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BAZIRA’S CASE FILE

NOTES.U.C.U.LLB2.
VI INTRODUCTION TO THE LAW OF NEGLIGENCE
1. The Concept of Negligence

-DEFINITION: i)an act or ommission which unreasonably does or may affect the rights
of others, or whcih fails to protect ones self from danger (Palsgraf v Long
Island Ry Co.)

ii) conduct which falls below a reasonable standard of care as imposed

by law (me)

iii) the ommision to do something whcih a reasonable man, guided upon

those considerations which ordinarily regulate the conduct of human affairs,
would do, or doing soemthing whcih a prudent reasonable man would not do
(Blyth v. Birmingham Waterworks Alderson J.)

2. The Elements of A Negligence Action

Necessary Elements
a) a duty of care must exist
b) must be a breach of that duty (assed with standard of care)
c) actual damge must have resulted from that breach
d) must be proximate cause and damages must not be too remote
e) must be absence of contrib. neg'ce, voluntary ass'n of risk, or illegality

1. duty of care: must be a duty recignised by law to avoid this duty

does the rel'nship btwn P and D warrent a duty on one to care for beifit of other
distinguish btwn misfeasnce (doing something badly) and nonfeaseance not doing it at all)
2. Standard of care: if behaviour falls below objectively set standard, will likely be neg't
variety of standards depending on situation
3. Damage:can be as negligent as you want as long as you don't casue any damage
4. Causation: conduct of D must have casued injury or harm to have befallen the P
but for test
cause in fact
5. Proximate Cause/ Remoteness of Damage: is damage to remote to be a result of D's conduct?
generally limited to recovery of damages which are forseeable
6. Defences: contributory neg'ce
joint tortfeasors
volenti fit non injuria
ex turpi causa
********MUST ESTABLSH THAT ALL ELEMENTS EXIST BEFORE YOU HAVE A CAUSE OF
ACTION********

Catagories of Loss:
a) Special Damages: immediately recognisable and quantifiable at trial
b) General Damages: subject to determination of court
i) cost of future care
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ii) loss of earnings (loss of potential earnings)

iii) nonpecuniary damages (loss of amenities of life, pain and suffering,
emotional distress, loss of expectaion of life)

Dunsmore v Deshield (1977)- plaintiffs glasses broke whicle playing football and fcae hurt - D had failed to
deliver proper lenses -no contrib neg'ce b/c P wouldn't have played had he not believed the lenses to be shatter
proof
casuation- injury caused by wrong lenses since Hardex wouldn't have broken
injury- manufacturer and distributor liable for damages

VII THE DUTY OF CARE

1. Introduction to the Concept

- in order to sustain an action in neg'ce P must establish that D had a legal obligation to
take care not to cause him harm

a) THE CLASSICAL APPROACH

b) THE GENERAL DUTY OF CARE TEST

Donghue v Stephenson [1932] "theres a snail in my ginger beer!!! contents of bottle obscured by dark
bottle, is bar or manufacturer liable?
- established that a duty is owed by manufacturers to ultimate consumers of products -
- effect of case was to turn negligence law into a flexible conceptual area

- Rule: you are not to injure your neighbour. One must take care to avoid acts or
ommissions that one can reasonably forsee will be likely to injure ones
neighbour. A persons neighbours are those people so directly and closely
affected by a persons act that the person ought reasonably have them in
contemplation as being so affected when a person directs his mind to the act or
ommission
- Reasonable Foreseeability Test:
1. reasonably forseeable that act/ommission will injure someone
2. neighbours are reasonably forseeable as likely to be injured by those acts and
ommissions

c) THE DEVELOPMENT OF THE MODERN LAW OF DUTY

- effect of Donghue v Stpehnson not seen unitl 1960's when courts begain to use it to
overturn traditional ass'ns about duty of care
- Hedley Byrne v Heller [1964] to what degree is an investor owed a duty of care by accountant?
- established prfoessional liabilty for neg't misstatement, case decised on basis of
forseebality of harm
- Anns v London Borough of Merton [1977] -
Test:1. is there a prima facie duty of care establishable by relationship of sufficient
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proximity btwn P and D that injury upon P should have been reasonably
forseeable?
2. are there any circumstances which should negative, or limit scope of duty
owed, to whom the duty is owed, or the damages that will be recognised?
- test has been expressly overturned in UK and Australia, but still followd in Cda, although in
applying 2nd portion of test take into acc't policy (so test is somewhat modified, was rejected
in UK on grounds that policy must be ignored and treated as a duty?)

d) ANNS AND THE SUPREME COURT

2. Does Negligence Law Apply?

Demarco v Ungaro [1979] - lawyers can be held liable for negligence

3. Did the Defendants Conduct Give Rise to a Duty of Care?

Rule: where D has taken precautions against all forseeable events, but accident arises
out of unlikely nonforseeable event, D will not be held liable
Moule v NB Elec Power Comm. (1960) - wires running through trees - pwer co had attmepted ot clear most
surrounding wires, - P climbed to an unusual height, stepped on a rotton branch whcih broke, casueing him to
fall, touch wires and was electrocuted held: the company did have a duty of care towards P, but
sequence of events was such that Ps injury was not reasonably forseeable
Amos v NB Elec Power Comm [1977] - by climbed a poplar tree so high that his weight casued tree to
sway and hit electric wires - he was electrocuted and fell from tree and knocked unconcious
held: accident was a forseebale one, therefore D held liable in negligence for not keeping trees
properly trimmed, and wires proeprly insulated (distinguish from Moule on sequence of
events)

4. Was the Duty of Care Owed to the Plaintiff? The Forseeable Plaintiff Test

- Rule: in order to give rise to a duty of care, P must belong to a class of persons
considered to be foreseeably at risk
Palsgraf v Long Island Ry Co. (1928) - man jumping onto train - pulled in by one guard, pushed by other,
package containing fireworks falls and explodes casueing scales at other end of platform to fall on Ps head -
held: possiblity of accident must be clear to prudent eye, and must be within radius of harm to
be owed a duty - injuries to P held not be be forseebale so no neg'ce
dissent: act of P itself created forseablity of accident, therefore should be held liable in neg'ce

Haley v London Electricity Board [1965] - blind man trips on workmans obstacle
held: reasonably forseeable that blind person would be on sidewalk, therefore duty of care
towards that class owed, city negligent in breach

VII SPECIAL CATAGORIES OF NEGLIGENCE: DUTIES OF

AFFIRMATIVE ACTION
- distinguish:
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misfeasance: negligence in a legally permitted act (where the Ps condition is worsened

when the D contributes to or creates a situation fo peril for the P) - "active misconduct"
(duty of care imposed)
nonfeasance: failure to confer a benifit or protect form harm "passive inaction" (no
duty, no imposed liabilty)

in general, unless there is a DUTY on a person to take positive action, ther will be no
liability even if harm to another is forseeable or preventable

will recognise an affirmative duty in sit'n where the P is in a position of vulnerability vis
a vis the Ds ability to control or protect them, or balance expertise of D with the reliance
upon it by the P

1. The Duty to Rescue

- in general no duty to rescue unless there is a relationship of control or supervision

(parent/child; teacher/pupil; employer/employee; carrier/passenger; prisons/inmates;
hospitals/patients), a relationship of economic benifit, reliance relationship, statutory
duties, or one is the creator of a dangerous situation.

