Torts Map Second Semester Cause in Fact If damage would have occurred anyways, the act is not a but

for cause. (Bennet Arsenic poisoning) If the acts of two persons, each being aware of what the other is doing, amount in the aggregate to what is an actionable wrong, each is liable in full (Organs) -If someone is injured by a tortious act, and then a second tortious act, damages start from total loss of the plaintiff; the first tortfeasors liability is unchanged, and any excess damage caused by the second is his responsibility. (Sunrise) But-for test is the primary test for causation. Causation is met where P can prove on the BoP that the harm would not have arisen but for the negligence of the D. -Calls for a flexible, pragmatic, common sense approach. -Where facts lie particularly within the knowledge of defendant, little affirmative evidence of cause-in-fact is required of the plaintiff, and it is fair to make an inference of cause in fact. (Snell) -Medical certainty is not necessary (Snell) Where the but-for test is unworkable, the material contribution test is appropriate But for must be impossible due to factors beyond the plaintiffs control, such as the limits of scientific knowledge (like in McHale), impossible to identify which of two simultaneous negligent acts caused harm (Cook v Lewis), where its impossible to prove what someone would have done had the defendant not been negligent (Walker Estate). -Also applies to circular and dependency causation. -Impossibility based on inadequate evidence doesnt meet the standard. -Material contribution is above de minimus. (Athey) - It must be clear that the D breached the DoC exposing the plaintiff to an unreasonable risk of injury, and the plaintiff suffered THAT form of injury. (Resurfice v. Hanke) (Fairchild) Multiple Sufficient Tortious and non-tortious, youre not liable. Tortious tortious, you both are. -Where two causes, each attributable to the negligence of a responsible person concur in producing injury to another, either of which would produce the injury regardless of the other, each party is wholly liable. (Kingston) -The plaintiff does not have to establish that the defendants negligence was the sole cause of the injury, as long as the defendant is a but for, or material contribution the

defendant is fully liable, even though his act alone was not enough to create the injury. -Divisible Injuries: In the case where different tortious or non tortious acts cause distinct injuries (i.e. arm and foot), you can apportion damages appropriately, but its not really apportionment, but merely recognizing that defendants are only responsible for injuries that they contributed to. -Determining past negligence and causation v future: Future events, i.e. a worsening of injuries, can be approximated. I.e. if theres a 30% chance injuries will worsen, judge can up damages by 30%. BUT! Past events must be proven on the BOP and then are treated as certain. You cant be 50% cause, or negligent, either yes or no. if causation/contribution, then fully liable. -Pre-existing conditions and natural intervening events: In Jobling, the guy developed a condition that incapacitated him from work, reducing damages from the tort. In tort law, the position that the plaintiff would have been in, - the position they are in fact in due to negligence, = loss. Events unrelated to the tort are a part of the original position, and thus are calculated for loss. -Crumbling Skull Rule: Similar to the above, if there is a probability that a preexisting condition would have caused damage anyways to the plaintiff, that probability should be deducted from damages awarded. The pre-existing condition, and the risk of future injury, is a part of the original position of the plaintiff. Loss of Chance Majority in Gregg does not focus on the loss of a chance, but on the ultimate harm. The plaintiff must have at least a 51% chance of avoiding a harm or gaining a benefit, and the negligence of the defendant has to bump that to at most 49%. If a plaintiff has a 60% chance of saving her leg, and negligence moved it to 30, you recover the cost of the leg. Dissent says its pretty arbitrary that you get full if 50.1%, and you should get compensation for the % that you lost. Factual Uncertainty Farell Burden of proof always rests on the plaintiff. However, sometimes minimal evidence will be sufficient to justify the drawing of an inference of causation. In Cook, it was clear that the injury wasnt caused by neutral conduct, whereas here, the atrophy could have been caused by any number of non-tortious things. -McGhee doesnt shift the burden of proof to the defendant, it merely draws a causal inference from the circumstances, and the defendant cant rebut that inference because of the uncertainty. Same happened here. There was medical uncertainty, but the judge inferred based on BoP that the operation was a material increase in

