torts law negligence

1. DUTY OF CAREGeneral Test

KeywordsCaseFacts + Analysis

Principe de proximi

Categories Not Closed

Fabrication de biens avecAucun examen intermdiaireDonoghue v. Stevenson(1932 HL)

>P drinks beer with decomposed snail, sues manufacturer> Beginning of modern law of duty> Neighbour Principle of Duty Owe duty to neighbours (persons so closely & directly affected by your action that you ought to reasonably have them in mind when performing it) >Mfg of products, no reasonable possibility of intermediate examination, knowledge that neg. will result in injury, DOC (despite no direct connection)

tendance

volution / largissement de la porte du devoirAnns v. Merton London Borough(1977 HL)>Expansion from Donoghue>Two Stage Test>1. Prima Facie Duty of Care >Proximity + Reasonable Foreseeability>2. Policy: Are there any considerations which ought to negative/ reduce/limit the scope of duty or the class of persons to whom it is owed or the damages it gives rise to

Modern DOCConsidrations de principe ces deux tapesCooper v. Hobart(2001 SCC)P sues D for delay in suspending investment company, causing her to lose more money than necessary See Test Below>Fails at 1b because Registrar had duty to entire market, not just investors

Anns/Cooper Test1. Preliminary: Lobligation de diligence est-elle allgue l'intrieur / analogue une catgorie tablie? Si oui, obligation de diligence existe. Des considrations stratgiques apparaissent rarement. 2. Stage 1(a): Le prjudice est-il raisonnablement prvisible? (Pour personne en particulier ou catgorie de personnes) Consider: Pas la capacit grer la situation - que ce soit travers la jeunesse, l'ivresse, ou de l'incapacit3. Stage 1(b): Was there a sufficient relationship of proximity between parties? Consider: Les attentes, les reprsentations et l'autonomie; types d'intrts concerns (physique, conomique, psychologique, etc), la proximit physique, et tout cadre lgal ou contractuel (not exhaustive list) Stage 2: Policy considerations en ngatif / limite la porte de l'obligation de diligence? (Charge de la preuve sur D) Concern, avec effet d'imposer lobligation de diligence Consider: Autre recours? Spectre de la responsabilit illimite?Prvisibilit

KeywordsCaseFacts + AnalysisDuty?

Tree climbingMakeshift Ladder/PlatformPower LinesMoule v. NB Elec Power Comm1960 - SCCKids climb tree with boards as makeshift ladder; touches electrical wires; company trimmed branches to height of 13ft>Unusual circs needed to create risk (cross plank, ladder)>Duty of care exists only wrt consquences prvisibles N

Tree climbingObscured Power LinesUntrimmed TreeAmos v. NB Elec Power Comm1976 - SCCTree climbing competition; power lines obscured by branches of tree; kid climbs, tree sways and touches power lines>Unlike Moule, only casual attempts to trim branches, also no ladder >Foreseeable that kids will climb trees>DOC: Must ensure trees near power lines are properly maintained

Y

Feux d'artifice dans SuitcaseLe demandeur prvisiblePlasgraf v. Long Island RY Co. 1929 NY CAMan w/ fireworks in suitcase helped into train by attendants; Suitcase drops; explosion knocks down scales which injure P>Attendants negligent, but not in relation to P > Ngligence des rsultats de la violation du devoir personne en particulier ou une catgorie de personnes, la cration d'une sphre de risque n'est pas assez

N

Obligation de contrler le comportement des autres Parents non responsables des dlits par les enfants, moins omis de surveiller adquatement Diligence envers tierce personne: Parent/Child; Employer/Employee; Invitor/Invitee; Police/Guard & Prisoners; Doctors/Institutionalized Patients; Coaches/Instructors/Supervisors & StudentsResponsabilit pour intoxicationDoit avoir une connaissance de l'tat d'ivresse et de prjudice raisonnablement prvisible


Hotel BarInvitor/InviteeServed past point of intoxicationJordan House v. Menow1973 - SCCHotel serves past point of intoxication; manager ejects P; P stuck by car while stumbling home on highway in front of hotel>RF: Probable risk to P if ejected to walk down highway outside hotel>Proximate?: Knowledge of Ps prior drunkenness and current intoxication; breach of statutory serving limits + Invitor/Invitee Relationship>DOC: When hotel ejects drunk, has duty to take steps to ensure they get home safely Y

Tubing competitionServed by bar Dangerous sport for profitCrocker v. Sundance1988 - SCCP enters tubing competition; given alcohol throughout. Manager tries to dissuade P, but does nothing else. P severely injured. Invitor/Invitee>D aware of Ps condition - Intoxication is a factor of reasonable foreseeability >DOC: When resort establishes competition in highly dangerous sport and runs competition for profit, it owes a doc to prevent entry by intoxicated patrons

Y

Dinner theatreSober companionsDriving intoxicatedStewart v. Pettie 1995 - SCCDinner theatre serves P with by 3 sober adults past point of intoxication; P drives home>Serving past point of intoxication does not in itself pose a foreseeable risk>Must be something more some additional risk factor>P accompanied by sober adults Not foreseeable that P would drive

N

Hockey teamDriving intoxicatedKnowledge RequiredCalliou Estate v. Caillou2002 - QBHockey team provided beer at tournament; Player drove while drunk, killing many>No duty Nothing to indicate team knew, or ought to have known, that driver was drunk>Facts somewhere in between model of social host and model of commercial enterpriseN

Social Hosts

Driving intoxicated

Social Hosts v. Commercial Hosts

Childs v. Desormeaux2006 - SCCSocial hosts do not prevent repeat DUI offender from driving home; driver hits D>Social hosts do not owe a duty of care to public users of highway>No RF based on facts (no finding Ps knew driver was drunk), but even if RF, no duty b/c wrong alleged is a failure to act in circumstances where there is no positive duty to act >No positive duty to monitor guest drinking or to prevent them from driving >No duty of care to members of the public who may be injured by guest No proximity>Social hosts different from commercial hosts: >Commercial hosts have greater ability to monitor alcohol consumption >Social hosts not heavily regulated by liquor licences >Social hosts do not profit from sale of alcohol

N

Duty to Prevent Crime and Protect Others


Serial rapistSpecific MO knownPolice fail to warnJane Doe v. Metropolitan Toronto Police(1998 ON Gen Div)

P sued police for failing to warn her of serial rapist in neighbourhood>Police knew narrow and distinct group of potential victims>DOC: Police have duty to protect public from potential threats where foreseeable, and where risk to particular group >May discharge duty by warning, or by other means>Causation: Modified Objective Test: Put RP in place of P (same character as P) >Satisfied that P would have protected herself if warnedY

Duty to Perform Gratuitous Undertakings


P relied on Ds assurancesBoat insuranceProperty damageThorne v. Deas(1809 NY)P relied on Ds assurances that he would obtain boat insurance; when boat wrecked without insurance, P sued D>One who undertakes to do an act for another w/o reward, is not liable for omitting to do the act; only liable when attempts act, and does it negligently (causing positive injury to the P)N

Doctor promises to attend

Smith v. Rae(1919 Ont. CA)D agrees to attend P during confinement; D breaks promise and child dies>D not negligent in failing to attend given other responsibilities>No actual misfeasanceN

Improper medical careNegligent performance of gratuitous undertakingZelenko v. Gimbel Bros. Inc(1936)Ps intestate taken ill in Ds store; D rendered improper medical care>D owed no duty prior to rendering aid>If D left her alone, beyond doubt someone else would have summoned help>D created duty to act by meddling in matters in which he legally had no concern.