Rule: if you have not created a situation of danger, either through negligence or
intentionally, you are not obliged to help the person in danger, especailly if it will
comprimise your safety
Osterlind v Hill- D found not negligent in renting a canoe to P who was visibly intoxicated, nor was he
negligent in failing to respond to Ps calls for hel when that canoe tipped (canoes inherently tippy by nature)

Rule: there is a duty to resuce if if D has innocently or negligently created the OPS perilous
situation, physically worsened the Ps position, denied the P other opportunities for aid,
or induced the P to rely upon him for help ...if you start soemthing you must finish it.

Horsely v MacLaren "The Ogopogo"- D invited (no K'l rel'n) people onto his boat, one fell overboard. In
attmepting to rescue th D did not follow the correct procedure, he backed up instead of circling around and
coming head on twds the body, another guest then dove in to save the vicitm, and died instantaneously of shock.
- was there a legal duty to rescue?
test: what would reasonable boat operator do in the circumdstances, attributing to such perosn teh
reasonable skill and experience required of the master of a cabin cruiser who is resp. for
safety and rescue of passengers?
held: captain did owe duty to rescue, but no negligence here, b/c death was instantaneous not result
of improperly executed rescue., also owed a duty to second victim b/c he induced him to jump
in.---effect of error in emerg. sit'n?

2. The Duty to Control the Conduct of Others

a) LIABILITY FOR THE INTOXICATED
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Jordan House Principle: when profiting from an activity, owe a diuty of care towards
visibly intoxiacted patrons

Crocker v Sundance Resorts: does a ski resort have an affirmative duty to prevent a
visibly intoxicated person from competing in a dangerous tubing competion?
(TC: duty, AC: no duty, SCC: appeal allowed sent back to trial)
Duty of Care?: rel'n of proximity, competion for financial gain
Standard of Care? ski resort did fully explain risks, breach if standard to allow a drunken
person to compete
Voluntary Ass'n of Risk?- difft to argue due to intoxicated state of D, even though a
waiver was signed (D had no reasonable groinds upon which to
believe that signing of waiver was a genuine expression of intent)
Contirb Negt? 25%
*key points to decsion: commercial context (econ beinift analyisis) and part'n in creation
of peril
care towards visibly intoxicated patrons

b) OTHER DUTY TO CONTROL SITUATIONS

- in the absence of legal power or authority to control, there is no legal duty to control (note
list of relationships of control or supervision outlined above)

c) THE DUTY TO PREVENT CRIME AND PROTECT OTHERS

Rule: in certain circumsances private law duty of care will be imposed upon public
individuals

Jane Doe v Metro Toronto Police: did police have duty to warn P that a potential serial
rapist was in the area?
- relied upon test in Kamploops City v Neilson "policy decsions made by public officials will not
attract laibilty in tort so long as they are reasonably and responsibly made. On the other hand when it
comes to the implementation of policy decisions, piublic officials who owe a private law duty of care
will be exposed to the same liabilty as others if they fail to take reasonable care in discharging their
duties"
-held: although forseeability fof risk alone is not enough to impose duty, the narrow and
distinct group of potential vicitms did give rise to a special rel'n leading to implsition of duty,
case allowed to proceed (note use of Anns test)

3. The Duty to Perform Gratuitous Undertakings

Rule: once D begins to perform a gratuitous undertaking, he may be held liable for
negligently injuring the P but if no performance is undertaken, even if promised, no
liabilty will flow
Baxter v Jones (1903)
- 3 exceptions: estoppel/injurious reliance; neg't/fraudulent/or innocent misrep'ns inducing
reliance; recharacterization as misfeasance
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Smith v Rae: a doctor and husband made a K to deliver wifes baby, but wife was not privy to
K, so even though she relied on this K to her detriment, his not showing up was charecterised
as a nonfeasance and he was held not liable

Rule: where a D undertakes a task to whihc he is under no duty to undertake, that D

must not omit to do anything a reasonable perosn would do in performing that task
Zelenko v Gimbel Bros: shop owner undertook to assist a P who got sick in his store, liable in
neg;ce for medical aid administered, a reasonable person would have called an ambulance, not kept him away
form an infirmary for 6 hours, the guy died

Rule: if a person undertakes to perform a gratuitous act, he is laible if he performs it

improperly, but not if he neglects to perform it

Solsby v Toronto - gate regularly manned by a watchman, on dat of accident it was not manned, in
reliance on presence of watchman, deceased P crossed tracks and was struck by oncoming train - self imposed
duty by D does not relieve P of duty to care for himself. (note: pre Neg'ce Act, today would probably be
approtionment

VIII SPECIAL DUTIES OF CARE

1. The Duty of Care Owed to Rescuers

Rule: if a victim imperils himself, they are laiable to the person who attempts to resuce;
if another preson causes someone to become imperiled, then they are liable to the victim
and to the rescuer
Horsely v MacLaren- no liabilty in neg;ce found here, said death was the result of a mistake made
under pressures of emergency sit'n

general principles:
- a negligent actor os liable to reimburse a rescuer for losses incurred during a rescue attempt
(videan v british transport comiss,; ogopogo)
-a duty is owed ot people injured while protecting their own ppty due to your neg'ce
- rescuer will not be protected in every case, must be reasonably percieved danger, and the
rescuer must not be foolhardy or rash
- the defence of voluntary ass'n of risk has been virutally eliminated from recue cases

2. Duties Owed to the Unborn

i) prenatal injuries- D negligently injures fetus and child is born injured or handicapped -ex
from car crash - can P sue own parents?
ii) preconception torts- negligent injury to parent prior to conception resulting in genetic
defect - pbl;m here is one of causation
iii) wrongful life- for example mopther claims doctor was negligent for failing to inform of
potential handicap or other defect, and child sues for wrongful life - but for neg;ce would not
have to live as a disabled person - hige issues re valuation upon the lives of the disabled
iv) wrongful birth control, sterilization and abortion- based on general medical negligence
claims, courts have tended to award damges only where child is not healthy at birth

