tort can 2012 mahoney

8/19/2019 Tort Can 2012 Mahoney

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Law 406A Section 1 Torts

I. Introduction

The focus of tort law is to bring compensation to the suerer of injury or

damage as a result of a wrongdoing- Brought at the initiative of the suerer- Use of the civil burden of proof – Balance of probabilities

Tort Process

1) Identify the tort that has been committed2) Defendant must be orth suing

a! Insured defendantsb! "elf-insured defendantsc! Defendants ith means

#) Determine personal or vicarious liability$) Determination of appropriateness of punitive damages %additional

damages aarded in order to punish the defendant if the conduct isdeemed to be particularly vicious& premeditated& high-handed& ordisgraceful)

Objectives of Tort Law

1. The Moraist !iewo Demands personal accountability for rongdoings& and

reparations for harmo 'rotects individual liberty by de(ning our rights against rongful

interference of our person& property& and other recogniedinterests

o *orrects in+ustices beteen citiens& assumes people ill ta,eresponsibilities for rongdoings

o In and of itself it is +usti(able& integral on its on because of itscorrective function

". The Instru#entaist !iew ort la is designed to achieve a number of functions

i! *ompensation – restore the plainti to the position they ould

have been in if the tort had not been committed & providecompensation for losses caused by conduct that falls belosocietal standards

ii! 'unishment – e.presses societal disapproval of conduct throughthe aard of damages

iii! Deterrence – In/uence conduct to ensure a safer societya) Specic – against the individual defendant and his/her future

behaviour


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b) General – general threat of tort liability encourages citiens toadopt safe practices

c) !ar"et – encourages companies to reduce liability costs byma"ing a safer product# consumers choose low liability/low cost products

iv! 'sychological Dimensions – civilied& non-violent ay to allovictims retribution and satisfy a need for vengeancev! 0ducation – generally and speci(cally educates citiens of the

importance of compliance ith reasonable standards of conductvi! mbudsperson ole – tort la has the ability of challenging the

rongful and harmful behaviour of the poerful individuals andinstitutions in *anada

$vaniu% v &'(46 Manitoba Inc. )Man *+, 1''0-

Painti/

- 0vaniu,& patron of a bar ho as forcibly e+ected by the doormenresulting in in+uries! "ee,ing special& general& and e.emplary damages

efendant/- ner of 'andora Inn& employer of the to doormen

acts/- 'lainti as in+ured in the process of being forcibly evicted from a bar

by to doormen!- "he suered in+uries to feet and legs& left rist& elbo& and aggravated

a previous bac, in+ury!- he in+uries ere caused by the to doormen and ere documented

by a medical professional!

- he to doormen ere employed by the defendant!- he altercation as started by a dispute beteen the plainti and a

aitress concerning her behaviour ith the plainti3s brother!- he plainti and the doormen both have con/icting versions of the

events! 4lcohol as involved in the altercation!- Dignitary losses ere also suered by the plainti as a result of the

embarrassment of being thron out and having a 5uarter tossed onher hile she lay in+ured in the street!

- Damage to reputation!- "ee, compensation for any out of poc,et e.penses& loss of income

opportunities based on in+uries!

2udicia decision on the facts3 6udge accepted the plainti3s version of the story over the doorman3s3 "tory as corroborated by other itnesses3 he doorman gave information that as found to be ob+ectively

incorrect& raising credibility issues of their testimony3 he defendant3s on itness& 7aurie& corroborated the story of the

plainti Issue/


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3 Does e+ecting a patron from an establishment& although not speci(callyauthoried by the employer& constitute vicarious liability as per the8closely connected9 test: $S

5atio/3 A #aster in a #asterservant reationshi7 can be found

vicarious8 iabe for acts which he did not authori9e, but wereso cose8 connected to acts that he had authori9e, that itcoud be re:arded as #odes of doin: the#. The8 #et the;cose8 connected test< A=A ;authori9ation test<

>otes/3 he employer as found liable on the tort of battery& although it is not

mentioned in the case! Battery is an intentional tort that or,s on thepremise that our bodies are our on& and someone ho touches youhas committed a tort! he plainti did not consent to the contact! ;asnot negligent action!

3


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- @ot every act that causes damage is negligent- 4cts may become negligent if they fail to meet a reasonable standard

of care- 4 reasonable standard of care is one hich does not create

unreasonable ris,

- 0.amine the conduct to see hat as done to determine negligence- 7oo, at past conduct& past accidents& internal regulations& codes ofconducts& cost of reducing the ris,& foreseeability of the ris,& any,noledge of the ris,& ho great is the ris,& hat ould the e.tent ofthe harm be& ris, of harm against the cost of avoidance& cost bene(tanalysis& any additional parties to blame %deep poc,ets)

he plainti must sho that

1) Defendant as negligent %breached the standard of careAduty of care)%@07I0@*0)

2) 'lainti suered damage %harm& in+ury)#) Defendant3s negligence caused '3s damage %*ausation)$) D oed ' a DUC *40 %it e.istsE)F) '3s damage as not too remote %'ro.imity)

aut +ased ra#ewor% - ort la is based on the fault principle of individual responsibility- Insurance plays a ma+or role- ort in reality is a loss spreading device& hich has led to an e.pansion

of the boundaries of tort la and the sie of compensation aards- he la has to recognie an action as something rong

- he origins of tort la are in the philosophical notion of individualresponsibility – pure fault based system

- @o& almost everybody is insured for most things that e do- "till some accountability and some remnants of the pure fault based

system- he defendant is still named& even though insurance might pay the

damages- Gore about spreading losses than individual accountability-


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c! 0ven if everything else has been established& the behaviour of the defendants activity can limit liability

2) he type of loss suereda!


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) '3" *@DU*

Standard of Dare

- *oncerned ith the 5uestion of hether the defendant departed from

the standard of care that a reasonable person ould have e.ercised inthe circumstances

- he 8fault9 must be proved by ob+ective standards- he standard for all actors is not the sameK childrenAmentally

illAphysically disabled -L e cannot e.pect the same compliancehereas for professionals e e.pect more than the standard ofreasonableness

Bolton v Stone (House of Lords UK, 1951)

- ;hat is an unreasonable ris,:- oreseeable ris,:- *ourt of 4ppeal and House of 7ords debated about here on the scale

8fantastic probability9 lays on a continuum of ris,

------------------------------------------------------------------------------------------------------------------------

antastic 'ossibility M-L'ossibility

'robability%F1N

O)

- Decision that this case is very borderline- ;e re5uire people to act before the ris, becomes certain – too ris,y of

behaviour- 4ny change in facts can change the ris, on the continuum that is being

ta,en by the defendant- Ta%e Awa8K he notion of reasonableAunreasonable ris, is a malleable

concept

- Ta%e Awa8/ *ost of avoidance and utility of the conduct gives us acost bene(t analysis that can be very useful

1- 5is% of injur8"- $Ctent of injur8

!s.- Dost of avoidin: ris% 4- Gtiit8 of conduct

Balancing act beteen these four


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actsKBolton %oner of cric,et club& appAdef)& during a match& a batter hit a ballover a fence Pft high and 1P ft above cric,et patch& and hit "tone %plAres!)ho as on ad+oining highay! Distance to the fence from the batter as PQ

yards& and to here the plainti as hit& 1RR yards! round had been usedfor >R years and no one had been in+ured before in that ay& although onabout si. occasions over a period of #R years a ball had been hit into thehighay!

IssueK he court3s languageK ;hat is the standard of care 8a person hopromotes on his land operations hich may cause damage to persons on anad+oining highay9 %promotes a certain level of generality to allo for futureapplications)

5easonin:K

- he act of a ball hitting the highay as foreseeabe as it had happenedseveral times in the last couple of years& but the chance of it happeningas small

- H7 loo,s at several options of the e.tent of the dutyK not to carry out anyactivity that he ,nos or ought to ,no could cause damage& no matterho unli,ely it is to happen: r& only bound to ta,e into account the7ossibiit8 of such damage if damage is i%e8 or 7robabe:

- 8'eople must guard against reasonable probabilities& but they are notbound to guard against fantastic possibilities9 %$ardon v% &arcourt'(ivington)

- he dierence is the degree of ris,

- Godern life& it is too hard for even the most careful person to avoidcreating some ris,s

3 Test/ ;hether the ris, of damage to a person on the road as so smallthat a reasonable person in the position of the appellants& considering thematter from the point of vie of safety& ould have thought it right torefrain from ta,ing steps to prevent the danger9!

- he degree of ris, is on the 047 side& but there as a lo level of oreseeabiit8! H7 arns this might be decided dierently if the ris,asn3t e.tremely small!

