 Types: 1. but is an indirect barrier to the use and enjoyment of land. Indirect cause of physical damage to the land of the plaintiff. a tort. Materials Ltd. • Liability is established with only one occurrence of the act • Liability is usually strict. • A public nuisance may give rise to a private nuisance. Consent may be explicit: spoken or written. dust. odours. What constitutes consent depends on the tort. The plaintiffs had to deal with smoke. a) Kerr v. sawdust. requires proof of damages. • For example decline in property value. such as the defendant’s intent or neglect (state of mind). goes to liability. Noise. fumes and substances entering the plaintiff’s property constituted a nuisance. proof of damages. • The tortious act must be continuing.26 • Liability may be imposed even if the conduct was not intentional or negligent. • An interference that is offensive and inconvenient to a reasonable person. Public Nuisance • • • Protects the public in the exercise of rights common to all. Canadian Torts tend to place the burden of proof on the defendant. fumes.. damage caused by tree roots. or implicit: shown through participation. Revelstoke Bldg. • Action on the case. Issue: Do these inconveniences constitute nuisance or trespass? Ratio: Noise. a crime at Common Law or under statute. • A substantial interference with the use or enjoyment of a person’s land. Defences 1. The issue of consent is tied to the specific tort. (1976) (Alta.

Where there is no negligence. The boy who threw the hard object that hit the plaintiff did not intend to cause harm. Shine. aff’d (Man. (1956) (BC SC) Facts: Some boys had a mud fight on a dirt pile near a construction site. Issue: Did the plaintiff consent to the possible harm of the mud fight by participating in it? Ratio: Where there is no ill will. Cuerrier. He joined the play willingly and participated. consent to something is contextual. the giver must be capable of understanding the nature and consequence of the act. except in certain circumstances. . MacLean. v. d) Vitiating Consent If consent is vitiated. the law upholds their right to make any decision they choose. (1998) (SCC) Ratio: Consent to sex was vitiated by undisclosed HIV status in the criminal context. Hegarty v.27 a) Implied Wright v. (1965) (Man. i) Fraud (Deceit) 2 requirements: a) misapprehension. If the fair play and good will end. the defendant is held liable as if there had been no consent. blinding him in his right eye and injuring his nose. QB). One of the boys was slightly injured by a hard object. (1878) (Ireland CA) Ratio: Consent to sex is not negated by the transmission of an STD because it was collateral. R. ii) Mistake • A plaintiff’s consent is only vitiated by a mistaken belief if the defendant is responsible for creating the error. there is no liability apart from culpable carelessness (negligence). not a “collateral matter”. • Some American scholars find that the defendant’s knowledge that the plaintiff consented based on a mistaken belief vitiates the consent. this goes beyond implied consent. and the defendant was invited to join the game. because of age. physical or mental illness. If they cannot. b) The defendant must have been aware of or responsible for the plaintiff’s The fraud must be directly related to the nature of the act. CA) Facts: During a hockey fight. intoxication or other reason. the consent if not valid.. b) Exceeding Consent Agar v. Each case must be decided on its own facts. • This dies not apply where the defendant thinks the plaintiff has consented to an act she has not consented to. • If a person is competent. The defendant turned around and brought his stick down on the defendant’s face. This is no defence. c) Competency to Consent • For a consent to be valid. the plaintiff checked and hooked the defendant in the neck. Canning. depending on statute. blows given in sport and not maliciously in conditions of fair play and good temper are not actionable. Issue: Did the plaintiff consent to the injury because it happened in the course of a sporting event? Ratio: There is a limit to a player’s immunity from liability. so does the consent. but when a person shows a definite resolve to cause serious injury. (A person can’t consent to sex if they are under 14) o Age might be defined by statute.

The Court held that Gore used Dr.28 Toews v. iii) Duress Latter v. Throughout the exam. and did nothing wrong. Dyck to commit battery against her. . Issue: Did the maid consent to the examination? Ratio: Lopes. The trial judge found for the doctor.Where someone does as much as they can do to repel an examination without using physical force. Gore. Dissent: Lindley. (Sex with parents. • This rarely applies to a plaintiff seeking compensation for an actual loss. The action against the employer was dropped. teachers. CA) Ratio: The ex turpi defence was limited to violations of federal criminal law. 1. CA) Ratio: 2 examples of when the ex turpi defence will be used to deny damages. Tailfeathers. . usually in the context of a “power dependency” relationship. doctors. they did not consent. Braddell. Holloway. Nelitz v. o You can’t consent to being killed or seriously injured (Lane v. This is intended to protect the integrity of the legal system. Where the wrongdoer claims against another for profits from his own wrongdoing. 2. 1. – There was no force or violence used. iv) Public Policy • Consent is vitiated in some cases because it makes good public policy. want of consent could not be distinguished from reluctance. e) Ex Turpi Hall v. Proof of exploitation. The wrong done to the maid was her dismissal even though the allegation proved false. she protested that she did not want to be examined. so they sent her a letter telling her to show up and be examined by Dr. • People can’t profit from their illegal or immoral behaviour. CA) Facts: The plaintiff had chiropractic treatments through her insurer. Ratio: There is a 2 part test to determine where a power imbalance vitiates consent. (2001) (Ont. (1973) (Alta. Proof of inequality. but she didn’t refuse or fight him. J. v. Soni. (2002) (Ont. R. Jobidon) o You can’t consent to someone exploiting a position of authority. The maid appealed. (2001) (BC SC) Ratio: A nurse who administers a shot to a child thinking she has the parent’s consent is still liable if the parents have not in fact consented. considers the type of relationship in light of community standards. John Bead Corp. Weisner. 2. v. J. etc. Dyck. (1993) (SCC) Ratio: A person cannot recover in tort for the consequences of her own illegal or immoral conduct.. Latter’s employers called a doctor to examine her and see if she was pregnant. M(M) v. She claimed that he injured her by pressing on the top of her head at the end of the exam. The doctor was just a agent of the Braddells. Gore had a hard time getting information about her from her chiropractor. She claimed she did not consent. K(K)). Dyck. Where someone claims lost earnings from illegal activities. Tallow v. (1880) (CP) Facts: Ms. Hebert.) (Norberg v. Wynrib.

and should be honoured. Competency to Consent Consent must be given by a patient who is legally competent to be valid. or it is presented as a mere formality or in circumstances where she cannot read the form. • There will be problems with its validity if the patient is drugged.. • A signed consent form doesn’t remove liability. Newer cases reject this. or narrow it (Pittman Estate v. Shulman. The Burden of Proof and Consent Forms • Professionals have the burden of proving consent on the balance of probabilities. A card refusing treatment is a valid demonstration of intent to refuse treatment. (1987) (Ont. or explicitly. Bain) Malette v. replaced by the Health Care Consent Act(1996) to govern these rules. consent may be given orally or in writing. health care professionals may intervene to save the person’s life. • This should be obtained ahead of time. Canadian Courts used to let health care professionals hide things from patients if they thought it would help them. . This consent will be negated if the person objects. In a medical emergency when it is impossible to obtain consent. Her doctor found a card in her wallet saying she did not want a blood transfusion. Statute may impose a minimum age to consent to specific procedures in specific situations. Issue: Does the refusal of medical treatment have to be informed? Ratio: The doctrine of informed consent does not extend to informed refusal. v. Patients who have given a general consent to a course of treatment will be viewed as consenting to the whole course of treatment. It is only some evidence of consent. • This consent must be a voluntary product of her conscious mind. Exceptions: • Requirements of strict consent are relaxed by the courts in 3 situations: 1. not her ability to make a reasoned or prudent decision. orally or in writing. • Consent can be implicit by behaviour or participation. her consent is all that is needed. B. (Meyer Estate v. Rogers). Lightweight Aggregate Ltd.C.. and based on a full and frank disclosure of the nature of the procedure and its risks without vitiating factors. • Just seeking treatment can imply consent. The common law test of competence focuses on the patient’s ability to understand the nature of the proposed treatment and its risks. The key issue is whether the patient understood the basics of the procedure and the risks. Cement LaFarge Ltd. record keeping. 2. f) Consent to Treatment and Counselling • Health care providers and counsellors must usually obtain consent before any treatment or counselling. intoxicated or in severe pain when she consents. Her gave her one anyway. • There is now a Consent to Treatment Act (1992). (1983) (SCC) Ratio: The Supreme Court held that ex turpi extends to illegal and immoral conduct. i) Minors The test for competency is the same whether the patient is an adult or a minor. reporting and other disclosures. • If the patient is competent to consent. • A health care professional cannot override the limits a patient places on her consent (Malette). • Unless there is a governing statute. 3. and continued even after her daughter showed up and told him to stop. and cover the procedure. HC) Facts: A Jehovah’s witness was seriously injured in a car accident.29 Can.

Under statute in the Ontario Health Care Consent Act. You are entitled when confronted with violence to defend yourself using reasonable force. Ratio: The parental right to determine whether or not their minor child will have a medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed. • Consent given while a patient is sedated or in pain may be invalid. Dissent: Any exit option must be exercised before force can be used. Under the Act lack of consent creates a battery action. . Informed Consent: Battery or Negligence? Reibl v. The patient did not consent at all. The consent was obtained fraudulently.30 C. he punched him again and broke his cheekbone. • Health care professionals cannot take the blood from unwilling or unconscious subjects for the police except with a special warrant. • In the US. o Availability of non-violent means. Substitute Consent • When patients cannot give valid consent. 2. Wren.. ii) Adults • Usually involves mentally ill or senile patients. Self Defence • Full defence to actions derived from the writ of trespass. • A person can use reasonable force to repel real violence or a reasonable threat of violence. 3. man punched him. 3. (1986) (Alta. Hughes. consent is not valid unless it is informed. the nex-of-kin may be substituted. She was approved for the procedure by a statutory committee. o Nature of the Attack o Size and strength of the attacker (weapons). Force must not be excessive. This will only be upheld by the courts if it is proved that the patient was unable to consent and that the next-of-kin acted in good faith in the patient’s best interests. CA) Facts: A 16-year-old got pregnant and tried to have an abortion. tried to walk away. • Must show that the amount of force used was reasonable under the circumstances. Calder. attacked him from behind. (1980) (SCC) Ratio: 3 situations where an action in battery should proceed: 1. Not in Canada. 2. The consent was exceeded. v. The drunk got up. Ratio: It is not necessary to exercise an exit option. you can use deadly force if the event occurs in your home. • Legislatures and courts have not addressed this issue when the procedure is solely for research purposes. o Defence must not measure his force with nicety. Defence of Third Parties • Recognized in the criminal context at the appellate level. even if a more serious injury than necessary results. (1965) (BC CA) Facts: Drunk tried to start a fight. This is vary difficult to apply. Wackett v. Lack of fully informed consent should be brought as a negligence action. Deadly force can only be used where your life or serious injury is threatened. • The capacity of each patient in relation to each procedure must be assessed. Her parents sued her doctor on the grounds that she is a child and cannot give informed consent to a surgical procedure. but so far only at trial level in the civil context.

Ct. The intervenor can raise the defence independently of the rights or position of the person being defended. Gambriell v. Flateau. 5. Dupperon. There is no notice posted. (1828) (CP) Facts: The defendant had a walled garden with valuable tulips. (1907) (Minn. protected by spring guns and trip wire. Issue: Was the use of force justifiable because of the unlawful entry? Ratio: You cannot forcefully eject someone unless you have first asked them to leave and given the opportunity to do so.) You can’t shoot tresspassers. R.31 • • Reasonableness of force used is evaluated similarly to self-defence. The boy’s mother came out and hit the man with a hoe to make him stop. o Probably only applies when the ship is at sea or the plane is in the air and the police are not available.. but you can threaten them with a loaded gun.Co. o Spring guns. Hees. electric fences. Dom. A man trespassed into the garden to retrieve a little girl’s lost pea-hen and was shot. v.. Ratio: Force may be used if it is corrective. Defence of real property is based on the legal status of the entrant. v. Bird v. Caparelli. Discipline • Force is allowed if it is for correction (s. considering the nature of the offence to be punished and the composition of the child. He strapped him. The necessity for intervention and the reasonableness of the force are to be decided by the trier of fact. dogs. The plaintiff sued in battery. vicious dogs. R. Dunn v. Ratio: Where the person is intervening to rescue another and holds an honest. they can use reasonable force to accomplish the rescue. They got in a fight.) Facts: A man and a boy bumped cars. • Captains of ships and airplanes are allowed to exercise reasonable force against their passengers to secure the safety of their ship or passengers. Holbrook. are not usually OK. etc. (1974) (Ont. The amount of force must be reasonable and must not go beyond ejectment. Incapacity 6. Defence of Real Property • The law is unclear on the use of mechanical devices and technology to eject people o Barbed wire. Depue v. though possibly mistaken. Atlantic Ry.43 of the Criminal Code) • This had been criticized because corporal punishment has been outlawed for adults.Ct. [1920] (SCC) You may have to tolerate a trespasser if ejecting them would risk their safety. MacDonald v. CA) Facts: The defendant’s son misbehaved. (1974) (NS SC) Facts: The plaintiff unlawfully entered the defendant’s motel room. o You can’t call the cops when you’re at sea or in the air. etc. The man grabbed the boy by the throat. (1984) (Sask. Why do we allow it for children? • The reasonableness of the force used is important. The defendant ejected him with force. leaving large bruises. . belief that the person is in imminent danger. are seen as OK. Co. (1979) (Co. and if the force is reasonable under the circumstances. SC) . 4. Haverstock.

• It only applies to personal injury if the injury is slight. They soon got rescued. • It is uncertain as to whether this is a full defence – you may be liable for some. such as battery. This can only be invoked by someone who has an immediate right to repossession. 8. The House of Lords says no. In a forceful trespass. If not. we would have lawlessness. is unlawful in any circumstance. • With unlawfully taken chattel. so you have the immediate right to recapture. This differs from the defence of third parties in the sense that there is an external source of danger – the plaintiff is generally an innocent party whose interests are being harmed for the public or private good. There is some authority that some physical force. • The defence is narrower than self-defence. snow covered road. Two killed the third member and ate him. • You can also invoke this defence if you must trespass on someone’s land in order to recapture your property.. the occupier must first ask the entrant to leave. Issue: Can you take another’s life and plead necessity? Ratio: Necessity can not be used as a defence for murder. . (1853) (Cal. • Recognition that there is a social interest in preserving property and life. • You can’t invoke the defence if there has been some time since dispossession. the law recognized this remedy. There is no greater good operating here. you don’t have to ask for it back – someone stealing your bike. They were increasingly becoming weaker over a long time. Issue: Can the person who destroys another’s house under apparent necessity for the purpose of saving adjacent buildings be held personally liable? Ratio: The court has to decide whether the destruction was reasonable or not. It does not apply to those who cause or contribute to the disaster in the first place. SC) Facts: The defendant destroyed his neighbour’s house to prevent a fire from spreading. Fire departments or police. someone who has better rights and someone who has asked for the chattel back first. this could be seen as an attempt to deter tresspassers. that it will not excuse you of murder. you don’t know them so you can’t sue them. so long as the object was there accidentally or put there by a wrongdoer. Defence of Recapture of Chattels • In a limited context. 7. R v. The defence pled was necessity. b) Private • Pled when the defendant acts to preserve his/her private interest. Necessity • Defendant may be excused if they are acting under necessity. and only use force if the intruder refuses. Geary.32 Ratio: The spring guns show malice. There are some situations that give agencies broad rights to violate property rights in order to avoid disasters. • Examples. or all. a) Public Surrocco v. They subsequently were pardoned. if you use someone’s personal land and limit the damage then the defence will apply. • The defence is only applicable in moments of imminent peril. you can use force right away. losses and not the technical trespass. but with no notice it’s intent to injure tresspassers. for example.) Facts: Three men were shipwrecked. If there had been notice. • The chattel holder as the aggressor in an attempt to regain possession. The force cannot be deadly and must be responable. and hence it may be necessary to destroy someone’s property to save others. Stevens. Where the trespasser is peaceful. Dudley v. highways blocked. (1884) (Eng.

If they knew the statement was false but didn’t rely on it. The permit was denied and the company folded. They were acting on the belief that they will very shortly get the permit to use mechanical means. Graham v. such as the Negligence Act. if there is actual damage done to the property. may be verbal or may be in writing. and you are liable for it. no damages. Sometimes half-truths or a failure to correct could be sufficient to satisfy this requirement. Sometimes we force rivals out of business with legitimate means. Recklessly (a sub-set of #2) • Hedley Byrne – Negligent misrepresentation is now recoverable. The torts of Conspiracy. The torts of Deceit and Passing Off belong here.33 • It is permissible to intrude on someone’s property to preserve your life. Also. etc. Trademarks. etc. and advertised that they had the permit to use mechanical means (rather than horse). However. • Fraud: Deals with lies directed at the plaintiff. the boat would have broken free and possibly caused more damage. The shareholders sued. Dissent: The plaintiffs ran a dockyard. this provided the defendant with a complete defence. Consumer protection laws are under this category. The general rule is that there must be some positive conduct. which seeks to mitigate/reduce the damages the defendant has to pay. Damages put the plaintiff back in the position they were in before the misrepresentation was made. Apportionment of Fault • Historically. The seas were so rough the ship caused damage to the dock to the amount of $500. if they hadn’t reattached with stronger cables. If a person has said something that causes someone else to rely on it to their detriment. this is direct and intentional interference with the other’s property. (1889) (HL) Facts: The company set up a tramline. and it would be reasonable to assume that ships would dock there in the course of a storm.A statement. • Contract law has also evolved to cover false statements. If they hadn’t the cables probably would have snapped. • There are statutes dealing with this. you are liable for that actual damage. a serious storm ensued. health or property. they may be legislated under Property Law. Co. but I don’t think it’s true). but not battery). Seville (Woman married a polygamist – sued him for battery and deceit. etc. You cannot advance your business by lying.. Reliance and Damage have to all be proved. 1. • This now has been changed to a partial defence. Ratio: Where one makes a decision to try to preserve their own property at the expense of that of another. Fraud. Deceit (Fraud) • The Tort of Deceit: Misrepresentation. Without belief in the truth of the statement (I don’t know if it’s false. Vincent v. The plaintiff must have really relied on the defendant’s statement. • Fraud: False representation has been made: 1. • An unsubstantiated fraud allegation may cause costs to be awarded against the plaintiff. if the plaintiff negligently contributed to his/her own injuries. It was held that since there was no fraud (it was their . Knowing it was false 2. Intentional Interference with Economic Interests They involve unfair competition. but other times the law deems them unfair practices. SC) Facts: There was a Steamship moored at a dock. • Danger – plaintiff must prove damages (not actionable per se). (1910) (Minn. Peek.. 2) Improper Market Practices. • Misrepresentation . She recovered for deceit. Lake Erie Tpt. The owners of the ship went and got stronger cables to attach the ship to the dock. Two categories: 1) Deceptive Market Practices. 3. Hence they were taking a risk of damages. • Reliance establishes causation. 7. Derry v. 9. causing the ship to drift and no damage to the dock. Competition by unlawful means.