Y

Gate watchman absentP hit by train

Soulsby v. Toronto(1907 HC)Gates on either side of RR; Watchman opened gates when safe; Driver relied on this and didnt check when he found gates open; Hit by train; No watchman that day>No duty to keep gates closed when train approaching; D should have looked>DOC: If someone undertakes to perform a voluntary act they are liable if they perform the act improperly, not if they dont do it at all or fail to complete itN

* See Exceptions on Next Page Exception: Liable for failing to complete task or otherwise act for plaintiffs benefit IF: Lulled P into false sense of security; -Put P in a more precarious physical position Denied P other opportunities for aid; -May apply if D withdraws service customarily provided

Pre-Conception WrongsD carelessly causes parent to suffer injury that detrimentally affects subsequently conceived child


Battery factoryFoetal healthRequired documentationDebateU.A.W. v. Johnson Controls1991 - USSCEmployees at battery factory exposed to lead levels that posed risk to foetal health>Employer cannot require all female emps to provide documentation of sterility>Debate regarding what steps a potential D may take to avoid harm to Ps reproductive systemY

Acne drugs

Failure to warn of side-effectsPaxton v. Ramji2006 - SCCInfant P suffered disabilities because mother took prescription acne medication prior and during pregnancy. D knew of side effects, but mothers husband had vasectomy, so pregnancy not expected>DOC: D owed duty to warn because of known effects of drugs>However, b/c of vasectomy and extreme concern over acne, SOC not breached

Y

Policy issues regarding the scope of a defendants potential liability

Naissance illicite et injustifie de la vie Physician carelessly fails to inform woman that she faces an unusually high risk of giving birth with a disability, or may negligently perform tests designed to detect foetal abnormalities Because of this negligence or failure to inform, woman may continue pregnancy she otherwise would have terminated Deprives mother of an opportunity to make an informed decision

Wrongful Birth Claim brought by parent Based on principles governing physicians duty to inform

Wrongful Life Claim brought by child But for defendants carelessness, child would not have been born to suffer with disability Suggests it would be better if child not been born at all Issues concerning sanctity of life, and quantification of damages remain largely unresolved


Chicken pox during pregnancyFailure to warn of risksArdnt v. Smith(1994 BC)Mother contracted chicken pox and not warned of potential harm to unborn child>Physician negligent for failing to warn>Wrongful life claim dropped (Upheld by SCC)>Causation not proven for wrongful birth claim: could not prove woman would not have had childN

Wrongful Pregnancy Negligence of medical professional, either in preventing pregnancy or improper termination General claim for emotional harm for having to go through processes they were trying to avoid (i.e. abortion (sterilization) or 2nd abortion (termination)) More complicated if mother gives birth and then sues, but generally does not hurt claim Traditionally, damages recoverable for immediate damages of pregnancy and delivery Healthy child = blessing; Birth cannot be treated as legal harm More recently, more receptive to claims of raising healthy child


Emotional benefits/burdensSuite v. Cooke(1993 Qc. SC)>Damages for raising healthy child, but consider emotional benefits and burdensY

Economic lossFinancial recoveryKealy v. Berezowski(1996 ON GD)>Claims for child-rearing form of economic loss>Only recoverable where primary motive for limiting size of family is financial Y

SterilizationLifestyle changes

Cattanach v. Melchoir(2003 HC Aus) D negligently performed sterilization, leading to unplanned pregnancy>Child welcomed into family, but led to lifestyle changes and required parents to forsake other opportunities>Damages awarded for costs of raising healthy child Y

Pre-Natal Injuries May owe duty of care to avoid careless actions that may result in loss upon birth Unless child born with subsequent injury no cause of action (even if foetus dies) Different rule with respect to mother


Mother to childCar accident

Dobson v. Dobson(1999 SCC)Mother negligently causes accident, child born with severe disabilities>Prima Facie Duty; Policy Considerations negate>Policy: Extensive/unacceptable intrusion into bodily integrity, privacy, and autonomy rights of women; Could increase level of external scrutiny; Certain lifestyle choices ex. alcoholism, drug addition, and smoking, may be beyond control of woman; Damaging consequences for relationship of mother and child and child and rest of family; No clear effects of either compensation or deterrence; Everything woman does could affect child. Would open floodgate.

N

Nervous Shock Commonwealth Chronology Sought to create rules to limit liability

1. Shock must result from physical injury/impact (impact rule)

Victoria Railways v. Coultas (1888)D negligently raised gate; D almost hit by train nervous shock>Unaccompanied by physical injury, therefore not considered consequence that would flow from the negligence of the gatekeeper

2. Shock must result from a reasonable fear of immediate personal injury to him/herself

Dulieu v. White & Sons(1901)D crashed horse-drawn carriage into public house where P was working

3. Shock must result from a reasonable fear of immediate injury either to the plaintiff or the plaintiffs spouse or children. Shock must occur because of something the plaintiff sees or realizes from her own unaided senses

Hambrook v. Stokes Brothers (1924)P saw runaway truck speeding down a hill towards the place where she had left her children. She rushed to the scene and was told a girl matching her daughters description had been injured. Suffered shock, subsequently gave birth to stillborn child, and died a few months later

4. Plaintiff who is not present at the scene of an accident but attends to its aftermath might be allowed to recover for nervous shock


Children/Spouse

Immediate aftermath

McLoughlin v. OBrian(1982 HL)D carelessly caused accident that killed one of Ps children and seriously injured other two, as well as her husband. Plaintiff was told of the incident two hours later, and went to the hospital where she received details of the tragedy>Liability largely on basis that Ps psychological injury reasonably foreseeable>As matter of policy, some boundaries have to be drawn>Three considerations particularly important1. Class of persons whose claims should be recognized2. Proximity of such persons to the accident in time and space3. Means by which shock is caused

Y

Overcrowded Stadium

Fear for friends and family

Alcock v. Chief Constable of South Yorkshire Police(1991 HL)Police negligence resulted in overcrowded soccer stadium; Many crushed to death; Ps sued for nervous shock after fearing for friends and relatives>Class of Persons: Justification for claims by those in close family relationships is the (rebuttable) presumption that the love and affection in those relationships is such that a defendant ought reasonably to foresee nervous shock. Relatives/Friends OK, if love and affection for victim comparable to that of a normal parent, spouse, or child>Proximity: Post-accident cases not immediate enough, therefore not proximate enough>Means: TV not OK, cannot show suffering; Instant broadcast maybe OK in some cases>Decision: Only two plaintiffs at the ground. One claims for loss of brothers no evidence presented of close and intimate relationship. Other claims for loss of brother in law not reasonably foreseeable as a potential sufferer>DOC: Depends on Three Part Test:1. Proximity of relationship; 2. Proximity of time and space3. Hearing or searing event or immediate aftermath with unaided senses