risk (and thus a material contribution), and the defendant could only say I dunno. Common sense test of causation doesnt demand rigorous scientific evidence. Blackstock v Foster: In cases of factual uncertainty, the evidence must win on the balance of probabilities (More likely than not there was a causal connection) Inferring causation is only justified when positive knowledge or common experience supplies adequate ground for believing the events are naturally assosciated (BoP didnt support accident chest tumour link) Cook v Lewis: Where it is clear that one of a small group of negligent defendants caused the loss, but the plaintiff cant establish who it was, not due to a lack of due diligence, if all negligent persons are joined as defendants each is jointly and fully liable unless he can establish on BoP that he did not cause the loss. Sindell If you can show that the defendants were negligent, and it is substantially likely that one of them caused the damage (it was 90 in this case, suggested ~75), but the plaintiff cannot prove causation through no fault of her own, the injustice of shifting the burden is greatly reduced. Here market share was the measure of apportionment. -Here, the harm to the plaintiff was severe and physical, and the companies were better positioned to bear the cost, and were negligent! -Defendants MAY absolve themselves by proving that they were not a cause. -National market share used even if inconsistent with the state, rational way to give relief to plaintiff and apportion risk based on harm to the public. (Hymowitz) Same deal in B.C. v Imperial Tobacco. Govt had a reversed burden of proof. Once they could show that IT breached the SoC in producing cigarettes, and sold cigarettes in B.C., IT was liable for healthcare costs caused by cigarettes unless they could prove on BoP that they werent a cause. McGhee: *Where an injury is caused by 2+ factors, and one+ is a breach of duty and 1+ is not, s.t. its impossible to ascertain the proportion in which the factors were effective in producing the injury, or which factor was decisive, the law doesnt require the plaintiff to prove the impossible, but only to show on a BoP that the breach contributed substantially to causing the injury. (Beautiful) -This case was about not providing washing facilities and dermatitis. Court found that the cycling home in dust was a substantial cause. -The employer should have foreseen that not providing showers would substantially contribute towards injury, this is sufficient prima facie evidence. *No difference between materially increasing the risk of injury and materially contributing to causing the disease.

-If you are employed by A and B, and are exposed to asbestos in both jobs, and then contract a disease, but cant show which asbestos caused it, you can recover against both. (Fairchild v Glenhaven) -If you also were exposed by your own self employment, you can still recover against both, but contributory negligence reduces the amount theyre liable for. Youre punished for the risk that you create, thats the harm. *McGhee only applies to single causes that certainly increase risk. There was one potential cause of dermatitis, brick dust, and the failure to take a precaution against brick dust was followed by dermatitis. -In Wilsher, there were multiple possible causes, only one of which was excess oxygen. The inference to causation is much weaker in that case. A failure to take preventative measures against 1/5 possible causes is no evidence as to which of those five caused the injury *Where negligence of the D greatly multiplies the chance of an accident, and is of a character naturally leading to its occurrence, the possibility that it would have happened anyways isnt enough to break the causal chain (Reynolds, large woman, unlit staircase) Nonfeasance 1.) Is the harm that results from your inaction foreseeable? 2.) If yes, the relationship must be examined to determine whether there is a nexus between the party harmed and the inactive party that gives rise to a positive duty to act. The law jealously protects personal autonomy. a. Defendant has intentionally attracted 3rd parties to an inherent and obvious risk that they have created/controlled. E.g. a boat captain has to save someone who fals overboard. b. Relationships of supervision and control, e.g. parent child or student teacher. Right to control carries with it a duty to take care. c. Defendants who exercise a public function or engage in a commercial enterprise that includes implied responsibilities to the public at large. E.g. cops or bar owners. *These all have in common the defendants material implication in creation/control of the risk to which other have been invited. (If a person kept giving someone drinks and then told them to drive home, theyd have created the risk). The hand set to a task may not always be withdrawn with impunity though liability would fail if it had never been applied at all. This means that if you begin acting, inaction can constitute a cause of action if it would likely actively create an injury. E.g. a surgeon who operates without pay and doesnt sterilize his tools. However, stopping to act before you have launched a force of harm, where your inaction is at most a refusal to become an instrument for good, is fine.

