140 law of torts

Law 140 Law of TortsFiona Kelly

2008-2009

By

Ilia Von Korkh

Note: The materials here may not be in the same order as in the syllabus, but are arranged in the way that makes sense to me. Im sure that you can work this out.

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Introduction 8BASIC TERMS AND THEMESTORTS DISTINGUISHED FROM OTHER AREAS OF LAWTHE BASES FOR IMPOSING LIABILITY IN TORTTHE FUNCTIONS OF TORT LAW

Remedies 9REMEDIES AVAILABLE IN TORT CLAIMSCATEGORIES OF DAMAGES

Intentional Interference With The Person 10BASIC PRINCIPLES OF LIABILITY

Battery 11The intentional infliction of a harmful or offensive contact on another person.

ELEMENTSOVERVIEWDEFENCESBETTEL V. YIM [1978] ONCAIf physical contact was intended, then the fact that the magnitude of its consequences exceeded the expectation is irrelevant.

Assault 11Intentional creation in mind of reasonable apprehension of imminent harmful or offensive contact

ELEMENTSOVERVIEWHOLCOMBE V. WHITAKER [1975] ABSCBoth threatening words, and actions that make them plausible are necessary for assault.

POLICE V. GREAVES [1964] NZCAConditional threat can be assault

False Imprisonment 12Intentional confinement, of another person within fixed boundaries.

ELEMENTSOVERVIEWBIRD V. JONES [1845] QBFalse imprisonment requires a total restraint of movement

CAMPBELL V. SS KRESGE [1976] NSTDIf, as a result of the defendants intentional conduct, a person reasonably feels totally restrained, however that result is obtained, it amounts to an imprisonment.

HERD V. WEARDALE STEEL [1915] HLIt is not a false imprisonment to hold PL to the conditions s/he has accepted.

DEFENSE

Intentional Infliction of Nervous Shock 14Intentionally causing another person severe mental suffering.

ELEMENTS (CANADIAN)WILKINSON V. DOWNTON [1897] QB

140 Torts: Fiona Kelly 2008 - 2009

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There is a cause of action when D has willfully done an act calculated to cause physical harm to PL and that has in fact caused harm.

RADOVIS V. TOMM [1957] MBSCThe physical consequences of the shock must be present to amount to a visible and provable illness.

INNOMINATE TORTS

Intentional interference with real property (trespass) 15The direct and intentional physical intrusion onto the land in the possession of another.

ELEMENTSOVERVIEWPUBLIC/PRIVATE DISTINCTIONENTICK V CARRINGTON [1795] CPDefinition of trespass

TURNER V THORNE[1960] ONHCOnce it is established that the defendant is a trespasser, s/he is liable for all the consequences of the trespass, whether or not they are intended or foreseeable.

PENNEY V GOSSE [1974] NFSCOne does not have to hold a legal title to land. Any possession is good against those who have a weaker right of possession themselves.

HARRISON V CARSWELL [1976] SCCThe owner of a mall has enough possessory interest in common areas of the mall to claim trespass

DEFENCES

Chapter 4: Defences 17Consent 17OVERVIEW

Implied Consent 17WRIGHT V. MCLEAN [1956] BCSCImplied consent by entering activity

Exceeding Consent 17If a defendant exceeds the consent provided by the plaintiff the case will be treated as if no consent was given.

AGAR V CANNING [1966] MBCAActions go beyond what was consented to

CONSENT IN FIGHTSCOMPETENCY TO CONSENT

Vitiating Consent 18FRAUDMISTAKEDURESSLATTER V BRADDELL [1880]Old British case where duress is seen only as physical violence, not psychological

UNDUE INFLUENCE/PUBLIC POLICYNORBERG V WYNRIB [1992] SCCConsent vitiated in a power-dependent relationship


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Consent to Criminal or Immoral Acts 20HALL V HEBERT [1993] SCCModern definition of the ex turpi causa principle.

Consent to Medical Treatment 20MALETTE V SHULMAN [1987] ONHCInformed consent is not the same as informed refusal. Any treatment outside of consent is tortious.

COMPETENCY TO CONSENT TO MEDICAL TREATMENTSUBSTITUTE CONSENT

Self-defence 21WACKETT V CALDER [1965] BCCAWhat constitutes reasonable force is a case-by-case determination, dependent on the facts.

The Elements Of The Tort 24DUTY OF CARESTANDARD OF CARECAUSATIONREMOTENESSDAMAGE/ACTUAL LOSSDEFENCESDAMAGES

Duty Of Care 25DONOGHUE V. STEVENSON [1932] HLDuty of care arises when D is proximate to PL and can reasonably foresee harm

ANNS V. MERTON LONDON BOROUGH [1977] HLRecognizing new categories of Duty of Care in negligence

COOPER V. HOBART [2001] SCCPolicy implications and Anns Test

PROXIMITYFORESEEABILITYMOULE V. NB ELECTRIC POWER CO [1960] SCCOnly reasonably foreseeable risks will lead to Duty of Care

AMOS V. NB ELECTRICAL POWER CO [1976] SCCThose who erect electric lines carrying heavy charges have a duty to take proper precautions against all foreseeable injuries

PALSGRAF V. LONG ISLAND RAILWAY CO [1928] NYCAThe PL must be someone to whom D owes a duty of care, or belong to such a class.

Special Duties of Care 27DUTY TO RESCUEOSTERLIND V. HILL [1928] MASS SCAs long as D has not created the situation of peril, there is no duty to rescue.

MATTHEWS & HORSLEY V. MACLAREN [1969] ONHCBy beginning the rescue process D assumes a duty to act, and will be liable for negligence.

STEVENSON V. CLEARVIEW RIVERSIDE RESORT [2000] ONSCAmbulance attendant has no duty to offer assistance to individuals rescuing the PL


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DUTY TO CONTROL THE CONDUCT OF OTHERSCROCKER V. SUNDANCE NORTHWEST RESORTS [1988] SCCThere is a duty of care of between a proprietor to an intoxicated patron, when the proprietor is aware of PL intoxication and participated in getting him to that point.

DUTY TO PREVENT CRIME AND PROTECT OTHERSJANE DOE V METROPOLITAN TORONTO POLICE[1998] SCCPolice have a duty to prevent crime in situations where the PL falls into a category of foreseeable and proximate victims.

DUTY OF CARE OWNED TO THE RESCUERSHORSLEY V. MACLAREN [1969] ONHCIf one by his fault creates a situation of peril, he has a duty of care to anyone who attempts to rescue the person who is in danger.

DUTIES TO THE UNBORNA MANUFACTURERS AND SUPPLIERS DUTY TO WARNHOLLIS V. DOW CORNING CORP [1995] SCCManufactures have a continuous duty to warn the users or learned intermediaries of all existing and new evidence of hazards.

NEGLIGENT MISREPRESENTATIONHEDLEY V. BURNE [1963] HLA duty can arise in a situation of negligent misrepresentation that results in pure economic loss.

KEITH PLUMBING V. NEWPORT CITY CLUB [2000] BCCAMere presence of a disclaimer clause will not automatically prevent liability

HERCULES V. ERNST & YOUNG [1997] SCCDuty of care in negligent misrepresentation causing pure economic loss.

Standard Of Care 34ARLAND V TAYLOR[1955] ONCAThe standard is the care that would have been taken in the circumstances by a reasonable and prudent man.

PROBABILITY AND SEVERITY OF HARMBOLTON V. STONE [1951] HLThe reasonable person would take into account the degree of risk and take precautions only where the risk is substantial.

PARIS V STEPNEY BOROUGH COUNCIL [1951] HLThe severity of the damage (considering individual characteristics of the PL) can outweigh the low probability

BURDEN/COST OF AVOIDANCEVAUGHN V. HALIFAX-DARTMOUTH BRIDGE COMPANY [1961] NSSCOne has to consider all the possible cheapest precautions.

LAW ESTATE V. SIMICE [1994] BCSCPublic policy can be important when determining the standard of care

SOCIAL UTILITYWATT V. HERTFORDSHIRE CC [1954] CAYou must balance the risk against the end to be achieved.

Special Standards of Care 36DISABLEDFIALA V. CECHMANEK; FIALA V MACDONALD [2001] ABCAYou must balance the risk against the end to be achieved.

CHILDREN


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JOYAL V. BARSBY [1965] MBCAThe standard of care expected of a child is determined according to what a child of that age, intelligence and experience would have done in the same circumstances.

PROFESSIONALSWHITE V. TURNER [1981] ONCAStandard of care for a professional is determined based on industry specific standards of practice and testimony of experts in the given field.

CUSTOMTER NEUZEN V. KORN [1995] SCCConforming to a negligent practice enshrined as an industry standard is not an excuse.

GROSS NEGLIGENCE

Causation 39But For Test 39KAUFFMANN V. TORONTO TRANSIT COMMISSION [1959] ONCAThe negligence is not the cause of injury as the injury would have happened nonetheless.

BARNETT V. CHELSEA & KENSINGTON HOSPITAL [1969] QBIf the action would not have prevented the injury, then negligence is not the cause.