3. Nervous Shock
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Rule: will be entitled to recovery for nervous shock if nervous shock was reasonably
forseeable as a result of the defendants conduct
-factors taken into account:
i) relational proximity
ii) locational proximity(being at scene and observing the shocking event)
iii) temporal proximity(rel'n btwn time or event and onset of pyshc illness)

- nervous shock must be accompained by recognizable physical or pyschological illness in

order to be recoverable, emotional stress is not recoverable
- ordinary bystander cannot recover for nervous shock, must be related in some way

Rule: Shock must come from hearing or seeing the actual event
Rhodes v Canadian National Railway Co. (1990 BCCA)- mother who heard through a third party of
her childs death that had occured elsewhere was not able to recover for nervouse shock, relationship of proximity
not deemed to be close enough

4. A Doctors Duty to Inform

general principle: doctors are under an affirmative duty of care to to disclose all
material risks of proposed treatments to their patients, nonmaterial risks that they know
or ought to know would be of particular importance to patient concerned, and sufficient
information about proposed procedures to enable patients to make informed choices
failure to do so will result in being held liable for neg'ce
- a material risk is defined as a remote risk of serious injury

Rule: in order to give informed consent patient must also be informed about
consequences of leaving ailment untreated and any alternative means of treatment
Haughian v Paine (1987) Sask.CA- doctor found liable in neg'ce for failing to inform patient of risk of
paralysis from proposed surgery, as well as conseq. of not treating his disc injury, or of alterate means of
treatment. P who underwent surgery ended up paralysed. - basically an extension of Reibl v Hughes

Rule: a doctor is not priveleged in witholding information which he believes will unduly
frighten or deter the patient
Hopp v Lepp(1980) SCC

5. A Manufacturer's and Supplier's Duty to Warn

Rule: a manufacturer has a duty to warn of any dangers inherent in the use of its
products that are known or ought to be known at the time of sale- warning must be
reasonably communicated and clearly describe the danger
Lamber v Lastoplex Chemicals (1971) SCC

Rule: manufacturers duty to warn extends to dangers discovered after the product has
been sold and delivered
Rivtow Marine v Washington Iron Works
- note: duty to warn is traceable to "neighbour principle" in Donoughue v Stephenson
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Rule: where consumer is relying upon a "learned intermediary" whose knowledge

canbe said to approximate that of manufacturer, a warning to the ultimate consumer
may not be necessary, and manufactureres duty to warn may be met by informing the
intermediary
Hollis v Dow Corning Corp (1995)SCC- in failing to warn surgeon of risk of post surgical
ruputre of silicone breast implants, manufacturer was held liable to recipient (test applied:
would a reasonable person in Ms. Hollis' circumstances have consented to the surgery if she
had known the risks?)

Rule: suppliers are required to warn of risks which they know or ought to know
Lem v Borotto Sports Ltd. (1976) Alta. CA
- in considering whether concumers have been adequetly informed, the totlity of a
muanufacturers marketing and promotional activities will be considered - a manufactuere may
be held liable despite providing adequate warning if that warning has been obscured or
undermined (Buchanan v Ortho Pharmeceutical)

- duty to warn re: dangers of misuse also exists, duty increases as degree of danger resulting
form misuse increases (Lem)

IX THE STANDARD OF CARE

- 2 stages of analysis
1. what is the standard of care that the defendant is required to meet, and what factors
should be considered in determining if it was breached? (ques'n of law)
2. on the facts of the case has the P provent hat the D breached the required standard of
care?

1. The Common Law Standard : The Reasonable Person Test

Arland v Taylor [1955] - thestandard of care by which a jury is to judge the conduct of parties
in the care that would have been taken in the circumstances by "a reasonable and prudent
man"
- note: standard is an objeective one
- takes into account knowledge, training, and experience that D or class of reasonable
persons would know or have in like circumstances
- definition of reasonable man -mythical creature of the law whose conduct is the standard
by which the courts measure the conduct of all other people. Not an extraordinary or
superhuman creature, normal intelligence who makes prudence a guide to his conducr. Does
nothing that a prudent person would not do, acts in accord with general and approved practice.
Conduct is the standard adopted in the community by persons of ordinary intelligence and
prudence.

2. Factors Considered in Determining Breach of the Standard of Care

- court will consider 4 factors:
1. probability of occurance
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2. probability of grave/serious harm

3. cost of risk avoidance
4. socail utility of the D's conduct

a) PROBABILITY AND SEVERITY OF THE HARM

US v Carrol Towing Co. [1947]- owners duty to prevent break away of barge is a function of
three variables: the probablity that she will break away, the gravity of the resulting injury if
she does, and the burden of adequete precuations - situation is one whihc custom should
control
applies Hands Theorem
P = probability B = burden L = gravity of resulting injury
so
P * L > B = liabilty in negligence Plaintiff wins and loss is reallocated to Defendant
P * L < B = Plaintiff loses, risk remains with the Plaintiff, no negligence

Bolton v Stone [1951]- cricket ball hits plaintiff walking down road near cricket field
Test: whether risk of damge is so small that reasonable person in position of D would see fit
to refrain from taking chances to prevent danger (balance forseeabilty of harm with
seriousness of harm) test of fact
held: risk of harm so small that even in consideration of safety a reasonable man would
disregard risk, therefore no neg'ce
Miller v Jackson [1977] - cricket balls form club flying into backyardinterfering w' use and enjymennt, but
Lord Denning is a cricket fan so wants to protect the cricket club
- approaches case by balancing interests of the public with those of private individuals
- cricket club hads excersissed all rasonable care, offered to settle, impt. that cricket club
was there first
- in consideration of socail utilty, cricket club and players doing what they are entitled to do,

Paris v Stepney Borough Council [1951] - does an employer have a duty to provide a one eyed worker
with goggles when they are not provided to workers who have two eyes?
- balancing the remoteness of harm occuring with potential for graver damage which
would befall a one eyed worker
- majority precaution so inexpensive and risk of blindness in event of injury so prudent
employer should provide goggles
- minority -no neg;ce, cannot say a one eyed man would have a remedy where atow eyed
man would not (either neg;t for not providing at all, or say risk too remote to necessitate
provision)

b) COST OF RISK AVOIDANCE

Vaughn v Halifax Dartmouth Bridge Comm.(1961) - wind causes paint to splatter from bridge being
painted to car park below
held: defendant negligent, b/c although painting season is short, and damage minimal, cost of
risk avoidance (ie posting sign) so low that it should have been undertaken
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Law Estate v SImice [1994] -physicians responsiblity to individual patient must take
precedence over responsibilty to keep costs of meidcare down - negligent in not ordering
CAT scan

c) SOCIAL UTILITY
Watt v Hertfordshire County Council [1954] - jack needed to respond to call, truck to whcih it was fitted
unavailable -became dislodged and injured P when driver braked suddenly
- claim in negligence rejected, when risk of loading jack balanced againdst end being
achieved (putting out the fire)