5atio/ he standard of care is met if the ris, is so small %reasonable

probability) from the point of safety& that a reasonable person ould havebeen right to refrain from ta,ing steps to prevent it! %ie! meets the test)

Wagon Mound (No. 2) verseas !an"s#$% (UK) Ltd. &. t#e M$ller S.S.'o. ! Ltd., H1'66

+efore +oton


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- 0vents ere seen as unreal because event as so farfetched that noreasonable person ould have paid any attention to it& there is noreason to prevent the ris,

- 4@D 0vents here there as a real and substantial ris, or chance thatsomething li,e the event might occur& you had to prevent the ris,

+oton- 4 mere possibility as not good enough to (nd liability& had to besomething greater

- Bolton alloed that the ris, as 8so small in the circumstances areasonable man ould have been +usti(ed in disregarding it and ta,ingno steps to eliminate it9

Ea:on Mound- Ganipulated the probabilityApossibility test- It is not re5uired that the ris, be probable& e can (nd it to be possible

and still (nd it to be suSciently unreasonable& so that precautions

should have been ta,en- he court ants to apply a possibility test& but Bolton re+ected apossibility test in favor of a probability test

- he court decided that 8it does not follo& that no matter hat thecircumstances& it is +usti(able to neglect a ris, of such a smallmagnitude9

- easonable person ould only neglect the ris, I he had some validreason for doing so

- ;eigh the ris, against the diScultyAcost against eliminating it- In the case of it bein: an unawfu activit8J – introduces a ne

element – Bolton ould have been decided dierently

- In ;agon Gound there as a regulation 44I@" the disposal of oilonto the ater in the harbour

- It as an oense to do so& and it caused considerable (nancial loss- he court ad+usted the test& drilled into the facts& and admitted the ris,

as small but nonetheless it beca#e a rea ris% when we ta%e intoaccount the ie:ait8 of the behaviour& cost of behaviour& cost ofavoidance – in totality& fell belo the reasonable standard of care andfell ithin hat as foreseeable

- 0.ample of a court using their +udicial toolbo.- *ertain characteristics in the facts can pull the ris, along the

continuum of ris,& 0IH0 direction

- Balance the factors and loo, at the conte.t of the caseE3 TA=$ AEA/ The test for standard of care can be for

7robabiit8, O5 7ossibiit8, O5 so#ewhere in between ? factorsinvoved can chan:e where it ies on the continuu# of ris%

The 5easonabe Person


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!au:han v. Menove, Do##on Peas, )1(&-

actsKG %def) oned property ad+acent to

pile& hich he didn3t do! 4t one point he stated& 8I ill chance it9! "tac,subse5uently caught (re& and destroyed G3s barn and stables and O, re8 on ;#an of ordinar87rudence< test

5easonin:K- @egligence is not based on the variability of each individual3s +udgment

of the situation& but rather is based on hat a man of ordinaryprudence ould have done ith the caution oered

- Objective test – not sub+ective %hich ould be so vague as to notcreate a rule at all)& e.cludes all other psychological and physical traitsthat ma,e each person dierent

- Standard of care is important of this case

The 5easonabe Person TestObjective Standard

Man of ordinar8 7rudence and intei:ence

- he chimney asn3t a suScient remedy to ameliorate the ris,- He did ta,e some precautions& but according to the reasonable person

test it asn3t enough- aises the standard of care for society – must be careful to (nd here

that ob+ective person operates- *an put a signi(cant impairment on liberty- he trade-o is that society must be able to e.pect a certain level of

behaviour in order to protect ourselves

Osborn 7. "&340, The Standard of Dare/ the 5easonab8 DarefuPerson

Osborne/ the reasons for ,eeping the standard of the reasonably carefulpersonK

1. 4n ob+ective standard presents feer problems in respect to proof ofnegligence! %


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". ood policy to have a uniform standard of safety and security insociety %citiens can anticipate and e.pect the standard)

. Gore eSciently promotes the compensatory functions of negligencela! Gost people in negligence cases are not conscious ris, ta,ers butfailed a standard someho so if e are to ta,e a sub+ect perspective

far feer people are compensated!4. he ob+ective standard of the reasonably careful person in thecircumstances has provided +udges ith an abstract and malleableconcept that can be applied to all activities& in all circumstances& atany time!

actors that a 8reasonable person9 should consider in assessingunreasonable ris,sK

1! oreseeabe ris% ? an essential componentE2! he i%eihood of ris% K chance of event happening and the

conse5uencesT leading case is olton

#! Kravit8 of conseuencesT $• "ee *aris v Stepney orough +ouncilK the plainti had sight in one

eye and as removing bolts from a motor hen a splinter /e in tohis good eye! he House of 7ords held that a reasonable employeeould have ta,en greater care for an employee ho had alreadylost his sight one in one eye!

• "ee olton the severity as small and no ris, of serious in+ury of death

$! $ase and cost of 7reventionT remedial measures• he magnitude of ris, % li,elihood of ris, . gravity of the

conse5uences) must be balanced by a consideration of the cost of

the measures needed to reduce or neutralie the ris+• "ee ,are-s Ta.i td v Giliham – the cost to childproof loc,s as lo!

he "U'0G0 *U evaluated the suSciency of the defendant3scare in the light of the available preventative measures that ereine.pensive& feasible& and ould not interfere unduly ith thetransportation of children from and to school!

• "ee olton – the only ay to remove the ris, of personal in+ury tothose outside the cric,et ground as to stop playing cric,et in thatlocation! "igni(cant economic and social costV

F! Gtiit8 of the defendant@s conduct•

elevant in cases that usually involve governmental services herethe inevitable price of direct and necessary bene(ts to the public isan increased ris, of in+ury to innocent persons

• *onsider the danger created& the nature and purpose of theconduct& the urgency of the situation& any alternative means of achieving the purpose and the surrounding circumstances or timeand place


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• Utility consideration ta,e into account society3s current degree of acceptable ris,K foreseeable ris, tolerated because it is integeral tothe ,ind of society e have

• In Bolton W "tone& big factor – usefulness of cric,et

• "ee &ammond v ,abna – volunteer (re(ghtersT court loo,ed at the

diSculty of their tas,& the utility of their conduct and the interest of the community

! Acce7ted 7ractice %customs)• *ustom indicates a course of conduct that has been found in the

past to be acceptable and aordable• 'roof of compliance ith approved custom provides some evidence

in duty of care• 4 deviation from customary standards is @ conclusive but it is

li,ely to be given signi(cant eight&. Statutes

(. Other actors/

$#er:enc8 situation ? 0mergencies tend to breed e.citement&confusion& and an.iety that may rob the defendant of his usualpoer to e.ercise prudent +udgment and due carePost3accident 7recautions – safety measures may be adoptedpost-accidentT the plainti may see, to use post-accidentprecaution as indicative of negligenceK double-edge sord& thenhy implement if it incriminates: 2udicia 7oic8 ? In respect to some activities the "** has imposedhigh standards of care %airlines& bus companies& dangerous activitiesthat may be a (re haard) and in others a more rela.ed approach

%contact sports& physicians)'olicy for a tough considerationK loss distribution anddeterrence'olicy for a lenient approachK sensitivity to professionalapproach

Don3t use the other factors brought up by sborn that e are notdoing in the classE

Bl*t# v B$r+$ng#a+ Water Wor"s 'o., 'ourt of -#e/uer, (105)

- acts/ Defendant installed a (re-plug %hydrant) according to the best,non system! "evere frost 2F years after installation caused damageto the plug and resulting in the plaintis premises being /ooded! heplug had or,ed satisfactorily for the 2F years leading up to theincidence!

-- Issue/ ;ere the defendants negligent in their installation of the (re-

plug in that they failed to meet a reasonable person standard: @


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-- 5easonin:/ he defendant did not fail to do hat a reasonable person

ould do in the circumstances – acted ith reference to the averagecircumstances of temperature in ordinary years! @egligence is 8theomission to do something hich a reasonable man& guided upon those

considerations hich ordinarily regulate the conduct of human aairs&ould do& or doing something hich a prudent and reasonable manould not do!9 4 reasonable man ould have acted in reference to theaverage circumstances of the temperature in ordinary years! 4reasonable man could not have provided for such an e.treme frost!

-- 5atio/ @egligence is the 8omission to do something hich a

reasonable man& guided upon those considerations hich ordinarilyregulate the conduct of human aairs& ould do& or doing somethinghich a prudent and reasonable man ould not do9

-

- ;ho is the reasonable person:- The reasonabe Person/ ) 3rland and 3rland v. !a*lor)- 84 reasonable person is a mythical creature of the la hose conduct

is the standard by hich the courts measure the conduct of all otherpersons and (nd it to be proper or improper in particular circumstances

as they may e.ist from time to time! He is not an e.traordinary orunusual creatureT he is not superhumanT he is not re5uired to display

the highest s,ill of hich anyone is capableT he is not a genius ho canperform uncommon feats& nor is he possessed of unusual poers of

foresight! He is a person of normal intelligence ho ma,es prudence a

guide to his conduct! He does nothing that a prudent man ould not doand does not omit to do anything a prudent man ould do! He acts inaccord ith general and approved practice! His conduct is guided by

considerations hich ordinarily regulate the conduct of human aairs!His conduct is the standard 8adopted in the community by persons of

ordinary intelligence and prudence!9

Paris vs Ste7ne8 The one e8ed weder

- ne eyed or,er& not provided ith eye protection

- "plinter in his good eye blinded him for life- Gay not reach the threshold of unreasonable conduct to not provide

goggles to to eyed employees- he fact that he as one eyed a#7iNes the seriousness of har#- Gade it unreasonable not to loer the ris, of blindness in both eyes3 I#7ortance of facts in reation to the seriousness of har#


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Dost of Avoidance ? Eares TaCi Dase

- Coung girl plays ith the loc, on the door- ;arned by the driver to stop- *hild falls out of the ta.i3 Dost of avoidance ? instaation of chid 7roof oc%s