Wilts v. Ratcliffe v. • Must be injurious. They formed an agreement with the government where the government said they would only sell the milk for making candy. Where someone engaged in trade uses false representation. 2. Ratio: There are four elements that must be proven to prove fraud. Reliance – Must have made the statement with the intention of misleading the plaintiff. Government is selling class B (inferior) milk as class A (superior) milk. Slander of Goods • • False statements with regard to quality of goods or ownership. • If the statement is calculated to cause pecuniary damage and is published in permanent form. loss of time are considered damages. United Dairies Facts: A company sold old milk (only good for livestock) as new milk. or calculated to cause pecuniary damage to the plaintiff in respect of an office. Slander of title (like defamation) • • • False statement made by the defendant regarding the plaintiff or the plaintiff’s property(title). Perhaps they should have exercised greater care. there can be no damages. 3. Subjective component. general damages are enough. false statements about trade. s. 2. deceit. malicious. • Requires proof of damage.52 of the Competition Act creates a criminal offence for deceptive or misleading advertising. known to be untrue. preventing them from selling it. Misrepresentation – The defendant must have made a false statement. Comes from action on the case for words. trade or business carried on by the plaintiff at the time of the publication. It’s yellow and gelling. false or written words that cause damage to the plaintiff • These in turn developed into the tort of injurious falsehood. United Dairies says this will damage their reputation and the goodwill of their customers. 4. 1. Proctor v. False statement made knowing it was untrue. Motive – Must have known the statement was false. Issue: How do we award damages? Ratio: There is no need to prove special damages in certain actions. causing loss. They sold the milk to grocery stores. property. to defeat competitors.34 honest belief). Where the defendant has acted deceitfully to cause economic loss to a rival. He knew it had not. Injurious Falsehoods • • • • Designed to regulate the marketplace. land or business causing loss. The plaintiff must have suffered a loss while reasonably relying on the statement. Ratio: Elements of the tort of injurious falsehood: .. Eg. Slander of quality • These developed into an action for words. s. feed or export. with malice. Evan Facts: Evan claimed Ratcliffe’s business had closed. a false statement that a person does not own their land. United Steelworkers Ratio: Serious disruption of business.17 of the Libel and Slander Act • Special damages are not necessary. but it wasn’t fraudulent.

3. Damage to the plaintiff caused by the misrepresentation. Which is calculated to injure the business or goodwill of another trader. General damages must be proven. Defences: • Justification – the threat was to achieve a beneficial social purpose. 2. 5. Govt of Sask. Made with the intention to cause pecuniary loss. 3. 5. Passing Off Protects the good will of consumers to a brand. He must misrepresent his services as those of another. v. Potash v. 3. 2 forms: 1. • You would proceed under a passing-off action if the trademark was not registered under the Trademark Act. Falsehood made concerning another’s property. (Tort=Provincial Jurisdiction. • Asserting a contractual right is not intimidation. Two party intimidation – threat directed at plaintiff. must be the person who either B(in two party) or C(in three party) intended to injure. A. The plaintiffs sued the government for intimidation. (1992) (SCC) Issue: Who is the relevant public? Who would be confused by the similar product? Ratio: Passsing off has five conditions which must be met (Diplock) 1. 4. even if that right turns out to be invalid. Apotex Inc. Elements: 1. Trademark Act=federal) Ciba-Geigy Canada Ltd. the plaintiff. 4. Defendant made the statement. This doesn’t usually stand because the act has to be unlawful in the first place. The threat need not be carried out. tort. Actual or threatened damages to the plaintiff or the plaintiff’s reputation. The defendant threatens to commit an unlawful act (crime. Existence of goodwill toward the plaintiff. Ratio: A government official cannot be charged with intimidation for enforcing the laws of the country. . (1979) (SCC) Facts: A deputy minister sent a letter to a Potash producer asking them to cut down their production or he would have the Minister exercise his powers against them. 3. intent to injure the party. If it is carried out. Made without just cause or excuse (malice).35 1. which the plaintiffs were violating. There must be goodwill for the plaintiff 2. 2. 2. No man may pass off his goods as those of another. Misrepresentation 2. Intimidation Occurs if 1.. this may be grounds for another cause of action. If there is no evidence the defendant wanted to injure the plaintiff.. (Reckitt Test) 3 elements: 1.. Three party intimidation – threat directed at third party. there is no cause of action. Central Can. He did this because he was charged with enforcing compliance with the Mineral Resources Act. Which causes actual damage to the business or goodwill of the plaintiff. To prospective customers of his or ultimate customers of goods or services supplied to him 4. 3. Misrepresentation to the public. breach of contract) 2. By a trader in the course of trade 3. • For intimidation to occur. The plaintiff consequentially suffered a loss. The threat caused someone to act in a particular way.

• Must prove damages • The Supreme Court says the Tort only extends to the commercial context. The plaintiff must have suffered a loss because of the breach.. (HL) Ratio: Other remedies may be available. Lightweight Aggregate Ltd. Toronto Stock Exchange. officer. v. breach of contract). Conspiracy to commit an unlawful act the defendant knows or ought to know the plaintiff will be harmed 2. (Canada Cement LaFarge Ltd. a crime. 5. the plaintiff only has to prove the conspirators should have known their acts would hurt him. HC) Facts: Employees of firms in the TSE need TSE approval to do certain things. (1964) (Ont. v. Lawful act by unlawful means. The defendant must have actually caused the 3rd party to break the contract. (illegal strike) 4. Conspiracy • It is not tortuous to deliberately destroy someone’s business using lawful means. Ratio: Where there is no prior agreement to injure or harm the plaintiff. 3.C. . HC) Issue: Was there unlawful interference on the part of the TSE? Ratio: Interference must be unlawful in order to be actionable. holding them to those conditions cannot be unlawful. Interference by unlawful means without causing breach. 6. He sued the TSE for conspiracy. with or without malice.. This is not sufficient in 2 party intimidation because you could just sue in contract law. Unlawful act with the primary purpose to injure. Daishowa Inc. The tort has 3 varieties: Direct interference with contractual relations (actionable even if the act is lawful)(direct=wrongful). This factors in. Daly Co. Issue: Was the interference justified? Ratio: If a party acts under its correlative obligations. If two or more people act together. Unless they made a pact before the voting. Friends of the Lubicon) 2. Voting for the same proposition doesn’t mean people are agreeing to conspire. (1964) (Ont. B. 5 elements: A valid contract must exist. it is justified. (a tort. as long as you do it alone. The defendant must have known about the contract between the plaintiff and the third party (Though not all the details) The defendant must have intended the third party to break its agreement with the plaintiff. Where the plaintiff agreed to certain conditions when entering into a contractual relationship. director. there was no malice or improper motive. it could be conspiracy. Posluns did these things without approval. • There are 2 types of conspiracy: 1. Direct interference is unlawful unless it is justified.36 Rookes v. If the act the conspirators agreed to execute was legal. Barnard. or employee of any member firm. If the act the conspirators agreed to perform was unlawful. Indirect interference (only if the act is unlawful). the plaintiff must prove the predominant purpose was to harm him. Toronto Stock Exchange. Interference with Contractual Relations • • Only applies to existing contracts. fired Posluns. Lawful act with primary purpose to injure (simple conspiracy) Posluns v. He TSE told Poslun’s employer that it was withdrawing his right to act as a shareholder. • 4 main situations: 1. i) ii) iii) iv) v) • i) ii) iii) Posluns v. The threat of breach of contract is sufficient in third party intimidation.

says anything at all. 2. the mischievous substance must leave the premises of the defendant.. Institution of Professional Civil Servants) Possible problems with this tort: 1. 4. • Defective Products – May have to prove it was defective when it left the manufacturer. To what extent must the defendant intend to harm the plaintiff? Is constructive intent enough? 4. Where these things are present. 8. Which “economic interests” are protected? Trade. Something must escape from the land. Man. says this extends to anything likely to do mischief. they alienated the plaintiff and froze them out of the fruit and veggie business. Actual loss in the absence of justification. CA) Facts: The marketing board induced the Stella Co. Intentional Interference by Unlawful Means This tort has yet to be ruled on by the Supreme Court. Lyons & Co. restricting their ability to make a living. to fire the Gershmans by refusing to advance Stella Credit if they dealt with the Gershmans. Strict and Vicarious Liability 1. For escape to occur. o As negligence law has expanded. the defendant is liable under strict liability for the damage caused. livelihood.. 3. but is used in lower courts. that it caused an injury. Granworth L. you are liable for injuries or damage those activities cause regardless of fault. [1947] (HL) Facts: The plaintiff worked in a shell factory. Requires proof of 4 elements: 1. 2. Negligence on behalf of the government could not be proven.37 7. (Barrets & Baird (Wholesale) Ltd. Fletcher. Vegetable Producers’ Marketing Bd. . Fletcher. Escape of Dangerous Substances • First set out in Rylands v. (1868) (HL) Ratio: Elements of the Tort: 1. Issue: Was there escape of a mischievous thing? Ratio: Escape deals with the mutual duties of adjoining land-holders. With an intent to injure.J. By unlawful means. 3. Liability was also found in the board for 3rd party intimidation. The Board not only induced a breach of contract. 2. Ratio: Blacklisting people is unlawful interference. strict liability torts have decreased. Land must be put to non-natural uses. The escaped substance must cause damage. J. The defendant’s interference with the plaintiff’s business interests. • If you engage in unusually risky activities. • Vicarious Liability – Employers are liable for the acts of their employees when they are acting for the company. Read v. Which acts are considered “unlawful”? 3.. Doing this is bad faith and exceeds the authority of a statutorily appointed to the board. with or without fault. (1976) (Man. business. Rylands v. There was an explosion. she was injured. Blackburn L. o Liability: Proof that the defendant’s actions caused the damage. v.J. What defences apply? Gershman v.

Common Benefit If the source of danger is maintained for the common benefit of the plaintiff and the defendant.) Facts: The cattle of the defendants strayed onto the property of the plaintiff. 2. . (1970) (NB CA) Facts: German shepherd tied up behind a trailer attacks a little girl. causing crop damage. Kerr. Liability for Animals a) Dangerous Animals o A keeper of wild animals is strictly liable for damage they cause. the plaintiff cannot recover. 5. b) Cattle Tresspass Acker v.. no knowledge of scienter is needed. Act of God The plaintiff can’t recover if a natural force arising without human intervention occurs and could not have been reasonably foreseen or prevented. or if their wanton. wilful or reckless misconduct materially increased the probability of injury or if the damages are caused by an abnormal sensitivity by the plaintiff’s property. The person must be a true stranger. Act of a Stranger The plaintiff can’t recover if the escape of the dangerous substance was caused by the deliberate unforeseeable act of a stranger. negligence and strict liability. Fletcher 1. o Domesticated animals require proof of scienter for liability. Statutory Authority If the defendant can prove his conduct was authorized by the state. Like public utilities operating within their statutory authority. Metro Toronto. The gas seeped from the landfill into the plaintiff’s garage and exploded when he started his car. Hoban. Consent If the defendant can show that the plaintiff implicitly or explicitly consented to the presence of the danger.Ct. strict liability). The waste created methane gas. (Under the dog owners’ liability act. Ratio: Non-natural use must be “some special use bringing with it increased danger to others… not merely the ordinary use of the land or such a use as is proper for the general benefit of the community. Co. (1973) (Ont. 3. 2. The defendant must show no negligence. (Rickards v. a knowledge of the animal’s vicious propensity. Richard v. 4. HC) Facts: Toronto had a deal with York to dump their garbage in a dump in York. Lothian) Defences to Rylands v. Default of the Plaintiff If the plaintiff voluntarily and unreasonably encounters a known danger. (1973) (Ont. Issue: What is the liability for injuries caused by a dog? Rule: Liability for injuries caused by a dog only goes to the owner if there is proof of scienter.38 Gertsen v. he is not liable. The plaintiff sued both municipalities in nuisance. the defendant cannot be held liable under Rylands. 6.

o Doesn’t usually apply to independent contractors. v. the principal is not vicariously liable for his actions. [1939] (SCC) Facts: A wine dealer was not held liable for the acts of his motorcycle delivery man. subject to defences to Rylands. This provides an extra avenue for compensation for the plaintiff. The employer usually has the deep pockets. Vicarious Liability o Not a discrete tort.) v. As soon as they found out he was doing this. they fired him. but the plaintiff has to establish a tort and a relationship. 2. Look at authorities. Principal-Agent Relationship o Partners share equal liability for each other’s acts (Blyth v. can bring actions in contribution and indemnity to recover from the employee. (1999) (SCC) Facts: The plaintiff was sexually assaulted as a young child in a care facility for emotionally disturbed children. negligent in hiring the person. before hiring him. The delivery man was held to be an agent of the wine dealer. if held vicariously liable for the torts of an employee. Fladgate) T. The employee would also be personally liable. Employee acts authorized by the employer. The foundation had done a background check on Curry.. or something outside the scope of their employment? Was the act specifically prohibited? o Was the tortfeasor doing something she was authorized to do when she committed the tort? Or unauthorised acts so connected with unauthorised acts that they may be regarded as “modes” of committing an authorized act. 3. trained improperly. Escape is necessary. They would also be vicariously liable for the acts of their employees. Dissent: Anyone who expects to derive an advantage from an act done by another for him must answer for any injury any third person may sustain from it.39 Ratio: The owner of domestic animals is liable if they escape and cause damage. o First the employee must be liable for the tort. Curry. Bright & Co.A. just to employees or agents. . Look at policy Salmond test: Employers are vicariously liable for: 1. even if the mode is an unlawful one. Issue: Can the employer be held vicariously liable? Ratio: Courts should take a 2 step approach 1. o The employer. After this is proven. the perpetrator. 2. This is absolute liability independent if negligence. depends on the relationship between people. o The party that did the act may be personally liable on top of someone who is vicariously liable for their acts. o Don’t have to establish fault. o Employers may be personally liable if they themselves committed a wrong.G. B. etc. Ratio: Where the principal has no control over the way the agent performs his duties. Kerr. but not his servant because the dealer had no control over the way the agent did his job.(P. Unauthorised acts so connected with the authorized acts that they may be regarder as modes of doing an authorized act. you can go after the employer. Master-Servant Relationships o Is what the employee did connected to their employment.

This is an indication they are independent contractors. Stevenson (1932)(HL) Facts: The plaintiff was given an opaque bottle of ginger beer by a friend. There are a number of statutes that impose duties. Remoteness – Cause in Law 5. o We must take reasonable care to avoid acts or omissions that could be reasonably foreseen to harm our neighbours. the manufacturer owes a duty of care to the consumer to avoid defects in workmanship that could harm the person or their property. She sued the manufacturer for nervous shock and gastroenteritis. Terms. • Public health concerns. Causation Cause in Fact – But for. subjective/objective (Reibl) 4.. Negligence 1. 1932 . Standard of Care 3. o First case recognizing product liability. 2.) 2. Elements of Negligence 1. you could kill people. Based on a legal duty to take care “Are the consequences within the risk?” Categorizes people to create a duty of care – Narrow Definition. Defences a) Duty of Care i) General Duty of Care Test M’Alister (or Donoghue) v. but the fault stems from carelessness where there is a standard of care. Issue: Was AIM marketing an employee of the defendant. • Policy concerns: 1. Themes and History • • • • • • • Has multiple meanings. v. then found a partially decomposed snail in the bottle.40 Independent Contractors 671122 Ontario Ltd. Stevenson – Creation of a general duty of care. She drank some. Sagaz. Fault based. The plaintiff lost the business and sued the defendant for vicarious liability for the torts of conspiracy and unlawful interference with economic relations committed by the marketing company. Loss Allocation – Deep pockets at the company. Highway Traffic Act. (Negligence Act. Negligence is also a breach of a duty of care. Duty of Care 2. The central question is whether the person hired has a business on their own account. or an independent contractor? Ratio: There is no universal test to determine whether a person is an employee or an independent contractor. (2001) (SCC) Facts: The marketing company the defendant had hired bribed the head of the automotive department of Canadian tire to carry his seat covers instead of the plaintiff’s. etc. . Issue: Does the manufacturer owe a duty of care to the consumer? Ratio: Yes. Damages – Reasonably Foreseeable – Must be Actual Loss 6. 9. the tort of negligence is an action on the case. Even though the consumer may not be the purchaser. Enterprise Risk – He who makes the profit bears the risk.Donoghue v.

he cannot be liable to the plaintiff for negligence. The test: Reasonably foreseeable harm and/or proximity. The scope of the duty b. • In Quebec and the US. Cooper v. A. Used the Anns/Kamloops test. a consumer injured by a product must sue the manufacturer in negligence. Foreseeable Risk . Heller & Partners Ltd. it should be created by statute. Ratio: You must not injure your neighbour. Hobart (2001) 206 DLR (4th) 193 (SCC). Nielsen (1984). there are two stages in Anns v. 2. Issue: How far should the principles of liability for negligence be extended? Ratio: Where there is no proximity sufficiently close to put the plaintiff’s welfare in the reasonable contemplation of the defendant. They are: Donoghue v. 492 at 498 (HL) 1. Where there are policy reasons against imposing a duty of care. this is doubly true. ┘duty of care Hindsight Bias: Things seem more foreseeable after they’ve happened. Note on Products Liability • According to Donoghue v. Ltd. 3. Dissent: Floodgates concerns. which has 2 branches: 1. [1977] 2 All ER. ┐Establishes a b) Proximity – Relationship between these litigants ├ prima facie 2. Loss Distribution – Companies can pass on the costs to consumers. This can affect the foreseeability standard. Merton London Borough Council. Home Office v. Residual Policy reasons negating the creation of a duty. If a case falls within an established duty of care.41 3. 2. 2. If the answer to the first question is yes. Stevenson. If we are going to accept duty. • They establish that to determine whether duty of care exists. 10 DLR (4th) 641. A. that duty stands. v. There is a duty of care not to do so through any act or omission. and that the defect caused the injury. Dorset Yacht Co. Who is my neighbour? Those in proximity. 1. Stevenson Hedley Byrne & Co. then consider whether there is any policy reason why the duty should not exist. ii) Modern Law of Duty Origins – Anns/Kamloops • There is a trilogy of cases outlining the development of the modern law of duty. Ask whether there is sufficient proximity between the wrongdoer and the injured party that the wrongdoing could have reasonably contemplated that carelessness. Ratio: The Supreme Court restated the Anns rule.a) Reasonable Foreseeability – Foreseeable Risk. 1984 (SCC). If it doesn’t you do the Anns test. The class of person to whom it is owed c. The test: 1. Is there a close enough relationship between the parties so that the defendant would have reasonably contemplated that carelessness on his part could cause damage to the plaintiff. there is strict liability. Ltd. Kamloops (City) v. The recognition of a duty of care has a number of steps.. Are there any considerations that could negate or limit: a. You must only prove the defect. Foreseeable Plaintiff. The damages to which a breach of it would give rise Foreseeability is defined by proximity.