EXCEPTIONS TO THE BUT FOR TESTMODIFICATION TO THE BUT FOR TESTWALKER ESTATE V. YORK FINCH GENERAL HOSPITAL [2001] SCCIf the conduct of the D was a sufficient condition outside of the de minimis range, then D is liable

SNELL V. FARRELL [1990] SCCIn cases where scientific proof of causation is lacking, materially increased risk is applicable.

Multiple Causes and Divisible/Indivisible Loss 41INDEPENDENT INSUFFICIENT CAUSEATHEY V. LEONI [1996] SCCIn independent insufficient causes, as long as D is part of the cause of an injury, D is liable, even though his act alone was not enough to create the injury.

NOWLAN V. BRUNSWICK CONSTRUCTION [1972] SCCIf two or more negligent Ds cause of contribute to an indivisible injury, liability is joint.

INDEPENDENT SUFFICIENT CAUSELAMBTON V. MELLISH [1894]In independent sufficient causes, D is liable if his conduct is a significant and substantial factor.

SUCCESSIVE CAUSES OF PARALLEL INJURY

Remoteness 43FORESEEABILITY TEST FOR REMOTENESSWAGON MOUND (NO.1); OVERSEAS TANKSHIP LTD. V. MORTS DOCK AND ENGINEERING [1961] AUPCForeseeability is the proper test for remoteness

HUGHES V. LORD ADVOCATE [1963] HLThe proper question for remoteness is whether the injury is of the kind that is foreseeable.

SMITH V. LEECH BRAIN & CO. [1962] QBThe proper question for remoteness is whether the injury is of the kind that is foreseeable.

POSSIBILITY OF INJURY


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WAGON MOUND (NO.2); OVERSEAS TANKSHIP LTD. V. MILLER STEAMSHIP CO. [1967] AUPCInjury must be reasonably foreseeably possible, not probable.

ASSINIBOINE SOUTH SCHOOL DIVISION V. GREATER WINNIPEG GAS CO. [1971] SCCInjury must be possible, not probable

INTERVENING CAUSESBRADFORD V. KANELLOS [1973] SCCAn intervening cause will not break the chain of causation if it is a consequence of the original negligence

An intervening cause will not break the chain of causation if it is a reasonably foreseeable consequence of the original negligence

An intervening cause will not break the chain of causation if it is a reasonably foreseeable consequence of the original negligence

Vicarious Liability 47VICARIOUS LIABILITY IN EMPLOYER/EMPLOYEE CONTEXTWEST & WEST V MACDONALD'S CONSOLIDATED LTD & MALCOLM [1931] AB SCOne can mix private business with their employment, and still be acting in the course of the employment.

WILLS V. BELL ICE [19??] ??One cant mix private business with their employment, and still be acting in the course of the employment.

BAZLEY V. CURRY [1999] SCCSalmond Test is overruled for intentional torts.

Contributory Negligence 49WALLS V. MUSSENS LTD [1969] NBCAIn finding contributory negligence, PL should not be expected to meet the same standard of care required of D.

GAGNON V. BEAULIEU [1977] BCSCFailing to wear a seatbelt is contributory negligence if the injuries could have been prevented by wearing it.

APPORTIONMENT OF LOSSMORTIMER V CAMERON [1994] ONCAApportionment is a finding of fact and appellate courts should rarely interfere with a trial judges apportionment of liability.

Other Defenses 50VOLUNTARY ASSUMPTION OF RISKDUBE V. LABAR [1986] SCCPL must not merely know the risk, but consent that he intended to take on the whole risk.

PARTICIPATION IN A CRIMINAL OR IMMORAL ACTIVITYHALL V. HEBERT [1993] SCCThose participating in criminal activity can still seek relief in tort.

BC V. ZASTOWNY [2008] SCCDamages for criminal activity cannot clash with the principles of justice and criminal system.

INEVITABLE ACCIDENTRINTOUL V. X-RAY AND RADIUM INDUSTRIES [1956] SCCThere is a good reason why this defense never comes up.

Damages 52ANDREWS V. GRAND & TOY ALBERTA [1978] SCCPLs can make reasonable (non-extravagant) choices in regard to their future care.


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Introduction

BASIC TERMS AND THEMES

Torts, broadly defined, means compensable wrongs. There are two major sub-categories of actions based on their underlying theories of liability: Torts of intentbased on a defendants subjective intention to interfere with the plaintiff s person or property Torts of negligencebased on carelessness or unintentional wrongdoings of the defendant 3rd small categorystrict liability torts (no evidence of being either negligent or intentional) Torta civil (private) wrong between people as opposed to society Based on usage and custom; is largely common law

TORTS DISTINGUISHED FROM OTHER AREAS OF LAW

While Criminal law and Tort law share a common heritage, they became distinctive as differing as private and public wrongs.

Tort is based on civil proceedings, commenced and maintained by the plaintiff. Criminal proceedings are run through the State.

Tort and Contract both give rise to civil actions, but the interests protected are different. Contract breaches occur when mutually agreed upon terms are breached. An action in tort arises when there is a breach of general principles of law instead of mutually agreed upon terms.

There are civil wrongs that do not fall under tort law, such as trespass of property. A single fact situation could give rise to tort, contract and criminal actions. A tort is a civil wrong compensable by a common law remedy in damages. A tort is not a crime, a breach of contract or an infringement of an equitable right, although they could

occur together.

THE BASES FOR IMPOSING LIABILITY IN TORTGenerally, there are four categories of actions:1. intentional torts2. negligence3. strict liability4. residual actionssuch as defamation, nuisance.

Absolute LiabilityD is held liable if his conduct causes the plaintiff s loss. No defences. Essential issue is causation, not fault. No modern instances of this.Strict Liabilityis liability in the absence of wrongful intent or negligence. I.e. product manufacturers in some states. If plaintiff can show that the product injured them, the manufacturer is liable if it was defective when it left the manufacturer. Also, employers are liable for employee actions while on the job.Negligencethe failure to take reasonable care to prevent foreseeable harm to others. Plaintiff must prove that the defendant failed to take reasonable care to prevent the risk that caused the harm.Intentional Tortsis also based on fault. Plaintiff must show actual subjective intent on the part of the defendant.

THE FUNCTIONS OF TORT LAW

There is no governing principle that dictates the proper goals of tort law. compensation for harm, injury (DOMINANT MOTIVATION) sanction injury and negligence, deter further accidents > either specifically or generally.

complements Criminal Law system > seeks to influence conduct of citizens different burden of proof (civil) e.g. OJ Simpson case BUT Certainty of punishment is not therenot necessarily likely to have to pay for committing a tortuous wrong Deterrence fails if damages flow to the customers without penalizing the wrongdoer. Criminal sanction cannot be

addressed in Tort law. Tort litigation seeks to identify and remedy specific action of wrongdoers, and correct personal injustice to victim


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Mollifies PLs anger and resentment civilized vehicle for securing vengeance. Educational dimension > teaches litigants about requisite standards of conduct and the need to recognize and

accommodate the legitimate interests of others. Accountability - e.g. holding tobacco companies and arms manufacturers liable

FUNCTIONS: COMPENSATION, PUNISHMENT, DETERRENCE, ACCOUNTABILITY, CORRECTIVE JUSTICE, APPEASEMENT, VENGEANCE, EDUCATION

Tort law has many failings including financial costs of litigation, inefficiency, small group of plaintiffs who take action as well as succeed.

Insurance schemes have taken a burden from the courts by protecting many people, but if defendant has no insurance, plaintiff may not be able to collect. Flaws with enforcement and deterrentcomplicated

Defendants must be worth suing Those worth suing fall into three categories people or institutions with liability insurance large corporations or governmental institutions that are able to absorb the cost uninsured persons with personal wealth

Remedies

A remedy is the means by which to achieve justice in any matter in which legal rights are involved. Remedies may be ordered by the court, achieved by way of agreement (settlement) between the person claiming harm and the person s/he believes has caused it, or by the automatic operation of law.

Some remedies require that certain acts be performed or prohibited (eg, injunctions). Others involve payment of money to cover loss due to injury (eg, damages). Others still involve a court's declaration of the rights of the parties and an order to honor them.

Being awarded some form of remedy is the point of tort law and is usually the last element of a tort claim.

Where do remedies fit in an (intentional) tort action?A. Alleged tort committedB. PL establishes D acted voluntarilyC. PL establishes D acted intentionallyD. PL establishes elements of individual tort (eg, assault, battery, trespass)E. D raises any defences (eg, self-defence, consent)F. Court determines remedy (if PL successful)

REMEDIES AVAILABLE IN TORT CLAIMS

Injunction: an injunction directs D to act in a particular way. It either restrains D from continuing to do something, or compels him/her to do something.

Damages: a monetary award in favour of PL. An award of damages gives the PL a legal right to a specific sum of money.

There are many different types of damages but they all address two specific forms of loss:I. Pecuniary (monetary) losses (also known as special damages); andII. Non-pecuniary (non-monetary) losses (also known as general damages).

CATEGORIES OF DAMAGES

Nominal Damages: usually awarded in a token amount to address a violation of a legal right that the law deems worthy of protection, even in the absence of actual harm. Rarely awarded.

Compensatory Damages: awarded to compensate for actual loss, whether pecuniary or non-pecuniary.