N

Summary of English PositionSummarized in Mustapha and Page v. Smith (1995 HL)

Primary Victim Victoria Railways, Dulieu>Psychiatric injury caused out of fear for the safety for oneself>P need only establish reasonable foreseeability of physical injury>Foreseeable psychiatric injury not necessary, even where no actual physical harm>Proximity easily established

Secondary Victim

Hambrook, McLoughlin, Alcock

>Psychiatric injury caused out of fear for the safety of someone else>P must show psychiatric injury in person of normal fortitude foreseeable (White v. CC of SY)>Three proximity indicators must be satisfied:1. Close ties of love/affections btw P and victim (relational proximity)2. P must have been present at accident or immediate aftermath (locational proximity)3. Psychiatric injury caused by direct perception of accident or immediate aftermath, and not by hearing about it from someone else (temporal proximity)

Nervous Shock Recovery never encompassed many day-to-day emotional upsets (ex. anger, disappointment) or feelings of grief upon death or serious injury of loved one


Traditional:Required ProofBeaulieu v. Sutherland(1986 BCSC)>P required to prove nervous shock has manifested itself in some form of physical, psychiatric, or psychological disorder>After Case: Scope of liability developed very slowly after time

Nervous Shock The Canadian PositionNo successful nervous shock claims at court of appeal level; Typically need recognized illness (see above)


Fly in bottle

Normal fortitude

Rejection of P/S victim

Mustapha v. Culligan Canada(2006 Ont. CA)

P and wife found dead flies in unopened bottle of water. Incident triggered nervous shock in form of major depressive disorder. P predisposed to injury. >Rejects P/S victim distinction; Follows Anns/Kamloops>Does not give judgement on whether 3 types of proximity integral to Anns approach>Facts satisfy relational proximity (obsessed by concern of impact on family), locational proximity, and temporal proximity>Policy concern over ambit of liability in cases where harm suffered is significantly disproportionate to event, or is the function of particular sensibilities of the P >Accommodated by normal fortitude test>DOC: Before a defendant will be held in breach of duty, the plaintiff must show that psychiatric illness in a person of normal fortitude was reasonably foreseeable.

N

Factual Causation but not Legal CausationMustapha v. Culligan Canada(2008 - SCC)>Not novel category no need to use Anns/Kamloops>Culligan breached DOC, but too remote >Owed DOC as manufacturer of consumable good (see Donoghue); SOC breached >Actual loss caused by breach, but P failed to establish that reaction was foreseeable >Subjectively and objectively bizarre reaction that was not probable >Obj. test: Not foreseeable that person of normal fortitude would have acted this way

N

Health Professionals Duty to Inform


Material risks

Risks of particular concern to patient

Modified Objective Test

Reibl v. Hughes(1980 SCC)

>Doctor/care giver must disclose all material risks >Risks of low probability but serious consequences >Risks of high probability but relatively minor consequences>Must disclose all non-material risks that they know/ought to know would be of particular concern to patient>Causation: Modified Objective Test >Put reasonable person in the place of plaintiff, but give it the knowledge and characteristics/commitments/schedule of the plaintiff >Plaintiff must establish that a reasonable person in the plaintiffs position would have refused procedure if properly informed (failure to inform must be cause of loss)

Y

Disc surgeryAlternative means of treatmentInformed decisionHaughian v. Paine(1987 Sask CA)Plaintiff underwent disc surgery that left him paralyzed>Doctor failed to advise of alternative means of treatment or consequences of leaving it untreated, which were at worst continued pain, but might have improved on its own>Doctor failed to advise of risk of paralysis risk was small, but given availability of non-surgical treatment with lack of risk, high change of success, and severe consequences of paralysis, disclosure should have been made>Must provide sufficient information for patient to make a decision, including: >Alternative means of treatment & Consequence of leaving ailment untreated

Y

Manufacturers and Suppliers Duty to Warn General Duty: Duty owed by manufacturer to ultimate customerException: Manufacturer may satisfy informational duty by providing warning to learned intermediary >Generally applicable where intermediate inspection of product anticipated or where consumer places primary reliance on the judgement of a learned intermediary and not the manufacturerSource of Duty: Neighbour principle; Informational imbalance between manufacturers and consumersNature/Scope of Duty: Varies with level of danger entailed by ordinary use; Products that are ingested or placed in body have higher standard of care (said to impose significant risk); Duty persists over timeCausation: Plaintiff must show that they would have done something else if given warning; Subjective Test


Breast Implant Surgery

Failure to warn of risks

Learned Intermediary

Buchan subjective test for product liability

Hollis v. Dow Corning(1995 SCC)Ps breast implant ruptures. Not warned of risks of post-surgical rupturing from normal activity. Risk not well known among surgeons>Dow did not adequately warn consumer>Cannot rely on Learned Intermediary Did not adequately warn surgeon>Causation Issues: >Would P have consented if properly informed? >In cases of product liability, subjective test required (Buchan v. Ortho Pharmaceutical) Modified objective test inapplicable >Would surgeon have warned plaintiff if properly warned by Dow? >P not required to prove hypothetical relating to doctors conduct>Policy Issue: With manufacturers, greater chance that value will be overemphasized and risk underemphasized; desirous to hold to strict standard of warning (Buchan)>Sufficient evidence to satisfy Buchan test Dow breached duty to warn and caused injury

Y

Negligent Misrepresentation: Pure Economic Loss>Words different than actions >People tend to be more careful about actions Potential for damage more apparent with physical conduct >Words are more volatile than actions (Hedley Byrne) >Greater durability and portability >May cause damage long after/far removed from where/when they were made >May repeatedly inflict harm >Take effect in combination with innumerable facts and other words>Traditionally, no DOC HL signalled new approach in Hedley Byrne>Preferred Approach: Anns/Kamloops

>Queen v. Cognos Required Elements for a Successful Hedley Bryne Claim:1. Must be a duty based on a special relationship between representer and representee2. Representation must be untrue, inaccurate, or misleading3. Representor must have acted negligently in making said representation4. Representee must have reasonably relied on the misrepresentation5. Reliance must have been detrimental to the representee (causation) >Special Relationship of proximity arises through reliance by the plaintiff on the defendants words (Hercules) >Two Criteria:1. D ought reasonably to have foreseen that P would rely on his/her representation2. Reliance by the P would, in the particular circumstances of the case, be reasonable >Gives rise to Prima Facie duty of care>Indicators of Reasonable Reliance (Hercules): 1. The skill of the advisor2. The skill of the advisee3. The nature of the occasion (business/social matter)4. Whether the advice was solicited5. Whether the D obtained an indirect financial benefit6. The nature of the statement (Fact? Opinion? Speculative?)