- ;arning asn3t good enough& should have installed the loc,- ailure to do so created an unreasonable ris,

Gtiit8 of the Donduct 3 r$est+an v 'olangelo and S+*t#son

- "ocial contract – to have a functioning society& individuals sometimeshave to bear the brunt of things for the greater good of society

- 'olice chase case – controversial- High speed police chase& oScer shoots at the driver- "peeding through urban neighbourhoods

- 4ttempts to shoot the tire& hand is bumped and shoots the boy in thebac, of the head

- *ar is out of control& hits to omen at the bus stop and ,ills them3 Poice were not iabe, 7ubic interest outwei:hed the conduct- hey did meet a reasonable standard of care- *hanged the procedures for police car chases

!ounteer ire e7art#ents

- @ot held liable& they did their best3 on@t want to hod vounteers 7ersona8 iabe

- "ends the rong message to future volunteers- Utility of conduct – really important that e have volunteer (re (ghters

4X0 4;4CK 0G0@DU" IG'4@ 4*" I@ *4"0"& 704@ DI"*0@ H0 IG'4@ 4*" G H0 "C H4 40 I@ H4


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5easonin:K- ound no evidence of any customT but& even if there had been the

court is not of the vie that such a custom ould necessarily bedecisive against a determination of negligence in the case! %hey site7inden)

- it matters little that one3s neighbors also act unreasonable!

5atio/ the e.istence of customary practices does not oust the duty of care if

those practices are unreasonable!

nly in the rare cases ill courts ta,e custom into accountT +ust because you

comply ith custom it3s not decisive that you folloed the standard of care!

@ote on *ustom

' ' argues breach %rown) pg 1Q>

' D argues compliance %,aldic" ) pg 1Q' 'roof of custom rests on party asserting custom %,aldic" ) – the onusof proof of custom rests ith those that argue it

' 'arty asserting custom ill tend to de(ne it narroly %in terms ofnumbers and scope of geographic area in hich it3s found! 0.ample&,aldic" tries to assert the custom in their small part of ntario)Tparty denying it ill ant to de(ne it more broadly

' *ustom may tip +udicial scales here %a) issue of ris, evenlybalanced& andAor %b) court unfamiliar ith particular ris,

' *ustom a poerful ideaK recognied by people& folloed& accessible

4. Statutor8 Standards Osborne )7. 16'31&4- ( v% Sas"atchewanGorris v% Scott (yan v% 2ictoria 3+ity)

5ise of Statutor8 StandardsK- 4ccident prevention is a legitimate and important aspiration of

negligence la- ise of personal accident losses has led to a greater emphasis on

personal safety and the need for eective accident prevention

mechanisms- he erratic and indirect deterrent in/uence of tort la has led to

increase in legislative regulations- Gost legislation are silent on sub+ect of civil liability caused by

statutory breach %some outright don3t allo civil action for a breach)

ierent a77roaches to +reaches of Statutor8 ut8/


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1! ort of "tatutory Duty 0ngland – a breach of a statutory duty is a netort category

- he intent of the legislation is ta,en as underlying reason for thisapproach

2! 0vidence of @egligence *anada under Sas"atchewan ,heat *ool•

Breach of statutory duty as evidence to persuade a court that they fellbelo standard of care!

• "tatute may aord a speci(c and useful standard of conduct and thebreach may provide evidence of negligence but it is necessary toconsider all the relevant factors to establish failure of duty of care

• his approach does allo the court to ta,e into account the nature ofthe statue and the interest it is designed to protect& and to give specialemphasis to the evidence of breach of the statute

• *ompliance ith the statute is not a complete defence either and theeight to be given to statute over common la depends on the casebefore the court

-0!g! in (yan v 2ictoria the court too, that the common lastandard of careT the legislation gave signi(cant discretion to theidth of the gap and the case did not fall comfortably ithin thescope as the regulation as for railay crossings

- Gore eight is given to it here the legislation prescribesspeci(c statutory standard of conduct and the case fallscomfortably ithin the scope of the legislationT less eight isgiven here the legislation is broad and does not fall comfortablyithin the scope of the legislation

Eh8 did Danada reject tort of statutor8 dut8F '!1>2 %from ";' case)• Breaching a statutory duty is independent of fault

• In shifting a loss in negligence& need to have fault!

• In tort la& it is against principles to hold someone responsible herethere is no fault

• "hould only be a shift of losses if there is fault!

Sas%atchewan Eheat Poo ? ver8 ver8 ver8 ver8 i#7ortant case

acts/ "as,atchean ;heat 'ool& respondent& despite completing varioustests& delivered infested grain out of a terminal elevator %o the ship

ran,clie Hall) to the *anadian ;heat Board contrary to section Q %c) ofthe +anada Grain 1ct !

Dause of Action/ *anada sued on statutory breach @ alleging negligence

Issue/ Did the respondent breach statutory duty causing in+ury to appellantTdoes the appellant have a cause of action against the respondent: @& thereis no tort of breach of statutory duty


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4s ell& there is no evidence of negligence! he 'ool made regular chec,sand demonstrated that it operates its terminal up to the accepted standardsof the trade! hey did everything that a reasonable person ould do eventhough there as a breach of statutory compliance!

5easonin:K- The GS viewK if you don3t comply ith statute& you are automatically

negligent %not that there is simply evidence of negligence)o Breach of statutory duty there is negligenceK 8a reasonable

ould not brea, the la9 then if they do then it3s negligenceo Breach of the statutory duty is the presumption of the breach of

standard of care and no the onus shifts on "as,atchean;heat Board to come up ith defence

o Breach constitutes negligence per se- The G= viewK tort of statutory breach here you need not establish

fault – absolute liability for breach of statute %Board contends the 'oolis liable& even in the absence of fault& for breaching statute)

o his ould result in a ne tort of breach of statueT- *ourt also re+ects the vie that there is some ne tort duty that3s

recognied in the e.isting area of ort la- here has been also prima facie approach as ell ta,en by *anadian

courts before and this is also re+ected- hey mention that there may be good reason to use breach of statue

as evidence of negligence over recogniing a ne tort of statutorybreach

o 4voids the Y(ctitious hunt3 for legislative intent to create a civil

cause of actiono It avoids the in/e.ible application of the legislature3s criminal

standard of conduct to a civil caseo "uch a liability ould tend to produce liability ithout faultT a no-

fault torto HolmesK 8let loss lie here it falls9 – a principleE Unless you can

(nd faulto 4s ell& %sborn) the courts are reluctant to aard monitory

damages for pure economic loss in negligence tort %policyreasons- it3s all fair in competitive mar,et)

o 'ractical diScultiesK increase case loado emedy may be very out of proportion to hat they3ve done here

- The Danadian viewK middle of the 4merican and 0nglish vie –failure to comply ith statute is merely evidence of negligence and isnot determinative of negligence %complying ith statute does notnecessarily mean you are not negligent and non-complying ithstatute does not necessarily mean you are negligent)


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o he Board has not proved statutory negligence %they onlypleaded breach of statute)

o he evidence& hoever& shos that the 'ool has demonstratedthat it operated its terminal up to the accepted standards of thetrade – it made regular chec,s – so it as not negligent

-'! 1>$K loo, at the four rulesT "tatutory breach is under the la ofnegligence

5atio/ cannot assume that a breach of a statutory duty automatically shosbreach of the standard duty of care re5uired under negligenceT although&breach of standard of duty may be used as evidence of negligence!

>otes/- he plainti relied on the 0nglish "tatutory theory W the main

4merican '< hich the court re+ects- *ompliance or non-compliance ith statue – hat is the eect: It does

not mean that you are negligent for sure- Disproportionate compared to the amount of infestation they ere

responsible for- he case is not decided on negligenceT the case is based on a civil case

of statutory breach and the remedy for that breach- @ote the style of causeK the ;heat board is the agency of the cron- @oteK there as a breach of public la of Q%c) here there are (nes

paid to the governmentT hoever& government ants to have a civilaction for the breach of statue as a civil remedyT thus& the breach givesrise to a ne tortArecognie the tort of breach of statue %as UX does)

- he rule e derive out of this case is based on the obiter

*anadian


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actsK "cott %ship onerAdef) had contracted ith orris %pl) to bring sheepover! he sheep ashed overboard and ere lost! 'laintis sustaineddamage caused because of the failure of the defendant to deliver the sheep!"cott contravened order from *ontagious Diseases 4ct that re5uired allanimals to be ,ept in pens! 'urpose of this part of the 4ct in 5uestion as to

prevent overcroding in relation to preventing diseases from spreading!