Priestman v Colangelo [1959] - during a high speed chase cop shot at chasee who subsequently hit the curb
killing 2 wome - was cop negligent in shooting?
- no neg'ce cop acting within scope of duty to protect the common good and loss was one that
should be borne by community
-dissent: b/c guy was only a theif this was not worht the loss of only two innocent lives, cop
should have forseen potential consequences of his action

4. An Economic Analysis of the Standard of Care

- Hands Theorem: jury should attmept to measure three things: the magnitude of loss if an
accident occurs, the probability of the accident occuring; and the burden of taking precautions
that would avert it. If the product of th first two terms exceeds the burden of precautions, the
failure to take those precautions is negligence.

5. Special Standards of Care

a) THE DISABLED

general principle: must be a capacity to understand nature of duty owed in order to be held
liable - in order to be released from liabilty inabilty to understaind and appreciate must be due
to disabilty

Buckley and TTC v Smith TPT Ltd [1946] - syphillitic truck drivver goes insane w/o warning
and crashes into transport unit
test: not whether delusion existed, but whether delusion prevented D from understanding and
appreciating duty which he was under

- note: physically handicapped are required to meet the standard of care of a reasonable
person with a similar handicap

- what happens when nature of duty is understood, but but there is an inablity to act (ex
undergoing an epileptic seizure)

b) CHILDREN

general principle: standard of care of child of like age, intelligence, and experience, however
much heed is paid to peculiarities of childs experience
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Joyal v Barsby (1965) - 6 year old runs onto busy road and is struck by semi- issue at appeal was child
contributorily neg't in stepping onto busyt highway?
- child 40% c.neg't : trained in highway safety and had she looked wouldn't have stepped onto
road

-a child involved in a normally adult activity such as driving a car, hunting, or snowmobiling
will be required to meet the standard of care excpected of a reasonable adult Ryan v Hicksson
(1974) - waving snowmobile kids who got air

- a parent, guardsian or other supervisor will not be held vicariously liable when child
commits a tort, but will be held liable if they have failed to control ormointor childs conduct -
held to standard of reasonably parent of ordinary prudence LaPlante (Guardian ad litem of) v
LaPlante -father held liable for letting 16 yr old son who just got his liscence drive in icy conditions with
traffic at highway speed (Dennis and Emily's Moot)

c) PROFFESSIONALS
- general principle: an error in judgement is not neg'ce, neg'ce will only be found where
performance is not found to comply with ordianry procedure, or is such that reasonable
practioner in simialr circs would find perofrmance to be substandard
White v Turner (1981) - ruching plasitc surgeon does a bad breast reduction that leads to deformity

-general practioners are excpected to excersie the standard of care of a reasonable, cmpetent
general practioner. this includes knowing their limits and when to refer patients to a specialist
Layden v Cope (1984)

- standard of care required of an intern is that of the reasonable intern, but residents are held to
standard of qualified physician ( Fraser v Vancouver General Hospital)

-volunteers are expected to have skill and training required to perform their tasks adequately,
this includes knowing when to refer

- individuals may be held to proffessional standard of care if they implicitly or explicity hold
themselves out as having the skills of a proffessional

- lawyerswill be held to the standard of a reasonably competent and diligent lawyer (Brenner
v Gregory)

6. Degrees of Negligence

- some statutes used to find liability if gross neg'ce could be proven, but now noraml neg'ce
will do

7. Custom

general principle: custom is used to establish a standard of care, will only find neg'ce if there
is noncompliance with this standard, excpetion where pricedure os so fraught with risk that an
ordinary person could reasonably avoid
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- courts unwilling to determine standard of care esp for nbew procedures heavy reliance on
experts to establish
Ter Neuzen v Korn -P contracted HIV from artificial insemination in 1985 following standard practice
held: whereprocedure is medically uncertain or highly technically complex, it is not open to
court to find procedure neg't

X CAUSATION
- There can be no liabilty for neg't cunduct unless damage is caused by it. There must be
some link or connection btwn the wrongful act and the loss beign complianed of
- Even if D caused the Ps loss, s/he will not be held liable if the causal connection btwn her
neg't act and the P's loss is too tenuous or remote to justify impsing liabilty
- The causal relationship btwn th alleged negligence and the injury must be made out by the
evidence and not left to the conjecture of the jury

1. Determining the Cause in Fact

- onus: on plaintiff to prove on bop that by a preponderance of evidence that the defendants
negligence was the effective casue of death

a) THE BUT FOR TEST

- looks backwards in time, asking had the defendant not acted the way he did, would the
harm have befallen the plaintiff?
- requires that Ds conduct make a difference to tbe Ps status quo ante

Cork v Kirby (1959) Ont CA : epileptic painter who was under medical directive not to work at great
heights doesn't tell his employer this, and then in the course of a seizure, fell from a scaffolding that had been
provided by his employer, but had not been built to code - distinguishes btwn "but for" test and
proximate cause (looks forward in time asking if from the Ds act the the harm/injury to
the P was forseeable) - both elements were causes, P for failing to disclose illness, and D for
failing to provide proper scaffolding - so P contributorily neg't damages reduced by 50%

Kauffman v TTC (1959) ON CA: held that absence of a handrail on escalator was not a
sufficent cause of Ps injuries, to hold D liable in neg'ce - no evidence that people who caused
the fall were grabbing hte handrail or if the P had that she wouldn't have fallen

b) CAUSATION AND CORRELATION

- where it is impossible to prove but for ---> must at least make a probable conn'n
- P must prove on bop that D's neg'ce, although not exclusively resp for injury, was one of the
material factors contributing to it

Rule: where a person has created a risk by a breach of duty, and injury occurs within
the scope of that risk, the loss will be borne by him unless he shows some other cause ---
> defendant has the burden of disproving causation once the material risk is shown
McGhee v National Coal Board (1972)(HL)
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Rule: the legal or ultimate burden lies withe the P, but in the absence of evidence to the
contrary adduced by the D, an inference of causation may be drawn even though
positive proof of causation has not been. (not really a reverse onus as the P must present
some evidence that allows an inference of causation to be drawn - d has the burden of proving
otherwise)
Snell v Farrell (1990 SCC)- surgeon continued to operate dutring cateract surgery, even after noticing
bleeding - woman then goes blind. Neg;t act of continuing to operate is not contested, but must prove that it
caused the injury.
- 2 broad principles of burden of proof:
1. onus on P
2. where subject matter of the allegation lies particularly w/n the knowledge of one
party, that party may be required to prove it.
- in this case the 2nd princip. applies as it is dif't for the patient to prove casuation (no access to med
records, notes, etc.) material contrib to risk taken from McGhee, P need only bring evidence
of material contrib. to risk.