Policy Ultramares Corp v. Touche(1931 NY CA)>Main Policy Concern: Imposition of liability in an indeterminate amount for an indeterminate time to an indeterminate class N

Negligent AdviceReasonable RelianceHedley Byrne v. Heller(1963 HL)Relying on the negligent misrepresentation of a customers bank, plaintiff extends credit; customer went into liquidation before reimbursing the plaintiff>New Approach: DOC can be imposed for negligent advice in certain situations>Reasonable reliance emphasized

Y

Pre-Contractual Misrepresentation

Queen v. Cognos(1993 SCC)>D offered P a job. P accepted offer, quit his current job, and moved family from Calgary to Ottawa. P told in pre-contractual interview that project would last 2 years, with high chance of further employment, but he was laid off after 18 months when project downsized>Application of Hedley Bryne>Foreseeable that the appellant would rely on the information in the interview, and this reliance was reasonable. Foreseeable that the appellant would sustain damages if the representations relied on proved to be false and negligently made (DOC owed)>Standard of Care: Reasonable person Person not required to guarantee accuracy of statements, but is required to exercise reasonable care

Y

Financial Statements

Auditor Liability

Policy Considerations

Hercules Management v. Ernst & Young(1997 SCC)Respondents prepared financial statements for 2 companies. Ps, who were shareholders in these companies, claim statements were prepared negligently, causing them economic loss>Stage 1 (Proximity): RF audit reports usually relied on; Reasonable - Often produced by professionals whose reputations are at stake >State 2 (Policy): Imposing broad DOC on auditors will lead to socially undesirable consequences. Auditors will spend more resources trying to protect themselves. Auditors opportunity costs would increase. Supply of accounting services would probably be reduced, and due to barriers to entry, increased costs to clients. Increased litigation. Specific facts may still justify imposition of duty if: 1) Defendant knows the identity of either the plaintiff or class of plaintiffs who will rely on the statement. 2) Losses claimed stem from the particular transaction in respect of which the statement at issue was made. Scope of liability will then be sufficiently delimited.>Prima Facie duty, but negated by policy considerations, which were not avoided by facts>In context of auditors liabilities cases, even though duty will often be found to exist, the problem of indeterminate liability will frequently result in duty being negated

N

(NBP)

New Categories of Economic LossIn recognizing DOC in new situation, courts will use Anns/Cooper test

Negotiate in Good Faith

Renewal of Lease


Martel Building v. Canada(2000 SCC)P leased building to D; During negotiations, D led P to believe it would renew lease on certain terms, but ultimately did not; Delayed process.>RF that carelessness during negotiations may cause economic loss to other negotiating party. Pre-existing lease and communications indicate proximity>Policy: (1) No indeterminate liability problem, But: (2) Object of negotiation works against recovery zero-sum; no net harm to society; (3) Could deter socially and economically useful conduct would force disclosure of private information and motives; inconsistent with activity of negotiating; (4) Could interject tort law as after-the-fact insurance; (5) Would introduce courts to significantly regulatory function to scrutinize pre-contractual conduct; (6) Needless litigation should be discouraged. >Prima Facie DOC, but negated by policy considerations

N

(NBP)

Negligent Supply of Shoddy Goods or Structures: Pure Economic Loss>Until recently, P could not recover if he/she could not establish privity of contract>Can recover if problems caught before actual damage occurs (Rivtow v. Washington (1974 SCC)

Shoddy exterior walls


Winnipeg Condominium v. Bird Construction(1995 SCC)D contracted to construct building. Subsequent owners sue after exterior walls fall apart, and inspection reveals structural defects>Anns/Kamloops - RF to contractors that if their negligence causes defects, subsequent purchases may suffer injury/property damage. Prima Facie duty of care>Policy: (1) Allowing recovery for cost of repair encourages responsibility; (2) Degree of danger to persons and other property important. Distinction between dangerous and shoddy: at least with respect to dangerous defects, compelling policy reasons to impose liability (does not consider shoddy); (3) No indeterminate liability claimants limited to inhabitants, liability limited to reasonable costs of repair, time limited to useful like of building; (4) Contractors and builders are in better position than purchaser to ensure structural integrity.>DOC: Contractors owe duty to subsequent purchasers of building to take reasonable care in constructing the building, and to ensure that the building does not contain defects that pose foreseeable & substantial danger to health and safety of occupants

Y

Relational Economic Loss D, as a result of negligently damaging property belonging to a third party, also causes a pure economic loss to the P with whom the third party had a relationship Potential for indeterminate liability is particularly pronounced, but courts have recognized positive policy considerations to support the imposition of such a duty of care


Damage to bridge

Joint Venture

Anns/Kamloops

General Exclusionary Rule

Categorical Exceptions to Exclusionary Rule

Canadian Pacific Railway v. Norsk Pacific Steamship(1992 - SCC)

P entered into contract with government for use of a bridge. D carelessly damaged that bridge, causing plaintiff to sustain considerable economic losses. >McLachlin (maj): Rejected traditional exclusionary rule. Anns/Kamloops applies. Stressed concept of proximity, which encompasses the existence of a relationship between the parties, physical closeness, assumed/implied obligations, and close causal connection. Duty of care owed to P. Given contractual relationship, they were essentially joint venture>La Forest (diss): General exclusionary rule should apply except when negated by policy. Duty should be recognized only if: 1) Plaintiff held a possessory or proprietary interest in the damaged property, or 2) Plaintiff and the owner of the damaged property were parties in joint venture. Refused to accept that contract gave rise to joint venture. >Reasons why exclusionary rule is preferable: >Puts incentives on parties to act to minimize losses >Only one party has to purchase insurance; >Will save judicial time and resources >Eliminate worry about making defendants overly liable; >Rule is clean and definite>Joint Venture: Association of persons, natural or corp., who agree to engage in some common undertaking for joint profit without forming formal legal relationship or corp.

Y

Categories in Norsk not closed

General Exclusionary Rule

Bow Valley Husky (Bermuda) v. Saint John Shipbuilding (1997 SCC)D built rig for BVH, using heat trace system. Did not mention that system flammable in certain circumstances. Rig caught fire, and was out of service for months. HO and BV, who held contracts with BVH for use of the rig, suffered economic loss. >Case does not fall within La Forest categories in Norsk, but categories are not closed. Prima Facie duty of care D knew of existence of P and other like them; RF >Policy: (1) Indeterminate liability if D owes duty to P, would owe similar duty to host of others: ripple effect (2) Facts do not support need for deterrence; (3) If plaintiffs ability to allocate risk to property owner by contract is slight, liability may be supported BV and HO did allocate risk; cannot be said that they suffered from inequality of bargaining power with BVH, the company they created.>Liability for relational economic loss is to be generally excluded, with above category exceptions.