Issue: Is there a legal duty to rescue? Ratio: There is no general duty to rescue. The trial judge found that there was negligence in not removing a tree growing so close to power lines. Elec. Issue: Was the plaintiff at foreseeable risk of harm? Ratio: Negligence is not a tort unless it results in the commission of a wrong. A nine-year-old caused the tree to bend and touch one of the wires. Ratio: Where there is a foreseeable risk of injury. Foreseeable Plaintiff Palsgraf v. Elec. This means the causer of the harm must have had a duty to that person. N. Foreseeability also factors in at the remoteness stage. further injuring the child.B. The scales landed on the plaintiff. Ratio: While power companies have a duty to prevent foreseeable injuries. Power Comm. This requires the violation of a person’s right.. There is no legal duty not to rent a canoe to a drunk person. (1928). there is no negligence. N. Rescue Osterlind v. This was set-aside on appeal. SC) Facts: The defendant rented a faulty canoe to two drunk men. Amos v. 24 DLR (2d) 305 (SCC) Facts: A ten year old climbed a tree that was near power lines and was electrocuted. 248 NY 339 (CA) Facts: A man running for a train was pushed by a guard and pulled by another to help him on. 70 DLR (3d) 741 (SCC) Facts: Three boys were climbing a tree on the side of a highway. there is no duty of care. and one of the men held onto it for half an hour. Where there is no duty. He awarded $8000. The man drowned. Hill (1928). electrocuting himself. A.42 Moule v. Renting a canoe to someone doesn’t create a relationship of duty. B. A neighbour had to cut down the tree to free him. the defendant can be held liable in negligence for breaching the duty created by this foreseeable risk. He box was full of fireworks. Long Island Ry. . Issue: Was the injury foreseeable? Analysis: It is foreseeable that kids will climb trees.B. Those actually injured have as much right to complain of negligence as those likely to be injured. which exploded and knocked down some scales at the other end of the platform. While this happened. calling for help. the dropped a box on the track. The defendant heard him calling and ignored him. iii) Affirmative Duties • The law does not traditionally impose positive duties. but this person wasn’t helpless. Where there is no foreseeability. 160 NE 301 (Mass. The canoe overturned. as long as he is not incapable of seeing to his own safety. The tree was in full leaf and concealed high-tension wires. This occurs where one creates danger. There is a duty not to rent to a helpless person. Co. Dissent: Negligence is a breach of a general duty not to harm anyone. this does not extend to every injury. Causation = Foreseeability. Power Comm. (1976). (1960). injuring her.

Control of Others’ Conduct Crocker v. Horsley v. HC) Facts: Matthews fell off his friend’s yacht into very cold water. Ratio: If the defendant undertakes to rescue someone. 41 DLR (2d) 53. Canadian Criminal Code s. Lowns v.252 A driver in an accident must stop. Otherwise there is no duty of rescue. especially if he abandons him in a position of danger. The reasonable boat operator is ordinary. There was a breach of the standard. Horsley jumped in to try to save him.. the standard is gross negligence. CA) An ambulance was held to be negligent for the unreasonable delay in providing help when the plaintiff called having an asthma attack. the rescuer must exercise the reasonable care that the ordinary. MacLaren. except in exceptional circumstances. Sundance must accept responsibility as a promoter of a dangerous sport for taking all reasonable steps to prevent an obviously drunk person from participating. Duty of Care – Sundance had authority and control over the event.129(b) An individual must comply with an officer’s request to make an arrest or preserve the peace. MacLaren (1969). 4 DLR (3d) 557 (Ont. he is voluntarily entering into a relation of responsibility and hence assuming a duty. This is because the ambulance service was a health service. Once an undertaking begins. They took 40 minutes and she suffered respiratory arrest as a result. 51 DLR (4th) 321 (SCC) . (Man. Issue: Was there a legal duty to rescue a passenger who had fallen overboard? Analysis: It can’t be proven that the negligence caused the death. Otherwise. B. Horsely died and the body was pulled out. prudent and reasonable. prudent person in his situation would show. Horsley v. [2000] 2 WLR 1158 (Eng. Woods (1996) (Australia) A doctor was held to have a duty of care to help people suffering a seizure several hundred metres away. Mattews v. Thereafter he is responsible for any failure of reasonable care in dealing with him until the emergency is over. give her name and offer assistance if someone if injured. Canadian Criminal Code s. Standard of care = objective test. . 22 DLR (3d) 545 (SCC) Ratio: There is a common law duty to rescue between a boat captain and gratuitous passengers. (1988).Liability for the Intoxicated Issue: Does the ski resort owe a duty of care to keep clients from engaging in dangerous activities when they are drunk? Analysis: 1. Griffiths.43 Oke v. Sundance Northwest Resorts Ltd. but causation was not established. CA) Ratio: The defendant has an obligation to intervene if he innocently or negligently caused the danger. he is guilty if his negligence caused the danger in the first place. Kent v. Weide Transport (1963). Another woman jumped in to help and was rescued. Good Samaritan Legislation If you undertake a rescue. Mattews’ body was never found. MacLaren (1971).

to others for damage and injury caused by prisoners in their care. but serving them past the point of intoxication is not enough.QB) .Liability for the Intoxicated An alcohol provider has a duty to prevent foreseeable risks of injury posed by intoxicated persons. drank more. Causation – The injury was caused because Crocker was competing while drunk. There is a duty of care in the hosts at stage 1 of the Anns test.. Dorset Yacht Co. Sharpe (1983)(Ont. Hebert(1993) (SCC) Liability for the Intoxicated The owner of a vehicle has a common law duty not to let an intoxicated person drive. but could not have known he was assuming the legal risk. He drank before and during work. He assumed the physical risk. She drove away from the party. John v... Standard of Care – Did the resort take enough steps to discharge this duty? No. Schmidt v. Liquor License Act.Liability for the Intoxicated An alcohol provider is liable for the conduct of a drunk person even if thay don’t know they’re drunk. Childs v. Betts v. Funk Estate v.s.O. Home Office v. HC) . Smith v. b) Guards and Prisoners – Williams v. They failed to meet the standard of care. SCJ) . The Court of Appeal held that the company did not owe a duty of care to people injured by employees after company time. Hague v. She lost control of her car and was severely injured. The hosts knew he was an alcoholic with previous DUIs. drove again and caused an accident. Hunt (Litigation Guardian of) v. R. Crocker was 25% liable. This fails to fulfill a duty of care owed to the victims of the children’s misconduct. Billings. and could not agree to something he didn’t know about. Stewart v. (2001) (Ont. SCJ) . Desormeaux (2002) (Ont. 4. went to a pub and had two more drinks. They made nothing but mild suggestions. Flynn(Ont.L.44 2. . There were many preventive measures available to the resort that would not have been a burden to them.Liability for the Intoxicated The bar and drinking buddies were held liable for a man’s driving while drunk. Hempler v.39 Creates a statutory cause of action against people that sell alcohol to intoxicated persons. Other Duty to Control Situations a) Parents – Only liable for the torts of their children if they fail to supervise them properly. Sutton Group Incentive Realty Inc.19.S. and NWT.C. Baumeister v. Clapp. Porter [1980](CA).Liability for the Intoxicated At a New Years’ Party where guests supplied their own alcohol. Held: The resort was 75% liable. Her employer was found 25% liable in negligence.CA) . Picka v. Todd (1970) (Man. Similar legislation exists in Manitoba. He signed a waiver two days before the contest. But he was drunk. You need over service plus another risk factor. 1990 c. guards owe a duty of care to prisoners.HC) . Desormeaux got drunk. He caused an accident that left Childs paraplegic. Voluntary Assumption of Risk – Crocker voluntarily competed.Liability for the Intoxicated The plaintiff got drunk at an office Christmas party.Liability for the Intoxicated An alcoholic enrolled in an Employee Assistance Program for drinking. He did not know that the waiver was a release. There was evidence that a similar incident had occurred that day. New Brunswick. Hall v. (1989)(Ont. but the court found policy reasons not to impose it. B. 3. You can’t contract out of the law by waiving legal liability. Sanderson Estate (1988) (BC CA). then drove himself home.Liability for the Intoxicated Liability also applies to social hosts if they provide alcohol to the driver. Drake (1986)(SC) . Nova Scotia. Pettie (1995) (SCC) .

Zelenko v. 134 (SC) – Gratuitous Undertakings Facts: Someone took ill in the defendant’s store. Governors of Dalhousie College and University. Rae (1919). The boat was wrecked and had not been insured. Jane Doe v. Michalak v. She sued the police for failure to warn. Menna v.45 c) Lepine Doctors/Staff and Mental Patients – University Hospital Board v. • Negligent statements creating a foreseeable risk cause liability. The doctor didn’t come. Chief Constable of West Yorkshire (1988) (UK HL) – Duty to prevent Crime and Protect Others The police owe a duty to victims of crime unless the crime is committed while the offender is in police custody or after escaping police custody.Div. • Courts can get around this by saying the defendant’s conduct is misfeasance rather than omission. (No foreseeable plaintiff – Non-feasance) Thorne v.) – Duty to prevent Crime and Protect Others Facts: The plaintiff sued the police after she was raped by a serial rapist. The baby was supposed to be born in mid-November. • Fraudulent Misrepresentations. coaches. The court found there was no negligence in the doctor. • Other cases have held people liable for failure to get insurance. 51 DLR 323 (Ont. 287 N. Inc.Y. The baby died. Baxter & Co. all white. instructors and supervisors must control participants and provide adequate warning. entering through the balcony door in each case. that there is a risk to a particular group. Monckton v. d) Employers and Employees – Waters v. instruction and equipment. negligent or innocent misrepresentations made in a fiduciary relationship and negligent misrepresentations such as Hedley Byrne can result in liability. but not for failure to do anything where there is no positive duty. The man had raped four other women. Lepine. Metropolitan Toronto (Municipality) Commissioner of Police (1998) (Ont. Guglietti. but is liable if they make the situation worse. • Promissory Estoppel can be used in contractual situations. Jones. Dees (1809) (N.. all living in second or third floor apartments.S. The plaintiffs sued the defendant.Gen. Leeside Dev. e) Coaches/Supervisors and Students – Schultz v. The defendant put them in an “infirmary” for six hours without medical care. Gimbel Bros. The person died. There must be foreseeable harm and a relationship of proximity. . employers have a duty to prevent abuse or harassment in the workplace. Ratio: There is a private law duty of care for the police to warn the public of potential threats where it is foreseeable that harm may be caused. the wife didn’t go into labour until December 2. C. (Anns Test – Misfeasance) Hill v. (1936).A. v.. The plaintiffs relied on this promise and did not pursue it themselves.) – Gratuitous Undertakings Facts: The defendant told the plaintiff twice that he would insure a boat they owned together.) – Gratuitous Undertakings Facts: A man made a contract with a doctor to attend at the birth of his child. Commissioner of Police for the Metropolis. Ratio: There can be liability for misfeasance. Ltd.Y. and the wife could not sue in contract because the agreement was with her husband. Smith v. because of misfeasance.. Ratio: One who undertakes to do an act without reward is not liable for failing to do that act.

Wagner v. Issue: Did the owner of the boat owe a special duty to a second rescuer of his overboard passenger? Ratio:From Videan v. Toy v. Co.46 Ratio: Where there is no duty. Roberts v. Fandrakis says this is not true if she is protecting a purely economic interest. Toronto (1907). Soulsby v. if the rescuer is killed or injured in the attempt. Issue: Did the city have a duty to maintain the guard because they had previously done so? Ratio: If someone undertakes to perform a voluntary act. Corothers v. They both died. fell overboard. Ry. If the defendant undertakes a task. it is foreseeable that there will be a rescuer. Kent. Int. Slobodian. But Saccone v. Owed to the Unborn . he is responsible to any other person who tries to rescue the person in danger. Hansen. Chapman v. prompting Horsley to jump in to try to save him. (1981) (On. Sayers v. Jo. she can recover damages from the person whose fault was the cause of it. Hearse (1961) (HCA) . British Transport Commission.. Harlow Urban Dist. 15 OLR 13 (Ont. Morana (1997) (Ont.Gen. Zervobeakos. (1969) (NS CA) The principles for rescuers also apply when the plaintiff is injured trying to save herself or her property. they undertake a duty to do what a reasonable person would do in performing the task. CT) Rescuers in an emergency aren’t held to the same standard of care as those acting in less extreme circumstances. she has no duty to continue it unless she has made the situation worse. Maclaren (1972). Maclaren was found to be negligent in using improper procedures in rescuing Matthews. Argenti. [1941] (HL) Once an individual has voluntarily begun a rescue. Slobodian [1975] (SCC) . (1980) (BC SC). V. Horsley dove in to save him. iv) Special Duties of Care A. [1963] 2 QB 65. (1921) 133 NE 437 (HL) “Danger invites rescue”. Bridge v. B. Mattews. They had a watchman to open the gates when it was safe to cross and close them when it wasn’t. Zervobeakos v. failure to act is not negligence. As long as it isn’t “wanton interference”. There was no gatekeeper that day. but not if they don’t do it at all.Div. Doing it badly is subject to negligence. they are liable of they perform the act improperly. This is too heavy a burden to impose for the goal of encouraging rescue.). Corothers v. Council. [1975] (SCC). If you create danger. Owed to Rescuers Horsley v. Dissent: The common law should not saddle a non-negligent first rescuer with liability to a second rescuer. HC) – Gratuitous Undertakings Facts: The City of Toronto had put up gates on either side of a railway crossing. If a person creates a situation of peril by his fault. Cleary v. 22 DLR (3d) 545 (SCC) Facts: Horsley fell overboard while on a pleasure trip on his friend’s yacht. He was hit by a train. When another man. (1998) (BC SC) A rescuer may recover for injuries sustained in assisting a person who has negligently imperilled herself. East Suffolk Rivers Catchment Bd. A bakery wagon driver relied on this and didn’t check when he found the gates open. [1958] (HC).

The child must be born alive. Essex Area Health Authority. Mother and child sued in wrongful life. Victoria General Hospital. She can claim for having to make a second abortion. ☼Arndt v. (1978) (Que. If a doctor performs an abortion or sterilization improperly and a child is born. the mother can claim economic loss.) Doctors were held negligent in the birth of two disabled children for failing to refer the mother for genetic counselling. S. Hunter. • Courts are reluctant to award damages if the child is healthy. Rostvig (B. SC) . but are more likely to award damages if the child is disabled. S. or even if the child is born.(R. Gen. and didn’t tell her about a test that would have determined whether the child was affected.. • Eg. The court said the child hadn’t suffered any injury at common law. Becker v.) The court dismissed a wrongful life suit by a child on the basis that there was no cause of action. The child’s claim is more problematic. as it seems to rest on the argument that the child would have been better off not having been born. iii) Wrongful Pregnancy • • Based on the general principles of medical negligence. [1982] (Eng. stating that no viable suit could be brought on that ground in B.C.47 i) Pre-Conception Wrongs • Occurs when the defendant carelessly causes a parent to suffer an injury that detrimentally affects a subsequently-conceived child.) v. ☼H.) The court commented favourably on the dropping of a child’s claim in wrongful life. pain and suffering. how to prove it.C. o Can be brought by the mother or child or both. • Policy issues as to scope of liability. The parents were awarded damages for child care.C. Smith (1994) (B. but allowed the parents to recover the cost of caring for a disabled child. she does not have to tell its mother about information that would lead to an abortion. The court denied the child’s claim saying that a child cannot claim the right not to be born as this violates public policy as a violation of the sanctity of human life. Schwartz. How much should people be liable for? ii) Wrongful Birth (Brought by Mother)/Wrongful Life (Brought by Child) • • • Where a doctor fails to warn a pregnant woman that she has a high risk of having a disabled child. Div. Exposure to hazardous chemicals or x-rays causing later birth defects • Problems of causation. While a physician owes a duty of care to a foetus regarding pre-natal injuries. (1995) (Man. McKay v. Jones (Guardian ad litem of) v. (1996) (Ont.C. ☼Cataford v. and she would have had an abortion had she known. Davey v. (1978) (NY SC) A wrongful life action against a doctor who failed to warn a pregnant woman of an increased risk of down’s syndrome in women over 35.C. Moreau. The mother’s claim is based on the physician’s duty to inform a patient of medical risks. QB) Damages are not awarded for the death of a foetus. CA) The plaintiff contracted German measles earlier in her pregnancy and was not advised of the desirability of an abortion.