Moch co v Rensselaer WaterDefendant didnt provide adequate water to city fire hydrants and a house burned down. Court said no cause of action b.c. it was merely inaction. *Court also didnt want to extend liability infinitely and wanted insurers to pay. Public duties and nonfeasance Second branch of the Anns test prevents the recognition of a duty if its a policy decision. These decisions are typically made by higher up officials and concern budgetary allotments for departments. However, implementation of policy is analyzed according to the SoC. Still, the govt may have a different SoC than a private actor (Hard to monitor 1 million K of roads perfectly) (Just v. Queen in the right of B.C.) -Govts may be exempt from a DoC through statutory intervention. -A policy decision is a necessary pre-condition to a finding of a duty of care in its implementation. -Where a statute confers powers, but leaves the scale on which they are to be exercised to the discretion of a local authority, if they chose to use that power and do it negligently, theres a duty. (Just) Negligent Misrepresentation Glanzer v Shephard Cardozo of the NYCA said that weighers who were trusted t weigh for a transaction had a duty to the third party b.c. they knew that the third party relied on their skill and careful measurement to buy. Even though hes paid by a different party, hes still serving the injured party and is sufficiently proximate. The third party has to be defined though, it cant just be that its possible that someone will rely on it. Hedley Bryne v Heller Times where a negligent misstatement gives rise to damages: 1.) Mis. Was intended to form a warrantee between the parties 2.) Mis. Was given between parties in a fiduciary relationship 3.) Mis. Give in special relationships which give rise to an assumption of care and honesty. *Court tries to protect reasonable reliance (Queen v Cognos) . It was foreseeable that the appellant would rely on the information given to make a career decision, and that reliance was reasonable. Defendant assumed responsibility. Foreseeability isnt enough, must be an assumption of responsibility. In this case, one bank called another and asked if one of their clients was creditworthy. The first bank said it was b.c. one of their clients was considering granting the other credit. Bank gave their assessment and said we accept no responsibility.

-An innocent but negligent misrepresentation gives no cause of action unless from circumstances or communications the party has undertaken some responsibility or duty to take care. -Some relationships give rise to a presumption of responsibility, e.g. those where the one giving advice is trusted by virtue of their skill knowledge or position. E.g. Lawyer, doctor etc. Candler is wrongly decided. If a man undertakes to do something to the best of his skill, where his situation or profession is such to imply skill, an omission of that skill is imputable to him as gross negligence. -Denning dissent in Candler is right, accountants had a duty to a defined 3rd party who would rely on their reports. Test for proximity Did the accountants know that the accounts were required for submission to the plaintiff and use by him? Consider seriousness of occasion, expertise of representor, pecuniary interest in the statement, the nature of the statement, whether the info was requested, and if there were any disclaimers. Economic Loss. Contract duties and Tort Duties Sometimes tort duties arise independent of contract duties, e.g. build a building this way (contract) v. build a building safely (tort). If they arise independently, youre liable outside of your contract. In tort. (Winnipeg) Can sue in either or. BC Checo. Parasitic Damages Seaway Hotel says that economic loss that is parasitic on the physical loss and is foreseeable. Question in Winnipeg Was there a sufficiently close relationship between the parties s.t. in the reasonable contemplation of Bird, carelessness on its part might cause damage to a subsequent purchaser of the building? No general duty to avoid causing economic loss Five categories where economic loss is recoverable. ( they are NOT CLOSED. Still use Anns test below) 1.) Independent liability of statutory public authorities 2.) Negligent misrepresentation 3.) Negligent performance of a service (could be gratuitous or for the benefit of a third party. 4.) Negligent supply of Shoddy goods or structures a. Must lead to substantial risk of physical damage to person or property (Winnipeg Condominium Co.) b. Reasonable costs of repairing the defects and putting the building back into a non-dangerous state are recoverable.

5.) Relational economic loss. (Probably not recoverable? Indeterminacy concerns are huge) a. Damage to a third partys property or person that causes economic loss because of Ps relationship with that person. b. Contractual relational economic loss is presumed not to be recoverable unless (Bow Valley) i. The claimant has a possessory or proprietary interest in the damaged property. (lease of a ship, CN bridge De fact owner) ii. General average Contributions. Where a ship may be in peril while transporting goods, have to incur expenses, and cargo owners have to pay. Contributions made because of damage caused by negligence is recoverable. iii. Where the relationship between the claimant and the property owner constitutes a joint venture. I.e. fishermen make a contract with a ship owner, paying him /w a % of the catch. No indeterminacy concerns. CN Economic loss is prima facie recoverable where in addition to negligence and foreseeable loss, there is sufficient proximity between the negligent act and the loss. (Courts are more skeptical of economic loss, so duty is harder to establish) Proximity includes 1.) The relationship between the parties a. CN was a de-facto joint owner of the bridge; it was very closely linked with its operations. Could recover economic losses. b. In Spartan, the power company wouldnt be liable for loss of power, so the workers shouldnt be either. c. If the parties are de facto joint venturers, then liability should extend. 2.) Physical propinquity a. Physical damage is a strong indicator of proximity. b. CNs property was close to the bridge and couldnt be enjoyed without it. 3.) Assumed/imposed obligations. a. Winnipeg Condominium coContractors had an implied obligation to build the building correctly. 4.) Close causal connection a. Winnipeg was negligent, the building had to be repaired in order to protect people. b. Protection from an immediate physical harm gets more love (Winnipeg), defects that reduce value/use, no dice. *If proximity is established, the court must also consider if extending recovery is desirable from a practical point of view. AVOID LIMITLESS LIABILITY (Anns) -In Winnipeg, there was a persuasive policy reason TO impose a duty (build safe buildings, and repair them knowing youll be covered)