N

(NBP)

2. STANDARD OF CARECommon Law Standard of Care: The Reasonable Person Test


The Reasonable ManMVAArland v. Taylor(1995 ON CA)>Standard of care is that of a reasonable and prudent man>Reasonable man is a man of normal intelligence who makes prudence his guide to conduct>Not proper for trier of fact to consider, after the event, what he/she would have done in circs

Reasonable PersonThe Three Factors

Ryan v. Victoria (1999 SCC)>Action is negligent if it creates an objectively unreasonable risk of harm>Standard of care is that of a reasonable person>What is reasonable depends on the facts of the case, including:1. Probability of Foreseeable Harm2. Severity/Gravity of that Harm3. Burden/Cost Incurred to Prevent the Harm

Factors Considered in Determining Breach of the Standard of Care Probability of Injury and Potential Severity of Harm must be balanced against private and social Costs of Avoiding the Risk and Social Utility of Defendants Conduct

KeywordsCaseFacts + AnalysisBreach?

Surgery Assess Factors at Time of BreachRoe v. Minister of Health(1954)P underwent surgery and suffered paraplegia from contaminated anaesthetic >Risk known in 1954, but at time of operation, unknown and not reasonably foreseeable >Factors must be assessed at the time of the alleged breach, rather than in hindsight >After the fact, it may be obvious that the defendant should have acted more carefullyN

Probability and Severity of Harm


Probability Cricket Ball

Bolton v. Stone (1951 HL)P struck by cricket ball while walking on road adjacent to cricket ground>RF that accident might occur, but likelihood very small>Ball driven into road only 6 times in 30 years, and road very quiet>Reasonable men take degree of risk into account>Must avoid creating risks that are substantial>Must consider probability of harm and severity of consequences >Test: Was risk of damage so small that a reasonable man, considering the matter from the point of view of safety, would have thought it right to refrain from preventing danger?

N

SeverityOne-eyed ManMetal SplinterParis v. Stepney Borough Council (1951 HL)One-eyed P not supplied goggles for pounding steel. Blinded by metal splinter. >Must take Ps background into account when determining standard of care>Severity of harm higher to one-eyed man, therefore standard of care is higher >Ordinarily prudent employer would supply goggles to one-eyed worked in situation>Risk slight; Harm severe; Simple and inexpensive precaution>The more likely the harm, and the more grave the harm, the higher the standard

Y

Cricket Ball

Miller v. Jackson (1977 QB)New subdivision built on edge of cricket ground,; Fewer than 10 times per year, balls left ground and landed in someones backyard; P sued in negligence>Risk foreseeable; Methods used to prevent balls leaving grounds are inadequate>No obligation on the plaintiffs to have to protect themselves >Ds will be liable if by a million-to-one chance the cricket ball does go out of the ground and causes damage, but cricketers not required to leave No injunction granted >Shows balancing of interests of public at large and interests of private individuals

Y

Cost of Risk Avoidance


Burden/Cost

Bridge PlanningVaughn v. Halifax-Dartmouth Bridge(1961 NSSC)While bridge being painted, flecks of paint blown onto nearby cars, including that of P>Inevitable that paint should fall on cars>D hired man to wipe off paint flecks, but this was inadequate>D argued further steps impractical due to high cost, particularly because of large area>However, only concerned with one parking lot. D could have posted warning signs, communicated via press, etc. with little cost due to short painting season>D must take reasonable measures to prevent or minimize damages. Where precautions can be taken with minimal expense, the defendant must take them

Y

Severity vs. CostMedical ProcedureLaw Estate v. Simice (1994 BCSC)P claimed husband died because D doctor failed to provide timely and appropriate care, including not giving him an expensive CT scan >Severity of the harm that may occur to a patient who goes undiagnosed is far greater than the financial harm that will occur to the medicare system if one more CT scan procedure is performed>Where life at stake & treatment avail. but expensive, patient should be given treatment

Y

Social Utility


Social Utility

Public Services

Firemans Jack

Improper Storage

Watt v. Hertfordshire County Council (1954 CA)

P, fireman, responded to call requiring special jack; Truck to carry jack was unavailable, so Ds put it in the back of another vehicle. P was injured when jack became dislodged. >Must balance risk against the measures necessary to eliminate risk>Must balance risk against the end to be achieved>The saving of life or limb justifies taking more risk >Lower standard of care. >Performing a service with public value can mitigate liability

N

Police Standard

Public Service Priestman v. Colangelo (1959 SCC)Police fired at car during chase, car killed two bystanders>Officers had affirmative duty to apprehend suspects and were justified by the Criminal Code in using as much force as was necessary to prevent their escape>Public service mandate more latitude permittedN

An Economic Analysis of the Standard of Care


3 Aspects

Hand Formula

United States v. Carroll Towing (1947)

>Duty to prevent against injury has three aspects:1. Probability of accident (P)2. Gravity of resulting injury (L)3. Burden of adequate precautions (B)>Liability depends upon whether B < LP; If Burden > LP, it is too great>Hand indicated an economic meaning of negligence >Benefit of Preventing Accident (Cost of the Accident) = PL >Cost of Preventing Accident = B>If cost of prevention > benefit, society would be better off to forgo accident prevention, and there is no reason to condemn defendant for not taking measures to avert accident >If benefit > cost, society is better off if accident is avoided, and enterprise is made liable in the expectation that self-interest will lead it to adopt the necessary precautions to avoid tort costs

Cost of accidentMcCarty v. Pheasant Run >More difficult to calculate the cost of accidents than the cost of prevention

Standard of Care Expected of the Disabled Sudden physical incapacity still affords defence Moving away from objective standard

Carroll v. Chicken Palace Ltd.(1955 Ont. CA)Blind P went to Chicken Palace for dinner; Did not ask for assistance in navigating restaurant, fell down stairway; >P guilty of contributory negligence>Physically handicapped held to standard of reasonable person with same handicap

Ryall v. Alsa Road Construction(2004 - ABPC)Blind P went jogging at 6AM and fell into manhole, which was only protected by low fences>P found to have been acting unreasonably by jogging at that hour with his disability>D took all reasonable steps to prevent injury to those who could reasonably be expected to use the sidewalk

Two Approaches:1. Unfairly prejudicial to accident victims if allowance made for defendants mental abnormality

Wenden v. Trikha(1991 Alta. QB)D suffered delusions while driving, sped through intersection, and seriously injured the P>Tort law is not concerned with punishing tortfeasor; Central concern is compensation. >Standard applied is that of a reasonable person>There are exceptions (young and physical disability), but these are matters of policy. >Mentally disabled should be treated the same way as everyone else

2. Negligence presupposes ability for rational choice, so if mentally disabled individual is such that he/she cannot choose, he/she is released from liability (Current Test) Focuses on system of fault

Hutchings v. Nevin (1992 Ont. Gen. Div.)>Follows Buckley and TTC v. Smith Transport Ltd (1946 Ont. CA) which held that D is not liable for mental illness if he/she can show on balance of probabilities that he/she (1) Could not understand and appreciate the duty of care, or (2) Did not have the ability to discharge that duty (no meaningful control over his/her actions at the time the relevant conduct fell below objective standard of care)>Negligent act must be shown to have been the conscious act of the defendants volition

Fiala v. Cechmanek (2001 Alta. CA)Man experienced sudden, severe manic episode while jogging and caused car accident>Tort law should refocus on system of fault. Objective reasonable person test is properly relaxed in cases where a defendants mental illness prevents him or her from meeting the normal standard of care. Follows Buckley test given above.