IssueK Does the loss caused by the statutory breach allo the plainti tomaintain an action: >O

5easonin:K- *ourt loo,s at the purpose of the 4ct and the order under itT it as to

prevent spread of disease!- If the act safeguard against the very occurrence of hat happened& the

plainti ould succeed& but hen something that hadn3t beencontemplated by the 4ct occurs but could have possibly been

prevented by folloing the order& plainti loses!- *ourt says only those conse5uences the statute as designed toprevent can be claimed in tort

- Here there as no indication in the statute either direct or indirect& thatprotects against the loss suered by the plaintis

0.amining the "tatute3 or its 7ur7ose, intent, statutor8 7rovisions for civi actions

are critica- Ultimately the liability depends on fault and the application of

negligence principles

-


19/83

co#7iance faied to satisf8 the reuire#ent of objectivereasonabeness-

- Ho should statutory compliance aect liability in tort:

5easonin:K

- 8*ompliance ith statutory standards should not be vieed ase.cusing a railay3s obligation to ta,e hatever precautions arereasonably re5uired in the circumstances9 %p!2RR)

- he fact that a statute prescribes or prohibits certain activities mayconstitute evidence of reasonable conduct in a given situation& but itdoes not e.tinguish the underlying obligation of reasonableness

- 84 party acting under statutory authority must still ta,e suchprecautions as are reasonable ithin the range of that authority tominimie the ris,s hich may result from its actions9

5atio/

-*ompliance ith statute does not supersede the compliance ofcommon la standard of care

- Gere compliance ith statute does not& in and of itself& preclude a(nding of civil liabilityT it evidence of some negligence

- *reating a danger li,e that – it is highly foreseeable that somebody illbe hurt if they are riding a bi,e on the road

- ;as there an ob+ectively unreasonable ris, of harm:- rdinary reasonable person decides by assessing the folloingK

o 7i,elihood of harm plus gravity of the harm vs cost of avoidanceo 'lus custom& industry practice& statutory standards

- "tatutory standards B0*G0 4 '4 H0 4@47C"I"& not the (nal

measure- The wei:ht to be accorded to statutor8 co#7iance in

assessin: reasonabeness de7ends on the nature of thestatute and the circu#stances/

o If the statue is generalApermits discretionK in e.ceptional orsituations not ithin the statue mere compliance ill not e.haustthe standard of care

o If the legislative is speci(c standards v! generalK here a statuteis speci(c& it is more li,ely to be found that compliance ith astatute constitutes reasonable care

o Discretion in the manner of performanceK the more discretion in

ho to perform& the less eight goes to compliance ith statute

5oe of e:isative standards- elevant but not determinative- "tatutes do not e.tinguish obligation of reasonable care- Defendants cannot avoid reasonable care obligation by merely shoing

evidence of compliance


20/83

- 6ust as a breach can be evidence of negligence& so can compliance beevidence of non-negligence

- he nature of the statute and the circumstances of the case are criticalo he history of the economic considerations for the building of the

railays& had more rela.ed standards to encourage groth

>otes/- he court set a higher standard %the common la standard) than the

statute! he statute is in eect setting the minimum legal standard!Hoever the court standard can sometimes be loer& higher or at thesame level at the statutory standard!

5eview- Bro4n v olls o*e ' 4n employer hires a or,man and the custom in

the industry is to provide a cream to prevent dermatitis! hey do notprovide the cream and the or,man suers from dermatitis! he

or,man3s doctor says the cream does not help! Is the not providing ofthe cream a breach of standard of care: @ote ! '! 1Q>

o ,aldic" v !alcolm – breach of custom is a breach of standard ofcare but in conte.t! In this case the custom ent above and beyondthe call of duty! 80vidence of none compliance ith custom is notconclusive of negligence9

- 43s car crashes into BT 43s bra,es defective in violation of an 4ctT hat isthe relevance of the statutory breach to hether or not the defendantbreached the standard of care: hree scenariosK most-least breach ofstandard of care

o ;hat if defendant did not ,no his bra,es ere defectiveo He chec,ed his bra,es bi-annually as recommendedo He has his bra,es repaired the day before by a reliable mechanic

- 4ccording to the highay act a pedestrian must ear hite and al,against the traSc –the pedestrian has not done so and breached thestandard of care: "ee @ote

o Breached the statue and it3s relevance to breach of standard of careo Breach of statue is evidence based on "as, ;heat board but can

never be outeighed by other factors- Hat# v 6ord Motor '! 1>P @ote 2K the statue says you cannot have a

pointy ornament on your car! here is an ornament on a car and a boyruns into it and in+ures himself!

o ;hat is the purpose of the statue: o prevent in+ury caused bymoving cars

o In this case someone ran into the car and this eighs against abreach of statue %Gorris 4 (yan)

- @ote $K 1>QT here as a fence to protect against the machineT there asa particle that came /ying o and his a oman in the eye! ;as the breachof statue a breach of standard of care:


21/83

o he statue saysK protect against the machine coming into touchith the machine

o 'urpose of the statueK it as to prevent a ,ind of accident to acertain class of people

- Kell* v Henr* Mus# 'o. 0levator caseK statue here as a statue that

re5uire a guard around an elevator shaft! he purpose of it as to protectemployees! If no guardrail and someone as a tourist and fell as there abreach of the statue:

o he statue as not designed to protect anyone& only the employeeso he statue as breach cause of no guardrail but is it evidence

breach of standard of care: @ormally it is evidence but the betterevidence ould be if it applied to the class of people the statue asdesigned to protect

o @ot only must the accident be of a type that the statue as meantto prevent& but the claimant must be someone hom the statue asdesigned to protect!

-'! 1>> – a.i cab driverT "** – the cost of prevention very lo then li,elybreached the standard of care! ;hat about high costs:

S7ecia standards of care

- *ourts say special standards of care in certain situations can be higheror loer than those of reasonable persons

- he standard can be loer in the case of children& the mentallydisabled and the physically disabled

- "tandards of the reasonable person can be raised in the case ofprofessionals and specialists

aising or 7oering the "tandard of *are4! he CoungK &eisler v% !o"e

a! *anadian courts have adopted a mi.ed ob+ectiveAsub+ect test ofliability

b! *hildren of tenders years %belo F) have little capacity toappreciate danger and little chance they ill be held negligent

c! lder child underta,ing an an activity normally carried on byadults ill li,ely to be held to the adult standard of care

d! 'arents are not vicariously liable but may be liable for losscaused by a failure to ta,e reasonable care to supervise andcontrol their minor children

B! Gental and 'hysical DisabilityK $iala v% +echmane" a! In $iala the court chracteried tort la as a system of corrective

+ustice that should not be distorted by a robust pursuit ofcompensatory goalsT the defendant as robbed of his capacity tounderstand or appreciate his duty of care by sudden onset of aserious mental illness and he could not be found negligent


22/83

b! 7oered standard of care only applies to ma+or physicaldisabilitiesT there are obligations to ta,e precautions to preventforeseeable in+uries to the disabled

*! 'rofessional @egligence %special s,ills W ,noledges)K +halland# renner

a! he person ho represents themselves as having speciall s,illand ,noledge that allo them to perform tas,s that are beyondthe capacity of the ordinary person

b! "tandard of care is that of the reasonably prudent andcompetent member of that particular profession to hich thedefendant belongs

c! 7ittle support for locality arguments – rural and urban are treatede5ually as the reliance is on care& s,ill& and ,noledge to be thesame

D! 0mergencyK %5mergency !edical 1ct )

B. a- The oun:

A. he Coung - Two Part test set out for the 8oun: !c5llistrum v%5tches& "**/

1) ;hether the child has the capacity to perceive ris,:a! actors you considerK age& intelligent& e.perience& general

,noledge& alertnessb! If not& the child is immune& if the child does have a capacity then&

2) Did a child do something that a child of li,e-age& intelligent ande.perience ould do:

a! 4ge& intelligence& e.perience#) 0.ception to the testK

@o minimum legal age for liability in ort! %his is a 5uestion for theparticular +udge in the particular case)

Qeiser v Mo%e

actsK >-year-old child as arned about +umping& and he as pressingdon ith his leg on the clutch of a tractor hile holding onto the steeringheel to brace himself! In+ury resulted

IssueK;as the child capable of negligence:

- ;as there any negligence on the part of the infant child causing in+ury:@ %he child& considering his age& intelligence& and e.perience couldnot have possibly foresee the conse5uences)

Two tests #ust be #et when the defendant is a chid


23/83

1) Is the child capable of being negligent at la& or & is the child able toassume responsibility for his or her actions: 4ge is an importantfactor

2) ;hether the child as negligent and to hat degreea! ;hat ould a reasonable child of that age& intelligence& and

e.perience be reasonably e.pected to dob! his portion of the test is somehat more ob+ective but hassub+ective elements

c! @ negligent – could not have been e.pected to realie orforesee the conse5uences of his act

- *hild as intelligent& e.perienced& clear& had no problems ofunderstanding or remembering& able to articulate the issue

- @ot li,ely to burden a child ith a settlement

5easonin:K- est for an adult is based on a reasonable person

- In *anada& the test isK the child of li,e age& intelligence and e.periencefor children ith capacity to perceive ris, %!c5llistrum v% 5tches& "**)T- his child as intelligent& alert& > years old& remembered events clearly

over # years before %as capable of negligence)& BU& he could notpossibly be e.pected to realie or foresee the conse5uences of his act

5atioK o part testK the test for negligence on the part of the child is

the modi(ed sub+ective test if over the a:e of & %no min agethough& still a 5uestion for the +udge)T to loo, at hat a child of li,eage& intelligence& and e.perience ould do!