O. may be easy to fake. [2001] (BC CA) . George’s Healthcare NHS Trust v.(D. Dobson Dobson (Litigation Guardian of) v. A person may owe a duty of care to avoid careless actions before birth that may result in a loss upon birth. R. Ellison. ..66. St. v. Dobson (1999) 174 DLR (4th) (SCC).48 The mother is entitled to damages flowing from the failed termination of a pregnancy and the cost and inconvenience of having a second sterilization procedure. iv) Pre-Natal Injuries • • • A child can sue for injuries sustained in utero. White & Sons. [1901] (In Rhodes v. Facts: A woman who was 27 weeks pregnant carelessly caused a car accident. QB) People other than the mother can be held liable for pre-natal injuries in negligence. No person is disentitled from recovering damages simply because the injuries were incurred before birth. Family Law Act. Ratio: Damages for nervous or mental shock without physical injury are not recoverable. Dulieu v. but a limited duty imposed on a woman as regards her foetus only where she owed a similar duty to others. Coultas (1888) (Privy Council) – Nervous Shock at Common Law Facts: The plaintiff fainted and suffered shock when she was nearly hit by a train because of the defendant’s carelessness in raising a gate. privacy and autonomy rights of women. c. Pozdzik (Next Friend of) v. Oliver (Guardian ad litem of) v. Wilson. BC CA) – Nervous Shock at Common Law Liability was imposed without physical injury because the nervous shock was caused by a “reasonable fear of immediate injury to herself”. inflicting damage on her foetus.F3. The child was delivered by caesarean later that day with severe and permanent disabilities. He later sued his mother in negligence. C.S.). 1990. Duval v. Winnipeg Child & Family Services (Northwest Area) v. Seguin. CNR. Leveille. but not the cost of raising the child.s. Unless the child is subsequently born with an injury. Hard to determine harm. [1998] (CA) There is no common law authority to impose restraint or treatment on a pregnant woman for the benefit of the foetus. (1997) (SCC) . there can be no action. Nervous Shock (Witnesses) • • • • Does not encompass day-to-day emotional upset or grief and anger at loss or injury. hard to prove. 1990. To impose a burden would place an unacceptable intrusion on the bodily integrity. She thought she was about to be hit by a carriage. Victoria Railways v. G. S. (2002) (Alta. Floodgates arguments.F. Issue: Does a mother owe a duty of care to her child prior to its birth? Ratio: For policy reasons. the court will not impose a duty of care on a pregnant woman toward a subsequently born child. Must usually be a recognized psychiatric illness for the purposes of liability. Montreal Tramways Co. Dissent: A general duty of care would place too much of a burden on women.. as it would be difficult to tell whether they resulted from negligence and could give rise to imaginary claims.

Psychiatric injury is recoverable as long as it is reasonably foreseeable that the plaintiff could have been physically injured by the defendant’s actions. Ratio: The House of Lords expanded the definition of “immediate aftermath” in the Page v. The disaster was broadcast on television and radio. others saw it on TV or heard reports. but the plaintiff relapsed into chronic fatigue syndrome. [1996] (U. Secondary victims are those not placed in physical danger. British Railways Commission. 1. They stipulated that they would not accept a foster child with a risk of sexual abuse. [1983] (HL) – Nervous Shock at Common Law The defendant carelessly caused a traffic accident which killed one of the plaintiff’s children and injured the other two.K.. Ratio: The court applied the Alcock test and denied liability because the police didn’t have a close relationship with the victims (proximity). [2000] (HL) – Nervous Shock at Common Law The plaintiffs had four young children and also took in foster children.) – Nervous Shock at Common Law Facts: An overcrowded soccer stadium at Hillbrough caused 90 fans to be crushed to death and many more injured. Smith test to include the period of four weeks it took the parents to find out. [1943] (HL) – Nervous Shock at Common Law .L. No-one was physically injured. Stokes Brothers (1924) (Eng. CA) – Nervous Shock at Common Law The plaintiff suffered nervous shock when she saw a driverless vehicle heading toward where her children were playing. Smith. The court held that liability could be imposed if a psychiatric illness was caused by a reasonable fear of immediate personal injury to herself or her children. Chadwick v. W. Liability was imposed because her psychiatric injury was reasonably foreseeable. Ratio: The existence of a duty of care depends on a 3 part test: i) Proximity of relationship ii) Proximity of time and space iii) Hearing or seeing the immediate aftermath of the event with unaided senses.49 Hambrook v. primary and secondary. Alcock v.L. the plaintiffs suffered psychiatric illnesses. QB) – Nervous Shock at Common Law A rescuer may be entitled to damages even if he was not personally exposed to danger or closely connected to the victims. v. [1967] (Eng. Primary victims are those placed in physical danger. Hay or Bourhill v. She heard about the accident two hours later at the hospital. Young. The boy allegedly assaulted the plaintiff’s children.) – Nervous Shock at Common Law Facts: The defendant carelessly caused a traffic accident. 2. White v. Some were in the stands. Ratio: There are two types of victims. O’Brian. Essex County Council. Page v. They can only recover if the psychiatric injury itself was foreseeable. H. which he had had before.K. McLoughlin v. H. 16 plaintiffs representing 150 others sued for nervous shock after fearing for friends and relatives. As a result. Chief Constable of South Yorkshire Police (1991) (U. The local authority knowingly disregarded the request and placed a 15-tear old boy in their home who had been accused of sexual abuse before. (Seeing it on TV or hearing it on the radio is not enough). Chief Constable of South Yorkshire Police (1999) (HL) – Nervous Shock at Common Law Facts: Police officers who witnessed the Hillbrough tragedy subsequently developed psychiatric problems.

The plaintiff went to the site of the crash the next day. Yu. (1995) (CA) . Vegron v. The plaintiff is a foreseeable plaintiff if the shock results from: a) Physical injury or fear for personal safety. Nespolon v. The deceased’s friends did not owe a duty of care to the plaintiff. She did not see the body because it had been consumed by fire. b) Witnessing some aspect of a serious accident involving a relative or c) The trauma of rescuing victims of a serious accident. This duty of care turns on whether psychiatric illness was a reasonably foreseeable consequence of the defendant’s negligence.) . Bosley (No. Canadian National Railway Co. 75 DLR (4th) 248 (B. (1999) (BC SC) Plaintiffs recovered for nervous shock caused by seeing their loved ones dead in the hospital.) The plaintiff recovered for nervous shock after witnessing police trying to pull a vehicle containing his two drowned children from a fast-flowing river. (1992)(Gen. Health Professional’s Duty Reibl v. (1990). She realized after several days that her son must be dead. Cox v. if so. C. Greatorex. C. Rhodes v. Hughes (1980) 114 DLR (3d) 1 (SCC) Ratio: Once a patient is aware of the general nature of a treatment and consents to it. did they cause her psychiatric injury? Ratio: For damages to be awardable. Issue: Did the defendants owe a duty of care to the plaintiff. Alford A grossly intoxicated youth was run over by the plaintiff. Hypersensitive individuals are not foreseeable.A.A. There is no redress for: a) Bystanders or witnesses to an accident b) Relatives of accident victims who did not see or hear the accident or its aftermath with their own unaided senses.) – Nervous Shock at Common Law Claimants must be reasonably strong and robust. Fleming.Div.1) [1997] (C. Grzywacz v. of Canada (1999) (On. D. Yu v. Vanek v. The plaintiff sued in nervous shock. She sued for nervous shock. The doctor may instead be held liable in negligence for breaching an affirmative duty to disclose the risks of treatment. The defendant’s employers denied her access to the site for 8 days and misdirected her so she missed the official memorial for the victims. Vanderheide. • “Material” risks must be disclosed. Great Atlantic & Pacific Co. He was not foreseeable. the plaintiff must establish a duty of care to her. including a low percentage risk of a serious consequence (a 4% risk of death). a doctor cannot be held liable in battery for failure to inform.C. [2000] (QB) – Nervous Shock at Common Law The victim of a self-inflicted injury does not owe a duty of care not to cause nervous shock to a third party.A.. Burnaby. Greatorex v.50 Ratio: There is a duty of care to avoid nervous shock where the defendant’s conduct created a foreseeable risk of shock to the plaintiff. Devji v.) – The Canadian Position Facts: The plaintiff’s 23-year-old son was killed in a train wreck negligently caused by the defendant. or a minor consequence of high probability. The deceased was found not to have reasonably foreseen being run over. (1999) (BC SC) Parents and siblings of the deceased could not recover after they saw her body in the hospital four hours after the accident. .

The act does not mention civil liability. even as unlikely as 1 in 500. leaving him paralysed.) There exists a limited “therapeutic privilege” to withhold information if its disclosure would unduly heighten or deter the patient. Tremblay v.000 to 1 in 100.C. The plaintiff sued the surgeon for failing to obtain an informed consent because there were other treatments available to him which were not disclosed to him. The test: Subjective/Objective: The plaintiff must prove that a reasonable person in her position would have refused the procedure if properly informed. C. Halkyard v. Manufacturer’s or Supplier’s Duty to Warn Hollis v.Div. but it is very narrowly defined. health care contexts). Dow Corning Corp. Pittman Estate v. (This now applies to all caregivers. 2 OR (3d) 356 (Gen. A second operation alleviated the paralysis partially. 1996 For consent to be valid it must be “informed”. E.) Facts: The plaintiff underwent disc surgery.51 • They must also disclose non-material risks they know. She required several surgeries. The Court of Appeal in B. (1995) 129 DLR (4th) 609 (SCC) Facts: A woman’s breast implants ruptured from normal activity.C. that had she been fully informed she would not have proceeded with the treatment.) The subjective test will be applied in duty to inform cases. Bain (1994). Health Care Consent Act. • The patient must also prove that the failure to inform caused a loss.) The scope of what constitutes a “material risk” has been progressively broadened since Reibl. Chappel v. McLaughlan (2001) (B. . The case against the surgeon was dismissed because the risk was not well known to surgeons at that time. but not after with only normal activity.000 risk of death as a result of a severe reaction to diagnostic dye was held to be a “material” risk. 112 DLR (4th) (Ont.) Disclosing some material risks but not others is not enough. as well as the consequences of no treatment. defining informed in terms similar to common law principles. Dow was held liable for negligently manufacturing the implant. She must also advise the patients of risks of serious consequences. Rogers (1991). or ought to know would be of particular concern to the patient. C. The literature on the implants warned that they could rupture during surgery.Div. Mathew (1998) 43 CCLT (2d) 171 (Alta. 37 DLR (4th) 624 (Sask.Gen. Meyer Estate v. She sued both the surgeon and the manufacturer.. Smith (1997) (SCC) 3 or 9 justices rejected the objective/subjective test of causation in informed consent cases in favour of the subjective test of causation that usually applies in negligence cases. Arndt v. Ratio: A doctor must fully advise the patient of alternative treatments to the one recommended. QB) Practitioners need not disclose personal medical conditions that do not affect their capacity to provide treatment. In this case a 1 in 40. Haughian v. Hart (1998) (HC Aust. • A patient can choose not to be fully informed.A. but must communicate her wish to the doctor. Paine (1987).A.

Manahan (1974). (1974) (Ont. “The duty to warn is a continuing one and manufacturers of potentially hazardous products have an obligation to keep doctors abreast of developments even if they do not consider those developments to be conclusive. Lambert v. Good-Wear Treaders v. S.S.. Que.) A manufacturer who hears of a new risk after their product is disturbed has a duty to warn users as soon as possible. (1976).) No warning on a product is needed where a reasonably competent user would know there is a danger. Dissent: Sopinka & McLachlin – The test for causation should be a reasonableness.C. S. A. v. Lem v. Amin (Litigation guardian of) v. The plaintiff should have to show that a reasonable person would not have had the surgery. as in Buchan.) Suppliers have a duty to warn of risks which they ought to know. Lastoplex Chemicals Co. Objective standard – The manufacturer is liable if they should have known about the risk.). or where by its nature the consumer will not receive a warning about the product from the manufacturer may satisfy its duty to warn the consumer byt providing the warning to a “learned intermediary”.Co.” Causation: 1. Austin v. (Alta. In this case.C. Cominco Ltd. The plaintiff testified that she would not have had the surgery. (1982) (N. This would run the risk of leaving the plaintiff with no compensation for her injuries.A. D&B Holdings Ltd. Borotto Sports Ltd. the surgeaon.C. especially where they are brought about by the defendant’s failure to perform a duty.Ct.C. 3M Canada Ltd. Ltd. Allard v. or objective standard.) The duty to warn is specific to the primary user of the product. [1996] (Gen. Lapierre v.C. (1971) (SCC) A manufacturer has a duty to warn consumers of dangers inherent in the use of its product by which it has knowledge or ought to have knowledge. Kliromonos. Westinghouse Can. (1981) (B. 2.52 held Dow liable on the basis that they had failed to warn of the risks of post-surgery rupture. Beshada v. Div. Dow appealed to the Supreme Court. (1985) (SCC) The Supreme Court of Canada has refused to impose liability on manufacturers where there is no negligence. Manufacturers must be careful not to assume a risk is obvious where a child or young person is likely to be the primary user. C. S. Issues: Was the warning Dow gave to the surgeon enough to satisfy its duty to the plaintiff? Was a breach of this duty the proximate cause of the plaintiff’s injuries? Ratio: Where a product is highly technical in nature and intended to be used only under the supervision of experts. (B.) An asbestos manufacturer was held liable for injury caused by its product even though there was no negligence. Would the doctor have warned the plaintiff if he had been properly informed? The plaintiff does not have to prove hypotheticals of this type. This was to distribute the cost of injury to the manufacturer who profits from the product. (1979) (NS CA) . Would the plaintiff have consented if properly warned of the risk? What is the test? The appropriate test is a subjective one. although they had had 50 reports of ruptures by 1983. John-Manville Products Corp.G.

HC) A lawyer can only be held liable in negligence for recommending a settlement prior to trial if she made an “egregious error”. Issue: Is the standard of care what the jury would have done in the circumstances? Ratio: The legal standard of care is what a reasonably prudent person would have done in the circumstances. A lawyer may also be held liable in negligence to third parties. “An attorney must exercise reasonable care. 95 DLR (3d) 385 (Ont. not what the judge or jury would have done. Ungaro (1979). Major (1985) (Alta. [1955] 3 DLR 358 (Ont. HC) The law society cannot be held liable for negligently admitting or failing to disbar a lawyer. it is reasonably foreseeable that careless litigation may expose a client to loss. and lawyers should not be unduly inhibited from doing so. CA) A prosecutor does not owe the accused any duty of care in negligence except maybe in cases of bad faith. skill and knowledge in the conduct of litigation… and must be properly diligent in the prosecution of the case” Karpenko v. It is in the public interest to discourage litigation. HC) Issue: Is a lawyer immune from a suit in negligence in Ontario? Ratio: There is no immunity from suit for barristers in Ontario.) A lawyer cannot be held liable for her method of cross-examination. At trial. a jury found that the defendant had not breached the requisite standard of care and held for the defendant. Law Society of Upper Canada (1981) (Ont. • Under the Anns/Cooper test. Paroian. Kajawa. C. Demarco v. Cohen & Houston (1980) (Ont. Wechel v. [1994] (Sask CA) A plaintiff had served 22 years of a life sentence when it was revealed that the prosecutor had failed to disclose information that could incriminate someone else. F. Taylor. The plaintiff objected to the trial judge’s charge to the jury and appealed. Courey.Co. Such decisions cannot be reviewed by a court unless they are malicious. Held: There was a misdirection. and also a duty to third parties not to sell a potentially dangerous item to a party he knows will misuse it.A. Milgaard v. Gorman v. was a form of abuse that should not be protected by prosecutorial immunity. but it did not cause substantial harm. if true. The court held that the allegation. b) Standard of Care i) Reasonable Person Test Arland v.Ct. Calvert v. The appeal was dismissed. Barrister’s Duty of Care • A lawyer owes a general duty to a client to act competently.. ii) Factors Considered for Breach • There are a number of factors considered in determining whether a defendant breached the standard of care. The 2 most important are: . Stutz (1980) (Ont.) Facts: The plaintiff was injured in a car accident.53 A supplier has a duty to warn the purchaser of potential risks.

C..54 1. or more likely than not. Probability of injury Potential severity of injury • These are balanced against the private and social costs of accident prevention and the social utility of the defendant’s conduct. not in hindsight. including not giving him an expensive CT scan. they were not negligent”. Minister of Health.) – Cost of Risk Avoidance Facts: A bridge operated and maintained by the defendant was painted. there is no need to issue a warning. Stepney Borough Council. 2. [1999] (Alta CA) – Probability and Severity of Harm Where the risk of injury is patently obvious. The more grave the harm. the higher the standard. Should consider the severity of possible harm. [1951] (HL) – Probability and Severity of Harm Facts: The plaintiff was walking on a road beside a cricket ground. The standard of care extends only to risks which are substantial. Ratio: Where precautions could be taken with minimal expense to prevent an accident. Ronaghan. Vaughn v. The plaintiff was paralysed by phenol contamination of the anaesthetic. [1954] (Eng. The risk of this was known in 1954 when the case went to trial. the defendant must take them.C. (1961) (N. Flecks of paint blew onto nearby cars. S. Halifax – Dartmouth Bridge Comm.A. Bolton v. Issue: What is the nature and extent of the duty of a person who promotes on his land operations which may cause damage to persons on an adjoining highway? Ratio: Is the risk so small that a reasonable person in the position of the defendant would have thought it right to refrain from taking steps to prevent the danger. Ratio: We must consider what was reasonably foreseeable at the time the accident occurred. • The more likely the harm. Simice (1994) (B.S. • The defendant need not guard against dangers that are fanciful or far fetched.C. Stone. appropriate and skilful emergency care. • These considerations must be assessed at the time of the breach. Roe v. Dissent: The standard of care must be the same for all employees performing a particular task. The defendant must take reasonable measures to prevent or minimize the damages. The plaintiff owned one of the cars and sued in negligence.) – Cost of Risk Avoidance Facts: The plaintiff sued in negligence for the death of her husband.) Facts: The defendant ran a hospital where standard procedure was to sterilise ampoules of spinal anaesthetic in liquid phenol. The defendant argued it had taken “all necessary and proper measures to prevent or minimize injury to the plaintiff from paint drippings from the bridge. S.C. . Law Estate v. the higher the standard. • A risk may be reasonably foreseeable even if it is not probable. there will be no liability. [1951] (HL) – Probability and Severity of Harm Ratio: The duty of an employer towards his servant is to take reasonable care for the particular servant’s safety in all the circumstances of the case. It should not increase because of the particular vulnerability of one person. Melnychuk v. She claimed that he died because the defendant doctors failed to provide timely. She was hit by a ball from the ground and injured. Paris v. but not in 1947 when the accident occurred.