-Laforest in dissent also says that who can best bear the loss/lowest cost avoider is important, but Stephen J disagrees and says if you cause foreseeable harm, you pay Psychiatric Harm Compensable psychological injury must be serious and prolonged, and rise above ordinary fears and annoyances that people routinely accept. Injury must amount to a physical manifestation of mental suffering. This includes serious trauma or illness (Mustapha). Still must show duty was owed, SoC breach damages were sustained, and caused in fact by defendants breach. Distinction between physical and mental injury is artificial in tort. - If acted negligently, then liable only if reasonable person would have suffered psychiatric harm (Mustapha) Is the harm too unrelated to the wrongful conduct to hold the defendant fairly liable? It is the foresight of the reasonable man, alone which can determine responsibility. Furthermore, the effects must be foreseeable on an ordinary person. That said, if the defendant knew that the plaintiff wasnt ordinary, then foreseeability is different. -Self inflicted injuries do not make you liable to your family. (Greatorex) Test for shock resulting from witnessing death/injury (Alcock) Shock involves the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind. Accumulation over time doesnt count. There are 3 control mechanisms: 1.) The class of persons who should be recognized a. Family or those who are close enough s.t. the defendant could reasonably foresee the shock induced psychiatric illness. 2.) The proximity of the plaintiff to the accident a. Gotta see it or hear it or its immediate aftermath. Identifying your brother at the morgue is not immediate 3.) The means by which the shock is caused. a. Must see or hear the event. Live T.V. may count if you can actually see that its your brother, not just a crowd of people. Uncertain. Police shouldnt be compensated. 1.) Theyre trained to deal with it and have mechanisms for recovery. 2.) It offends the principles of distributive justice to give recovery to police officers but not to others?? Australian court says this is stupid and arbitrary. Just use a normal negligence analysis. Fears surrounding psychological duty of care: 1.) less objectively observable and therefore more likely to be trivial or fabricated/undeterminable

2.) Allowing recovery is a disincentive for rehab (weak) 3.) Risk of indeterminate liability/huge increase of liability 4.) Unreasonable/disproportionate burden on defendants. Many of these concerns fade if you limit recovery to recognizable psychiatric illness. General emotional harm such as fear or embarrassment are universal and part of life. Wrongful Life and Wrongful Birth You dont have a right to be aborted. (McKay). While theres a legal right to perform an abortion it doesnt follow that the doctor has an obligation to the foetus to do it. Policy reasons. Shouldnt say that life is a net negative, and may open claims against mom. Doctor didnt damage the child, measles did. If an injury is caused to a fetus, the child may recover the damage caused by it. The child has a right to be born without a defect caused by medical negligence. Wrongful Pregnancy (McFarlane) Court says children give you benefits and they offset the costs of raising them. The court shouldnt analyze how much people love their kids. -Court says that the reasons for the operation are key in determining the extent of the recovery. E.g. if the operation was to protect the mothers health and she became ill, or it was to prevent the passing of a hereditary disease, or it imposed an unreasonable financial burden on an impoverished family, costs may would be recoverable Any disability arising from genetic causes or foreseeable events during pregancny (i.e. rubella, oxygen deprivation during childbirth) up until the child is born alive, and which are not novus actus interveniens will suffice to ground a claim for the extra costs of raising the child (Parkinson). Diseases developed after birth dont count, its part of normal life, ordinary kids have the risk too, and at that point benefits offset the risk. *Disability of the mother doesnt give rise to a claim as its not caused by the doctor (Rees) -Mother should recover for lost income of being pregnant, any physical harm as a result of being pregnant, and inconvenience of being pregnant. -Abortion isnt a reasonable option (Religion, health, morals) -Fathers also probably have a claim but its not decided and theyre not typically as proximate. *Australia says that full child-rearing costs are recoverable. Kids provide NO financial benefits, so theres nothing to offset the financial costs. (Cattenach v Melcior) Damages