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Aggravated Damages: A type of compensatory damages, but aggravated damages are awarded when Ds conduct is so outrageous that the harm done is worse than it otherwise would have been. Aggravated damages are designed to compensate PL for the injury to their dignity.

Punitive (or exemplary) damages: Punitive damages have, as their general objective, punishment, deterrence and denunciation (ie, they are not compensatory). They are usually awarded in cases where D has demonstrated some particularly unacceptable or egregious behaviour.

Disgorgement Damages: Rarely applied in Canadian law, disgorgement damages are intended to strip D of any benefits that s/he obtained as a result of his/her own wrongdoing.

Intentional Interference With The Person

BASIC PRINCIPLES OF LIABILITY

a) Volition you must have conscious mind when doing something

Voluntariness is only really used in mental illness situation or with children; parents arent vicariously liable for children unless they were negligent in supervising or controlling the children.

b) Intent desire to bring about results or consequences of action Intent must be for result, not the action itself; this limits the scope of the intentional tort; Absence of direct intent does not mean that there is no tort because of two other principles:

Imputed (constructive) intent Intending to commit a tort against one person, and committing the SAME tort against a different person If consequence is certain or substantially certain to result from action, then can impute intent

Transferred intent Intend to commit one tort and committing another Intent to commit tort against PL and INTENTIONALLY commits another tort against PL

c) Motive doesnt have any role to play in cause of action itself usually; PL has to prove intent, not motive couple of intentional torts - will add punitive damages where malice is demonstrated relevant to defence taken into account for damages > size of award, punitive damages, etc.

Duress doesnt negate intent in torts, though it does in Crim just because youre forced to do something, doesnt mean you dont have intent to do it

Provocation need 2 things for provocation:

D loses power of self-control Ds response was proximate in time of PLs action

If transferred intent, provocation doesnt apply; compensation to damaged party would be reduced in that case, and that wouldnt be right.

d) Mistake has no effect on the issue of intent and not relevant to intentional tort elements can betaken into account for damages > size of award, punitive damages, etc. Mistake of Fact v Mistake of Law

e) Accident - means no intent sometimes things just happen > no negligence, intent, etc.


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BatteryThe intentional infliction of a harmful or offensive contact on another person.

ELEMENTS

Intentional Infliction to another person Of harmful and offensive contact

OVERVIEW

The tort of battery is defined as The harm and/or offense involved need only be the harm or offense of being touched without consent. The D need not exhibit malice.

Battery is actionable without the need to prove actual damage (ie, it is said to be actionable per se). All that is needed is physical contact.

The general rule with regard to intention and battery is that the defendant must have intended the contact to occur. The defendants motive is irrelevant. But incidental contact does not count.

It is not necessary that the PLs body actually be touched for a battery to have occurred. Battery includes offensive contact with a person's clothing, something they are carrying, or something they are riding on. Also indirect intrusion (food poisoning)

Trivial contacts may still be batteries. However, everyday contacts (eg, jostling on a bus) do not attract civil liability. If a D can establish (the burden of proof rests on the D) that the PL consented to the battery, the D will not be civilly

liable. D does not have to be aware that the contact has occurred.

DEFENCES

Consent One of the major defenses; The burden of proof lies on the D; in sexual battery cases and sporting activity cases, there is a minority opinion that the burden of proof should lie on

the P; Self Defence

more rare, but a defence nonetheless.

BETTEL V. YIM [1978] ONCAIf physical contact was intended, then the fact that the magnitude of its consequences exceeded the expectation is irrelevant.

Issue: PL goofing off with matches, D thinks something is going on; shakes and inadvertently smashes PLs nose with his head. Is D guilty of the unintentional consequences of his intentional acts?Discussion: Elements of Battery are (a) Intentional infliction on (b) body of another by (c) offensive or harmful contact. Foreseeability of negligence is not relevant here - we are dealing with an intentional tort; it would ignore essential difference between intentional infliction of harm (battery) and unintentional infliction of harm (negligence).Ruling:The D is found guilty of the battery.

AssaultIntentional creation in mind of reasonable apprehension of imminent harmful or offensive contact

ELEMENTS

Intentional Creation in mind of other person Of reasonable apprehension of imminent harmful or offensive contact


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OVERVIEW

Different from Battery because it is a threat, dont need physical interference The focus of the courts inquiry is on the impact of Ds threat on PLs mind. Whether D actually intends or has the ability to cause the contact is irrelevant. What is important is that D intends to

cause the apprehension in PLs mind. The physical contact that is feared must be imminent (the immediacy requirement) (cf future threats). Words alone rarely constitute an assault, primarily because they fail to meet the immediacy requirement. However, when

words are accompanied by an act, they can be read together and may constitute an assault. Conditional or future threats can constitute an assault, though they typically need to be accompanied by some show of

force. A show of force accompanied by an unlawful or unjustifiable demand (a condition), compliance with which will avert the

threatened battery, is an assault.

Subjective/ Objective Apprehension Test: did the PL in fact apprehend the immidiacy of the physical contact, and was that apprehension reasonable?

HOLCOMBE V. WHITAKER [1975] ABSC Both threatening words, and actions that make them plausible are necessary for assault.

Issue: D utters :if you take me to court I will kill you; bangs on doorDiscussion: Is this reasonable apprehension? Is the threat immediate? With a condition. Can words alone be an assault? Need to have some action that goes with words. A defendant is not free to compel the plaintiff to buy her safety by compliance with a condition which he has no legal

right to impose. Door banging is physical action that shows the intent and willingness to follow through with the words.Ruling:

POLICE V. GREAVES [1964] NZCAConditional threat can be assault

Issue: D made threats to police: if you come closer, Ill kill you; had knifeDiscussion: Where there is a threat of violence exhibiting an intention to assault and a present ability to carry the threat out, the elements of an assault are made out. The fact that there was an alternative to leave the house did not prevent the conditional threat from constituting an assault. But the discussion distinguished this from other cases where condition removes reasonable apprehension.

False ImprisonmentIntentional confinement, of another person within fixed boundaries.

ELEMENTS

Intent to confine another person against their will. In Australia, this element will be fulfilled if the imprisonment is negligently occasioned. In the United States, the possibility of false imprisonment arises if the imprisonment causes bodily harm or if the alleged victim is aware of the confinement as it happens.

An act pursuant to this intent. The resulting confinement of another person against his or her will. Absence of a reasonable means of escape. A means of escape will not be reasonable if it endangers personal safety, such

as leaping from the window of a tall building. Absence of legal authority on the part of the person acting to confine another.

OVERVIEW

General rule: anyone who intentionally confines, even if only momentarily, another person within fixed boundaries is liable for the tort of false imprisonment.


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There cannot be a false imprisonment without total confinement. Blocking another persons way is not an imprisonment if another route can be taken.

The restraint may be imposed by barriers, other physical means, an implicit of explicit threat of force, or an implicit of explicit threat of legal authority.

Physical force (touch) is not necessary for there to be restraint (Bird). The focus is on whether there has been an assertion of, and submission to, control.

Thus, restraint can also be achieved by way of some kind of psychological force. For example, it may be false imprisonment if a PL goes along with the D in order to avoid a scene which would be embarrassing (Campbell).

Restraint is not total if there is a reasonable means of escape left open to PL, even if it involves a minor trespass (Wright v Wilson). However, PL must not be expected to risk physical injury.

The effect of the psychological impact makes escape impossible PL need not be conscious of the confinement in order to be imprisoned (cf, assault). Confinement can be caused by negative as well as positive conduct. That the imprisonment was lawfully justified (eg, legal authority) is a defence available to D. PLs guilt or innocence may

be relevant to, but not necessarily determinative of, the validity of the defence. Punitive damages are increasingly awarded in false imprisonment cases. Also can be imprisonment if you cause someone else to imprison someone.

BIRD V. JONES [1845] QBFalse imprisonment requires a total restraint of movement

Facts/Issues: PL is stopped from crossing a bridge by police, who act under Ds orders. PL could go in other directionsDiscussion: Cant confuse False Imprisonment with restriction of freedom. If you have some reasonable means of escape, then no false imprisonment Dont have to be touched Some confusion seems to me to arise from confounding imprisonment of the body with mere loss of freedom: it is one part of the definition of

freedom to be able to go whithersoever one pleases; but imprisonment is something more than the mere loss of this power; it includes the notion of restraint within some limits defined by a will or power exterior to our own.

Dissent stopping someone is infringing on their liberties and is equivalent to F.I.Ruling: no FI found.

CAMPBELL V. SS KRESGE [1976] NSTDIf, as a result of the defendants intentional conduct, a person reasonably feels totally restrained, however that result is obtained, it amounts to an imprisonment.

Facts/Issues: Someone called in store security and accused PL of shoplifting; Security accosted PL and asked her to come in with him. PL was fearful and complied. Nothing was found and she was released, but felt very upset.Discussion: Total restraint doesnt need to be physical confinement Court draws distinctions between someone who submits against will and someone who cooperates reluctantly If PL had actually been shoplifting, there would still have false imprisonment, but have some legal justification for it,Ruling: FI with compensatory damages

Shopkeepers Privilege - will allow a shopkeeper to temporarily detain for the purpose of investigation. This is nascent in US, but will likely fail miserably in Canada.