Ratio: Police officers are under an affirmative duty to apprehend suspects and are justified under s. The bullet rendered the thief unconscious. Herrtfordshire County Council. • This approach has been criticized as favouring broader social interests over the individual. hit a hydro pole and kill two pedestrians. Watt v. The saving of life or limb justifies taking considerable risk. New South Wales Fresh Food and Ice Pty. Persons with Disabilities . Priestman v. A. Economic Analysis U. so they put it in the back of another vehicle. Carroll Towing Inc. there is no breach of the standard of care. Burden of adequate precautions Liability depends on whether the burden is less than the gravity multiplied by the probability. or whether is greater. Ratio: In balancing due care you must balance risk against the measures necessary to eliminate the risk. The doctor’s duty is to the patient. Gravity of the resulting injury 3. iii) Special Standards of Care A. The plaintiff must prove there is a reasonably practicable pprecaution that the defendant failed to adopt. (1963) (HC Aust. the plaintiff was injured by the jack becoming dislodged. mount the curb. If the burden is more than the gravity x probability. [1954] (CA) – Social Utility Facts: The plaintiff. there is no occasion to condemn the defendant for not having taken them. it is too great. There is a lower standard of care. Probability of an accident 2.) – Cost of Risk Avoidance Where the plaintiff does not establish sufficient evidence of a practical solution. When the driver braked suddenly.25(4) of the criminal code to use as much force as is necessary to prevent escape. responded to an emergency call requiring the use of a jack that has not been used in 15 years.. Neill v. life and freedom to money? McCarty v. The truck fitted to carry the jack was unavailable.55 Ratio: Where a life is at stake and a treatment is available but very expensive. the patient should be given the treatment. Social utility is usually only considered where the defendant is a public officer or employed by a public authority. It is much more difficult to calculate the cost of acudents than the cost of prevention. v.S. (1987)(England) The economic analysis has a greater operational that analytic significance. • Where the measures necessary to avert the accident would have consumed excessive resources. causing the car to go out of control. You must also balance the risk against the end to be achieved. then to the budget. a police officer leaned out the window and shot at the thief’s car. a fireman. Tort law is supposed to focus on interpersonal equity. Pheasant Run Inc. • How do you compare health. (1947) (2nd Circuit) Ratio: The duty to prevent against injury has three aspects: 1. Ltd. Colangelo (1959) (SCC) – Social Utility Facts: While chasing a car thief at high speed.

Q. RGC Management Inc.) Parents aren’t liable for the torts of their children but they can be held liable for carelessly failing to supervise or control them. Cope (1984). Children Joyal v. Chicken Palace Ltd. intelligence and experience in the context of the facts.. [2000] (QB) . Issue: Can a child be contributorily negligent? Ratio: Where the age doesn’t make the question absurd.B. Turner (1981). Ratio: Negligence in a professional is judged by the standard of care of his profession. including knowing when a patient needs a specialist.. C.) The physically disabled are required to meet only the standard of care of a reasonable person with the same disability. She sued. they are absolved of liability if they can show.A.) Facts: The defendant plastic surgeon performed a breast reduction on the plaintiff. She suffered several post-operative complications and her breasts were scarred and poorly shaped. Cechmanek (2001). claiming he was negligent in performing the operation. Ratio: Where a defendant is suddenly and without warning struck with a mental illness. [2002] (QB) When a child engages in an adult activity like driving or golfing or hunting. C. [1955] (Ont. (2000) (Alta. 201 DLR (4th) 680 (Alta. Carroll and Carroll v. Sity. they are held to the adult standard of care. A bad result is not enough. v. Layden v. Pope v. Thomas v. CA) Facts: A little girl ran out on the highway and ran into the rear door of a car. Professionals White v.A.A. Hamilton (City) Board of Education (1994). C. (Volunteer Firefighter) Shakoor v. the defendant had no capacity to understand or appreciate the duty of care owed at the relevant time. 31 OR (2d) 773 (HC) Aff’d (1982) (Ont. on the balance of probabilities: a) As a result of the mental illness. Barsby (1965). Sony Plain (Town).) – Volunteers Non-professionals are not held to professional standards of care but are expected to have proper training for the situation. (Alta. She was severely injured. C. Killip’s Television Services Ltd.C. CA) Facts: A man experienced a sudden severe manic episode while jogging and caused a car accident and other damage. competent general practitioner. (B.. B. OR b) As a result of mental illness. the defendant was unable to discharge their 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. The conduct must be substandard by the standards of his profession. the jury must decide in each case whether the infant exercised the care to be expected of a child of like age. QB) General practitioners are required to exercise the standard of care of a reasonable.56 Fiala v. The defence admitted that the driver was negligent. but argued that the six-year-old was contributorily negligent. 55 DLR (2d) 38 (Man.

adhering to the standard of a profession is enough to prove no negligence. industry or profession. Best (1979) (Ont.. Material Contribution Test . [1969] 1 QB 428 Facts: The plaintiff’s husband drank a cup of tea and got very sick. the defendant is not usually held liable because they are not seen as a cause of harm. Municipal Act s. Barnett v.2 – Medical professionals who provide medical assistance in emergencies and people who provide first aid are liable except in cases of gross negligence. The jury found him liable. iv) Degrees of Negligence • Some statutes require “gross” negligence. 2. At the time. Korn (1995). His tea had been poisoned with arsenic.57 A practitioner of Chinese medicine who did not hold himself out to be an “orthodox” physician was only required to meet the standard of care appropriate to his art.44 – Municipalities are not liable for injuries caused by ice and snow on sidewalks except in cases of gross negligence. Issue: Did the hospital’s carelessness cause the death. But-for Test • • But for the defendant’s breach.A. would the plaintiff have suffered the same loss? If the plaintiff would have suffered the same loss in any event.) The party relying on either either compliance or breach of custom exists. and used standard medical practices to do so. B. The practice has to be a well-established one that has been widely accepted in a trade. Heeney v. the standard practice is no excuse for a negligent practice. Good Samaritain Act s. (SCC) Facts: The plaintiff contracted HIV as a result of artificial insemination in 1985. • Gross negligence is worse than negligence but not as bad as criminal negligence • The ordinary standard of care requires the defendant to act as a reasonable person would in similar circumstances. • “Sudden Peril” Doctrine – Conduct that would normally be considered careless is exempted from liability if it is reasonable in the context of an emergency. Issue: Can the jury decide that the standard of care itself is higher than the industry standard? Ratio: Usually. or would he have died in either case? Ratio: Where the deceased would have died even with medical attention. c) Causation i) The Cause-in-Fact A. He went home and died shortly after. The defendant was responsible for screening semen donors. but where standard practice is itself negligent in that it fails to adopt obvious and reasonable precautions which are readily apparent to the ordinary trier of fact. the risk of infection was not widely known in North America. Chelsea & Kensington Hospital Management Committee. These are usually confined to two types of statute: 1. a hospital would not be held liable for failing to provide care as they did not cause the death. C. v) Custom Ter Neuzen v. He went to the hospital and was told to go home to bed.

C.K. although scientific proof of causation has not been adduced”. he undertook an exercise program. and that they breached the standard of care. Issue: Where a loss is created by both tortuous and non-tortious causes. The Supreme Court held that the CRCS owed a duty of care to the plaintiffs. H.C.58 • Used when there are several causes and no one cause can be isolated as the sole cause. but reduced the damages 75% to reflect that the herniation was mainly caused by the pre-existing back condition. Materially Increased Risk McGhee v. made 5 donations in Montreal after an adequate pamphlet was released. He got blood donated by Robert M in 1983. would have donated blood. Leonati (1996). There must be proof of negligence and proof of the harm that the negligence caused the risk of. but these pamphlets were inadequate compared to those used by the American Red Cross. 198 DLR (4th) (SCC) Facts: Three plaintiffs sued the Canadian Red Cross because they got blood tainted with HIV. or does the McGhee rule apply? Ratio: “The legal or ultimate burden remains with the plaintiff. Farrell (1990). Issue: Did CRCS’s inadequate screening cause Walker’s loss? Ratio: The “material contribution” test: • Did the defendant’s negligence “materially contribute” to the occurrence of the injury? • Used in negligent donor screening cases. Independently Insufficient • Several factors combine to cause the plaintiff’s loss. an inference of causation may be drawn. ii) Multiple Causes A. Robert M. but he had known he was in a high risk group he would have asked a nurse whether he should donate blood. He injured his back and neck in a car accident caused by the defendant’s negligence. but in the absence of evidence to the contrary adduced by the defendant. Snell v. On advice from his doctor. The trial judge found that the car accident causally contributed to the disability. No one factor would have been enough to cause the loss. Robert M. 140 DLR (4th) 235 (SCC) – Tortious + Non-tortious Facts: The plaintiff had a pre-existing back problem. The trial judge found that even if CRCS had met the proper standard of care. Walker Estate v. can loss be apportioned to the degree of causation? . National Coal Board.) Ratio: Where working conditions materially increased the risk of a condition. He said he had never seen the pamphlet. The burden shifts to the defence to prove that there is no causation. liability was imposed even though medical evidence could not say that the working conditions more likely than not caused the condition. York-Finch General Hospital (2001). Athey v. during which he herniated a disc. The CRCS used pamphlets to screen donors. The Ontario Court of Appeal reversed the decision on the grounds that the trial judge used the wrong test for causation. Walker was one of these plaintiffs. • The contributing factor must be outside the de minimis range. 72 DLR (4th) 298 (SCC) Issue: Does the plaintiff in a malpractice case have to prove causation in accordance with traditional principles.. when there was no test for HIV. [1972] 3 All ER 1008 (U.

(N. (1974) (SCC) – Two Tortious Acts Facts: The defendant contractor was negligent in building the plaintiff’s house. Mitchell (1978) (Alta. Issue: Is the plaintiff entitled to damages for the time she would have been off work anyway? .59 Ratio: If a defendant’s conduct is found to be a cause of the injury. CA) . Independently Sufficient • Where the plaintiff is subjected to several causal factors. The house rotted due to several leaks.A. Ltee. they arte joint and severally liable. whether or not the damages would have occurred in the absence of either cause. but are liable together because of the causal role that their carelessness played. Brunswick Const. Q.B. where the defendant’s negligence constitutes a material contribution to the loss outside the de minimis range.One cause is non-culpable Facts: The plaintiff had an accident which caused her to lose income for 13 months. even if a particular joint tortfeasor did not materially contribute to the plaintiff’s injuries. acting in concert for an illegal end. The defendant argued that there wouldn’t have been any damage but for the architect’s failure to include proper ventilation in the design. the liability is joint and several and either party causing or contributing to the damage is liable for the whole damage to the person aggrieved.B. (Apportionment of Damage) Economy Foods & Hardware Ltd.) Three drunk youths broke into a town rink to steal. Newcastle (Town) v. C. Joint and several Liability: The plaintiff can recover the full amount from either tortfeasor.. Independent tortfeasors act on their own. Issue: Where does the liability lie when an indivisible loss is caused by two separate tortuous acts? Ratio: Where there are concurrent torts. the presence of other non-tortious contributing causes does not reduce the extent of the defendant’s liability. breaches of contract and a concurrent tort both contributing to the same damage. B. Nowlan v. Negligence Act • Where tortfeasors are both negligent in causing the same damage. Klassen (2001) (Man. The liability of joint tortfeasors stems from their legal relationships: a) Where an agent commits a tort while acting for his principal b) When an employee commits a tort while acting on behalf of his employer c) Where 2 or more parties agree to act in concert to bring about a common end which is illegal. She would have been off work for 3 months anyway because she had a heart condition. • The tortfeasors can then recover from each other to the degree to which they caused the damage. dangerous and where negligence is foreseeable. The tortfeasor then has the option to go after the other tortfeasor to recover their portion of the damages. each of which independently is sufficient to cause certain injury. Penner v. All three were held to be joint tortfeasors and equally liable because the fire was caused in pursuit of a common wrongful intention of all three youths. Part c) of Economy Foods. All joint tortfeasors are held jointly and severally liable for all injuries. The plaintiff can recover the whole amount. v.) Ratio: It is important to distinguish between independent tortfeasors and those where two or more tortfeasors are held joint and severally liable as joint tortfeasors. One of them started a fire. Mattathall (1987).

Where some of the causes are “non-culpable. If the victim would have died anyway. Morts Dock & Engineering Co. Issue: Can the plaintiff recover for damage that was not foreseeable? . The type of damage must be foreseeable. The “but for” test applies. The trial level decision said the damage was foreseeable. A boy who often played at climbing the bridge grabbed a wire to catch himself. He was electrocuted. Dillon v. liability will be denied if the connection between the loss and the breach was too “remote”. requiring 27 days of repairs.60 Ratio: Where there is more than one cause and they are all torts. An eight-year-old boy knocked the lamp into the manhole and fell in. Co. No power usually ran through the wires during the day. [1921] (England) – Directness Test .. Foreseeability is the effective test. kind of harm. The repairs were carried out concurrently over the first 27 days. the second tort will not be taken into account when assessing damages (Baker).One cause is non-culpable Facts: The defendant’s ship negligently caused the plaintiff’s ship to run aground. (1932) (New Hampshire SC) – One cause is non-culpable Facts: he defendant maintained wires to carry electric current over a public bridge in Berlin. Ratio: The future of the victim but for the tort of the defendant fears on the defendant’s liability as well as damages.1. v. The respondent’s employees were welding. space. Withy & Co.. ii) Foreseeability Test Modified A. • Remoteness in time. Ratio: A person must only be considered responsible for the probable consequences of his act. badly buring the boy. The Ship “Lake Winnipeg”. i) Directness vs. The lamp caused an explosion. the defendant is not liable. Held: The defendant is liable for the full 27 days of repairs. and the oil caught fire. Twin State Gas and Elec. v. [1961] (Privy Council) Facts: Wagon mound carelessly allowed oil to spill into Sydney Harbour. d) Remoteness of Damages • Even if the defendant breached the standard of care. Overseas Tankship (U.. Wagon Mound No. [1991] (SCC) .Not good Law Ratio: Liability is imposed based on whether there is a direct connection between the defendant’s breach and the plaintiff’s loss. damaging the respondent’s wharf. The plaintiff’s ship also sustained other unrelated damage requiring 14 days of repairs. Sunrise Co. Dissent: The defendant should only be liable for 13 days of repairs. Foreseeability was rejected as a test. not the extent of damage. To demand more is too harsh a rule. The oil was carried to the respondent’s wharf by wind and tide.K. Foreseeability Re: Polemis and Furness. Lord Advocate [1963] (HL) Facts: The defendant’s employees left a lit paraffin lamp near an open manhole. foreseeability. those can be considered to reduce the damages where they are independently sufficient to cause the loss.) Ltd. Kinds of Injury Hughes v.

which struck him in the lip and caused cancer. that there had been no contributory negligence. Doughty v. contracted a disease from rat urine. Psychiatric evidence indicated that she had paranoid tendencies before the accident. The court held that injury caused by rats was foreseeable. Springman [1996] (BC SC) Losses due to fire were too remote from a negligent failure to supervise and control their frequently delinquent son. causing the employee to be burned.. Sutton London B. Assizes) The defendant had an out of control rat problem on his farm. If she cannot. The defendants were only held liable for damages due to theft. the defendant is responsible for all damages that flow from that injury. The accident triggered a major personality change. Where the injury is foreseeable. Issue: Was the cancer too remote to award damages? Ratio: The test is not whether the effect of the injury was foreseeable. The court held for the defendants. Tremain v.. then the plaintiff can recover if full even if.C. and that the burn promoted the cancer. Ratio: Where physical injury is reasonably foreseeable. the court will take that into account. Thin Skulled Plaintiff Rule Smith v. A wrongdoer must take his victim as he finds her. She can only escape liability if the damage is different in kind from what is foreseeable. and became paranoid and hostile. Barstead (1965) (Alta.. Marconato v. Turner Mfg.61 Ratio: The defendant is liable even though the damage may be greater in extent than was foreseeable if it is similar in kind to what was foreseeable. Trevison v. B. The plaintiff is expected to mitigate her loss.) When considering the foreseeability of risk to children. The plaintiff. which he died of. This reaction had never been seen in 20 years of using the covers. a farm hand. it is necessary to bear in mind that “play can take the form of mimicking adult behaviour” Lauritzan v. Leech Brain & Co. The cover reacted with the metal.A. but disease by rat urine was not foreseeable. Jolley v. [1964] (CA) Facts: An employee in a metal plant was injured when an asbestos cover fell into a treatment vat. Held: The injury was caused by a chemical reaction that was unforeseeable. [1969] (Eng. suffered inexplicable pain. Franklin. she became stiff and anxious. After the accident. who must take his victim as he finds him. If it was reasonably foreseeable that the defendant’s carelessness would cause some injury of a particular type. but she was basically fine. . Pike. The court found that the defendants were negligent. Co. because of a special vulnerability. SC) Loss of consortium is not a foreseeable kind of injury resulting from a negligently caused accident causing a car to get stuck in the snow. all damages that flow from it are the responsibility of the defendant. [1998] (C. he suffered to a greater extent than could have been reasonably foreseen. [1974] (BC SC) Facts: The female plaintiff was slightly injured in a car accident negligently caused by the defendant. [1962] (QB) Facts: The deceased was injured by molten metal.