Take from this: the ordinary principles of causation are adequate to the task if properly applied- relaxation of the but
for test in some circumstances - use the principles of proof flexibly - causation from point of view of common
sense. When facts of case lie mostly within the knowledge of the D, very little affirmative evidence on the Ps
part will justify the drawing of an inference of of casution in the absence of evidence to the contrary. The
adverse inference is then made a tactical burden on the doctor. where the P can show that Ds actions
materially contributed to the Ps loss, D must show that he was not the cause.

2. Independant Tortfeasors and Multiple Causes

2 types of injury:
1. divisible: can be divided into distinct losses, and each loss can be attributed to a
particular tortfeasor, giving P separate COAs against each of them
2. indivisible: each tortfeasor is held jointly and severally liable for all of the Ps losses,
regardless of whether s/he was a major or minor contributor

Lambton v Mellish (1894 3 ch163)- 2 refreshment vendors with organs producing noise,
nearby homeowner alleges nuicance- noise made by each organ alone is a nuicance, so hold
each liable separately

Arneil v Paterson (1931 HL)- 2 dogs attacked a flock of sheep, each dog is responsible for
100% of damage caused - impossible to apportion hrm btwn owners, therfore hold them joint
a severally liable- D can collect entire judgement form either of them ( Neg'ce Act contains
provisions allowing 1 tortfeasor to claim from the other)

Principle: "where there are concurrent torts, breaches of K, or a breach of K and a concurrent tort
both contributing to the same damage, whether or not the damage would have occured in the absence
of either cause, the liabilty is a joint and several liabilty and either party causing or contributing to the
damage is libale for the whole damge to the perosn aggreived" Thompson v London County Council

Nowlan v Brunswick Const. Ltee. (1972 NB CA) - rot leak in the structure of a newly built
house b/c of defect in architects design, and poor workmanship and inferior materials supplied
 14

by D - harm was considered indivisible, held severally liable to the owners of the building and
jointly liable to each other

3. Joint Tortfeasors
- joint tortfeasors are held jointly and severally libale for torts committed by fellow
tortfeasors, even if they have not casued or contributed to the Ps loss in any way -
- legal liabilty stems from tortfeasors relationship with each other, not from playing a
causal role in the Ps loss
- relationship will be such that each is responsible for the actions of the other (?)

Cook v Lewis (1951 SCC)- P shot and injured by one of two hunters but its impossible to say which one-
b/c defendants were engaged in a lawful pursuit w/ no reason to believe that the other would
act negligently, and b/c neither had the right nor the oppty to control the other cannot be held
as joint tortfeasors (catagory definable by relationship not cause)

- a realtionship of joint tortfeasors will often be found where, damage is casued by the pursuit
of a common wrongful intention Newcastle(town) v Mattatall (1987 NBQB)

4. Problems in Evaluating the Plaintiffs Loss

a) DEVALUING THE PLAINTIFFS LOSS
Dillon v Twin State Gas and Electric Co (1932 New Hampshire SC)- deceased D was leaning
over girder of bridge and fell, grabbed exposed wires and just prior to plunging to his death was elctrocuted-
what is the measure of damages considering that he was bound to die as a result of the fall, the only effect of the
electrocution was to decrease his life span by a few short seconds- unless it can be found that but for the
current he would have fallen and suffered serious injury (in whcih case he would be entitled
to the differcne btwn lost earnings of invalid and a corpse) as opposed to death there will be
no award of damages, as there will be no finding of negligence

b) SUCCESSIVE INJURIES PRIOR TO TRIAL

Rule: people are compensated for loss sufferd, not physical injury, therefore if a later
injury reduces disabilities from the first injury, it shortens the period for which the D
must pay damages
Penner v Mitchell - P was awarded 13 months salary for an injury, but it was later uncovered that
she would not have been able to work for three of those months due to a preexisting heart condition - D therefore
did not have to pay for those 3 months

- in assesing damages in cases of successive injuries use the proximate casue test of
reasonable forseeability of harm -
- if both injuries are culpable- there will be apportionment of liabilty
- if one injury is culpable and the other innocent - damages awarded for culpable harm will be
reduced by impact of innocently casued damage (i think?)]

XI REMOTENESS OF DAMAGE
 15

- concern is with the realtionsip btwn the D's neg't act and the specific damages sought by the
P

1. Directness Versus Foreseeability

a) THE DIRECTNESS TEST
- if it can be found that the D's act was neg't. s/he will be held liable for all damages
flowing as a direct consequence of that breach. (Re Polemis and Furness, Withy & CO.
1921 KB) -
- test has since been rejected as unfair, illogical, unworkable, too propolaintiff anf
theoretically unsound - fails to relate teh degree of defendants fault to the extent of his liabilty

b) THE FORSEEABILTY TEST

Wagon Mound No. 1 (1961 PC)- oil flowing into Sydney Harbour causes a massive fire, owners knew oil
has spilled but didn't do anythingabout it - rejection of Polemis test, liability for a consequence will
be imposed where that consequence is reasonably forseeable, natural, or necessary or
probable

2. Modifications to the Forseeability Test

a) THE KIND OF INJURY

Rule: it is only necessary that a kind/type of injury is forseeable, do not have to forsee
the full extent of the njury or the manner in which it occured to recover damages
Hughes v Lord Advocate (163 HL)- liablitly found for workmen who left an openmanhole
surrouned by burning oil lamps unattended - one lamp fell in, exploded casuing boy passing by to fall in and be
burned - held that even though nature of accident was unforseeable, forseeable that someone could be burned by
unattended lamps

b) THE THIN SKULLED PLAINTIFF RULE

Rule: take you victim as you find him, to incur liabilty need only forsee intial harm
done, not consequences that flow as aresult of Ps "thin skull"

Smith v Leech Brain & Co. (1962 QB)- D found libale for full extent of damages claimed by
P wich flowed from his cancer, the development of which was promoted as a consequence of
a burn (which was reasonably foseeable)to the lip where there was an already existing
premalignant growth "the test is not whether these employers could reasonably have forseen
that a burn would casue cancer and that he would die. The ques'm is whether these employers
could reasonbly forsee the type of injury he suffered, anmely, the burn. What, in the particular
case, is the amount of damages whihc he suffers as a result fo the burn, depends upon the
characteristics and conditions of the vicitm"

Marconato v Franklin (1974 BC SC)- damages awarded to a woman who underwent a sever
ppersonality change as a result of minor injuries sustained in a motor vehicle accident.
Although this was highly unusual and not forseebale, it was a result of her physical makeup.