%1) Determine if the child is capable to perceived ris,: *onsiderthe particular child %age& intelligent& e.perience& general,noledge& alertness)%2) Determine hat a child of li,e age& intelligence& ande.perience ould do: If the child ould not do it& thenresponsible for standard of care

*hildren engaged in adult activities are held toan adult standard of careK reasonable man

Do##entsK

- *hild ill not be held up to the adult standard of care! Belo age of F-P %8tender years9) they are not held liableAare incapable of negligentTnot about the number you do have to loo, at the particular case

- If a child is involved in adult activities %heightened ris,) there is ane.ception you treat them as an adult

o 0.amples such as operating a car& airplane& or poerboatbecause an approaching motorist can3t tell hether the operatoris a child and can3t protect themselves against youthful


24/83


25/83

he la ma,es e.ceptions to the standard of care of individuals ho arementally incapable of acting ith reasonable care

- 0.ceptions to liability arise in 2 situationso ;here the defendant3s actions are involuntary& to be liable the

defendant must have volition

0.! "eiures& sleepal,ing& movements during sleep&allergic reactions

If a person is not directing their body in a ay that theyhurt someone& can they be found liable:

o ;here the mental disability prevents the defendant fromcomplying ith an ob+ectively reasonable standard of care

1)


26/83


27/83

5atio/ o be relieved of a duty of care in the case of mental illness& it mustbe serious mental illness& and it must be sudden and unforeseeable! If this ismet& then the defendant had no capacity or no control

1) I@*4'4*IC 2) I@otes/- @egligence through intellectual de(ciencyAstupidity %imposed by

nature)K 2aughan v !enloveK not a defense- (oberts v (amsbottomK defendant ho had a stro,e and drove his car

into people 2R min later and as held liable – the court ill only accepta total lac, of control& his position is the same as 8the driver ho is oldor in(rm9

o he court goes the dierent ay in a situation of a Ypartialconsensus3 versus $iala here there as a Ymanic episode3

o ;hat distinguishes the case: In amsbottom he put himself

voluntarily in the situation and he did not have a lac, of#eanin:fu controlT there as arning and it as 2R minuteslaps so if you put yourself meaningfully in that state then you arenot relieved

o ;hat3s the relevance that he as driving a car: 4n adult activityand it seems the courts have been more reluctance to reduce thestandard of care hen there is ris,y activity involved! $iala 8'! F2&he as not driving the vehicle at the time9

- Slattery v &aley K the defendant suered a stro,e hile driving and,illed a boy on the sideal,! he +udge said no liability& the act 8mustbe shon to have been the conscious act of the defendant3s violation9

-,enden v Tri"aK a mentally disabled person as driving and in+uredsomeoneT the +udge re+ected the vie that the defendant3s mentaldisability should be ta,en into accountT the defendant at the time ofthe accident as being treated for his psychosis but still the +udge heldhim to be sub+ected to the standard of reasonable person

- ;hat if a person as drun, or under the in/uence of drugsinvoluntarily and ithout his or her ,noledge:

- Genlov – told by god to pile the stac, of hay by god& all of a suddenand ith no prior mental illness! ;hat can you conclude:

o Eas it sudden8F

o Eithout warnin:o ARicted with a #enta inesso Invountar8 or inca7acit8F

InvoluntarinessK 84s a result of mental illness V!as he hadno meaningful control over his actions overtime9 %this isho involuntariness is de(ned)T the de(nition in $iala isvague& so hat are some e.amples of involuntariness:"eiure& sleepal,ing& unconscious& tourettes& diabetic


28/83

shoc,& hypnosis& are all clear cases of involuntary casehere there is partial consciousness e!g! hen youvoluntarily put yourself into the situation& manic episode&partial unconsciousness

Incapacity: *hildren of tender years& mental

illnessAdisability %utley +ase – syphilis of the brain)& drugs&delusionsAhallucination& and in(rmity! It seems thatincapacity must be related to being a\icted ith mental

illness

Last 8ear@s #idter#/ "yd is at a Halloeen 'arty in the 'rovince of@ealta& *anada& here he drin,s four beers in an hour and then drives inhis car to the ne.t gig! But un,non to "yd& someone had spi,ed his beersith *omo& a drug hich causes manic episodes if mi.ed ith alcohol!;hile driving on Beerfoot rail& "yd has a manic episode! Believing he is/ying an alien space-ship& "yd tries to 8land9 it in the median ditch! 4s hecrosses the lanes to get there& he collides ith a vehicle carefully driven by 6erome! 6erome& ho is seriously in+ured& sues "yd in negligence! Is "ydnegligent:

- ne ay to argueK he is driving a card& adult activity& etc!- ;hat if it3s a bicycle: he number of beers ma,e it unclear as to

if he as drun, or not- here may be to sources of negligenceK even if he is relieved of

liability and negligence may be due to consuming beers *osmos O drugs causing the mental episode 4nalogous to iala& same issue

- If "id has incapacity& hat can e say if he dran, too much: 12beers in an hour& has a temporary manic episode! ;ouldvoluntarily put himself in the situation therefore& no e.cuse!

Ph8sica isabiit8

Ph8sica isabiities Test/• educing the standard of care in some circumstances& still have

reasonable standard to accord ith the physical disability aspect of theperson!

• *ant set a standard that ould be impossible or a person to meet• 84 person ith a hearing disability is not re5uired to hear& a physically

disabled person need not be nimble& nor is a person ho is blindobliged to see& although they are e.pected to avoid getting themselves

into positions of danger9• If the person ,nos they have a disability that might in+ure someone&

then they must ta,e reasonable steps to ensure that this does nothappen!


29/83


30/83

- Day #& further signs of trouble – spasms in the arm& sends the patientto a specialist in 0dmonton

- he specialist diagnoses the gas gangrene infection and his arm isimmediately amputated

- he doctor as a local& general practitioner

Issue/ ;as the defendant negligent in that he breached the standard of carein treating the defendant: @ %His treatment as correct and it did not dierfrom that hich even a specialist ould have given)

Standard of care a77ied – visual inspection of the ound& .-ray of theound& +udged it as clean& rapped the ound& gaued it& put it in a cast&chec,ed selling

Painti@s ar:u#ent – should have cleaned out the ound by debriding&failed to monitor the circulation of the plainti3s arm& failed to remove the

cast hen circulation problems became evident& defendant ought to have,non the ris,s

Dourt Standards of Dare Owed b8 octors- Highest level of s,ill is not re5uired- @o guarantee of a cure- 0rrors in +udgment are ithin a reasonable standard of care being

e.ercised- 7evel of s,ill& ,noledge and +udgment of the average of the group to

hich the defendant belongso In +udging the average& regard must be had to the special group

to hich he belongso 7ocality rule – dierence beteen a rural general practitioner to

an urban specialist& has not been overturned but probably a badidea

- "ome treatment may dier from others in the standard of care used inlight of their on e.perience& the circumstances& and the individualbeing treated

- Distinguish beteen an error in +udgment and acts of carelessness oruns,illfulness

- If the decision as the result of e.ercising that average standard& thereis no liability for an error in +udgment

3 Test for standard of care in #edicine, fro# W$lson v.S4anson )SDD, 1'B6-/1! "urgeon underta,es that he possesses the s,ill& ,noledge and

+udgment of the average %of his group)


31/83

2! In +udging that average& regard must be had to the special group tohich he belongs! %7ocality ruleK Dierent from a rural ' to an urbanspecialist& this has not been overturned but it seems li,e a bad idea)

#! If the decision as the result of e.ercising that average standard& thereis no liability for an error in +udgment!

o 8where the e.perts disagree but some of them support thetreatment given# then surely the treatment given by the general practitioner should not be criticied# and one must always "eepin mind the importance of viewing the treatment and seeingmaters through the eyes of the attending physician6

- here are some groups of people that the courts seem to defer to&doctors are one of them

o eluctance to condemn another professionalo Utility of conduct:

- ;hat is not done is e5ually as important as to hat is done

>otes/- Ter 7euen v 8orn %"** 1>>F)K defendant contacted HI

had acted in accordance ith the usual medical practice of the time! he +udge ruledK 8doctors have a duty to conduct their practice inaccordance ith the conduct of a prudent and diligent doctor in thesame circumstances!9 4s for the eight of custo#ar8 7ractice/ the8courts do not ordinarily have the e.pertise to tell professionals thatthey are not behaving appropriately in their (eld! In a sense& themedical profession as a hole is assumed to have adopted procedureshich are in the best interest of the patients and are not inherently

negligent9 BU 8if standard practice fails to adopt obvious andreasonable precautions hich are readily apparent to the ordinary(nder of fact& then it is no e.cuse for a practitioner to claim that he orshe as merely conforming to such a negligent common practice]

o Porf i%es this test betterJ- ,hitehouse v 9ordan %H7 1>Q1) – 8an error of +udgment is not

necessarily negligent9 if it is one made by a reasonable competentprofessional acting in ordinary care

- ;hat about ine.perienced doctors: hey are held to the same degreeof s,ill e.pected from an e.perienced one

- ;hat about interns: 1ldana v !arch 3+S+ :;;;)& the standard of care

re5uired of an intern is 8that of a reasonably competent intern& not apracticing physician or specialist9

- Is there a dierence beteen a city and a rural doctor: !c+ormich v!artcotte 3S+( :;


32/83

o Ho far the rural community iso 0.pectation that the doctors ,eep up ith ne development in

rural or city areaso "hould e abandon the locality rule:

- ther health oScials are held to their on group standard! 0!g!