HERD V. WEARDALE STEEL [1915] HLIt is not a false imprisonment to hold PL to the conditions s/he has accepted.

Facts/Issues: D prevented PL was using the lift cage, which was the only means of egress from the mine. PL was detained in the mine for extra hours.Discussion: Ds reasons for refusal were that PL has agreed contractually to perform work, and was trying to bail out on it. Thus, PL has accepted the conditions when he went into the mine Court says its not false imprisonment where youve consented to confinementRuling: presence of a K waives any claims to FI


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DEFENSE

Defense of legal authority: having witnessed the offense being committed. a reasonable or probable grounds to believe that the detained had committed the offense.

Intentional Infliction of Nervous ShockIntentionally causing another person severe mental suffering.

ELEMENTS (CANADIAN)

Intentional and outrageous conduct designed to inflict emotional distress or that a reasonable person would have known would cause emotional distress;

D need not intend to cause nervous shock. It is sufficient if D acted in reckless disregard for this possibility, or if it was foreseeable that profound distress would ensue (ie, imputed intent). That more harm was done than was anticipated is irrelevant (Wilkinson).

that causes a visible and provable illness. Unlike battery or trespass, intentional infliction of nervous shock is not actionable without proof of actual harm.

PL bears the onus of showing that, as a result of the Ds conduct, PL suffered some kind of "visible and provable" illness. Though this test has been recently relaxed.

WILKINSON V. DOWNTON [1897] QBThere is a cause of action when D has willfully done an act calculated to cause physical harm to PL and that has in fact caused harm.

Facts/Issues: As practical joke, D tells PL her husband is hurt; she goes into nervous shock, w/o a history of bad nervesDiscussion: Intention: D may not have intended person would be so distraught, but can that be so certain that we can impute intent? There was definite intent to cause some degree of distress, and this is enough to impute the full liabilty Remoteness (not to be confused with negligence): were damages sustained unrecoverable as if akin to grief (type you cant

recover for in torts) Court says they are recoverable No need for reasonableness because in intentional tort mere intention is enough [Cf more recent decision of Rahemtulla where the court held that it is not necessary to show that D intended to cause

nervous shock; reckless disregard to this possibility is sufficient.]Ruling: Full damages awarded

RADOVIS V. TOMM [1957] MBSCThe physical consequences of the shock must be present to amount to a visible and provable illness.

Facts/Issues: Daughter is raped; mother tries to recover by being distraughtDiscussion: Must show that there is some physical or psychological manifestation of injuryRuling: Case dismissed due to baseness of physical or psychological evidence.

In more recent years, Canadian courts have expanded liability for nervous shock be broadening the definition of visible and provable illness.

Rahemtulla v Vanfed Credit Union: A plaintiff must provide evidence of a visible and provable illness, but the absence of expert medical evidence is not fatal to the claim.

Tran v Financial Debt Recovery: A plaintiff may be entitled to recover for emotional harm falling short of a psychiatric condition or illness.

Purdy v ? : PL is forced to watch her husband being beaten and is successful in claiming nervous shock

Elements1) intentionally engaged in conduct;2) purpose of infliction emotional distress; or


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3) reasonable person would have thought so; 4) offends generally accepted standards of decency and morality; 5) can be emotional harm

Difference between US and Canada In US an objective standard based on accepted standards of decency and morality In US can be emotional harm only

INNOMINATE TORTS

Torts that arent specifically named, such a battery Might be used in cases of intentional conduct that is morally blameworthy and likely to cause injury (poisoning of food,

other unjustified, intentionally-inflicted bodily injuries)w Are they moving towards one category of intentional torts? Advantage is you wouldnt have to fit into specific categories (just some basic elements)

Intentional interference with real property (trespass)The direct and intentional physical intrusion onto the land in the possession of another.

ELEMENTS

Direct (expanded to indirect under some circumstance) Physical Onto Land (or object on the land) In possession of another

OVERVIEW

A trespass may be committed by entering PLs land in person, propelling an object or third person onto the property, or by failing to leave after permission to enter has been terminated. A trespass may also be committed by bringing an object onto the PLs land and wrongfully failing to remove it.

Trespass is actionable per se. That is, there is no need to show harm. Lack of knowledge is not a defense. PL is generally required to be in possession of the land at the time of the intrusion in order to sustain an action in trespass.

A person with legal title to land is presumed to have exclusive possession and the right to maintain a trespass action (though this presumption is rebuttable).

For the purpose of a trespass action, land includes not only the surface area, but also houses, other structures, trees, and anything else that is affixed to it.

Indirect trespasses are not actionable (eg, snow blown by wind on to the PLs land is not actionable, but snow blown by a snow blower would be).

A trespass may be committed by the continued presence on the land of a structure, chattel or other thing which the actor has tortiously placed thereon, whether or not the actor has the ability to remove it.

Where the complaint is for trespass to land, the trespasser becomes liable not only for personal injuries resulting directly and proximately from the trespass but also those which are indirect and consequential.

Doctrine of continuing trespass: In instances where an object remains on the plaintiff s land without consent, the plaintiff is able to maintain successive actions in trespass until the object is removed (Johnson v BC Hydro).

PUBLIC/PRIVATE DISTINCTION Note dissent: The considerations which underlie the protection of private residences cannot apply to the same degree to

a shopping centre in respect of its parking areas, roads and sidewalks. Those amenities are closer in character to public roads and sidewalks than to a private dwelling.


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A more appropriate approach is to recognize a continuing privilege in using the areas of the shopping centre provided for public passage subject to limitations arising out of the nature of the activity thereon and to the object pursued thereby, and subject as well to a limitation against material damage.

ENTICK V CARRINGTON [1795] CPDefinition of trespass

Facts/Issues: D, claiming authority under a warrant, broke into PLs house and carried away some papers. Discussion: The great end, for which men [sic] entered society, was to secure their propertyBy the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my license, but he is liable to an action, though the damage be nothing; which is proved by every declaration in trespass, where the defendant is called upon to answer for bruising the grass or even treading upon the soil. If he admits the fact, he is bound to show by way of justification, that some positive law has empowered him or excused him.

TURNER V THORNE[1960] ONHCOnce it is established that the defendant is a trespasser, s/he is liable for all the consequences of the trespass, whether or not they are intended or foreseeable.

Facts/Issues: D is to deliver packages to PL. PL is not home, and D trespasses and leaves them inside PLs garage. PL comes home at night, trips over the packages and eats shit (ie. serious injuries)Discussion: Unquestionable trespass The fact that a trespass results from an innocent mistake and, in that sense is not deliberate or willful, does not relieve the

trespasser of liability. A trespasser is liable for any harm to the possessorRuling: D is liable in damages.

PENNEY V GOSSE [1974] NFSCOne does not have to hold a legal title to land. Any possession is good against those who have a weaker right of possession themselves.

Facts/Issues: A squatter without title maintained a trespass action against a subsequent trespasser.Discussion: Any form of possession, so long as it is clear and exclusive and exercised with the intention to possess, is sufficient to support an action for trespass against a wrongdoer. Actual possession is good against all except those who can show a better right of possession in themselves. Ruling: Trespass sustained.

HARRISON V CARSWELL [1976] SCCThe owner of a mall has enough possessory interest in common areas of the mall to claim trespass

Facts/Issues:Discussion: The public areas of a private shopping mall are private property for the purposes of trespass law. The plaintiff is therefore entitled to seek an injunction against the defendant (a picketer) to prevent her from entering the public areas for the purpose of picketing. A different decision would require an amendment by the legislature to the Petty Trespasses Act.

DEFENCES

accident is a defense having a right granted to you by an authority (police warrant) duress is not a defense mistake is not a defense


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Chapter 4: Defences

Consent

OVERVIEW

Main defence for intentional torts. Even though PL may be able to establish that D committed an intentional tort, liability might not be imposed if D is able

to raise a common law or statutory defence (such as consent). PL must have consented to the specific act that gave rise to the tort action. Consent is a defence that D must plead and prove. That is, the burden of proving that PL consented to the conduct falls

on D (Non-Marine Underwriters v Scalera, [2001] 1 S.C.R. 551) Consent may be given explicitly through words or in writing, or implicitly through participation, demeanor or other

behavior. Consent can: not be given, expressly given, implied, given but it doesnt hold for the particular activity (e.g. exceeded or

vitiated fraud, mistake, duress and public policy) Consent can sometimes be vitiated (for example, on the basis of public policy, fraud, competency, and duress). Tension in law between individual autonomy and protection of vulnerable people. Consent to an act generally extends to risks normally inherent in that act. Consent is about consenting to the activity and

the reasonable consequences. Unreasonable or unforeseeable consequences may exceed or vitiate consent. Failure to resist or protest is an indication of consent of a reasonable person who is aware of the consequences and

capable of protest or resistance would voice his objection. However, consent must be genuine, it must not be obtained by force or threat of force.

Implied Consent

There are certain situations in which the law is willing to find that PL consented to particular conduct, in the absence of PL explicitly issuing his/her consent. This is called implied consent.Implied consent often arises in relation to sporting injuries and fist fights.