the defendant is liable for the higher costs. All defendants appealed. [2000] (PC) The court held that where it is reasonably foreseeable that the plaintiff’s impecuniosity will cause costs to be higher. (The harm would not have occurred “but for” the act. Pty. that act is regarded as the cause of the harm if there have been no subsequent intervening factors. causing the oil to burn and damaged two ships. Lo. If it is clear that the reasonable man would have prevented the risk. [1967] (Privy Council) Facts: Wagon Mound let oil run into a harbour.) Ltd. C. v. The gas collected in the boiler room of a school. the damage was foreseeable. causing an explosion. The court held that there is no “thin wallet” rule. absolves the first tort feasor of liability (usually) c) Where the intervening act was deliberately wrongful or illegal . breaking it.. the defendant was not liable for extra damages because of the plaintiff’s impecuniosity. [1933] (HL) The defendant suffered a greater loss because he didn’t have enough money to mitigate his damages. Cotic (1983) (SCC) The plaintiff recovered for her husband’s suicide after a car accident because he had a pre-existing mental condition. Ratio: The liability depends on whether the damage is of such a kind as a reasonable man should have foreseen. Broderick. with the effort and expense of averting the risk subtracted. Gray v. Steamship Edison.3 v. (1971) (SCC) Facts: A snowmobile went out of control and hit a gas pipe. the plaintiffs succeeded in nuisance. 3 categories of intervening acts: a) Where the intervening act was non-culpable • The intervening act does not break the chain of causation b) Where the intervening act is caused by the negligence of another person Breaks the chain of causation. No.K. Alcoa Minerals of Jamaica v. Greater Winnipeg Gas Co.2) Overseas Tankship (U.62 Swami v. Where a state of affairs has already occurred at the time of the wrongful act. [1980] (BC SC) Suicide as a result of a debilitating injury is too remote to award damages. Dredger Lisebosch v. The school recovered damages from the driver of the snowmobile (50%) and the gas company (50%). Assiniboine South School Division. Wagon Mound Two – Possibility of Injury The Wagon Mound (No. Debris in the harbour caught fire. The duty to take protective measures increases in direct proportion to the severity of the risk. Issue: Was the damage from the fire reasonably foreseeable? Ratio: It is justifiable not to take steps to eliminate a real risk if it is small and if a reasonable man would think it right to neglect it. iii) Intervening Causes • • • Where the plaintiff’s losses were caused by the defendant’s breach and a subsequent intervening act. Would a reasonale man with the defendant’s knowledge and experience have known there was a real risk? If so. the defendant is liable for the damages.. Miller Steamship Co. At trial. The defendant appealed and the plaintiffs cross-appealed. but their action in negligence was dismissed because their damages were not foreseeable and thus too remote.

but did not call the police. who did new x-rays and found the fracture. Ltd. . Block v.. who relied on the first xrays.63 • Always breaks the chain of causation unless the first tortfeasor had a specific duty to prevent the act Bradford v. The appellant’s wife was pushed or fell out of her seat and was injured. The automatic fire extinguisher put it out. Even though he said it was his ankle. As a result of the delays in treatment. At trial. Oke v. He went to an orthopaedic surgeon. Martin [1951] (Alta SC) Facts: The defendants negligently ran over the plaintiff. (1963) (Man CA) Facts: The defendant hit a road sign and left the post projecting upwards on the median. Dissent: The person guilty of the first negligence should have reasonably foreseen subsequent intervening negligence and to have foreseen that if this occurred there would be damage. Weide Tot. the plaintiff suffered permanent disability. Issue: Is the first doctor liable in negligence even though the surgeon was negligent after him? Ratio: Where the original tort and the intervening cause are both negligence. The trial judge found that there had been negligence in the start of the fire. He told a garage attendant about it. Held: The defendants were held joint and severally liable. He followed his doctor’s orders and kept walking. and that the extinguisher had caused the panic. the doctor x-rayed his foot. The next day. Kanellos (1973) (SCC). The ankle was not diagnosed as broken. causing a slight fracture of his leg. Price v. CA) Facts: The plaintiff injured his ankle and went to the emergency room. and it was not reasonably foreseeable by the first tortfeasor. Papp v. Leclerc (1977) (CA) Ratio: The defendant must prove that a new act rendering another person liable has broken the chain of causation to escape liability.Negligence of Another Person Facts: There was a grease fire in a restaurant. the emergency room doctor and the first surgeon were both held liable for the plaintiff’s injury. and they panicked. Milawski (1977) (Ont. Held: Even if the defendant was careless in not reporting the accident. The sound caused people to think there was going to be an explosion. The plaintiff then found another surgeon. then slipped while fishing six months later and severely fractured the leg. Both appealed. a driver tried to pass on the median and the post came up through the floor and pierced his chest. he could not have foreseen the deceased’s intervening act of driving on the median. Issue: Is the restaurant liable for the injuries even though there was an intervening cause in the negligent customer causing panic? Ratio: Where the intervening cause is the negligence of another person. damages can only be recovered from the first tortfeasor if the second tort was reasonably foreseeable from the actions of the first tortfeasor. they are not liable. Dissent: The defendant was negligent and an accident of some kind was foreseeable from his failure to report the dangerous situation he created.

Not available in negligence suits. Issue: Did the person’s stealing the tractor constitute a new cause on top of the tractor driver’s negligence? Ratio: Where the defendant failed to guard against the very thing that was likely to occur. The judge awarded punitive damages because of the defendant’s high-handedness and disregard for the plaintiff’s rights. intent to harm. vicious. The Purpose of Damage Awards in Negligence Nominal Damages – Awarded to vindicate the plaintiff’s right when she has not actually been injured. Knibbe. The keys had been left in it. Oshawa General Hospital. CA) The plaintiff was awarded $100 in nominal damages because the defendant lawyer missed a limitation period. The plaintiff’s fishing was not a new intervening cause. The plaintiff was permanently disabled as a result of being forced to play while injured. Fisher v. Kraft v. The damages were only nominal because the action would have failed anyway. Hewson v. Someone stole the car and crashed it into the plaintiff’s car. A vandal smashed his windshield. [1986] (HL) Facts: An anaesthesiologist failed to properly anaesthetize and monitor her vital signs. Vancouver Hockey Club Ltd. He was doing a crossword puzzle instead. Bedwell [2002] (Alta QB) Facts: The defendant was stopped at an intersection. Pecuniary and Non-Pecuniary. (1979) (SCC) Medical staff had ignored the plaintiff’s complaints about a serious injury. The defendant is liable for the plaintiff’s whole loss. Robitaille v. Red Deer (1976) (Alta. Someone had taken and started the tractor. causing brain damage. highhanded or otherwise socially unacceptable conduct warrants punishment or deterrence. or disregard for the principles of justice. Compensatory Damages – Damages to put the plaintiff in the same position he would have been in if the tort had not occurred. e) Assessment of Damages i) Introduction A. the intervening cause will not be considered.64 Held: The original injury was a contributing cause of the second fracture. Ratio: Where there is no maliciousness. Held: While it was reasonably foreseeable that the car would be stolen. outrageous. . it was not reasonably foreseeable that the thief would cause damage. punitive damages will not be awarded. (Approved by the Supreme Court in Vorvis). leafing the keys in the car. Punitive Damages – Can be awarded in any situation where the defendant’s malicious. Rarely appropriate in negligence cases. The judge denied punitive damages. and was branded lazy and whiny. He chased him. [1992] (Alta. Trial Division) Facts: A tractor owned by the city crashed into the plaintiff’s house.. Tong v.

but only subject to the likelihood of the loss occurring. she gets nothing. The plaintiff must take all reasonable steps to mitigate her damages. • Post-trial losses: 2 approaches a) Balance of Probabilities Test – If the plaintiff could show on the balance of probabilities that a future loss would occur. 3 related principles of mitigation: The plaintiff must take all reasonable steps to avoid or minimize her loss. The plaintiff cannot recover for losses that she had successfully avoided. S. b) Reasonable or Substantial Probability Test – The plaintiff must establish that there is a substantial or reasonable probability of future loss.. These must be proved on the balance of probabilities. Monahan v. the jury must assess damages without much help from counsel or the judge. Welsh and Snow. He sued the manufacturer for failing to recall or redesign the vehicle in light of similar incidents. there is no means of re-assessment. iv) The Use of Lump Sum Payments • • • • One lump sum is used to compensate the plaintiff for losses suffered and likely future losses. She can recover. Koshel. B.11 of the Court of Justice Act. (1985) (SCC). as long as it was malicious or reckless enough to indicate a complete indifference for safety or values. iii) The Set-Off of Parallel Expenditures • A defendant is allowed to set-off against the plaintiff’s damage claim any parallel expenditures that the plaintiff would have incurred had the tort not been committed. The defendant must prove she has failed to do so. • Appellate courts are not to interfere with the jury’s assessment of damages unless there is a clear error in law or the amount is so grossly out of line that it must be a “wholly erroneous” estimate of the damages. The plaintiff may recover for losses incurred in taking such reasonable steps. If a loss turns out to be more than that calculated at trial. even though there was no evidence either driver had been criminally prosecuted. (Older Test). Wilson v. (A 35% chance of going behind results in 35% of the damages the plaintiff would recover if he went blind). 2. If not. v) The Roles of Juries.C. she recovers 100%. Special damages (pre-trial pecuniary losses and all post-trial losses). the claim was denied. HC) Punitive damages were denied against defendants who habitually drove drunk because the criminal law has a mechanism to punish drunk drivers. C. 3. (1988) (B.C.C. S. Lind (1985) (Ont. If the plaintiff meets this standard. Preliminary Issues i. ii. Judges and Appellate Courts In a jury trial. If she could not.A. Counsel and judges are traditionally not allowed to suggest appropriate amounts. Nelson (2000) (B. Mitigation of Damages • • • 1. The court awarded punitive damages even though the manufacturer’s act was not directed at the plaintiff. Nelson v.) A child was seriously injured when she was thrown from an ATV. even if she didn’t have to avoid them under rule 1. • Set-off is only allowed if the defendant can establish that the two items in issue are truly parallel in nature. she would get the full amount. This is now changing and courts are increasingly willing to suggest suitable ranges and rough upper limits. The Burden and Standard of Proof in Damages • • The plaintiff has the burden of proving her loss and the quantum of damages.65 Ulchek v.) . and that their values can be calculated.

Teno (1978) (SCC). The trial judge awarded $1. which starts a tort action. The “trilogy” of cases: Andrews v.C. If a harm is 35% likely to occur. Cases can take up to 7 years to resolve. s. • Refusal of medical treatment can be grounds to reduce damages because of failure to mitigate. • The Supreme Court held that the issue of whether this was a failure to mitigate damages was for the trier of fact to determine. The second insurer may pay out if it’s cheaper. Janiak v. ii) Personal Injury • • The courts require separate assessment of each head of recovery that has been proved by the plaintiff. Court of Appeal reduced the damages. • Plaintiffs must mitigate their damages. Pecuniary Loss a. the plaintiff can be under surveillance for this whole time. o The first insurer pays the plaintiff. • The majority of claims are settled out of court. there was a 70 to 75% chance of complete recovery. The B. Considerations Relevant to Both Heads of Pecuniary Loss 2. o With real property loss. This was reduced to $516.66 The plaintiff died after the trial but before the judgment was delivered. You can claim for losses you have successfully averted through mitigation. insisting that recovery should as much as possible reflect actual losses. General damages are harder to prove.544. The judge awarded all the damages anyway. then contacts the other party’s insurer for the money back. establish a framework for quantifying general damages under the following headings: 1. people tend to go to their first party insurer. (1978) (SCC) Facts: A young man was rendered quadriplegic in a traffic accident. Ippolito (1985) (SCC) • The defendant negligently caused the plaintiff’s serious back injury.48.48 at the appellate level. or fight it in court if it’s a large amount. including a 1% risk of quadriplegia and a 0. the plaintiff is entitled to recover 35% of what they would get if it had occurred. Prince George Board of Education (1978) (SCC). Not all damages are compensable. Thornton v. • Future losses are to be proved on a test of “reasonable and substantial probability”. Ltd. Future Loss b. Anderson and Grand & Toy were each held partially liable in negligence. Non-Pecuniary Loss Principles Underlying Damages The Restitutionary Principle • Property and fatality claims are more difficult in the assessment of damages. Arnold v. The case was appealed on the question of whether there was an error in law as to the assessment of damages.. Grand & Toy Alta.116 of the Courts of Justice Act • Allows periodic payments and review of damages for personal injury under part 5 of the Family Law Act if all affected parties consent. The plaintiff was informed that if he had corrective surgery.022. Grand & Toy Alberta Ltd.1% risk of death. . They agreed with the trial judge that the plaintiff unreasonably failed to mitigate his loss by having the surgery. (1978)(SCC). The insurer may not start a tort action if the claim is small because it’s cheaper just to pay out. Andrews v.477. He refused to have the operation. The chance of a “poor result” was 10%. • The court should consider the best interests of all parties in deciding whether to award a structured settlement or not. Lost Earning Capacity c.

Watkins v. A lump sum payment is not taxable either. • Loss of income • Out of pocket expenses General Post-Trial General Pecuniary • Post trial losses • Cost of future care • Loss of future earnings/Earning capacity • Dependants’ claims • Management fees Non-Pecuniary • Pain and suffering • Loss of amenity • Loss of consortium • Loss of life expectancy • Loss of guidance/care/companionship • Loss of pportunity for remarriage • • • • • Pre-trial non-pecuniary Pain & suffering Loss of amenity Loss of consortium Loss of enjoyment Pecuniary Loss – Future Care Andrews v. The court criticized the system of lump sum payments. Pecuniary damages must be broken down by heads. but it must be invested.. (1978) (SCC) Issue: Is the failure to live in an institution. a failure to mitigate damages? Ratio: The plaintiff doesn’t have to choose the cheapest option for care. or that the overall amount is a wholly erroneous estimate of the damages”. and the investment income is taxable. . Olafson (1989) (SCC) Held that courts lack jurisdiction to impose structured judgments. etc. and called for legislative reform to collect this problem. Grand & Toy Alta. Types of Damages Pre-Trial Special Pecuniary • All pre-trial pecuniary losses • Cost of care. Rayner v. Non pecuniary damages don’t have to be broken down in this way. Knickle (1988) (PEI SC) The victim’s stated preference for home care is not sufficient to justify an award. which is cheaper than home care. and shows the litigants that each head of damages has been considered and evaluated. Family members are not expected to provide home care for free.67 Issue: What is the appropriate method of awarding general damages? Ratio: The method of assessing damages in separate amounts is sound. No Canadian legislature had authorized structured judgments. Ltd. Structured Settlements • A main advantage of structured settlements is that payments are not taxable. so he is entitled to damages to pay for this. Scarborough General Hospital (1981) (Ont. “No appellate court is justified in substituting a figure of its own for that awarded at trial simply because it would have awarded a different amount if it had tried the case at first instance. Yepremian v. therapy. He only has to choose a reasonable option. It is the only way to reasonably review an award. It must be satisfied that a wrong principle of law was applied. HC) The court approved a structured settlement. Home care is the most reasonable option for this plaintiff.

The Calculation: Salary at the job the plaintiff had at the date of the accident x the number of years to pre-accident retirement date x a percentage allowed for salary increases (positive contingency) – deduction for contingencies (negative contingencies) at a 20% cap. Ltd. Many believe homemaking services are grossly undervalued by the courts. The defendant was liable for the cost of the child’s future care.% of negative contingency) Set-off of parallel expenditures such as food and housing now covered under cost of future care should be deducted from future earnings.000. Olafson (1989) (SCC) A lump-sum payment is quantified on the assumption that the plaintiff will invest this well enough to meet future care costs. v. (1978) (SCC) Ratio: Plaintiffs are compensated for loss of future earnings and loss of earning capacity. C. Award = salary x # of years to retirement x (% of positive contingency . Mandzuk.000 too much if the institution is still there when he turns 19.) Earning capacity is difficult to estimate where the plaintiff is a student or a homemaker. (1978) (SCC) . Ins.C. Arnold v. Pecuniary Loss: Lost Earning Capacity Andrews v. Grand & Toy Alta.000 for the care of the child after he turned 19. [1988] (SCC) An award may include a sum to enable the plaintiff to hire a financial manager “if the plaintiff’s level of intelligence is such that he is either unable to manage his affairs or lacks the acumen to invest funds awarded for future care so as to produce the requisite rate of return”. There was a 5% chance that the legislation that provides this care would no longer be in effect when he actually turned 19. Jansen (1995) (B. which the defendant physician was negligent in failing to detect in time for the mother to abort. The judge arbitrarily selected $7.500 as an “equitable” yearly income for calculating the child’s lost earning capacity.C. These things would have been paid for out of salary anyway. The judge said that the girl would probably not aspire to the career level of her mother (a secretary). so the future care award will be “grossed up” by the estimated future tax liability to ensure that the fund would generate sufficient after-tax income to meet the cost of care. The government would bear this cost. Future care is paramount in these cases. not future care. Interest earned on a lump sum award invested is taxable. Courts tend to make longer estimates of life expectancy. Watkins v. or 95% too little if it does not).68 Krangle (Guardian ad litem of) v. Ltd. The evidence showed that the child would leave his home at 19 years old to live in an institution.A. Corp. Held: The court awarded $80. 5% of the total estimated cost of care from age 19 to the end of his life. Brisco (1997) (SCC) Facts: A child was born with down syndrome. of B. and the poverty line was $5. Considerations Relevant to Both Heads of Pecuniary Loss Andrews v. Teno (1978) (SCC) A four-year-old girl was totally disabled. (This was either $80. Kroeker v. Life Expectancy • Insurance companies use a table of “impaired life expectancy” for particular injuries to estimate the life expectancy of claimants.. The girl’s mother earned $10. Grand & Toy Alta.000 per year.