midife is +udged against the standard of other midives& etc!- 'rofessionalsK hether or not you have specialied s,ills or ,noledgeT

focus on these elements

0mergency Gedical 4id 4ct- Dierence of standard of care for the average person aiding in an

emergency than a medical professional in the same situation- ross negligence ill be met at dierent levels depending on the

persons ,noledge and training

- "pea,s to negligence& loers the standard of care- 'ublic policy of encouraging rescue in emergencies because you on3t

be held liable for being negligent- *annot be held liable until you meet a standard of gross negligence- peration of the legislation is to forgive a higher standard of care& but

recognies that ithin that loer level there is still to levels of care atthat level

+renner v. Kre:or8 )O> Qi:h Dourt, 1'&-

+renner v. Kre:or8 )O> Qi:h Dourt, 1'&-actsK B %pl) hired %defAlayer) to search the title and to close thetransaction of a purchase of $ ton lots! Brenner had inspected theseproperties several times& never re5uested regory to do a survey! O

5easonin:K- 0.pert – 8a reasonably competent and diligent solicitor in that area

acting for a purchaser ould not be e.pected either to secure a surveyor to advise his client to do so and his failure to do so ould notamount to negligent9

- here as no loss suered because of this 8error9 either %needdamages in negligence)


33/83

- It is not enough to prove that the solicitor has made an error of +udgment or shon ignorance of some particular part of the la& but itmust be shon that the error or ignorance as such that an ordinarycompetent solicitor ould not have made or shon it

5atio/

he duty oed by a solicitor is to act in accordance ith the generaland approved practice unless such practice is inconsistent ithprudent precautions against a ,non ris,& as here particularinstructions are given hich the solicitor fails to carry out

;hile don3t need to ,no all of the la do need to ,no hat e don3t,no

>otes/- Prof/ this case is not the best case, just %now the standards

are for a aw8er %reasonable layer may do a survey)- "hould the courts recognie de facto specialiation of layers: "hould

there be a higher standard of Z* or specialied layers li,e there is for

doctors:- It is not easy to prove negligence against a barrister in conduct of a

trial! ,echsel v Stuts 307T :;>?) the court said an error of barristerneed not be Yegregious3! But must only be unreasonable& that is!"hoing an absence of reasonable care& s,ill and ,noledge9

- 6udges are immune from tort of liabilityT and so are 5uasi-+udicialoScers li,e the la society

- 0J*0'I@ *4"0"K 'otential liability of professionals can e.tend to athird party detrimentally aected by the negligent or, and give riseto action! 0!g! negligence to bene(ciaries of a ill!

- he (eld of professional liability is hugeK recall volunteer (re(ghters in

&ammon v ,abana W the police oScer in a car chase in urban" volton

- It is not enough to prove that the solicitor has made an error of +udgment or shon ignorance of some particular part of the la& but itmust be shon that the error or ignorance as such that an ordinarycompetent solicitor ould not have made or shon it!

- 7ayers are not e.pected to ,no everything – you have to ,no hatyou don3t ,noV If you don3t ,no an area of la& you ill be found tohave breached your standard of care if you don3t see, senior advice

- "ee notes 1& 2& $& F& P

1) 4 solicitor is not re5uired to ,no all the la applicable to theperformance of a particular legal service& in the sense that he mustcarry it around ith him as part of his 8or,ing ,noledge9 of thefundamental rules or principles of la applicable to the particularor, he has underta,en to enable him to perceive the need toascertain the la on relevant points!


34/83

) 6udges are immune from tort liability for their mista,es – ma,esgood public policyT cron prosecutors are also 5uasi immune –police are @P) ne can easily see ho the potential liability of professionalsould e.pand if third parties detrimentally aected by the negligent

or, of professionals ere given a cause of action – i!e! a ill honegligently prepares a ill ith errors& can sue for hat as in theill& hat they ould have got if he had not been negligentQ) 'ritchard commission – 7ayers and dentists have e.periencedsharp increases in the fre5uency of claims

- his case is vague and open ended – diScult to ascertain our standardof care from this case – sub+ect to a +udgment call made by the layer&and hat another layer ould have done

- 7ayer negligence is often missing a limitation period – can3t argue anerror of +udgment

o 7and transactions here a title isn3t properly searched and liensare on the property

o ;ill isn3t properly itnessed or dates @ot necessarily errors in +udgment& +ust errors in statute or

procedure

$#er:enc8 Medica Aid Act- "tatutory standard of care to encourage rescuers to voluntarily assist

in emergencies- "tatute applies to accidents& illness& unconsciousness

- "tatute separates to groupsK 4pplies to health professionals andordinary citiens

- 7oers the standard of care to gross negligence- escuers are protected up to gross negligence- ross negligence ould be higher for professionals- iered standard of care

$#er:enc8 Medica Aid Act

" If& in respect of a person ho is ill& in+ured or unconscious as the result of an accident orother emergency&

%a) a physician& registered health discipline member& or registered nursevoluntarily and ithout e.pectation of compensation or reard renders emergencymedical services or (rst aid assistance and the services or assistance are notrendered at a hospital or other place having ade5uate medical facilities ande5uipment& or

%b) a person other than a person mentioned in clause %a) voluntarily rendersemergency (rst aid assistance and that assistance is rendered at the immediate


35/83

scene of the accident or emergency&

the physician& registered health discipline member& registered nurse or other person is notliable for damages for in+uries to or the death of that person alleged to have been caused byan act or omission on his or her part in rendering the medical services or (rst aid assistance&

unless it is established that the in+uries or death ere caused by gross negligence on his orher part!

- he 4ct loers the standard of care in certain situations- %a) Doctor& nurse& etc or %b) someone else

o ;ill not be responsible as long as you aren3t grossly negligentand help voluntarily and ithout compensation

o *an be negligent& +ust not grossly negligent- 4llos for good "amaritan type acts

a#a:e

- 'roof of damage or loss is re5uired for a tort of negligence to succeed- Distinguish 8damage9 from 8damages9 hich is the amount of

compensation aarded- here are pecuniary and non-pecuniary damage! 0.amplesK medical

e.penses& property damage& loss of income& pain and suering& loss ofen+oyment of life& pure economic loss& psychological damage

o 7oss of potential earnings and future care are the biggest headsof care

- 'ecuniary %measurable in the mar,et place)- @on-pecuniary %immeasurable& intangible)- 'unitive %punishment) – designed to punish& controversial because tort

la is not designed to punish& but there are some torts that are soegregious or deliberate or careless that the +udges ant to havesomething to send a stronger message about that behaviour thenpunitive damages are available for the +udges to aard – defamationcases&

- hen you can distinguish general and speci(c damages

There are three cate:ories of co#7ensatabe har#da#a:e/1! Harm to a personK in+ury to person or death %e.p! battery&

negligence)T sub-categoriesKa! 'hysical in+ury %+halland v ell)

i! 0!g! having your teeth ,noc,ed out is not a 7ure economical loss& it as as result of physical in+ury

b! 'sychological in+ury %;ill be discussed under remotenessK thecourt says that it must be a recognied psychological illness&simply being upset does not cut it)


36/83

2! Harm to property %e.p! trespass to property)T multiple types ofproperty! "ee property class!

a! eal propertyb! 'ersonal propertyc! *hattels

#! 'ure economic lossKa! enerally it is not counted a ,ind of harm that iscompensatable e.cept for a fe e.ceptional circumstances%ill go over it in class)

b! 0!g! of a 7ure economic lossK pia store 4 causes ban,ruptcyin competition ith pia shop BT no physical or psychologicalor property damages! hrough competition there is a pureeconomic loss and does not counted as compensatable

7imitation 'eriods

- ime starts to run from the moment the in+ury is discovered – the8discoverability rule9- Basic limitation periodsT in medical cases – 1 year- ther cases – 2 years- est is hen the plainti ,ne or ought to have ,non about the in+ury- 7egislated e.ceptionsK ntario e.ample- *hild abuse victims – time does not start to run until the victim

becomes aare of the connection beteen the harm suered and theconduct of the victim

- here is a presumption that the victim ill not ,no until in therapy- nce the statement of claim has been registered& the cloc, stops

- It can often ta,e time to see hat the in+ury is going to be long term&good practice to ait and see the e.tent of the damage

- e5uires a search of the applicable statutes to (nd out hat thelimitation period is

- he legal developments that have happened in the past fe yearshave been in the area of charter litigation

- 7imitation periods are sub+ect to the *harter of rights and freedoms- Unconstitutional to put a limitation period on people ho are unaare

of legal actions available to them or unable to see, legal counselbecause of their circumstances

o Understanding of the harm that has been done to them %therapy)

o r they are able to go see a layer %domestic abuse& may not beable to get out of the house – nature of violence and controldictates their ability to see, third party assistance)

- 0.ceptions to limitation periodsK here the victim is a minor& time doesnot run

- ;here the victim is physically or mentally impaired& time does not run


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- If victim3s harm is caused by se.ual assault& and the victim is adependent of the defendant or in an intimate relationship& time doesnot run

- Ginors – action ta,en by an adult on their behalf – public trustee orfamily member

Dausation

,hat plaintis must prove- he plainti must prove that the defendant3s rongful act caused the

plaintis loss

- B4"I* estK the 8but for9 test

#ave su>ered t#e loss?<

- If the anser is 8no9& then the defendant has caused the loss

- If the anser is 8yes9 then the defendant3s negligence is @ a causein fact of the plainti3s loss