*note: do not confuse this with the negligent infliction of nervouse shock - liabilty for that is
assesed under special duty of care principles!
 16

THE POSSIBILTY OF INJURY

Rule: if it is clear that a reasonable man would have reaslixed or forseen and prevented
the risk defendant will be liable for damages
Wagon Mound No. 2 - D held liable for damage to small boats even though risk was small a
prudent engineer would have forseen it.

Rule: Liabilty will flow if one can forsee the consequences of an action in a general way.
The extent of the damage and its manner of incidence need not be forseeable if physical
damage of the kind which in fact ensues is forseeable
Assinaboine V Winnipeg Gas (1971 Man CA) - toboggan struck a gas riser causeing an
explosion- foiund laibilty where damages arising from impact of tobboggan were forseen even though the
damages of the fire were not.

3. Intervening Causes

basic issue:is it fair to hold a neg't actor liable when the conduct of others is also involved in
bringing aboutt he accident?

3 catagories of intervening acts:

1. naturally occuring/nonculpable - do not break chain of causation
2. neg;t intervening acts- will break chain of casuation
3. illegal/ deliberately wrongful intervening acts- will break cahin of casuation unless
original tortfeasor had a specific duty to prevent the act

"within the scope of risk" test: were damages caused by the act within the scope of risk
created by original tortgfeasor? OR was the intervening act withint he scope of risk? (Ist is
more consistent with pinciples of recovery in tort)

General Rule for Novus Actus Interveniens: the person guilty of the original neg'ce will
still be the effective cause if he ought reasonably to have anticipated such interventions
(canphoto Ltd.et al v Aetna Roofing )

Bradford v Kanellos (1973 SCC)- there was a grease fire in a restaurant, and upon hearing
the fire extinguisher a customer shouted "gas is escaping" casuign a stampede that injured the
P. held restraunts neg'ce in allowing grease to buid up on the stove was not the proximate
casue of the injuries - the hysterical patron was a novus actus interveniens. "was that
consequence fairly w/n the risk created by the respondents neg'ce in permitting an undue
quantity of grease to accumulate on the grill?"

Rule: it is reasonably forseeable that that a neg't diagnosis by a first doctor will be relied
upon by subsequent treating doctors
Price v Milawski (1977 Ont CA)- P broke his ankle , but emerg. physician ordered foot
Xrays not ankle so extent of injury wasn;t uncovered - orthopoeadic surgeon then put ankle in
a cast w/o ordering further Xrays that worsened damage - by time fracture was uncovered
permanent damge was done. held- orthopoaedic surgeon not found to be a novus actus
interviniens both doctords heldjoint and severally laible
 17

Some general principles:

Papp v Leclerc (1977 CA)- "every tortfeasor causing injury to another person placing him in the
position of seeking medical or hospital help, must assume the inherent risks of complicatoins, bona
fide medical error or misadventure, if they are reasonably forseeable or not too remote... It is for the D
to prove that some new act rendering another person liable has broken the chain of casuation."

- an original tortrfeasor will be absolved of liabilty for injuries sustained by the P during
recuperation, if the P was contributorily neg't, but if there is no contrib neg'ce there will be
liabilty

Rule: where the actions of a third party are reasonably forseeable and therefore
preventable, the actions of that party will not be considered novus actus interviniens
Hewson v Red Deer (1976 Alta. TD)- city found liable when after leaving tractor door open
with keys in ignition, a youth climbed in caused the tractor to be set in motion, resulting in it
rolling down a hill and into a house - held that this could have been easily prevented by taking
certain precautions (ie not leaving keys in ignition)

XII DEFENCES TO NEGLIGENCE LIABILITY

There are 5 defences to neg'ce, but they will not begin to operate until the P has proven all
elements.
1) Limition Periods
2) Voluntary Ass'n of Risk (limited in applic'n but a full defence)
3) Ex Turpi Causa non oritur acta ( limted in applic'n but a full defence)
4) Contributory Neg'ce (partial defence only..watch for statutory lim'ns)
5) Inevitable Accident (not recog. by all academics, often taken as a consequence of
neg'ce Rintout v Xray)

1. Contributory Negligence
a) CONDUCT CONSTITUTING THE DEFENCE

onus: on the defendant to prove that injured party did nto in his own interest take
reasonable care of himself and contrib to his own injury by want of this care

3 ways a P can be contrib neg't

1) contribute to the accident
2) expose themselves to risk of accident
3) failure to take reasoanble precautions to minimise injury in the event of accident
* contrib neg'ce must be a cause of the loss in order for it to count against him - but for the
Ps own actions/ommissions the accident would not have happened - must also count as
proximate cause - injury must culminate from risk created by P

Walls v Mussens (1969 NB CA)- based on modified objective test "not whether the P
exereciced a careful and prudent j'ment in doing what he did, but whether what he did was sthg
that an ordinarily prudent man would have done under the stress of an emergency" found the
 18

P was not contrib neg;t for failing to use fire extinguisher to put out the fire in his shop stared
by the D

Gagnon v Beaulieu (1977 BC SC)- established that b/c P knew or ought to have known that
he should be wearing a seatbelt, P was held contrib neg't for injuries sustained in motor
vehicle accident - onus on D to show that the seatbelt was not worn, and if it was that it would
have prevented injuries

b) APPORTIONMENT OF LOSS
Governed by Negligence Act RSO 1990 (text of act pg 457)
- amount of damages will be reudced in proportion to degree of Ps fault
- where apportionment cannot be determined, parties will be deeemed equally at fault

Mortimer v Cameron (1994 SCC)- 2 guys engaged in horseplay on stairs fell and crashed
through an improperly constructed wall- one is injured to point of paralysation - Neither guy
found neg't b/c accident was beyon scope of risk created by horseplay, could not have
contemplated that the wall would "pop out" - liabilty apportioned btwn the City and building
owners for failing to properly inspect the wall and make sure it was up to standard

To do a Contribution Assesment:
1.a)assess whether D's are liable to the P at all in neg'ce, then calculate the gross
damages
b)assess the degree to which the P contributed to the loss
2.assess the D's right to contribution

2. Voluntary Assumption of Risk "volenti non fit injuria"

- complete defence, but use has been limited in recent years owing to rise of contrib.
neg'ce usually limtied to narrow circ's, esp. sports
Onus: must be pleaded and proven by the D
General Principle: a P who has expressly or impliedly assented ot an act cannot sue another
for damages of injuries sustained - s/he must bear the loss w/o the help of the law
- the risk must be a freely encountered one
- where consenbt is expressly given, the ct must determine whether there was an actual or
manifested agreement to terms
- nthg short of an agreement to waive any claim for neg;ce will suffice (Lagasse v Rural
Municipality of Ritchie)
Test to establish defence:
1) Did the P clearly know and appreciate the nature and character of risk? and
2) Was this risk voluntarily incurred?