When you injure someone by causing disability, you pay them a lump sum equal to the price that the victim would have had to pay in order to purchase an annuity calculated to yield the periodic payment for the expected duration of the disability. Lump sum is better b.c. alimony payments for the duration of the injury dont incentivize rapid healing. You calculate lost wages by looking @ wage profiles of people in that profession, add inflation and increase in labour productivity, then correct for inflation and the probability theyll be alive. Andrews v Grand and Toy Alberta Scc 1978 Negligence action for personal injury involving a man rendered quadriplegic. -Dickson says that lump sum based on probabilities isnt the best and we need legislative reform. Until then were stuck /w the common law (boo) Pecuniary DamagesTwo heads 1.) Future care a. The claim for the cost of future care is a pecuniary claim for the amount of all care necessitated by the injury, including nursing, home modifications, medical, dental, pharmaceutical, the works. b. In Andrews, the court found that a home environment is better for him, so thats whats reasonable. What is being sought Is compensation, not retribution. c. Goal is to put the party in the position hed be in /wo injury (as close as possible). d. Based on life expectancy (actuarial tableshow long will this person live?) e. Minus a contingency percentage (chance of not incurring future costsmight need to live in hospital for years, or benefit from expanded social services). Andrews arbitrarily awards a 20% one, assuming negatives outweigh positives, but maybe theyll cancel out now or theyll make it smaller. 2.) Future loss of earnings a. Level of earnings i. Increases over time, pick an average. ii. For children, check if theyve displayed aptitude or interest for a particular profession. Young kids, look @ education of parents, and situation of older siblings. Then look @ earnings tables for that level of education. iii. Dont apply the wage gap. We hope for a good future, its narrowing. b. Length of working life. i. Calculated as before the accident.

c. Contingencies i. Account for unemployment, illness, accidents, economic depression. (20% in Andrews, but probably lower and more fact sensitive now. How sensitive is the industry? + and cancel) *Factors relating to both heads of pecuniary loss: a. Inflation and interest. Use the expected real interest rate, or statutory direction. It was 7% in Andrews, but should be 2-3% real. b. Allowance for tax gross ups-- Practice of increasing lump sum awards for future care costs and pecuniary losses in personal injury cases (other than loss of future income-that would be taxed anyways) and for pecuniary losses in fatal accident cases to take into account the impact of taxation on the income generated by lump sum awards in respect to those heads of damages. (Townsend) c. Management feesAwarded in the case that a plaintiff is injured such that they cant manage the money they receive, to insure it wont be exhausted prematurely due to inability. (Townsend) Non-pecuniary Loss: a. The court here wants to 1.) recognize that different people are affected by the same injury differently, and 2.) award damages sufficient to give solace for misfortune, not replace a foot. b. Solace means physical arrangements which can make life more endurable rather than solace in the sense of sympathy. Money will help to make up for what has been lost in the only way possible, while understanding that it cant be replaced. c. Cap of $100,000 to avoid social cost of outrageous claims. This increases with inflation and is now set at $340,000. Some provinces have legislated minor caps of $10K. Periodic damage awards (Structured Settlement) The legislature can impose and authorize periodic payment damage awards, and parties can voluntarily agree to periodically paid compensation. Typically administered by a life insurer so theres no management fee or tax. But! Can a court award periodic payments absent consent or legislation? No. Stick with the common law presumption of lump sum damages. (Watkins v Olafson) -s.116 of the Courts of Justice Act says that plaintiffs should receive structured awards unless the plaintiff demonstrates that its not in his best interest. (Guy wanting to open a Tim Hortons passed this test. Low barWilson) *Plaintiff has ownership over the award, can do /we they want (Townsend)

*Court says that payments received by a plaintiff pursuant to a private policy of insurance or benefits arent deductible from damages recovery. Theyve paid for them either expressly or indirectly, and wrongdoer shouldnt profit (incentives). Test for benefits: 1.) the plaintiff gave something up for it, i.e. would have gotten higher wages /wo the coverage. 2.) Plaintiff paid some money for them i.e. payroll decuction 3.) Evidence that benefits were part of the wage. (Cunningham v Wheeler) Defences Contributory Negligence Failure to Mitigate Speaks to Ps conduct (before or after) the accident that exacerbated the impact of Ds negligent actions. V.s. contributory negligence which is Ps own negligent activity that contributes to his harm. If a plaintiff is contributorily negligent, the court will apportion damages to the degree of fault of the respective parties. Where the relative degree of fault is indeterminate, court will assume 50/50. (Ontario Negligence Act) Real question isnt the cause of the accident, but the cause of the damage. Failure to wear a seatbelt (i.e. take a reasonable precaution), is negligent, and increases the damage you sustain. You own some of that. (Froom) *Its not how much of the harm could you have prevented, because the driver could have prevented ALL the harm by not crashing. Contributory negligence is based on the comparative blameworthiness of the conduct of the parties. Its typically ~25%, max 50.(Froom) Courts are typically a bit more lenient to plaintiffs because theyre not insured and suffer. -Law requires you to take all precautions as a man of ordinary prudence (Vaughn v Menlove, objective test) -Same test for D negligence. Foreseeability, likelihood of damage, seriousness of the damage, cost of precautionary measures, etc. * Three ways of being contributorily negligent 1.) The plaintiffs negligence could be a cause of the accident 2.) The plaintiff negligently places himself in a position of foreseeable harm from the defendants negligence (getting in a car with a drunk driver) 3.) Fail to take protective measures in the face of a foreseeable danger (Froom) Voluntary Assumption of Risk