Standard of Care Expected of Children Child involved in adult activity, such as driving, snowmobiling, golfing, or hunting, is required to meet the standard of care expected of a reasonable adult (Fiala v. Cechmanek) Children excused if incapable of acting negligently


Highway

Cont. Neg.

Joyal v. Barsby(1965 Man CA)

>P, 6, took her two younger brothers to cross a highway. Temporarily froze when truck sounded horn. After truck passed, ran out onto highway and into the rear door of a car>Where age doesnt make cont. negligence absurd, for the jury to decide whether the infant exercised the care to be expected from a child of the age, intelligence, and experience>Children not incapable of cont. neg., but standard of care expected from them is lower>P acted as was expected of a reasonable child, therefore not negligent

N

Standard of Care Expected of Professionals Volunteers (non-profs) in care situations not expected to meet professional standard Individuals may be held to professional standard if they implicitly or explicitly suggest that they have the skills and training of a professional Negligence in professional judged by the standard of care of his profession


DoctorsBreast ReductionNegligent OperationWhite v. Turner(1981 HC)

>P suffered post-op complications and scarring from breast reduction surgery performed by D>A mere error in judgement or a poor result by a professional is not by itself negligence. Plastic surgery has its own standards. If the work of a surgeon falls below the accepted practices of his colleagues (below the standard of a reasonable surgeon) he will be held liable for damage.

Y

Standard of Care: Custom Can raise custom as indicator of SOC, but onus is on P to prove that on a balance of probabilities Court is not obliged to respect customs not all customs are desirable as standards of care Custom in the Medical Field: In the medical field, acting according to standard practice will often act to shield a defendant from liability


Artificial Insemination

HIV contraction

Ter Neuzen v. Korn(1955 SCC)

P contracted HIV during artificial insemination. D was responsible for screening donors, and used standard medical practices>Specialist must demonstrate the conduct of an average specialist in his field who possesses a reasonable level of knowledge, competence, and skill>When doctor acts in accordance with recognized and respectable practice, he/she will generally not be found to be negligent >Conduct of physicians must be judged in light of knowledge at time of alleged negligence>Practice itself can be found negligent if it fails to adopt obvious and reasonable precautions that are readily apparent to the ordinary trier of fact

N

Degrees of Negligence Common law generally recognizes one standard of care reasonable person Courts recognize sudden peril doctrine, under which conduct that normally would be considered careless is exempted from liability if, in the context of an emergency, it was reasonable Occasionally, statutes restrict scope of liability to injuries inflicted as a result of gross negligence Gross negligence falls between ordinary tort negligence and criminal negligence Liability of medical professionals who provide medical assistance during emergencies: A person who voluntarily provides medical service is not liable unless the damages were caused by gross negligence Statutes tend to be restricted to two types:1. Statutes covering liability for municipalities2. Statutes covering good Samaritan" situations

Difference Between Standard of Care Foreseeability and Remoteness Foreseeability Standard of Care: Focused on a range of possible things Does activity pose a real and substantial risk such that something might happen? Ex. Bolton v. Stone: Cricket balls may injure individuals, cars, etc. Remoteness: Focuses on the type of damage that actually occurred

3. CAUSATION Plaintiff need not prove that the defendants negligence was the sole, immediate, distinct, or even most important cause must just establish that defendants negligence was a cause Divisible Loss: Attributable to the conduct of a single tortfeasor; Indivisible Loss: Attributable to the conduct of more than one tortfeasor Proportionate Cause: P would recover based g a probability that the D was a cause If 30% chance that Ds negligence was a cause, P would recover 30% of his/her loss Loss of Chance: Ds negligence denies P a possibility of avoiding a loss Typically recovery denied because P cannot prove on a BOP that Ds negligence was a cause of his/her loss Ex. Doctor negligently delays treatment causing death; If timely, deceased would have had 25% chance of life

But-For Test Standard Test of factual causation If Ps injury would not have occurred but for the Ds negligent act, then the act is a cause of injury

KeywordsCaseFacts + AnalysisCause?

Fall down escalator

Wood vs. rubber handrailsKauffman v. Toronto Transit Commission (1959 Ont CA; Affd 1960 SCC)

Escalator with new hand-rail design put into subway station. Two youths on escalator get into fight and fall backwards, causing P to fall. P argues standard hand-rails could have prevented injuries>No evidence that youths grasped hand-rail before or during fall>No evidence that plaintiff would not have fallen if the rails had been of standard design. >Not possible to say injuries would not have occurred but-for the hand-rail.

N

Doctor ignores call

Arsenic PoisoningBarnett v. Chelsea & Kensington Hospital Management(1959 SCC)P goes to hospital w/ vomiting, and D dismisses them, stays home. One dies of arsenic poisoning 5 hrs later>D breached standard of care by dismissing P without first examining him. >Timeline crucial. Given procedural delays, Ps chances of survival even with treatment would not have been good>For D to be liable, P must show on the balance of probabilities that the injury would not have resulted but for the defendants negligence

N

Exception: Multiple Negligent Defendants Rule


2 Negligent Hunters

Independent SufficientCook v. Lewis(1951 SCC)

Plaintiff shot in the face by one of two negligent hunters who fired at the same time. P could not prove on the balance of probabilities who had shot him >If P could prove the 2 Ds were negligent, one had to have caused the loss>If it is impossible to prove which one, burden of causation shifts to D>Each will be negligent unless they can prove otherwise on balance of probs

Exception: Learned Intermediary Rule Manufacturers of products not directly available to public, such as prescription drugs, may discharge duty to inform by disclosing info to a learned intermediary


Breast Implant

Manufacturer/DoctorHollis v. Dow Corporation(1995 SCC)

>Dow negligently failed to inform the plaintiffs surgeon of risk >Court ruled that Dow could not use intermediary rule to shield itself from claims arising from its own negligence>If Dow successful, would eliminate all causes of action for P>But For satisfied simply if D fails to inform intermediaryY

Aside (Not Causation):Concurrent LiabilityArise frequently in this area as careless statements often made in the context of contractual relationships

Contract vs. TortBG Checo Intl v. BC Hydro & Power(1993 SCC)>Party may sue in either or both, subject to any limit the parties themselves have placed on that right by their contract>To preclude a tort action, contractual provision must clearly indicate the intention of the parties, and be valid

Exception: Informed Consent


Medical ProceduresFailure to WarnObj/Subj Test

Reibl v. Hughes (1980 SCC)

>Healthcare professionals have a duty to put patients in a position to make informed decisions about whether the consent to proposed treatment >Objective/Subjective test of causation: Would reasonable person in the Ps position have consented if adequately informed?