- Has to be a lin, beteen the damage and the breach of standard ofcare

- he but for test deals ith causation in factK hether or not 4ction 4 infact cased B

- here are to e.ceptions to the 8but for test9o If the but for test is unor,able& the courts have recognied that

causation is established here the defendant3s negligenceYmaterially contributed3 to the occurrence of the in+ury

In Snell this circumstance reversed the tactical

burdenAburden of proof • *ausation need not be proved ith scienti(c

precision +oo"@ reverses the onus ,al"er@ greater ris, $airchild@ greater ris, (esurface@ court re(ned the 8material contribution test9

o ModiNed objective test %(eibel)

4pplication of the 8but for9 test

1) ;hat is the harm: ;hat is the damage to the plainti:2) ;hat are the speci(c acts by the defendant that the plainti is allegingcaused the harm:

#) ;hat is the standard of reasonable care:$) ;ould the plainti3s harm have occurred had the defendant been

acting ith reasonable care:

Osborne )7. B360-


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- *ausality is concerned ith the factual issue of suSciency of theconnection beteen the defendant3s rongful act and the plainti3sloss

- here may be a number of causes& tortious and non-tortious& as long asthe defendant3s act is a cause of the plainti3s damages& the defendant

is full liable- he material contribution test – applies to situations here both

defendants3 actions are regarded as a cause-in-fact because itmaterially contributed to the loss

- M@#eeK e.pert scienti(c and medical evidence could not determinecausation and the House of 7ords rules that the material increase inthe ris, may be e5uated ith a material contribution to the diseaseTent further and said the proof by plainti that the defendant asnegligent& couples ith proof that the plainti3s losses ere ithin thescope of the ris, created by the defendant3s negligence& as suScientto reverse the burden of proof of causation

-In Snell the act of the surgeon has increased the ris, of damage to theoptic nerve and the loss of sight as ithin the scope of that ris,& butthe court emphasied that causation can be applied in a /e.ible&pragmatic ayT and here the facts lie particularly ithin the,noledge of the defendant& little aSrmative evidence to of causationis re5uired of the plainti and& in the absence of evidence to thecontrary& it is fair to ma,e an inference of causation

- In Wal"er state the court appeared to favour a more e.pansive roleof the material contribution test here the but-for test as unor,ableand the contribution as material if it as not trivial

- esurAe the court said that material contribution test is applicable

only in e.ceptional circumstances here 1) it is impossible %such aslimits of scienti(c ,noledge) for the plainti to prove that thedefendant3s negligence caused the plainti3s loss on the but-for test 2)the harm suered by the plainti is ithin the scope of the ris, createdby the defendant3s negligent conduct – in these circumstances liabilitymay be imposed because to deny it ould be to oend basic notions of fairness and +ustice

o his test as the applied in 6a$r#$ld

+urden of 7roof - 'lainti has the burden of proving a hypothetical

- i!e! hat ould have happened had the defendant e.ercisedreasonable care:

- *ircumstances of the case assist the plainti - here can be more than one cause- Have to loo, at all of the circumstances surrounding the damage to

help establish the hypothetical- In most situations& there is more than one cause


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- Gultiple reasons usually come together resulting in harm occurring –ma,es the challenge more diScult

'ure speculation or cause in fact:- hroing (recrac,ers and throing bottlesK

- Gare, v "outhern 0nterprises and 0ast e.as heatres v utledgecases demonstrate the diSculty in proving hypothetical causes "ee p!F2 sborne

- Had the theatre done something dierently& ould the plaintis harmhave occurred:

- 4lleging that the theatre is negligent for failing to do something& butfor that failure he ould not have suered ear damage

- But for the defendants failure to turn on the lights& the plainti ouldnot have suered damage to his hearing

- (utledge – the plainti as hit on the head by a bottle& female asleaving the movie theatre – bottle thron from a balcony by an

unidenti(ed person! During the course of the movie& the crod hadbeen rody& plainti is arguing that but for the failure of the theatre todo something to prevent the rodiness& she ould not have sueredthe in+ury to her head by the /ying bottle

- *ourt has to decide on a balance of probabilities – has the 8but for8test been proven:

- *ourt disagreed that causation had been made outo *ourt of 4ppeal said that it had not been establishedo He ouldn3t have been e+ected even if the theatre had stepped

in- Does the failure to ta,e care lin, up ith the in+ury:

- *ausation is diScultE

=au#an v T.T.D. )S.D.D., 1'60-

actsK X as in+ured hile ascending an escalator! o scu\ing youths fellon a man ahead of her& ho fell on her!

IssueK ;ould the act of * in putting in better handrails or an attendanthave avoided the accident %did the failure of * to do this cause theaccident): @

Dai#/ Ybut for3 the lac, of the handrail or attendants the harm ould nothave occurred

5easonin:/- @o evidence that a lac, of handrails as a contributing cause of X3s

8accident9!


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- In this case& the 8but for9 test as not met – evidence did not shothat she or the man above her had used the handrails at all

- @o evidence that 8in the circumstances the plainti ould not havefallen if her hands had been grasping a rubber oval hand rail9

- It is a fundamental principle that the causal relation beteen the

alleged negligence and the in+ury must be made out by the evidenceand not left to the con+ecture %guess) of the +ury! 4ppeal dismissed!

5atio/ Gust be evidence to prove the causal relation – can3t +ust bespeculation

>otes/- @ote 1K 7av$dson v 'onnaug#t La;orator$es %nt! H*) thepharmaceutical company as sued for failing to ade5uately arn doctorsthe harm from a medicationT the council for the pharmaceutical companysays the doctors ould have done it anyay so there is no Ybut for3

causation! hey ere relieved of liability because there as no evidencethat the failure to arn the doctors as a cause of the plainti3sdamage& and hence there could be no liability!

o 'arallel to the ,al"er 5stateT if you can3t use the Ybut for3 test tosee if ;al,er is able to give the blood then hy not apply it tothe doctors

o 'rof used this in last year3s e.am- @ote 2K the lac, of evidenceT in Horsel* v MaLaren %"*) a number of people attempted to save the person ho fell overboard& the court foundthat the negligent rescue did not cause the death& the person ouldhave died anyaysT on the baance of 7robabiities it as not shon

Ybut for3 he died because of improper rescue measures

Muti7e causes which co#bine to cause one injur8

- he defendant3s conduct need not be the sole cause or even thepredominant cause of the harm

Athe8 v Leonati

- In 4they v 7eonati – p! 1#& "** held that here 2FN of thecause is connected to the negligent conduct it canresult in 1RRN liability

o 're-e.isting bac, conditiono ot in to accidents that further in+ured his bac,o ;ent to the gym afterards& doing some mild stretching

e.ercises ithin the range of hat as approved by his doctoro 4ctivity results in a herniated dis,& out of or,o Gultiple causes of harm – pre-e.isting in+ury& car accident ^1& car

accident ^2& stretching


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o "ues one defendant – negligent driving is found to be responsiblefor 2FN of the herniated disc

Issue/ can an in+ury be apportioned beteen tortious and non-tortiouscauses

- 4 pre-e.isting bac, in+ury %non-tortious)- 2 successive in+uries caused by 2 dierent negligent drivers %tortious)- @on tortious in+ury from or,ing out- esult of all $ causes combined as a herniated disc – an inevitable

in+ury- Defendant is found to be fully liable for the total in+ury

- If otherise& plaintis ould not be fully compensated – not beingmade hole againE

- But for – contributing factor as enough& eventhough it asn3t 1RRN

- Defendant can also then sue the other negligent driver for contributionif he anted to

Princi7e/ here defendant caused only a part of the in+ury' 1s long as the defendant is part of the cause he/she is liable even

though the act in Auestion alone is not enough to create the injury –the material contribution test

- @o reduction of liability +ust because other causes or pre-conditionse.ist – defendants remain liable for all of the in+ury they contributed toor caused %thin s,ull principle) – ta,e your victim as you (nd them

3 Painti is entited to be 7ut bac% in their ori:ina 7osition ? nobetter or no worse- 8but for9 asn3t an issue – 5uestion is hat the e.tent of the liability is

Dru#bin: S%u

- he plainti cannot be put in a better position thanthat hich e.isted prior to the negligent act

- If the plainti had a pre-e.isting in+ury that ould have eventuallycaused a herniated disc in the future independent of other causes&then there ould be a reduction in overall damages

- Don3t ant to over-compensate the plainti – i!e! a cancer patient hois only going to live for 2 years

- pposite in eect of the thin s,ull principle- If the person comes to the negligent event& already disabled ith

respect to the ultimate in+ury that happens to them& then the tortiousindividual does not have to pay to bring them bac, to a non-disabledperson

- Damages loered so plainti isn3t over compensated


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- ort is only designed to compensate for the actual in+uries caused bythe defendants

- @ot a pre-e.isting crumbling s,ull

Ehen causation cannot be 7roven due to co#7eCities

- In medical malpractice cases and others – the plainti may not ,nohat happened to cause their in+ury- he defendant physician or technician is in a much better position to