WRIGHT V. MCLEAN [1956] BCSCImplied consent by entering activity

Facts/Issues: Children playing by throwing lumps of clay and mud balls at each other. PL is injured. Discussion:In sport where there is no malice, no anger and no mutual ill, that combatants consent to take the ordinary risks, and the pain that may result from them, of the sport in which they are engaged. But this is only while play is fair, according to the rules and blows are not malicious but rather given in sport. If play is not fair etc, then consent is ended and parties regain same rights as when not engaging in sport. Ruling: Case dismissed.

Exceeding ConsentIf a defendant exceeds the consent provided by the plaintiff the case will be treated as if no consent was given.

AGAR V CANNING [1966] MBCAActions go beyond what was consented to

Facts/Issues: PL suing D for injuries that resulted from hockey game. Discussion: A person who engages in sport must be assumed to accept the risk of accidental harm and to waive any claim he would

have apart from the game for trespass to his person in return for enjoying a corresponding immunity with respect to other players (implied consent). This includes unintentional injury resulting from one of the frequent infractions of the rules of he game.

140.2 Defenses

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The conduct of a player in the heat of the game is instinctive and unpremeditated and should not be judged by standards suited to polite social intercourse.

But there is a need to establish some limits placed on a players immunity from liability. Injuries inflicted in circumstances that show a definite resolve to cause serious injury to another, even when there is provocation and in the heat of the game should not fall within the scope of implied consent.

Consent to game may mitigate damages. Note: Courts have become less tolerant of hockey violence. Stated that it cannot be assumed that a player implicitly

consents to a type of assault b/c it occurs frequently in the sports e.g. fighting. In R v McSorley judge found that some forms of conduct are too dangerous for the players to consent to.

Ruling:

R v Cey, [1989] SASK CA: It cannot be assumed that (hockey) players implicitly consent to a specific type of assault simply because it occurs with some frequency in the sport.

CONSENT IN FIGHTS

Courts will protect parties from liability in the situation of a consensual fight. Relates to consensual fights. R v. Jobidon: Criminal law says that cant consent to serious bodily harm or death. Jobidon and Paice have been applied in a tort setting. In Abbot v Jarocki, J applied the test to a planned fight between high

school kids to find liable D (wearing steel toed boots) who kicked PL while he was already on the ground. J held that PL could not have consented to the infliction of bodily injury.

Rather than arguing that in these cases PL could not have consented, might it make more sense to treat these cases as ones in which consent has been exceeded?

COMPETENCY TO CONSENT

For consent to be valid, person must be capable of appreciating the nature and consequences of the act to which it applies.

There are situations where PL cannot consent: Age: PL under 14 years cannot consent to sexual activity Diminished mental capacity Other examples are intoxication, other incapacitating condition.

Court likely to interpret adults to be competent to consent. More of an issue if someone is really old or young.

Vitiating Consent

FRAUD

Even in situations where D establishes that PL has consented to the act giving rise to the tort, PL may raise factors that vitiate consent.

Not all situations of fraud will vitiate consent. PL must establish two factors: that D was aware of, or responsible for, PLs misapprehension; and that the fraud relates to the nature and quality of the act as opposed to a collateral matter.

R v Williams [1925]: consent to sex vitiated where the (16 year old) PL was not aware of the sexual nature of the act. Papadimitropoulos v R [1958]: consent to sex upheld where the D deceived PL about whether they were married. Whether

the parties were married or not was a collateral matter that did not pertain to the nature and quality of the act. R v Cuerrier [1998] SCC criminal trial: HIV positive man who lied about status to sexual partners. Fraud that relates to the

harmful consequences of the act can vitiate consent. Three part test where harmful consequences flow from the act. The Crown/PL must show:

1. That the accused was dishonest, which could include not only lying but also non-disclosure; and2. The Ds dishonesty resulted in a deprivation, which could consist of actual harm or exposing a person to a

significant risk of bodily harm; and3. That the dishonesty induced the complainant to consent to the dangerous activity when he would not have

otherwise done so.

140.2 Defenses

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MISTAKE

The fact that a PLs consent was induced by a mistaken belief will vitiate consent only if the D was responsible for creating PLs misapprehension.

Like fraud, PLs consent will also only be vitiated if the mistaken belief goes to the nature or quality of the act, or presents the possibility of a significant risk of a serious physical harm (as outlined in R v Cuerrier).

Ds mistaken belief that the PL consented provides no defence.

DURESS

Consent secured by force or threat of force (duress) is not valid.

LATTER V BRADDELL [1880]Old British case where duress is seen only as physical violence, not psychological

Facts/Issues: a maid is forced by her employers to undress and undergo a pregnancy examination against her will. She sues for battery. Defending doctor claims consent.Discussion: Lindley J.: PL had it entirely in her own power to comply or not to comply with her mistresss orders, and there was no

evidence whatever to show that anything improper or illegal was threatened to be done if she had not complied. There was no evidence of any force or violence, or threat of force of violence.

Lopes J (dissent): I cannot adopt the view that PL consented because she yielded without her will having been overpowered by [physical] force or fear of violence. That is not, in my opinion, an accurate definition of consent in a case like this.

Ruling: There was no duress, thus consent is valid.

UNDUE INFLUENCE/PUBLIC POLICY

Courts have increasingly recognized public policy considerations in negating the defence of consent. To show that the consent given was not legally effective PL must provide:

Proof of inequality between the parties, which will ordinarily occur within the context of a special power dependency relationship.

Proof of exploitation.

NORBERG V WYNRIB [1992] SCCConsent vitiated in a power-dependent relationship

Facts/Issues: a doctor was having sex with a drug-dependent patient in exchange for illegal prescriptions. She consented of her own volition. Is this consent valid?Discussion: Majority: The concept of consent as it operates in tort law is based on a presumption of individual autonomy and free

will. It is presumed that the individual has freedom to consent or not to consent. This presumption, however, is untenable in certain circumstances. A position of relative weakness can, in some circumstances, interfere with the freedom of a persons will. Our notion of consent must, therefore, be modified to appreciate the power relationship between the parties.

Ruling: the power relationship and the fiduciary duty of the doctor vitiate consent.

To show that the consent given was not legally effective PL must provide: 1. Proof of inequality between the parties, which will ordinarily occur within the context of a special power dependency

relationship. 2. Proof of exploitation (measured by community standards)

140.2 Defenses

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Consent to Criminal or Immoral Acts

Based on the Latin maxim ex turpi causa non oritur actio, a person cannot recover in tort law for the consequences of his or her own illegal or immoral conduct Ex turpi should be applied to prevent PL from profiting financially from his or her illegal or immoral conduct. Generally, the ex turpi principle will not operate in tort to deny damages for personal injury, since tort suits will generally be

based on a claim for compensation. The use of ex turpi is not justified where the plaintiff's claim is merely for compensation for personal injuries sustained as a

consequence of the negligence of the defendant, since no inconsistency is introduced into the fabric of the law in making such an award.

HALL V HEBERT [1993] SCCModern definition of the ex turpi causa principle.

Facts/Issues: PL sues D in negligence, because D allows his to drive Ds car, knowing that he was intoxicated.Discussion: D uses the ex turpi rule against PL Courts can bar recovery in tort on the ground of the plaintiff's immoral or illegal conduct but only in very limited

circumstances. Duty of the courts is to preserve the integrity of the legal system, and is exercisable only where this concern is in issue. it generally does not apply in damages for personal injury the focus of the test these days is mostly on the criminal activities. Ruling:

Consent to Medical Treatment

Health professionals and counselors must obtain consent in advance before they initiate any kind of physical exam, test, procedure, surgery or counseling.

To be valid, the consent must have been given voluntarily (without duress or fraud). relate to the specific procedure or treatment that is undertaken. be based on a full and frank disclosure of the nature of the intervention and its risks.

The fact that a plaintiff makes an appointment and comes for treatment provides strong evidence of implied consent. Exceptions to principle of consent in medical settings:

In the case of an unforeseen medical emergency where it is impossible to obtain the patients consent, a healthcare professional may intervene without consent to preserve the patients health or life

Marshall v Curry [NSSC] 1933: testicle taken out as a bonus to a hernia operation; Where a general consent has been provided, the patient will be treated as having implicitly consented to any

subsequent sessions, tests etc that are incidental to the agreed treatment.

MALETTE V SHULMAN [1987] ONHCInformed consent is not the same as informed refusal. Any treatment outside of consent is tortious.

Facts/Issues: Jehovas Witnesses gets a blood transfusion that saves her life, even though she had a card in her pocket prohibiting the procedure. She sues for batteryDiscussion: Doctor claimed that the patient was not fully informed of the risks of not going through blood transfusion when she

signed the card: informed refusal thus D was obliged by law to instruct her of the risk - J overrules this doctor is legally and ethically obliged to treat within the confines of given consent the right to refuse treatment is not premised on the understanding of risks of refusal.Ruling: there was no consent. The procedure was battery.

140.2 Defenses

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COMPETENCY TO CONSENT TO MEDICAL TREATMENT

For consent to be valid it must be given by someone who is legally competent. The test for competency focuses on the patients ability to understand the nature of the proposed treatment and its risks,

not on his or her ability to make a reasoned or prudent decision. The test is applied on a case by case basis. There are no general rules about who is or is not competent to consent to

medical treatment. With children, judges apply the mature minor or Gillick-competency rule (Gillick v West Norfolk Health Authority). If the

child has been found to have sufficient intelligence, understanding and maturity to make up his or her mind, the court will recognize the childs consent (or refusal to consent).