09 Fixed legislative interest rates are between 2. s. Ex: 8% interest – 3% inflation = 5% return on investment. Issue: What should the allowance for tax be? Ratio: There should be no allowance made in damage awards for taxes payable under loss of earning capacity. The court tries to consider the nature of the loss and place a value on it for the particular plaintiff. Subject to apportionment of damages for pecuniary loss. . Damages may include: a) Actual Expenses for the benefit of the person injured or deceased. Ontario Rules of Civil Procedure. when a person dies. Survival Actions • • • • • • • • • At common law. Ratio: The rate of return on investment can be calculated using present interest rates.000 should be regarded as an upper limit for non-pecuniary loss in cases of this nature.5% and 3. The court takes a functional approach and tries to provide a “reasonable solace” for the misfortune.S. then factoring in an allowance for the long-term expected rate of inflation and reducing the expected interest percentage by the percentage of expected inflation.53. all actions they could have brought were extinguished.F. RSA 2000.c. ($270. Trustee Act. Ltd.61 Dependants of the deceased can sue in tort for pecuniary losses. care. b) Actual funeral costs c) Travel expenses during treatment or recovery for visiting d) Nursing.3. c. Grand & Toy Alta. RSO 1990. Fatal Accidents Legislation At common law you could not bring an action for the death of another person.. companionship from the deceased or injured.38 (Ontario). a reasonable allowance for loss of income or value of services.5%. R. Family Law Act.s. (1978) (SCC) Ratio: Assessment of non-pecuniary damages requires a conceptual approach.000 in today’s dollars) iii) Survivor and Dependent Claims A.69 Issue: What rate of return should the Court assume the appellant will be able to obtain on his investment of the award? How should the court recognize inflation? These considerations combined to determine the discount rate to use in actuarily calculating the lump-sum award. So would awards to dependants.27 (Alberta) A cause of action survives the person Damages go to the estate of the deceased You cannot claim loss of life expectancy or other claims personal to the deceased The limitation period is 2 years after the death of the deceased B. housekeeping or other services. e) Loss of guidance. Non-Pecuniary Loss Andrews v. $100. Survival of Action Act. Awards for loss of earnings would have an allowance for taxes.

000 for the parents of a deceased 14-year-old girl. (After tax income – personal use – personal support) x life expectancy Discount rate = Return on investment – Inflation Discount for Contingencies • Possibility of incapacity to earn • Possibility of child not being dependant for the rest of the deceased’s life • Possibility of widow’s death • Possibility of remarriage The award must not be punitive. grandparents. [1978] (SCC) Facts: Mr.70 61(1) Children. determine the annual income of the deceased. Lian v. grandchildren. Children must support parents who have cared for them. Gill. Hanna. The defendant admitted that the collision was due solely to his negligence. Death of the Family Provider Keizer v. The court must not deduct for every contingency. Lai v. Keizer died as a result of injuries sustained in a car accident. D. Peters (1980) (CA) The trial judge awarded $45. Mason v. [1980] (SCC) Chinese traditions encouraging support of one’s parents were accepted as justifying a pecuniary award of $25. but must adequately compensate the dependants of the deceased.31 • • Parents have an obligation to support children under 16 who are unmarried and in school full time. 61(2)(e) Does not allow recovery for grief and sorrow. Family Law Act. Income tax should be taken into account in calculating the value of the deceased’s support. Death of a Dependant Family Member • The claimant must usually show that they would have received a pecuniary benefit from the deceased. Money A similar pecuniary award. reversed on appeal because the trial judge failed to consider the contribution of the deceased’s older sister. then determine how much of this would go to his dependants.s. iv) Property Loss . but must consider them all. multiply it by life expectancy. C.. brothers and sisters of the deceased or injured parties can make these claims.000 to a disabled single mother for the death of her 11-year-old son because he would have provided her emotional and financial support. Issues: What is the quantum of damages for loss of the family provider? Ratio: For fatal accidents. parents.

etc. Harbutt’s Plasticine v. Assessment of the Economic Loss Consequent on the Damage to the Property • Recovery of consequential economic loss is governed by the same rules as in personal injury and property loss cases. v. (1975) (Ont. Obligation to Mitigate • • Mitigation is more strictly required in cases of property loss than cases of personal injury. v. The car only had a market value of ₤85. B. Ltd.S. they stressed foreseeability and remoteness. Wright (1982) (NB QB) The plaintiff was unable to replace the vehicle damaged by the defendant with its other vehicles it wasn’t using. the plaintiff usually receives the decrease in value. o Not Deducted: Private Insurance. [1970] (UK CA) The plaintiffs couldn’t repair their factory. Warren. Swenco Mfg. Ltd. and awarded only the market value of the car. (Alcoa Minerals of Jamaica v. (1978) (BC SC) A house was destroyed by the negligence of the defendant. Wayne Tank & Pump Co. Mannix Co. some types of collateral benefits don’t have to be deducted from the plaintiff’s damages. HC) The plaintiff’s building was destroyed in a fire caused by the defendant’s negligence. Since they had already entered into a contract to sell with someone who planned to demolish the building. the cost or repair or replacement. Broderick. Welfare. Waterloo Warehousing & Storage Ltd. v) Collateral Benefits • Plaintiffs often also receive compensation from sources other than the defendant. The court found that he did not act reasonably to mitigate his loss. • It is not settled whether the defendant’s liability should be reduced if a repaired or replaced chattel is more valuable than the original. he was entitled to the cost of rebuilding his home.. Because the plaintiff reasonably planned to keep living there and received building approval. [2000] (PC)) C.) • Unless there is a statutory or contractual reason. Jens v. Employment Benefits. the court recognizes that the market value may be inadequate.71 A. or Unemployment Benefits. (Government Health Insurance. (Predger Liesbosch v. so they built another one. Charitable or Benevolent Gifts. Workers’ Comp. The plaintiff must act reasonably in a business sense. S. and the sale price did not change. The property had been re-zoned for commercial use. It was still able to recover the cost of renting another vehicle. Edison (Owners) [1933] ) • The Privy Council has now rejected a blanket rule denying recovery of losses attributable to the plaintiff’s “thin wallet”. The defendant is not liable for damages caused by the plaintiff’s impecuniosity.. The court may award cost of repair even though it’s far more expensive if it has sentimental value. Assessment of Damages to the Property Itself • Is the property commonplace or unique? o If it is commonplace. NB Telephone Co. Private Insurance. but the rules are applied more strictly in claims of property loss. They were entitled to the entire cost of the new premises even though it was more than the decrease in value of the old building. Pension. CA) The defendant negligently damaged the plaintiff’s car.. [1963] (Eng. o Deduction Governed by Statute: Provincial Health Insurance. Car Insurance . (Whatever’s Cheapest) o If it is unique. Darbishire v. Instead. increasing its re-sale value. they were not entitled to damages to replace the building. but the plaintiff spent ₤192 repairing the car because he felt he couldn’t get another reliable car for less than the cost of repairs.

This made the disability benefits through the employer indistinguishable from private insurance. Kieth Plumbing & Heating Co. Donoghue v.000. The defendant was able to deduct thise payments from the damages he had to pay. Bloomer (1990) (SCC) A police officer continued to be paid by his employer while he was injured.72 Ratych v. The plaintiff had no other means by which to check the developer’s financial condition. 1. There must be a special relationship between the parties (equivalent to a contract. v. no meaningful distinction is made between careless words and careless deeds. Heller & Partners Ltd. Foreseeability of Harm a. this is not an indeterminate class. • Was the use of the statement for its intended purpose? • Was this class of plaintiff foreseeable? If yes. Newport City Club Ltd. [1963] (HL) Ratio: A duty of care can arise with respect to careless statements that create pure economic loss. Foreseeability of Plaintiff b. Wheeler (1994) (SCC) A railway worker continued to be paid by his employer during convalescence.. Once in a letter with a disclaimer. and then the plaintiff recovers $25.000. (2000) (BC CA) Facts: The defendant bank carelessly gave the contractor in a development project two assurances that there were enough finances left to pay him. • Any party who honours a legal obligation to indemnify another has an equitable right to subrogation. Cunningham was able to show loss because he’d gotten those sick benefits through labour negotiations in lieu of higher hourly wages. The Supreme Court said the defendant could NOT deduct those payments from the damages. 3. once over the phone. but not a contract) • In Canada. Foreseeability of Injury 2.. Proximity (Direct & Close) – Special Relationship – Policy Reasons 3. The Doctrine of Subrogation • A party who has paid an indemnity to another is entitled to recover any excess compensation received by the other party for the same loss. [1932] (HL) With respect to personal injury and property damage. If she was awarded $25. A.000 back to the insurance company.000 but only recovers $10. It was not well calculated to convey clear meaning to persons not well versed in banking. • Subrogated claims can be too expensive to pursue. v. 2. she has to give the second $25. Policy Reasons Negating a Duty of Care • Indeterminate liability to an indeterminate class for an indeterminate time. Cunningham v. • Eg: If an insurance company pays the plaintiff $25.000 from the tortfeasor.000 for a negligently caused fire in her home. Anns/Cooper is used to determine whether there is a duty of care owed: 1. she only has to give the insurance company the $10. They are often abandoned. Specific Categories of Negligence a) Negligent Misrepresentation • A duty of care may arise with respect to written or oral communications i) Causing Pure Economic Loss Hedley Byrne & Co. . which cannot be deducted. Stevenso. Analysis: The Court of Appeal held that the disclaimer did not apply because: 1.

Beebe v. Unknown to the surveyor. Issue: Do the respondents owe the appellants a Duty of Care? Ratio: Anns/Cooper Test: a) Is there a prima facie duty of care owed? • In negligent misrepresentation. who bought the boat. and liability must be restricted to losses incurred in transactions related to that purpose. • Indeterminate liability is a concern to negate the duty of care. Dickman. The plaintiff argued that the surveyor had been negligent. (1922) (NY CA) The defendant is liable for losses which he knew or ought to have known were related to the “end and aim” of the transaction giving rise to the misrepresentation. Deraps v. ii) Reliance by the plaintiff would.. The appellants then appealed to the Supreme Court of Canada. causing them: a) Economic loss as a result of relying on the statements and deciding to make extra investments in the companies. Shephard. Coia. a duty of care was owed to the plaintiff’s shareholders. in the particular circumstances of the case. The Manitoba CA affirmed that judgment. (1999) (Ont. (1990) (HL) Advice is tendered with a specific purpose in mind. the owner showed the assessment to the plaintiff. Robb. Disgruntled clients could sue auditors into extinction. be reasonable. Caparo Industries Plc. The disclaimer did not apply to the oral statement. Reliance on the audited statement by the shareholders is foreseeable. b) Is that duty negatived or limited by policy considerations? • Allowing this kind of liability for auditors would increase costs for auditors. v. she would lose all her benefits when her husband died eight months later. Reliance will be determined by two criteria: i) The defendant ought reasonably to foresee that the plaintiff will rely on his representation. V. ii) Negligent Misrepresentation/Contract 3.73 In the circumstances. b) Economic loss on existing shareholdings The respondents successfully brought an application for summary dismissal on the basis that the appellants were not owed a duty of care. The appellants were shareholders in the two companies. Hercules Management Ltd. • In this case. The counsellor carelessly failed to tell her that if she signed a waiver. it was reasonable for the contractor to rely on the bank’ statement. The court held that the relationship between the parties was insufficient to recognize a duty of care. Glanzer v. which they would pass on to consumers. the relationship arises through reliance by the plaintiff on the defendant’s words. NGA and NGH. including trade practice. • Concurrent liability: Can the defendant be liable in both contract and tort? . (1977) (BC SC) A marine surveyor evaluated a boat for its owner. Ernst & Young (1997) (SCC) Facts: The respondent accountants prepared audited financial statements for the two companies. They claimed that the respondents were carelessly prepared. The Ontario Court of Appeal held that failure to divulge information may be just as actionable as the provision of positively misleading advice. CA) A woman and her gravely ill husband sought advice from a benefits counsellor employed by her husband’s union.

and laid off the plaintiff eighteen months later. but the terms of the contract may limit or waive tort liability. The duties in contract and common law are co-extensive. 2. Shortly thereafter. • Not much point in suing in tort except to take advantage of a longer limitation period in tort. The contract stipulates a lower duty than the law of tort. 4. The representation must be untrue. Proximity) 2. C Hydro & Power Authority (1993) (SCC) Issue: Can a plaintiff who is in a contractual relationship with the defendant sue the defendant in tort if the duty relied upon in tort is also made a contractual duty by an express term of the contract? Ratio: The right to sue in tort is not taken away by a contract. The plaintiff accepted the offer and moved his family from Calgary to Ottawa. you could get more damages by suing in both tort and contract. v. Defences . and there was a good chance he’d be employed by the company after that time. Dissent: Where there is a contract expressly imposing a duty on the parties. (Foreseeability. Reasonableness. (Dissent in BG Checo) 2. If you have a contract. 3. Ratio: The Hedley Byrne principle extends to representations an employer makes to prospective employee. (1993) (SCC) Facts: The defendant software company offered the plaintiff a job for which funding had not been secured.. there should be no action allowed in tort law cased on that duty. The plaintiff had been told the project would last 2 years. B. 4. You should be able to choose between tort and contract for the most advantageous remedy. you should deal with your dispute under your contract. Concurrent Liability in both Tort and Contract BG Checo International Ltd. He sued. but if you can characterise the bbreach of contract as a different harm from the heads of damage. Cognos Inc. 3. unless the limitation period for contract has expired. The contract stipulates a more stringent obligation than the law of tort. unless you have contracted out of your right to sue in tort. Requirements: 1. • The plaintiff can sue concurrently or alternatively in tort to secure some advantage peculiar to tort law.74 • 2 theories on concurrent liability: 1. • Does negligence apply to the pre-contract period? • A. The representor must have acted negligently in making said representation. and misleading. and be valid. the defendant scaled back the project. • Parties are unlikely to sue in tort because they would get less. To preclude a tort action. such as a longer limitation period. The representee must have reasonably relied on the negligent misrepresentation. • The tort duty can be nullified in clear terms. There must be a duty of care based on a “special relationship” between the representor and the representee. Pre-Contractual Misrepresentations Queen v. 3 Scenarios arise when both contract and tort are applied to the same wrong: 1. The tort duty will yield to the freedom of contract of the parties. inaccurate. and he suffered economic loss as a result. (Majority in BG Checo) You can’t recover twice for the same wrong. the contractual provision must clearly indicate the intention of the parties. Damages must have resulted. • The plaintiff could sue in tort if the contract does not fully exclude tort liability. 5. alleging that the manager had made negligent misrepresentations to him during the job interview.

(1979) (Ont.3). (Negligence Act. CA) Facts: A police officer was injured when his car hit a pole during a high speed chase. Held: The plaintiff was held contributorily negligent for failing to take reasonable care of his own property. He relied on warnings given by flashing lights and did not watch out for traffic. • If it’s not possible to allocate the loss. • After the turn of the century. Best.75 • • Burden of proof is on the defendant to establish. Was the plaintiff doing something an ordinarily prudent man might reasonably have done under the stress of the emergency? A. Todd. Walls v.G. Keller. Can plead several defences in the alternative a) Contributory Negligence i) Development of the Defence • “Last clear chance” or “last opportunity” rule. (1978) (Ont. • Range of 15-50%. Only 25 to 50% of local poultry farmers had this kind of alarm. allowed the plaintiff to recover despite contributory negligence if the defendant had the last clear chance to avoid the accident and negligently failed to take it. legislation was passed allowing liability to be divided according to the parties’ relative degrees of fault. V. (1969) (NB CA) Facts: A logging company employee started a fire while repairing a logging truck at a gas station. It stated that the standard of care was of a police officer investigating an accident. spreading the fire and causing further loss. it is split 50-50. (1980) (SCC) A police officer was killed by a driver while investigating an accident. He was driving at 85mph on icy roads. but the plaintiff didn’t have his plugged in. s. Beaulieu. Lewis v. contributes to the creation of an accident. CA) Facts: The plaintiff’s chickens died after a neighbour negligently cut off power to his barn. An alarm system would have warned of a power failure. Ont. not an ordinary pedestrian. Held: The officer (plaintiff) was not contributorily negligent because his actions were “reasonably necessary to carry out his statutory duty”. usually 25% for the plaintiff. Heeney v. so the plaintiff argued he should not be found contributorily negligent. The Supreme Court of Canada rejected the argument that he was contributorily negligent for not keeping a proper lookout. Gagnon v.. [1977] (BC SC) . contributory negligence was a complete defence. we assess people & their conduct based on the context in which it arises. The gas station employees and owner shovelled snow onto the fire instead of using the available extinguishers. Ratio: The “agony of the moment” rule. Mussens Ltd. We don’t expect the same behaviour of a reasonably prudent person during an emergency as while he is calm. • Before this. or to the resulting harm. ii) Conduct Constituting Contributory Negligence • Where the plaintiff contributes to the harm by entering a dangerous situation.

the degree of fault or negligence of the respective parties will be determined by the jury. Where the person is not already a party to an action if found to be at fault.1 incorporates al intentional wrongdoing “as well as other types of substandard conduct”. 4. They are jointly and severally liable to the plaintiff. Tortfeasors can recover in contribution and indemnity from each other. RSO 1990. Issue: Is failure to wear a seatbelt considered contributory negligence in a traffic accident? Ratio: a) Failure to wear a seatbelt in a motor vehicle is failure to take a step which a person knows or ought to know to be reasonably necessary for his own safety. (1994) (SCC) Facts: Two students at a party were playing when they tripped over a raised threshold and fell backwards. the degree to which each person is at fault. O’Donnell. they may be added as a party defendant to the action upon such terms as are considered just or according to the rules of court. Where the plaintiff is found contributorily negligent. (1996) (SCC) Contributory negligence is not available in the context of strict liability torts. The court will determine between two or more negligent persons.N. (Too Remote). It gave way and they fell to the ground 10 feet below. was unhurt. the court will apportion damages in proportion to the degree of fault or negligence found against each of the parties respectively. Cameron. who had fallen first and pulled Mortimer with him. Boma Manufacturing Ltd. b) If he is injured as a result of not wearing a seatbelt. 7. Bell Canada v.76 Facts: The plaintiff was injured when the defendant’s car ran in to the back of a pickup truck. Mortimer v. they will be found equally negligent (50-50) 5. They fell onto an exterior landing and hit the wall with minimal force. (1980) (ON CA) “Fault” in s.. their horseplay was not a cause of Mortimer’s injuries. 6. The plaintiff will be liable for some of the court costs if the circumstances render this just. But. iii) Apportionment of Loss Negligence Act. It is disputed whether the plaintiff was wearing a seatbelt. c. 3. (1994)(SCC) The Supreme Court of Canada held that the defendant had a duty to make sure an eight-year-old passenger wore a seat belt. In a jury trial. c) The onus is on the defendant to prove that the injuries could have been prevented or lessened if the seatbelt had been worn. Issue: Was Mortimer contributorily negligent? Was Cameron negligent? Analysis: The trial judge found that Cameron breached his duty to himself.1 1. 2. Mortimer was rendered quadriplegic. but each is liable to the other in contribution and indemnity in the proportion to which they are guilty. but each is liable to the plaintiff. The accident was not reasonably foreseeable. v. Cameron. it is negligence which has contributed to the nature and extent of those injuries. Cope (Sarnia) Ltd. but he was injured in a manner consistent with hitting the dashboard. One of the boys. Where it is not practicable to determine the respective degree of fault or negligence of the parties. They had no reason to think the wall would give way. CIBC.. Galaske v. The defendant was found to be negligent. The fact that the boy’s father was also a passenger in the car and may have been negligent did not negate the defendant’s duty. Issue: Was the apportionment between the city (80%) and the building owner (20%) proper? .