Medical ProceduresFailure to WarnObj/Subj TestArdnt v. Smith (1997 SCC)>Majority defended objective/subjective approach on the basis that a purely subjective test would require the court to hypothesize about how the patient would have reacted if properly informed

Recent Attempts to Modify the But-For Test

Material Contribution>Can only be applied if two conditions are met (Hanke v. Resurfice Corp (2007 SCC))1. P must establish that it is impossible to prove causation using but-for test and that this impossibility results from factors beyond the Ps control2. P must establish that the D breached the standard of care and that his or her injuries fell within the ambit of risk created by the Ds breach


HIV tainted bloodNegligent Donor ScreeningMultiple Independent CausesWalker Estate v. York Finch General Hospital(2001 SCC)

P received HIV-tainted blood, argued hospital D did not screen donors with up to date pamphlets donor would have eliminated himself with information>But-for test unworkable in cases of multiple independent causes>In cases of negligent donor screening, may be difficult/impossible to prove hypothetically what donor would have done if properly screened>Proper test for causation is whether the Ds negligence materially contributed to the occurrence of the injury (outside de minimis range)

Y

Materially Increased Risk >Using but-for test, increased risk must be such as to make it more probable than not that the Ds negligent act was a cause of the Ps loss


Fails to Provide Showers

Burden Shifts to DMcGhee v. National Coal Board(1972 - HL)D hires P for sweaty job, but does not provide showers. P bikes home, and develops dermatitis>Impossible to tell whether showers would have prevented injury (but for fails)>If Ds negligence materially increases risk of Ps injury, burden shifts to D to disprove causation on a balance of probabilities

Y

Eye Operation

Doctor Negligence vs. Natural Causes

Modern Approach

Reversing Burden

Snell v. Farrell (1990 - SCC)

Doctor ignores bleeding in Ps eye during surgery and continues. P later went blind. Blindness either caused by continued operation or occurred naturally.>Modern Test: Burden of proof should lie with party who has the ability to prove the point; Use common sense approach; Since D has more knowledge, very little evidence will be needed to justify an inference of causation, which D can refute>Reversing burden may be justified where injury clearly not caused by neutral conduct (ex. in Cook). It is quite different to compensate a P by reversing the burden of proof for an injury that may be due to factors unconnected to the D and not the fault of anyone

Y

After Causation Has Been EstablishedDevaluing the Plaintiffs Loss


Fall From BridgeElectrocuted Before Fall

Dillon v. Twin State Gas and Elec. Co.(1932)

Child P played on bridge with exposed power lines. P lost balance, and instinctively grabbed the power line to stop himself from falling. He was electrocuted to death>Ps probable future after accident affects liability and damages>If the fall that P tried to prevent would probably have killed him, D would not be liable, except for suffering of family members sustained by shock >Ps life would have had no earning capacity or value>If the fall would have caused serious injury, loss of life resulting from electrocution would be measured by its value in such injured condition >D only liable for electrocution, not fall> Whether or not P would have recovered from fall are issues of fact ,which must be found from evidence

Multiple Causes Independent Tortfeasors: D only liable for injuries he/she causes or contributes to bringing about Joint Tortfeasors: D liable for torts committed by his/her fellow tortfeasors, even if he/she did not cause or contribute to Ps loss Cook v. Lewis (1951 SCC) recognized three situations:1. Agent committing a tort while acting on his or her principals behalf2. Employee committing tort while acting on his or her employees behalf3. Two or more individuals agreeing to act in concert to bring about a common end which is illegal, inherently dangerous, or one in which negligence can be anticipated Divisible Injury: P has separate cause of action against each tortfeasor Indivisible Injury: Two Categories: Independent Insufficient Causes But-For Test; Either party can be held fully liable Independent Sufficient Causes Material Contribution Test

Independent Insufficient Causes Each factor individually necessary, but no factor is individually sufficient to have caused the loss Use But-For Test


One Non-Culpable, One-Culpable

Three Possibilities

Crumbling Skull

Athey v. Leonati(1996 - SCC)

P, with pre-existing back condition, suffered neck and back injuries in traffic accident that D negligently caused. P later sustained herniated disc during exercise program>Exercise program not cause, but effect >Three Possibilities1. If both accident and back condition necessary, causation is proven, since herniation would not have occurred but for accident. D fully liable. 2. If herniation would have occurred at same time w/o accident, no causation3. If independently sufficient, unclear which is cause. Judge must determine whether Ds negligence materially contributed to the injury >Damages only awarded to extent that D worsened Ps condition>CS: Need not compensate for damages P would have experienced anyways

Y

Roof Damage

Rot from LeakageNowlan v. Brunswick Construction(1972 NBCA, affd 1975 - SCC)D neg. in constructing Ps house, which suffered rot due to leakage. D argued damage would not have occurred but for the architects poor design which did not provide for ventilation>Structural design and workmanship both contributing causes>If design had provided ventilation, no rot even if leakage from poor construction>If design was poor, no rot if roof constructed properly>Either party causing or contributing to damage liable for the whole damage caused

Y

Independent Sufficient Causes Under But-for test, each tortfeasor would be absolved of liability, because the plaintiff would have suffered the same loss regardless of any individual tortfeasors negligence Use Material Contribution Test


Music with OrgansRefreshment StandsLambton v. Mellish (1894)

Two Ds compete for customers at refreshment stands. Both play music from organs, but Mellishs was smaller than other D; P sued for nuisance >Each D held sufficient to have created nuisance>Even if neither sufficient, combination of music creates nuisance>Both contributed to it and are liable for the noise as a wholeY

Successive Causes of Parallel InjuryDeals with extent of original tortfeasors liability when the P suffers an independent successive parallel injury prior to the trial on the first injuryCause?


Non-Culpable Injury

Inability to Work

Heart Attack

Penner v. Mitchell(1978 - CA)

P lost 13 months of work following accident caused by D. During that time, P suffered independent heart condition that would have left her unable to work for 3 months, even if accident had not occurred; D claims he should not be liable for 3 months of wages>Future contingencies favourable to the D should only be considered in non-culpable circumstances (otherwise would lead to overcompensation)>Original tortfeasors can only take into account a successive culpable parallel injury if it reduces the Ps disability or shortens the length of time that he/she will suffer it

N

4. REMOTENESS OF DAMAGES Usually Wagon Mound #1 applied, but sometimes #2

The Directness Test

KeywordsCaseFacts + AnalysisRemote?

Dropped PlankShip Explosion

Re Polemis and Furness, Withy & Co.(1921 - KB)Ds servants carelessly dropped a plank into the hold of the plaintiffs ship, which caused a spark, and ignited a cargo of benzene. The explosion destroyed the ship>Ps loss not too remote if direct result of the Ds carelessness >Must be a close temporal & spatial connection between Ds breach and Ps loss

N

The Foreseeability Test


Oil into HarbourWharf Explodes The Wagon Mound #1: Overseas Tankship v. Morts Dock (1961 - PC)

Ds carelessly allowed oil to spill into harbour; floated underneath Ps wharf. P undergoing welding; molten metal fell and the oil ignited, damaging Ps property. >Ps loss direct result of Ds negligence, but D did not and could not reasonably be expected to have known that the oil was capable of igniting when spread on water. >Re Polemis should no longer be regarded as good law P held liable, but not RF>Foreseeability becomes the effective test; Objective test reasonable man.