In the case of an adult, the general rule is that even in cases of senility or mental illness, if the patient is able to understand the relevant information and appreciate the consequences of the decision, he will be found competent to consent.

SUBSTITUTE CONSENT

In situations where the patient cannot consent, because of intellectual disability, mental illness or age, substitute consent can be obtained from the patients next of kin. Mrs E v Eve (SCC, 1986): For substitute consent to be upheld the following three requirements must be met:

A. The patient must be incompetent;B. The next of kin must have acted in good faith;C. The procedure must be in the patients best interests.

Self-defence

The common law excuses intentional interference with a person if that person is threatened with harm by another.The burden of proving self-defence falls on the party invoking the defence (Mann v Balaban [1970] SCC).

To invoke self-defence, D must establish on the balance of probabilities that: He honestly and reasonably believed that an assault was imminent; and The force used to avert the risk was reasonable in all the circumstances.

Defensive force is reasonable if: (a) it is not greater than necessary for the purpose of preventing the attack; or (b) not disproportionate to the threat being counteracted.

In other words, acts of self-defence must be both reasonably necessary (ie, there was no reasonable alternative), as well as reasonably proportionate to the harm being threatened (ie, not excessive).

WACKETT V CALDER [1965] BCCAWhat constitutes reasonable force is a case-by-case determination, dependent on the facts.

Facts: PL is intoxicated and challenges D to a fight. Swings a few sissy blows and gets knocked down; gets up and tries to continue the fight, and gets knocked out and has his jaw broken.Issues: Was Ds use of fo rce excessive and unnecessary? Discussion: D saw that PL was too drunk, and this vitiated consent to fight Trial J saw this as grounds for Ds action of assault CA:

Though PL was drunk, he was still a large man and could have caused harm D was trying to walk inside the bar after the first punch that knocked PL down one is entitled to reject force with force an attacked person defending himself ... is not held down to measure with exactitude or nicety the weight or power

of his blows the first blow was insufficient to stop PL, so the second one was justified and necessary.

Ruling: The use of force was justified.

140.2 Defenses

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140 Negligence Flowchart

22

ANNS/COOPER TEST1. Foreseeability and proximity:

Was is reasonably foreseeable that of ANY negligent conduct by D would cause ANY harm to PL?

2. Policy Considerations

DUTY OF CAREIs this a recognized duty?

NY

Duty to rescueDuty of Care Owned to the Rescuers

Duty to Control the IntoxicatedDuty to Control Based on a Supervisory Relationship

Duty to Prevent Crime and Protect OthersA Manufacturers and Suppliers Duty to Warn

Negligent Misrepresentation

STANDARD OF CAREReasonable Person or special standard?

1. Was it reasonably foreseeability that THIS negligent conduct by D would cause ANY harm to PL?

2. Was the risk substantial? Does the severity of injury outweigh low probability?3. Policy Considerations4. The burden of cost to prevent the harm

ChildrenDisabled

ProfessionalsCustomStatute

Did D fall below the standard of care?

CAUSATIONCan each injury be attributed to each tortfeasor?

Y

EXCEPTIONSMultiple Negligent Ds? Learned Intermediary? Informed Consent? Joint Tortfeasors?

DIVISIBLE

Y

Material Contribution?

Materially Increased Risk?

BUT FOR TESTBut for Ds negligence,

would PLs injuries have occurred?

INDIVISIBLE

N

Does the But For Test Work? Independent Insufficient Independent Sufficient

N

Material ContributionDid Ds negligence contribute to the injury beyound the de

minimis range?

Was each cause sufficient to cause the injury?

YN

Can the But For Test work?Can the But For Test work?

Material ContributionDid Ds negligence contribute to

the injury beyound the de minimis range?

Y

140 Negligence Flowchart

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Vicarious Liability

OTHER FACTORSCan D pile the blame elsewhere?

SALMOND TEST1. Acts authorized by the employer2. Unauthorized acts so connected that

they may be regarded as modes of doing what has been authorized.

Contributory Negligence

DEFENSESCan Ds guilt be absolved?

Voluntary Assumption of Risk Inevitable Accident Participation in Criminal Activity

Did PLs actions contribute to the injury?

REMOTENESSIs the harm too remote?

Was the intervening cause a reasonably foreseeable consequence of Ds negligent conduct?

HUGHES TESTWas it foreseeable that THIS negligent conduct by D will PROBABLY cause THIS KIND of injury to PL?

WAGON MOUND 2 TESTWas it foreseeable that THIS negligent conduct by D will POSSIBLY cause THIS KIND of injury to PL?

Thin Skull Rule

Pre-existing Condition?

Crumbling Skull Rule

Intervening Causes

WAGON MOUND 1 TESTWas it foreseeable that THIS negligent conduct by D will PROBABLY cause THIS injury to PL?

The Elements Of The Tort

DUTY OF CARE For there to be any tort liability in negligence, D must have owed PL a duty of care. The standard of proof in negligence is on the balance of probabilities There are some defined relationships in which a duty is automatically owed, eg doctor/patient; lawyer/client. The harder cases are where the relationship between the parties is less formal. In such cases, the neighbour principle

helps guide the analysis. The modern law of duty continues to be an area of significant debate. However, it is generally accepted that in order for a

duty to arise there must be: (a) a foreseeable risk of injury; (b) a relationship of proximity between the parties;(c) no policy reasons for not imposing a duty.

STANDARD OF CARE There can be no liability unless D breached the duty owed to the PL. Whether D breached the duty is determined by asking whether his actions fell below the appropriate standard of care. The general standard of care required is that of the reasonable person in the circumstances of the case. Some groups in society are held to a standard higher (doctors) or lower (children) than that of the reasonable person.

CAUSATION Cause in Fact Causation is the element of negligence that links Ds breach of the standard of care with the PLs actual loss. There is no

tort liability unless the Ds breach caused the PLs damage. But for test: if you can say but for the actions of the defendant this harm would not have occurred, causation is

established. Additional tests for causation have emerged to deal with situations where the but for test is inadequate. For example,

rules concerning material contribution of risk, multiple Ds, multiple causes, and a PL with a particular susceptibility.

REMOTENESS Cause in Law Often considered to be an off-shoot of causation, remoteness asks whether the relationship between the Ds breach and

the injury experienced by the PL is too remote to justify recovery. The effect of the remoteness test is that in negligence (unlike intentional torts) liability is usually limited to those losses that

were foreseeable consequences of the Ds negligent act.

DAMAGE/ACTUAL LOSS Negligence is only actionable in cases where PL has suffered actual loss.

DEFENCES D can raise a variety of defences that will limit or negate liability even in circumstances where all of the elements of the

tort have been made out. For example, contributory negligence (where PL also behaves negligently and thus contributes to his injury), voluntary

assumption of risk (where PL engages in a risky activity), participation in criminal activity (Hall v Hebert test), and inevitable accident (where the accident could not have been avoided even with the greatest care or skill).

DAMAGES Following Andrews v Grand & Toy (ABCA), damages are quantified under the following headings: Pecuniary loss

Future care Lost earning capacity Considerations relevant to both heads of pecuniary loss

Non-pecuniary loss

140.3 Negligence: Duty of Care

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Duty Of Care

Duty Of Care Test:1. Is the alleged DoC within an established category or analogous to it? If yes, DoC is established.2. Is the harm reasonably foreseen (Burden of Proof on PL)?3. Is there sufficient proximity in relationship between PL and D (Burden of Proof on PL)?4. Are there any residual policy considerations that would negate or limit (Burden of Proof on D):

(a) what are the arising legal/social/economic obligations if there is a DoC?(b) does the law already provide a remedy?(c) would recognition of DoC create unlimited liability to an unlimited class?

Note: BP is on the balance of probabilities.

Steps 2, 3, and 4 are known in Canada as the Anns/Kamploops Test Steps 2 and 3 do not apply to established categories (Childs v Desormeaux [2006] SCC).

Anns/Kamloops Test: (a) Is there a sufficiently close relationship between the parties so that in the reasonable contemplation of D,

carelessness on his part will cause damage to PL?(b) Are there any policy considerations that would negate or limit the duty?

DONOGHUE V. STEVENSON [1932] HLDuty of care arises when D is proximate to PL and can reasonably foresee harm

Facts: PL drinks a bottle of root beer that has a snail in it. She complains of gastric pains and sues for negligenceIssues: Does D owe duty of care to PL?Discussion: in English law there must be, and is, some general conception of relations giving rise to a duty, of which the particular

cases found in the books are but instance You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your

neighbour. Who is my neighbour?

persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts of omissions which are called in question.

Donoghue Test: reasonable foreseeability of harm; and a relationship of proximity between PL and D.