(1986) (SCC) Facts: Two men were drinking all day and night. The trial judge found the city responsible in negligence. but merely affected the extent of the loss.77 Held: The builder had the primary responsibility for maintaining the stairway. • Tends to be interpreted narrowly. The plaintiff was a passenger in a car that rolled. Sundance. The courts usually use apportionment instead. The jury found both and held for the defendant. Dube v. Manitoba Snowmobile Assn. Labar. Hebert. Held: The assessment of liability against the plaintiff for 50% was set aside. forefeiture of the right to sue. Lucas. This will arise only where it is clear that the plaintiff knew there was a virtually certain risk of harm and in essence bargained away his right to sue for injuries caused by the defendant’s negligence. (1993) (SCC) . usually narrowly interpreted. Their has to be an assumption of LEGAL risk. and 40% against the city. not damages.. Hall v. The defences of voluntary assumption of risk (violenti non fit injuria) and contributory negligence were put to the jury. The meaning or effect of waivers is subject to the law of contract.. The defendant was legally impaired. Victoria (City). (1999) (SCC) Facts: The plaintiff was injured when the front tire of his motorcycle got caught in a railway track owned by the city. See Crocker v. Theoretically available in any negligence action. The BC Court of Appeal found the plaintiff contributorily negligent and reduced the damages by 50%. the Appeal Court should not substitute a new apportionment of damage. Allen v. The defendant must show this. c) Ex Turpi – Participation in a Criminal or Immoral Act • A full defence. (1984) (Alta QB) The Court suggested a rough upper limit of 25% for contributorily negligence if the plaintiff’s negligence did not cause the incident. courts are reluctant to apply this doctrine. The city just inspected it. Fleming. The acceptance of the risk may be express or implied. The liability Ryan v. Dyck v. Only rarely will the plaintiff genuinely consent to accept the risk of the defendant’s negligence. will be apportioned 60% against the builder. like participation in sports. Chamberland v. (1971) (Sask CA) The court may find the plaintiff assumed the risk if he encouraged the defendant to be careless. b) Voluntary Assumption of Risk • • A complete defence – goes to liability. Issue: Is the defence of voluntary assumption of risk applicable to cases involving negligence on the highway? Ratio: Voluntary assumption of risk will only be an acceptable defence in rare cases. They would rather apportion liability. but usually confined to particular contexts. Ratio: Unless it can be established that the trial judge made some palpable error which affected his assessment of the facts. [1985] (SCC) Defence established by express agreement.

RSO 1990. Here the plaintiff claims loss of earnings from illegal activity as a head of damage. Compensation is not considered profit. v. Damages will be refused in two circumstances: 1. d) Inevitable Accident Rintoul v. • The defence could apply to punitive damages. by the exercise of reasonable care. Bannon v. How does the defence of inevitable accident operate? Ratio: The test for inevitable accident: 1) The harm could not have prevented by the exercise of reasonable care on the part of the defendant 2) If the harm occurred without the negligence of the defendant. Where one wrongdoer claims in tort against another for financial loss resulting from illegal activity. John Bead Corp. . She was required under s. • Seems to make the ex turpi defence unavailable for personal injury cases. [1956] (SCC) Facts: An x-ray truck’s brakes failed and crashed into a car.c. and x-ray had taken all reasonable steps to keep them in proper repair. Ltd.284(5) of the Municipal Act. 2. unlit road. He was severely injured and sued the defendant for letting him drive while he was that drunk. The driver applied hand brakes..78 Facts: Both the plaintiff and the defendant got drunk. Contributory negligence should be used instead. • Cannot be raised if the plaintiff would profit from his bad act. e) Limitations • Special limitation periods can be found in the enabling legislation. (2002) (Ont. • Damages will be reduced by the proportion by which the plaintiff contributed to his injuries. Issue: Could the defendant raise the defence of ex turpi causa to negate the plaintiff’s cause of action? Ratio: Ex turpi causa is a valid defence. Thunder Bay (City) (2002) (SCC) The plaintiff was injured after she slipped on an icy sidewalk. She failed to do so.M. The burden rests on the defendant to show that the plaintiff negated the duty of care owed to him by his bad act. The plaintiff may be held to have contributed more than the usual 25-50%. such as a requirement that the public authority be notified prior to receiving a writ. attempted a “rolling start”. to give the municipality notice that she intended to sue within seven days. • There may be other limiting provisions. or general legislation governing Crown agencies and public authorities. they could not.45. Soni. The defendant stalled his car on a steep. The defendant must show this on the balance of probabilities.. but they only slowed the truck. The defence only applies where the integrity of the legal system would be threatened by allowing the claim. CA) Ratio: The defence of ex turpi causa does not apply merely because the plaintiff was engaged in an illegal activity unrelated to the facts of the plaintiff’s claim. This is true even if both parties were separately engaged in similar forms of illegal activity. These are considered profit. The plaintiff got in the driver’s seat. have avoided the accident by other means. She was not allowed to pursue the action because the delay was attributable to the narcotics she was prescribed following the accident. • A tort action cannot be used to circumvent a criminal penalty. The brakes had worked all day. and flipped the car down the embankment. X-Ray and Radium Indust.

L. Must be sufficient to support probability. The defendant must show that there was contributory negligence on the part of the injured party. the onus of proof that the loss or damage did not arise through the negligence or improper conduct of the owner or driver of the motor vehicle is upon the owner or driver. London & South Western Ry. The plaintiff usually has this burden.c. 5. While he was standing in front of the defendant’s car. there is no evidence as to what really happened.15. . dismissal. (1974) (Ont. Proof of Negligence a) Burden of Proof • • • • The burden of proof in a civil action is proof on a balance of probabilities.) Facts: The plaintiff gave the defendant’s car a boost from his own car. The plaintiff must prove all the elements of a negligence action. but the defendant must rebut and explain.47 of the Limitations Act RSO 190. 2. Legal Arguments Wakelin v. Evidentiary . which states that where a person entitled to bring an action gets a temporarily mind as a result of an accident.. Woodard.133 of the Highway Traffic Act. non-suit.Plaintiff adduces evidence. If not. The defendants called no witnesses and brought a motion for non-suit. RSO 1970. reads: 133(1) When loss or damage is sustained by any person by reason of a motor vehicle on a highway. Issue: What does the plaintiff have to establish to succeed against the defendant? Analysis: s. The jury found for the plaintiff. Lord Watson: It lies on the plaintiff to establish that there was an act or omission on the part of the defendant which materially contributed to the injury. Co. the limitation period will be calculated from the date when they become “of full age and sound mind”. b) Exceptions i) Statutes and Shifting Burdens of Proof MacDonald v. This is cross-examined by the defence.c.Co. The defendant must prove any defences. • May raise a motion for non-suit. • The plaintiff must raise a prima facie case to proceed. (1886) (HL) Facts: A wife is bringing an action against the railway after her husband was struck and killed by a train on a footpath. No-one was there. Ratio: Lord Halsbury – If in the absence of direct proof the circumstances which are established are equally consistent with the allegation of the plaintiff as with the denial of the defendants. for the reason that the plaintiff is bound to establish the affirmative of the proposition. The evidentiary burden may shift between the plaintiff and defendant depending on who is better able to adduce evidence.202. he was struck by it. the plaintiff fails.Ct.79 The court instead applied s. (2) This does not apply in case of a collision between motor vehicles or between motor vehicles and cars of electric or steam railways or other motor vehicles running only on stationary rails on the highway nor to an action brought by a passenger in a motor vehicle in respect of any injuries sustained by him while a passenger. • 2 stages of a trial: 1.

whether the action be framed in trespass or in negligence. Three views of the effect: Successful invocation of the of the maxim reversed the legal burden of proof such that the defendant was required to prove on the balance of probabilities that his carelessness did not cause the plaintiff’s injuries. The two vehicles never collided. The bullet carried 250 to 300 yards and struck the plaintiff who was working on his farm. the plaintiff is entitled to succeed. and the question of the sole responsibility of one is a matter between them. but succeed if it was framed in trespass (direct). AG Ont. iii) Multiple Negligent Defendants Cook v.. the court would resolve the legal issues on the basis of that evidence instead of the inference. the onus is on the defendant to prove no negligence. Lewis. both parties are equally to blame and damages will be apportioned accordingly. It also found that neither defendant was negligent. but did not have permission to shoot over or hunt on the farm. v. fired simultaneously at birds in his direction. Where either the defendant or the plaintiff is negligently responsible but the facts do not point to one or both parties as being the probable cause of the accident. lies upon the pliaintiff. Lewis. The jury found that he had been shot by one of the two hunters. The plaintiff sued in both negligence and trespass. The burdens of proof are different in each action.80 Ratio: The statute creates a rebuttable presumption of negligence. [1955] (SCC) Where the facts support an inference that both parties were careless. If any doubt remains. ii) Directly Caused Injury: Unintended Tresspass Dahlberg v. In negligence. but couldn’t tell which one. Keller (1978) (Ont. 2. The following elements: The instrumentality of harm must have been under the sole management and control of the defendant or someone for whom the defendant was responsible. Cook and Akenhead. The offence must be one that does not ordinarily occur without carelessness. The thing speaks for itself. CA) Facts: The defendant fired at a deer and missed. CA) A police officer was seriously injured when his car hit a pole during a high speed chase. The plaintiff’s action would fail if it was framed in negligence (indirect). There must not be any direct evidence as to how or why the harm occurred. . The onus placed on the defendant is not discharged unless he satisfies the court that there was no negligence. neither party is able to recover any damages. the onus of a prima facie transmission of responsibility attaches to both. was shot in the face when the defendants. HaliburtonOil Well Cementing Co.. (1969) (Man. Otherwise. Naydiuk. The fleeing driver knew he was being pursued and was trying to escape. Al of the evidence submitted at trial by the defendant must satisfy the jury that the accident was not in fact caused by his negligence. The Court of Appeal set aside the jury’s finding on the negligence issue and ordered a new trial. the plaintiff must prove that the defendant was negligent. Ratio: Where two defendants were both equally negligent and there is no way for the plaintiff to establish which one of them actually caused the injury. it would not be possible to draw the inference. In negligence. Wotta v. The Supreme Court upheld this judgment. • 1. c) Res Ipsa Loquitur • • 1. Otherwise. Ratio: The onus of proving negligence where the trespass is unintentional. The defendant had obtained consent from the land owner of the land where he was hunting. The Court of Appeal held that the reverse onus provision applied to the escaping driver. [1952] (SCC) Facts: The plaintiff. 3.

it is meaningless to refer to it as a doctrine of law. (1983) (SCC) . RSO 1990. but not required to draw an inference.s..T. in Right on Can. such as standard of care or quantum of damages. c) The use of Statutes in Common Law Negligence R. The BC Court of Appeal agreed and the widow brought a further appeal to the Supreme Court.81 2. She argued that her husband’s death was attributable to the driver’s carelessness. British Columbia (Official Administrator). Competitionn Act. p. know or should have acquired knowledge of the need to repair. The passenger’s widow brought an action under the Family Compensation Act and sought to prove her claim on the basis of the doctrine of res ipsa loquitur.c. The maxim should be treated as expired. The trier of fact was entitled. Successful invocation of the maxim merely provided a basis upon which some inference of negligence might be drawn. V. it did require the defendant to adduce evidence that was sufficient to raise an inference of innocence that was at least as strong as the inference of negligence that had been raised by the plaintiff. Fontaine v.21 (casebook. and evidence that the truck left the road with enough speed to cut a path through a patch of trees. The judge disagreed on the basis that the widow had not shown that.609) One purpose of s. c. 3. RSC 1985. The judidicary has only to interpret the legislation. it might not be sufficient to tip the balance of probabilities in the plaintiff’s favour. While successful invocation of the maxim did not reverse the legal burden of proof. Ratio: Whatever use res ipsa loquitur may have once had is gone. there was a dip in the road where the truck might have left it.(1) of this act will also give rise to an action in trespass to land. (1997) (SCC) Facts: Two men went missing during a weekend hunting trip. the accident wouldn’t have occurred without the negligence of the driver.608) • • Most actions under s. • Legislation may affect the court’s analysis of the common law. Sask. This action is similar to the Common Law tort of conspiracy. This legislation will often also address specific aspects of the statutory claim.45.36 of the Competition Act is to induce private citizens to participate in the enforcement of the Criminal Law in this field.M. their truck was found in a river bed at the bottom of an embankment. Three months later. [1955] (HC) Analysis: The Municipal Act(now RSO 1990c. 10. Trachsler v. Their bodies were found buckled into the driver’s and passenger’s seats. There was no direct evidence regarding their deaths. b) Express Statutory Causes of Action Tresspass to Property Act. Given its limited use.284(1) creates a duty in municipalities to keep highways in such condition that travellers using them with ordinary care may do so in safety. The circumstantial evidence showed there had been torrential rains in that area at the time they died. Wheat Pool. Role of Statutes a) Introduction • A piece of legislation may create a statutory cause of action. Even if an inference was drawn.C-34 (casebook p. Ratio: When a highway is put out of repair without any fault of those whose duty it is to keep it in repair. in the ordinary course of events. then that duty is reasonably performed if the repair is made within a reasonable time after they are informed. o Existence of a regulatory scheme may support finding a duty of care in negligence. o Statutory provisions may help in determining the standard of care. Halton.

Regulations required that he be provided with eye protection by his employer.86(c) of the Canada Grain Act. SC 1970-71-72. Slough Metals Ltd. Ratio: Where a plaintiff alleges a breach of statutory duty. Proof of statutory breach. MacLaren.. The board made no claim in common law negligence. Even though the defendant had taken reasonable care. 1. The court held the broker liable in negligence under common law principles. The employer provided the goggles. X-Ray and Radium Indust. causative of damages. Compliance with the common law duty and standard does not operate as a defence to a statutory cause of action. There is no nominate tort of statutory breach. This is not absolute liability. he was held liable for breach of a statutory provision that required a driver who was unable to see if the crosswalk was clear to proceed at a speed that would allow him to stop before he entered it. If the plaintiff fails to prove a breach of statutory duty. V. There is no nominate tort of statutory breach giving a right to recovery merely on proof of breach of damages. Rintoul v. The statutory formulation of the duty may afford a specific and useful standard or reasonable conduct. Bd. The act made no reference to the issue of civil liability for breach of its provisions. is the liability absolute. c. Unexcused breach does not constitute negligence giving rise to absolute liability.82 Facts: The Saskatchewan wheat pool delivered infested wheat to the Canadian Wheat board in violation of s. [1956] (SCC) Ratio: Failure to comply with a regulation is evidence of a breach of a common law duty on anyone who operated a car on the road to have it equipped with brakes. V. referring at length to the broker’s violation of statutory regulations and industry practice. he is also entitled to allege negligence at common law and have it considered by the court. negligence can still be considered.7. London Passenger Tpt. Upson. (1992) (CA) An investor who had not relied on his broker and made all his own decisions sued his broker for his losses. Issue: Does breach of a statutory duty give rise to a civil action? If so. Horsley v.. but sought damages based on the breach of s. may be evidence of negligence. Tort Liability of Public Authorities – See Handout . Civil consequences of breach of statute should be subsumed in the tort of negligence.561 is a fortifying element in the recognition of that duty. 4. or does it require fault of the person who failed to perform the duty? Ratio: The breach of a statutory provision is prima facie evidence of negligence.86(c). and that he use them and report any defect in them without delay. Bux.. [1949] (HL) A bus driver hit a pedestrian in a crosswalk. Sterling. He regulations may be taken as the expression of the legislature’s view as to what constitutes a reasonable breaking system. (1972) (SC) Ratio: There is an independent basis of a common law duty of a carrier to a passenger. 11. [1973] (CA) Facts: An employee was injured in the eyes by molten metal. 3. 2. but the Canada Shipping Act s. Varcoe v.

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