Y

Modifications to the Foreseeability Test

The Kind of Injury Courts can use whatever generality they see fit to reach the decision they want (more detail, less liability)


Paraffin LampOpen Manhole

Hughes v. Lord Advocate(1963 - HL)

Ds left paraffin lamp and manhole unattended. A boy knocked the lamp into the manhole, causing an explosion. The boy fell into the manhole and was burned>Expansion of Wagon Mound #1: Type of injury, not just any injury, must be foreseeable>Explosion was unforeseeable, but injuries from burns were foreseeable, as there was more than one way such burns could occur>P is liable for accidents caused by a known source of danger, but caused in a way which could not be foreseen

N

RatsBites vs. UrineTremain v. Pike(1969)D did not control rat population on his farm; Farmhand got disease from rat urine>While it was foreseeable that the boy could have been injured by rat bites, it was not foreseeable that he could be injured by rat urine Y

The Thin-Skulled Plaintiff Rule


Burn on Lip

Triggers Cancer

Smith v. Leech Brain (1962 QB)

Ps husband was operating a crane while galvanizing articles when his lip was burned. The burn promoted cancer in tissues that already had a pre-malignant condition. He later died from the cancer>Test is not whether cancer was foreseeable, but whether burn was foreseeable>Cancer developed from the burn>Tortfeasor takes his victims as he/she finds them

N

Minor Injury/Major Change

Morconato v. Franklin(1974 - BCSC)P suffered minor injuries in car accident caused by D. Following the accident, she developed unexpected pain and experienced a major personality change due to her pre-existing personality traits>Though she had predisposition, no indication change would have materialized naturally>D could foresee probability of physical injury, and must take victim as she finds her>D must pay for all the consequences of her negligence, even though unusual>If it was reasonably foreseeable that Ds carelessness would cause some injury of a particular type, then P can recover in full even if, because of a special vulnerability, he/she suffered to a greater extent than could have been reasonably foreseen>If injury not foreseeable, P cannot recover even if, because of a peculiar vulnerability, he or she actually suffered a great deal

N

The Possibility of Injury


Possibility vs. Probability

The Wagon Mound #2: Overseas Tankship v. Miller Steamship(1967 PC)

Above>PC finds that, contrary to Wagon Mound #1, the ships engineer ought to have known it was possible to ignite the oil>Possibility of ignition very rare, but reasonable man would not dismiss such risk when it was so easy to prevent it>Follows Bolton v. Stone: For D to be liable, possibilities of damage must be significant enough that a reasonable man would guard against them>For foreseeability, rather than requiring that the type of injury be probable, the injury only needs to be possible as long as there is a real risk >Risk that would occur to RP and not be brushed off as far-fetched>Deals with degrees of foreseeability Not dealt with in WM #1 b/c the finding was that the fire was not reasonable at all

N

Automatic Toboggan

School Explosion

Assinboine South School Division, No.3, Greater Winnipeg Gas(1971 Man CA;affd 1973 SCC)Auto toboggan negligently operated, runs into exposed gas pipe; Gas leaked into the schools boiler room, causing an explosion>The extent of the damage and its manner of incidence need not be foreseeable if physical damage of the kind which in fact ensues is foreseeable>Damage by fire and explosion was not RF, but physical damage to the pipe was>Possible for large vehicle, at impact, to create fire and explosion (WM#2)>Gas company guilty of contributory negligence

N

Intervening CausesOld Maxim: Novus Actus Intervenes If a fresh, independent cause of action arises, it will break the chain of causation >Does not apply if D under obligation to guard against very thing that happened (Hewson)

Three Types of Intervening Forces (Old Approach):1. Naturally Occurring/Non-Culpable Acts Do not break chain of causation2. Negligent Intervening Acts Break the chain of causation3. Deliberately Wrongful/Illegal Acts >Break the chain unless original tortfeasor has duty to prevent the act

Within the Scope of the Risk Test (Somewhat Replaced Above Categorical Approach): >Some ask whether the loss was within the scope of risk created by original tortfeasor >More consistent with the purpose of remoteness >Others ask whether the intervening act was within the scope of risk

>If intervening act neg., arguable that it is not RF (cant anticipate that another will act negligently)


1.Fire in Restaurant2. Someone yells Gas!Negligent IA

Bradford v. Kanellos(1973 SCC)D negligently causes fire in restaurant, which is put out by auto extinguisher, causing a hissing noise. Someone yells gas, causes panic, and P is injured as people run from restaurant.>Injuries resulted from the hysterical conduct of a customer in response to the proper functioning of safety equipment; not a consequence that can fairly be regarded as within the risk created by the Ds negligence; Not reasonably foreseeable>Approach: Look at original wrongdoer, and ask if RP ought to have been able to reasonably anticipate the interventions claimed to be new cause of damage

Y

1. Wrong X-rays2. Neglect to Get New Ones

Negligent IA(Medical)

Price v. Milowski (1977 ON CA)P broke right ankle while playing soccer. Dr. Murray (D1) negligently x-rayed foot, not ankle. P later sees second doctor who relied on D1s x-rays and also did not treat ankle as a break. By the time break was discovered by third doctor, P suffered permanent disabilities>Initial tortfeasor held liable if subsequent injury is within scope of consequences of his own neg if resulting injury was foreseeable as a result of his own neg>It was RF that D1s x-rays might be relied on by others, even if negligent to do so >D2s act compounded effects of D1s negligence not two separate negligent acts.

>Case uses language of Wagon Mound #2 for intervening error: So long as RP in position of original D could have reasonably anticipated that subsequent conduct was possible, he/she will be potentially liable>Christie concerned about holding initial tortfeasor liable for future damages by subsequent negligent actors on this possibility basis

N

1.Leave Tractor Unlocked2. Someone Sets in MotionIllegal ActsHewson v. Red Deer(1976 Alta TD)D negligently leaves keys inside tractor. Someone came and set tractor in motion down roadway, and tractor crashed into Ps house>Tractor was left in an open field to which many had access>It was reasonably foreseeable that any of those people might become aware tractor was being left, and be tempted to put it in motion>Elementary precautions could have been taken but were not

N

Second AccidentWieland v. Cyril Lord Carpets(1969)Ds negligence caused injury to Ps neck that required her to wear a collar. Collar prohibited normal movement of her head. She fell down some steps, sustaining further injury.>Difficulties in seeing were within the risk created by the original negligence>WM #1 does not call for foreseeability of precise events that transpire >Not necessary to show each possible consequence within foreseeable scope of original injury

Gross Neg.Kolesar v. Jeffries(1976 affd SCC) >Gross negligence automatically not foreseeable >May anticipate original amount of stupidity but not gross stupidity

Statutory Regime?>If hypothetical mentions statutory regime: In policy section, bring up fact that statutory regime exists, but mention that there is not enough information to know whether or not that regime sufficiently covers the problem, or whether it is an efficient way of solving the problem

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