Ruling: Ruling for PL

ANNS V. MERTON LONDON BOROUGH [1977] HLRecognizing new categories of Duty of Care in negligence

Facts: D was informed that the foundation of the building was complete, but chose not to inspect, and gave a BP as is. PL suing D for failing to inspect the foundations and granting a BPIssues: Is there a DoC?Discussion: D claims that negligence cannot be had, as they are not within the established category. It is not necessary that DoC has to fall into one of the previously established categories. Novel DoC has to be approached in two stages:

is there a sufficient relationship of proximity between PL and D, in the reasonable contemplation of D, carelessness on his part may be likely to cause damage to PL, in which case prima facie duty of care arises.

are there any considerations which ought to negative, or to reduce or limit the scope of the duty Since 1977, British law has distanced itself away from the PL-based approach of Anns The two part Anns test was first adopted in Canada in Kamloops v Nielson [1984] SCC.Ruling: Anns gets a tort test named


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COOPER V. HOBART [2001] SCCPolicy implications and Anns Test

Facts: PL invested money into a broker, who was closed down by D, who acted as a Registar of Mortgage Brokers for Canada. PL lost her money and sued for negligence.Issues: Does D owe a DoC to PL?Discussion: where the DoC does not fall into a recognized category, the second part of the test arises. the second part of the Anns/Kamloops test is an avenue for policy considerations:

what are the arising legal/social/economic obligations if there is a DoC? does the law already provide a remedy? would recognition of DoC create unlimited liability to an unlimited class?

in this case, Ds duty would arise out of the statute from which he operates the statute does not impose DoC, thus there was no sufficient proximity even if it did, the policy implications mean that D has to balance private and public interest and the public always wins.Ruling: Ruling for D

PROXIMITY

Proximity is generally used to characterize the type of relationship in which a duty of care might arise. Proximate relationships are often identified through the use of categories.

The courts have created a series of relationships which are innately proximate. The court in Cooper endorsed a list of categories from Anns in which a proximate relationship (and thus a duty) had already

been established. The list was not intended to be exhaustive.

Established Proximate Relationships: Where the Ds act foreseeably causes physical harm to PL or the PLs property Negligent misstatement Misfeasance (an affirmative action) in public office A duty to warn of risk of danger A duty to inspect without negligence A duty to conduct work undertaken in a non-negligent manner Relational economic loss related to a contracts performance (in some defined situations)

FORESEEABILITY

Whether, at the time of the alleged tort, it was reasonably foreseeable to a person in the Ds position that ANY carelessness on his or her part could create a risk of ANY injury to the PL.

MOULE V. NB ELECTRIC POWER CO [1960] SCCOnly reasonably foreseeable risks will lead to Duty of Care

Facts: PL climbs a tree onto another tree, steps on a rotten branch and falls on power-lines. His parents sue the electrical company for negligence in not trimming the tree sufficiently or placing the lines far away.Issues: Does D owe a DoC to PL? Was the risk of injury foreseeable?Discussion: It is foreseeable that children will climb trees power companies should respond by placing their wires such that children will not come unexpectedly in contact with

them. however, a company is not necessarily responsible for every accidental contact with its wires by climbing children or that it

is deemed to be endowed with prevision of every harmful contingency In placing the wires 33ft from the ground and causing the adjacent trees to be limbed as they were at the place of this

accident, D had taken adequate precautions against such dangers inherent in the presence of the wires as could be reasonably foreseen.

the accident as it happened was a result of a number of unlikely events, which were outside of the range of reasonable foreseeability


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Ruling: Ruling for DAMOS V. NB ELECTRICAL POWER CO [1976] SCC Those who erect electric lines carrying heavy charges have a duty to take proper precautions against all foreseeable injuries

Facts: PL climbs a young tree, which sways under his weight, hits a power line and fries the little bastard. His parents sue the electrical company for negligence in not trimming the tree sufficiently or placing the lines far away. Issues: Does D owe a DoC to PL? Was the risk of injury foreseeable?Discussion: The tree in the case was young and limber, thus gave sway easily The tree was not trimmed sufficiently Those who erect electric lines have a duty to take proper precautions against all foreseeable injuries Unlike in Moule, D had failed to take adequate precautions against reasonably foreseeable dangers inherent in the

presence of the wires. Accident was one which could have been foreseen and which was almost inevitableRuling: Ruling for PL

The PL must be foreseeable. Thus, foreseeability (and thus duty) cannot be transferred from one PL to another. This does not mean that each

individual PL must be foreseeable, but rather that the PL must belong to a class of persons foreseeably at risk ( such as all drivers on the road).

PALSGRAF V. LONG ISLAND RAILWAY CO [1928] NYCAThe PL must be someone to whom D owes a duty of care, or belong to such a class.

Facts: As a train pulls away from a station, the conductor helps two running men get on board, pulling the second one. The man drops a package, which happens to contain fireworks - causing an explosion. The shockwave knocks over a scale on the other side of the platform, which falls on PL and crushes her a wee bit.Issues: Does D owe a DoC to PL? Was the PL foreseeable?Discussion: While the conduct of the guard may have been negligent in relation to the package owner, it was not negligent in relation

to PL, who was standing so far away. PL must show a wrong in relation to herself, not a wrong to someone else. Absent a wrong to her, there was a lack of foreseeability (and thus an absence of duty). Dissent:

D should be liable for all proximate consequences of their actions for example, someone speeding in a car is negligent, even if they do not hit anyone D were careless in their actions and it produced consequences that were perfectly foreseeable. D need not have foreseen PL in particular, but she belonged to a class of persons that was foreseeable to D

(passengers on the platform).Ruling: Ruling for D

Special Duties of Care

Special duties generally refer to situations where courts have already established (often as a matter of policy) that a duty will or will not arise.

Those instances where a duty has been found to consistently arise become the established categories of duty that are referred to at the initial stage of the Cooper test. If you can fit your case into one of these established categories, there is no need to proceed with any additional duty analysis.

Misfeasance: positive acts.Nonfeasance: omissions or failures to act As a general rule, courts have been willing to impose liability for losses causes by misfeasance, but rarely in cases of

nonfeasance. The few cases where nonfeasance has given rise to a duty typically involve a contractual or statutory obligation to act.


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One way to think about the distinction between misfeasance and nonfeasance is that misfeasance involves worsening the PLs position, whereas nonfeasance involves failing to improve it.

DUTY TO RESCUE

There is no general common law duty to rescue, even if you have specific skills that could be of aid.

OSTERLIND V. HILL [1928] MASS SCAs long as D has not created the situation of peril, there is no duty to rescue.

Facts: D rented a canoe to the deceased (whose estate is PL), even though PL was drunk as shit. PL flipped the canoe, and was in the water crying for help for half hour, after which he drowned. D heard the cries, but did not help. Issues: Is D negligent in (a) renting a canoe to someone drunk, and (b) not saving him while he was drowning?Discussion: Court cites an earlier case that sets a standard for excessive intoxication as incapable of standing, walking, or caring for

himself in any way Here, PL not only rented the canoe, but held onto it for half hour after flipping it. Thus, he was not excessively drunk, and D is justified in renting him the vessel The failure of D to respond to the cries of help is immaterial as there is no legal obligation for him to do so.Ruling: Ruling for PL

MATTHEWS & HORSLEY V. MACLAREN [1969] ONHCBy beginning the rescue process D assumes a duty to act, and will be liable for negligence.

Facts: The estates of PLs (deceased) are suing D for negligence. D was the captain of a yacht, and PLs were invited guests. After a day of drinking on the boat, PL.M fell into the water. D backed the boat up, but lost control and had to re-back it, to come closer to PL. At this point, PL.H. got frustrated and jumped in to save PL.M. The water was freezing, and PL.H. instantly died of shock and heart failure. PL.M also sank - cause of death uncertain.Issues: Is D negligent in his condition and conduct in response to PL.Ms falling into water?Discussion: There are no common law obligation to rescue a drowning person But the notion of implied contract is making its way into situations where a special relation exists Extending the passenger/carrier quasi contractual relationship, it should give rise to a legal duty to aid and rescue Either way, D affirmatively undertook to rescue PL.M, and is thus liable for negligence, even if there is no legal duty to act Negligence in this case = what would a reasonable boat operator do in the circumstances? The standard operating procedures were known to D, and were disregarder - his attempt to rescue took too long, was

bungled and incompetent Thus, his conduct was negligent, partly due to being drunk But, liability does not follow a finding of negligence, unless Ds conduct was the effective cause of death Burden is on PL to prove the causation Cause of death was uncertain, as the body was no found But, water was cold enough to kill PL.H. who was a younger man outright Thus, on a balance on probabilities, PL.Ms life could not have been saved, even by the most competent rescue operation Ds negligence is not the cause of PL.Ms death.Ruling: Ruling for D

STEVENSON V. CLEARVIEW RIVERSIDE RESORT [2000] ONSCAmbulance attendant has no duty to offer assistance to individuals rescuing the PL

Facts: A diver suffers additional spine injuries when people try to pull him out of the water. Off duty ambulance officer observes, but does not intervene by telling the proper procedure, and is charged with negligenceIssues: Is there a duty of care?Discussion: There was no duty for the ambulance officer to intervene There is no special relationship between someone who is not working in their working capacity, and someone who is in

need of assistance.