Dube v Labar (1986 SCC)- defence of volenti in general will be inapplicable to the majority
of drunk dirver willing passenger cases, b/c the defence requires ana warenessof circs and
consequences of action that are rarely present on the facts of such cases at the relevant time

3. Participation in a Criminal or Immoral Act

 19

"Ex Turpi Causa Non Oritur Actio"

- cannot recover for injury sustained while involved in an illegal action - cannot recover for
ones own wrongdoing
- protection of the integrity of the legal system
onus: on defendant to establish illegal/immoral conduct on part of P

Hall v Hebert (1993 SCC)- P is attmepting to sue D for letting him drive while drunk
Cory: tries to abolish ex turpi saying 2nd branch of Anns test would negate duty (are
there any reasons to limit duty)
Majority (McLaughlin) disagrees: should be a defence to allow for flexibilty in application, and
procedural pblms would arise form reversal of onus - defence found not o apply to facts of this case -
claim allowed, but limited by contrib neg;ce

4. Inevitable Accident
- defence is one of very narrow scope:
-onus: on defendant (evidentary)
-criteria (McIntosh v Bell)
1. no control
2. the occurance could not have been prevented w. the greatest of skill and care
Rintoul v Xray and Radium- in trying to raise defence, D was unable to meet the very narrow
req'ts - demonstrates its narrow applic'n - evidence must be both clear and cogent

XIII PROOF OF NEGLIGENCE

1. The Burden of Proof in a Negligence Action
legal burden: must prove the issue bop
evidentiary: must adduce enough evidence to support position (usually carried by party w/
legal burden, so in civil suit thats the P)
1. P must est "prima facie" case of neg'ce - failure to adduce enough evidence will result in a
nonsuit
2. once prima facie case is est, (but note just b/c evidentiary burden is discharged, doesn't
mean that legal has) burden shifts to the D

Walker v London & South Western Ry Co. (1886 HL)- P was nonsuited when she was able
to prove nthg more thatn that her husband had left for work saying he would take the footpath
- although his body was found further down the Ry line, she had no means of knowing how
the accident had occured

2. Exceptions to the General Principles Governing the Burden of Proof

a) STATUTES AND SHIFTING BURDENS OF PROOF
- statutes can work to reverse the burden of proof where its is impossible for P to know how
accidnet occured
ex. Highway Traffic Act RSO 1970 c.202
s133 (1) where damage is sustained by any person by reason of a motor vehicle accident
on the highway, onus of proof that loss/damage did not arise thru neg'ce or
improper conduct of driver, rests with driver
 20

(2) sec does not apply where collision is btwn motor vehicles, btwn motor vehicles
and trains, nor to actions brought by a passenger in a motor vehicle in respect of injuries
sustained by him while a passenger

MacDonald v Woodward(1974 Ont CO Ct)- man boosting anothers car is run over by the one he is
helping - P need only show that that accident occured on highway,a dn that injury was the result
of collision (not result of drivers conduct)- burden then shifts to D to show that neg'ce was not
a factor

AG ON v Keller (1978 ON CA)- s 133 held to apply to a police officer who was serously injured
when his car went out of control and struck a pole during a high speed chase. Fleeing driver
knew he was being pursued and was attempting to escape, but at no time did the 2 vehicles
collide.

b) DIRECTLY CASUED INJURY: UNINTENDED TRESSPASS

Dahlberg v Naydiuk (1969 Man CA) - P who was on his own land, was shot by the stray bullet of a deer
hunter- action frame din neg;ce and trespass
-if rely on neg'ce- onus rests on P to prove D was neg't
- if rely on tresspass- D gets judgement only if he satisfies "onus of establishing absence of
both intention and neg'ce" so dos neg'ce in this def'n mean sthg giving rise to an aciton in
neg'ce which would then shift burden to P?" - where injury is direct burden to disprove
neg'ce lies w/ D - who in this case failed to prove that he was not neg't

c) MULTIPLE NEGLIGENT DEFENDANTS

Rule: where the Ps abilty to establish liabilty is destroyed, the burden to disprove neg'ce
will rest with the D
Cook v Lewis(1951 SCC) - P hit when Ds fired simultaneously at diff;t biurds flying
in direction of P

3. Res Ipsa Loquitur "the thing that speaks for itself"

a) WHEN DOES RES IPSA LOQUITUR APPLY?
- a rule pertaining to circumstatnial evidence, from whcih an inference of neg;ce can
arise (takes you to the point of evidentiary burden)
- b/c it is based on circumstantial evidence, it cannot apply when there are multiple
tortfeasors
criteria for application of rule:
1. D must have sole (or at least effective) control over the thing causing harm
2. occurance would not normally happen w/o neg'ce (usually applies in product liabilty
cases)
3. there must be no evidence as to why or how hte harm occured

Kirk v McLaughlin COal (1968 ON CA)- furnace exploded two times shortly after being
serviced, RIL held to apply b/c the D had sole control over the thermostat - noone else had
serviced it
 21

Clayton v JNZ Invt. Ltd. (1969 Ont CA)- burst pipe casued flooding. amd P assumed D
would be resp for loss incurred- but RIL not applied b/c tere was no evidence as to whch party
had casued hte harm- could have come from any number of parties

Tataryn v Co-Op Trust Co. (1975 Sask CA)- Cessna equipped w/ dual controls crashes
kilong everyone on board, only pilot knew how to fly- deceased's wife able to invoke RIL in
absence of any evidence as to how or why the crash took place

b) THE PROCEDURAL EFFECTS OF RES IPSA LOQUITUR

McHugh v Reynolds (1974 ON CA) - demonstrates how RIL shifts evidentiary burden back
and forth btwn D & P -
1. P asserts calima gianst D- neg't in munufacture of ladder - led to accident based on
appl'n of RIL
2. D calls evidence making inference of neg;ce plausible but improbable
3. RIL is rejected and onus shifts abck to P who must then prove neg;ce of D on bop