,no- iven the rule that the plainti has the burden of proof throughout&

plaintis ould be left ithout compensation in these types of cases

Sne v arre )SDD, 1''0-

acts/- Dr! negligently proceeded ith operation creating an unreasonable ris,

of causing blindness – noticed bleeding in the eye during the operationbut continued anyays

- 'lainti suers blindness in her eye after the operation- ther possible causes e.isted such as the plainti3s diabetes& eight

and age- Ho can the plainti prove it as the Dr!3s negligence that caused her

blindness:

- @ot contested that the Dr! failed to meet the standard of care – heshould have stopped the operation hen he sa the bleeding

o But that is not enough& it has to be shon that this failure tomeet the standard of care is hat actually caused the blindness

Issues/ Basic issue – Did the doctor cause blindness: In a case where the;%nowed:e< is with the doctor and the action of the doctor;#uddies< N:urin: out the but for@ causation, what is a77roach inoo%in: at causationF

5eversed +urden of Proof

- "** had to deal ith earlier cases that shifted the planti3s burden ofproof to the defendant to disprove causation

- Gchee case as folloed in the courts belo – as long as thedefendant created an unreasonable ris, of the in+ury that occurred&then the defendant must prove that the ris, did not cause the in+ury –shifting the burden of proof

o Huge reaction in the insurance companies and medical (eld


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o 'remiums ent up& claims ere up- Up until "nell and arrel& *anada had been folloing the House of 7ords

in Gchee – in diScult situations here scienti(cally& causation hadnot been proven

'roblems ith shifting the burden- esult may be too harsh on defendants- Gedical malpractice crisis in the U" and UX - 'ublic policy issue ith respect to potential of defensive medicine

being practicedo esponse by the medical communityo ver due testing or ill avoid procedures that carry certain ris,so @egative result for patients

"**3s evidentiary solution- Disagreed ith the Gchee solution – too harsh to shift the entire legal

burden to the defendant- But – causation need not be proven ith scienti(c precision- ;here defendants have special ,noledge of the facts& very little

evidence on the part of the plainti ill +ustify the court in draing aninference of causation if there is no evidence to the contrary

- @o response or very ea, response& then the court can dra aninference

- *ourt dierentiated itself from Gchee – if the plainti can bring someevidence& but the defendant cannot respond or disprove it – then thecourt can infer

- he solution re5uires eighing the evidence& not shifting the burden

- 4s long as the plainti3s evidence is more than deminimus& the defendant should anser it to avoid anadverse inference of causation

- he plainti3s evidence need not be scienti(c proof – here it assuScient to prove causation

;hen 8but for9 brea,s don because of multiple causes- ;here there are multiple causes& any one of hich could have caused

the entire harm& and the plainti cannot prove hich one is responsiblefor the loss

- 0!g! 2 defendants each light a (re – plainti suers a loss as result ofcombined (res& each of hich as capable of causing the entire loss

- estK but for the negligence of the defendant& ould the plainti havesuered the loss

- 'lainti cannot succeed against either one of the defendants using thebut for test

But for the test brea,ing don


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- he but for test has the eect of e.onerating both defendants fromcausation

- 6ustice re5uires that both be responsible- In this limited circumstance& the court ill shift the burden to disprove

causation to the defendant

5atioK• he legal or ultimate burden remains ith the plainti& but in the

absence of evidence to the contrary adduced by the defendant& aninference of causation may be dran& although positive or scienti(cproof of causation has not been adduced tactical burden

• hat here the sub+ect-matter of the allegations lies particularly ithinthe ,noledge of one party& that party may be re5uired to prove it

>otes/

- But is hat "opin,a doing& reversing the proof even though he criticieGchee: @ot reversing the onus proof because the legal burden is still

on the plainti& and it is the tactical burden that shifts- Gti#atee:a burden overall the ultimate burden it is the plainti

that a rong occurred and proves the elements of tort! If not everyelement of the tort is proven& the plainti does not succeed

- Shiftin:$videntia burden If very little aSrmative evidence& youGU" dra an inference of causation U@70"" defendant brings incounter evidence – #andator8 %feels this is unfair as reversing theonus of proof) W$g+ore – as soon as the doctor operates& he3screating more ris,& so ould shift – ould open /ood gates!

o his is a burden that is relative to the evidence introducedo *hallenge to "opin,aK if the patient introduces very little

evidence& isn3t that +ust shifting the evidential burden: He saysnoE He distinguishes it by loo,ing at may vs! must& in shifting theevidential burden if the doctor does not anser hy hecontinued to operate you GU" infer that that the doctor is guiltyhereas in the tactical burden you G4C infer

- Tactica burden discretion, +udge can choose based on theevidence here the burden lies

o It comes in hen evidence is particularly in the hands of thedefendant – tactical shift of the burden of proof – if they don3tcough up the information& they run the ris, of an adverseinference! 0.! Sne v. arre

-The Danadian testK


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Doo% v Lewis )SDD, 1'B1-

acts/- 'lainti and defendants ere both hunting in the same area- 2 defendants negligently (ring their guns at the same time& creating

an unreasonable ris,- 'lainti is shot& but plainti normally must prove causation- Both defendants deny they shot the plainti - Impossible for the plainti to prove hich one (red

IssueK *an the burden of proof be shifted to the defendant in the case hereit can3t be determined hich of the to defendants is negligent: C0"

Princi7e- he eect of the multiple discharges confuses their eect- he plainti proved that both ere negligent toards him

- he plainti is the victim of 2 rongs – the physical damage to hisperson and a legal remedy for the rong because of the confusion ofthe conse5uences caused by both defendants

- *ourt shifted the burden to both defendants – and the plaintis legalright to sue has also been violated& as ell as his security of person

o 'lainti cannot sue because of the impossibility of proving itEo @egligent act destroys the plainti3s ability to prove their case&

therefore the burden of proof is shifted- he legal conse5uence of that is that the onus is shifted to the

rongdoer to e.culpate himself 5easonin:

- %Idea ta,en from Summers v% Tice)# *artright 6 for the ma+ority in thiscase saysK

- 8If under the circumstances of the case at bar the +ury& having decidedthat the plainti as shot by either * or 4& found themselves unable todecide hich of the to shot him because in their opinion both shotnegligently in his direction& both defendants should have been foundliable9

- and 6K defendant has set in motion a dangerous force hich in+uresplainti ithin scope of its probable mischief& hich he then ma,esimpossible the means of proving the possible damaging results of hisact of the similar results of the act of another! He has violated thevictim3s substantive right to security& but also culpably impaired hisremedial right of establishing liability! By confusing his act ithenvironmental conditions& he has& in eect& destroyed the victim3spoer of proof

- 4s such& the legal conse5uence of that is that the onus is shifted to therongdoer to e.culpate himself!


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5atio/- ;here it is e5ually li,ely that one of to events caused the damage&

and it3s impossible to (gure out hich it as& both ill be heldnegligent %reverses the onus)!

- ;hen the situation is such that a defendant or defendants can destroy

the plainti3s poer to prove causation& the onus of proof is reversedand the defendant or defendants have to prove it %e!g! hen there areto rongdoers)

"**- he culpable actor set in motion a dangerous force hich embraces

the in+ured person ithin the scope of its probable mischief - He has violated not only the victim3s right to security& but also

culpability impaired the victim3s right to establish liability- he legal conse5uence:- nus of proof is shifted to the rongdoer to e.culpate himself – if that

is impossible& both rongdoers ill be held liable

SDD@s 7rinci7e/ aternative iabiit8- ;here one of a small number of negligent actors causes the plainti3s

loss but the plainti cannot point to hich one& then the plainti mustsue all of them and they ill all be liable unless they can disprovecausation on the balance of probabilities

5esurface Dor7 v. Qan%e )SDD, "00&-

acts/ H placed a ater hose into the gasoline tan, of an ice-resurfacingmachine rather than the ater tan,! ;hen hot ater over(lled the gasolinetan,& vaporied gasoline as released into air& H as badly burned! H asemployed by *ity of 0dmonton to run the ice-resurfacing machine and loo,after the ice rin,! "ued based on design defects %tan,s ere similar inappearance and placed close together on the machine& ma,ing it easy toconfuse the to)!

IssueK 4fter "nell& hen do e use the material contribution test: ;hich testould have been better to useK ;+ut for< or #ateria contributionsF +utor

5easonin:K- But for test as correctly applied %8but for the appellant putting or

leaving the hose in the gas tan,& the e.plosion ouldn3t haveoccurred9)

- Hoever in obiter the +udge sets our here the material contributiontest may be used as an e.ception to the but for test

1! +ut or Test/


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emains the 7ri#ar8 test for causation in negligence acts It applies to both single and multi-cause in+uries %clari(es

misconception of 4they case) Burden lies ith the 'lainti to prove causation his test recognies that compensation for negligent conduct

should only be made 8here a substantia connection beteenthe in+ury and defendant3s conduct9 is present

2! Materia Dontribution Test/ o re5uirements to meet before beingproperly applied

a! Gust be impossible for the plainti to prove the defendant3snegligence using the 8but for9 testT the i#7ossibiit8 must bedue to factors outside of the plainti3s control

b! It must be clear that the defendant breached a duty of care oedto the plainti& thereby e.posing the plainti to anunreasonableAincreasin: ris% of in+ury %hich the plaintisuered from)

-0.amples of here it may be usedK

a. 'o

tort can 2012 mahoney

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