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An off duty ambulance attendant is simply a private party. The same goes for doctors, who have no general duty, though some jurisdictions have imposed a statutory duty to go to a

party's aid.Ruling: Ruling for D Health professionals cannot abandon a patient: discontinue care without making adequate arrangements for ongoing

treatment Statutory provisions:

Code s.129(b) - An individual must comply with an officers request for assistance in making an arrest or keeping the peace; Duty to render assistance in emergency situations involving crime.

Code s.252: if you are involved a car accident you must stop and render assistance if a person is injured. Code s.217: one who undertakes an act is required to complete it, if failing to do so is or may be dangerous to life.

DUTY TO CONTROL THE CONDUCT OF OTHERS

Duty to Control the Intoxicated:

There is no general duty to control the conduct of others, but the courts have been willing to impose such a duty in situations where a special relationship can be demonstrated, such as: Bar owner/Patron (created by liquor licensing rules)

Once the staff is aware that PL is intoxicated and intends to drive, they have a legal duty to stop him, or call the police Hague v. Billings [1989] ONCA

Serving patrons past the point of intoxication is not in itself a foreseeable risk Stewart v. Pettie [1995] SCC Social hosts do not owe a responsibility to third parties that are injured by their drunk guests

The difference between social hosts and bar hosts are (a) ability to monitor alcohol consumption (b) licensing regulations and (c) profit from sales. Childs v. Desormeaux [2006] SCC

Owner of a vehicle has a common law duty not to permit a drunk to drive

CROCKER V. SUNDANCE NORTHWEST RESORTS [1988] SCC There is a duty of care of between a proprietor to an intoxicated patron, when the proprietor is aware of PL intoxication and participated in getting him to that point.

Facts: PL is at a snow-tubing contest, filling out an entry form, which includes a waiver form. He then proceeds to buy booze from the resort (as well as form the contest site) and gets visibly shit-faced. Resort manager questions his capacity to perform, but PL says that he is alright. He eats shit and becomes quadriplegic. Issues: Is there a duty of care which arises from a special relationship?Discussion: The common thread running through these cases [commercial host cases] is that one is under a duty not to place another

person in a position where it is foreseeable that that person could suffer injury. The relationship between the ski resort and the PL mirrored that of a commercial host and patron (eg, bar owner/patron),

where a positive duty has been found. D knew that PL is severely intoxicated: they had factual knowledge D provided him with additional liquor Both owner and manager questioned PL, but did not stop him Thus, they were both aware of the risk, but did nothing And the resort was profiting from their actions.Ruling: Judgement for PL.

Duty to Control Based on a Supervisory Relationship

Parents/Children: Parents are not (automatically) vicariously liable for their childrens acts. For liability to be found, it needs to be shown that the parent failed to adequately supervise the child (be negligent in their supervision)

Prison Guards/Prisoners: guards have a duty to control prisoners Employers/ Employees: employers have a duty to keep employees safe, and to supervise their behaviour Mental Health Workers: to control mental health patients in institutional settings Sports coaches/supervisors: to control participants.


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DUTY TO PREVENT CRIME AND PROTECT OTHERS

JANE DOE V METROPOLITAN TORONTO POLICE[1998] SCC Police have a duty to prevent crime in situations where the PL falls into a category of foreseeable and proximate victims.

Facts: PL is raped by an established balcony rapist with a set modus operandi. He had perpetrated several rapes in the area under investigation by the police. The police chose not to warn the women in the neighbourhood, because they would become hysterical and jeopardize the investigation. The investigation was low key, as it was not violent, but just rape. PL sues the police for negligenceIssues: Is there a special duty of care?Discussion: The rape could have been prevented, since the rapist followed the same procedure all the time. The police decided that the best way to catch the rapist after another rape - PL thus was in a role of bait. SCC applies the Cooper test:

it was reasonably foreseeable that the rapist would rape again At the time that she was raped, PL had become a member of a small specific group that were vulnerable to attack Thus, proximity is present, in respect to PL being a member of a class of potential victims There is no policy reasons for preventing such a duty

Police do not have a DoC to a larger populace, only to the proximate foreseeable victims. There is a DoC: not a general duty to prevent crime, but to warm the specific victims

One has to argue that they are not a random victim.Ruling: Judgement for D

DUTY OF CARE OWNED TO THE RESCUERS

If a person by his fault creates a situation of peril, he must answer for it to any who attempt to rescue the person who is in danger. Videan v. British Transport Commission [1963] CA

Though it is possible, courts rarely hold rescuers contributorily negligent for their rescue attempts. It is presumed that because PL are responding to an emergency situation PL should not be held to the same standard of care as those acting in less extreme circumstances.

The defense of voluntary assumption of risk has been pretty much eliminated in rescue cases. Rescuers are foreseeable and are owed a duty of care, since danger invites rescue Wagner v. Intl. Ry. Co. [1921] NY The principles of rescue apply to cases where PL are injured while attempting to save themselves or their property A rescuer can sue the person being rescued in the event that the person being rescued negligently imperiled him or herself

Dufault v Excelsior Mortgage Company [2002] QB

HORSLEY V. MACLAREN [1969] ONHCIf one by his fault creates a situation of peril, he has a duty of care to anyone who attempts to rescue the person who is in danger.

Facts: The estates of PLs (deceased) are suing D for negligence. D was the captain of a yacht, and PLs were invited guests. After a day of drinking on the boat, PL.M fell into the water. D backed the boat up, but lost control and had to re-back it, to come closer to PL. At this point, PL.H. got frustrated and jumped in to save PL.M. The water was freezing, and PL.H. instantly died of shock and heart failure. PL.M also sank - cause of death uncertain.Issues: Discussion: A situation of peril was created when PL.M fell overboard, but it was not by any fault on the part of D For D to be responsible for PL.Hs death, there must be such negligence in his method of rescue as to place PL.M in an

apparent position of increased danger subsequent to and distinct from the danger to which he had been initially exposed by his accidental fall.

Any duty owing to PL.H must stem from the fact that a new situation of peril was created by Ds negligence which induced PL.H to act as he did.

In this case, evidence does not justify that any fault of Ds induced PL.H to dive in and dieRuling: Ruling for D


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DUTIES TO THE UNBORN

Pre-conception wrongs: where D carelessly causes a parent to suffer an injury that detrimentally affects a subsequently conceived child. Typically, these cases involve the mother or father being exposed to chemicals that harm their reproductive health. A duty can arise in cases of pre-conception wrongs. Paxton v. Ramji [2006] ONSC

Wrongful Birth and Wrongful Life: Usually arises when a doctor carelessly fails to inform a woman that she faces an unusually high risk of giving birth to a child with a disability, or when a doctor negligently performs tests that are designed to detect foetal abnormalities. Because of the doctors failure to inform or negligence, the woman continues the pregnancy that she would otherwise have terminated. A claim brought by a parent is wrongful birth and a claim brought by the child is wrongful life. Wrongful Life claims are seen as bogus, because the claim would succeed only if one accepted that the child had a right

not to be born. There is no cause of action available for wrongful life. While a physician owes a duty to a child regarding pre-natal

injuries that become manifest on birth, a physician does not owe a duty of care to a child to provide its mother with information that would lead to an abortion. Jones v. Rostvig [1999] BCSC

Courts will recognize a mothers wrong birth claim, but she must show that had the physicians duty been appropriately performed, she would have terminated the pregnancy. Arndt v. Smith [1994] BCSC

Wrongful Pregnancy: Medical negligence cases where parents have taken medical steps to prevent pregnancy or childbirth (vasectomy, abortion), but due to the negligence of a doctor, a pregnancy occurs or continues. However, the situation becomes more complicated when the woman decides not to terminate the unwanted pregnancy, and then sues after the child is born. For what is the doctor liable? Traditionally, Canadian courts have permitted wrongful pregnancy claims but have limited damages to lost earnings

consequential to the pregnancy and delivery, damages for emotional consequences of dealing with an unplanned pregnancy, and any costs specific to raising a child with a disability or because the parents are themselves disabled.

Retreating from the traditional position, the court held that damages could be awarded for the cost of raising a healthy child, but only where the parents primary motivation for wanting to limit the size of their family was financial. Kealey v. Berezowski [1996] ONSC

Pre-natal Injuries: Where a child, now born, sues in negligence for injuries sustained in utero. The courts have recognized that a person may owe a duty of care to a foetus to avoid careless actions before birth that

may result in a loss upon birth. However, the claim does not crystallize until the birth of the child. For reasons of public policy, the Court should not impose a duty of care upon a pregnant woman towards her foetus or

subsequently born child. To do so would result in very extensive and unacceptable intrusions into the bodily integrity, privacy and autonomy rights of womenIn contrast to the third-party defendant, a womans every waking and sleeping moment, in essence, her entire existence, is connected to the foetus she may potentially harm. If a mother were to be held liable for prenatal negligence, this could render the most mundane decisions taken in the course of her daily life as a pregnant woman subject to the scrutiny of the courts. Dobson (Litigation Guardian of) v. Dobson [1999] SCC

A MANUFACTURERS AND SUPPLIERS DUTY TO WARN

A manufacturer of a product has a duty to warn consumers of dangers inherent in the use of its product of which it has knowledge or ought to have knowledge.

The duty to warn is a continuing duty, requiring manufacturers to warn not on

140 law of torts

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