Rule: RIL doesn't mean that there is a presumption of neg'ce, only that a prima facie
case of neg;ce has been inferred
Holmes v Board of Hospital Trustees of London 1977 ONT HC)

XIV STATUTORY PROVISIONS AND TORT LIABILITY

2 ways to use statues in tort law:
1. to create an express statutory COA
2. may create an obligation or prohibit conduct in such a way that a common law duty
will flow, giving rise to an action in neg'ce

1. EXPRESS STATUTORY CAUSES OF ACTION

- examples found in Competition Act, and Trespass to Property Act

-Traschler v Halton (1955 ON HC) - P is suing municipailty for failing to keep roads in good repair,
pursuant to Section 453(1) of The Municipal Act - in order to find municipality liable, must show that,
mun. knew about the need and hadn't acted, OR should've known and didn;t act - in response
its open to the municiaplity to show that reasonable system was in place, and no other system
would have resulted in quicker repair

2. THE USE OF STATUTES IN COMMON LAW NEGLIGENCE

R v Saskatchewan Wheat Pool (1983 SCC)- grain supplied to SWP was infested w/ rusty beetle making grain
unmarketable, and casuing substanital losses to farmers who attemptes to sue SWP for neg'ce - the statute
included regulatory provisions for the quality of grain, imposing fines for contamination, but was silent about
civil liablty-could a tort in neg;ce be implied?-
England- recognises tort of statutory breach if the following can be shown: breach of statute;
resulting damages- should ask: was statute created to protect individuals (gives rise ot a tort
duty) or the public at large (no tort duty)
 22

America-breach of staue is neg;ce so burden will shift back to D; can substitute statutory standard for
reasonable person in standard neg;ce
Canada-breach of staute is evidence of neg'ce, but in this case, b/c bad grain is hard to identify,
may not be laible but are still statutorialy liable EXCEPTION: where there is no duty of care
at common law, a breach of nonindustrial penal legislation should not affect civil liability
unless statute provides for it.

Summary:
1) Civil consequences for violating statues should be subsumed in the law of neg'ce
2) Reject the notion of a nominate tort of statutory breach
3) Proof of a statutory breach can be evidence of negligence
4) Statutory formulation of duty = useful standard of reasonable conduct

3. THE RELATIONSHIP BETWEEN COMMON LAW AND STATUTORY

CAUSES OF ACTION

Bux v Slough Metals Ltd. (1974 CA)- - there was a statutory duty to provide worker with goggles that
would have prevented the accident
-a statutory duty will not abrogate, supercede, define, or measure a common law duty
- a statutory duty will not eliminate the need for cts to decide whether or not the employer
took reasonable care
- must do more than supply goggles as per statue, must also encourage workers to wear them
- where common law and statutory standards differ, must meet the highest one

4. A NOTE ON THE CHARTER

- remedies under 24(1)= express statutory action

XV RECOVERY OF PURE ECONOMIC LOSS IN NEGLIGENCE

Hedley Byrne v Heller (1964 HL)- pure economic loss can be recoverable when they are a
direct and forseeable result of of the Ps reliance on a negligent misrep. by the D.

Kamploops v Nielson (1990 SCC)- P can recover for pure economic loss from a public
authority

BDC Ltd. v Hofstrand Farms Lts. (1986 SCC)- providers of commercial services can be held
liable for the pure economic losses of those within sufficient legal proximity - assesment of
proximity will be based upon knowledge and reliance

1. Product Quality Claims

Rivtow Marine v Washington Iron Works (1974 SCC) - leading case on recovery of
economic losses suffered by nonprivity user of defective products - no need for actual
 23

damage befroe liabilty will be imposed - manuf. and distributor w/held knowledge of risk,
also knew dates of peak season for buisness, exposing P to risk of losing business -duty to
warn commences at earliest opp'ty

2. Relational Economic Loss

CNR V Norsk Pacific Steamship CO. (1992 SCC) -P was the principal user of a bridge that
was damaged when the D's barge collied with it thru neg'ce causing closure for several weeks
- P suffered huge economic loss- was it recoverable? YES by adopting the Anns test and
principles of Kamploops necessary duty and proximity were est. and valid purposes were
served in permitting recovery

Winnipeg Condominium Corp v Bird Cnstruction (1995 SCC)- in the absence of a K'l
reln'ship thrid party purchasers were able to recover costs of repair to defects in buiding that
had been casued by builders negligence - forseeable that harm could occur b/c of defect.
 24

MORE ON DAMAGES
Pecuniary: monetary damages which can be quantified/ can be special or general

General heads of Damages include:

1. physical injury itself, including pain and suffering at the time of trial
2. disability and loss of amenities before trial
3. loss of earning before trial
4. expenses incurred before trial
5. pain and suffering expected to be suffered after trial
6. loss of amenities after trial
7. loss of life expectancy
8. loss of earnings to be suffered after the trial
9. cost of future care and other expenses

NonPecuniary Damages Include

1.pain and suffering
2. loss of amenities
3. loss of expectaion of life
- in general cts are inclined to provide injured person w/ "reasonable solace for his/her
misfortunes" but this should not be excessive , base figure= $100 000 (Andrews )

* possible to recive single lump sum payment which is not taxable, although income it
generates is (this factor must be considereed in asseing damage award)

Andrews:
in assessing cost of future care ct looks at:
i) style and standard of care
ii) life expectancy
iii) contingencies and hazards of life
iv) cost of special equip.
in assessing loss of future earnings ct looks at:
i)level of earnings at time of accident
ii) length of working life (assume will work to 55)
iii)contingencies
iv) assess needs of P in post accident injured state
*remember you are assesing capacity, whcih is potential earnings, keep this distinct from
actual earnings

-accidnet victims have other sources of compensation in add'n to the tortfeasor such as
OHIP, Cda Pension, Workmans Comp. and private insurance. 3 ways of dealing w/ this
1. accumulation: allows injured person to keep collateral source funds and collect from
wrongdoer as well
2. subrogation: provides for the reimbursement of teh collateral funds by the wrongdoer
- P would recive one payment w/ tortfeasor paying back the fund, or
 25

3 set off or deduction: collateral payment is deducted from what the D has to pay - to
advantage of the D as it denies P the benifits of his own insurance
- most widely used by courts is subrogation