If a plaintiff expressly or by implication exempts the defendant from liability for damage suffered as a result of the defendants negligence, there is no liability, and the defendant is absolved of a duty to take care. *Plaintiff must consent to assume the risk without any compensation, both physical (getting hit by a car on the side of the road) and legal (not being able to recover.) (Dube v Labar) -If the plaintiff GETS something for assuming risk (skydiving discount) probably fair. If the contract is unfair, not valid. *Plaintiff must fully appreciate the risk (Lambert) *Defence will be restrictively construed, only rarely will a plaintiff genuinely consent to accept the risk of the defendants negligent. *Joint ventures of getting drunk and driving where all parties know the other is drinking and driving are has been as VAR. (Priestly v Gilbert, Dube v Labar). However, contributory negligence is more likely here. Youre drunk, hard to fully appreciate physical and legal risk. Some sober planning helps establish VAR. Testlook to see if P (Steeplechase) 1.) Openly consented Or 2.) Voluntarily participated And 3.) Had full understanding of the danger Primary Assumption of Risk Plaintiff knowingly makes a fully informed choice to encounter a known substantial risk and is subsequently harmed. D has not acted negligently. This is a complete bar. Secondary Assumption of Risk P makes a decision that reflects both P and Ds own negligence resulting in harm, overlaps with contributory negligence and damages are reduced. Illegality The fact that you are wronged while conducting an illegal act does not bar you from recovery, its just the second branch of the Anns test under public policy. Would granting recovery offend the conscience of reasonable thinking members of the community fully appraised of the facts? (Hall v Hebert) McLachlinPower to deny recovery for illegality should be very narrow, and only used to preserve the integrity of the legal system. This arises when 1.) Recovery would allow a person to profit from illegal/wrongful conduct a. This is narrow, and only applies to a pecuniary reward for an act of wrongdoing. Personal injury comp doesnt count. Theres no reward, just putting back in pre-crime position. b. Lost future illegal earnings would count. 2.) Afford a rebate against a punishment prescribed by law. The law will not give with one hand what it takes away with another.

-Suits for compensation will probably be fine, as theyre not seeking damages, McLachlin says that its not a duty of care issue, the defence is just very narrow. -Right to recovery comes from the damage caused by the negligent acts of the defendants, not from the character of the victims conduct. *She says that it shouldnt negate the creation of a duty. Making it a duty issue puts the burden of proof on the plaintiff hen it should be on the defendant. Strict/Absolute Liability Injury caused without negligence by an act of god is not recoverable and falls where it lies. However, if you voluntarily use someone elses property in order to save your own, you have to pay for any damage. (Retying the ropes was key for voluntariness) (Lake Erie) Ultra-Hazardous Activities -A person who lawfully brings something onto his land that is harmless if kept there, but will naturally do mischief if it escapes out of his land is absolutely liable for the natural consequences of its escape, even if hes done everything possible to avoid it. (Rylands v Fletcher) -Must show non-natural use of land (meaning special, dangerous, extraordinary, and without general benefit to the community), an escape of something likely to do mischief from the land, and damage. Defences include consent (broadly construed, knowing and doing nothing counts), mutual benefit, default of the plaintiff (i.e. he causes the escape), Act of God or Stranger (i.e. unforeseeable intervening act) Things to consider: (second restatement) 1.) High degree of risk of harm to 3rd person, land or chattels 2.) Likelihood harm will be great 3.) Inability to eliminate risk through reasonable care 4.) Extent that activity os commonly undertaken 5.) Inappropirateness of conducting activity on premesis (NATURAL USE OKAY) 6.) Weighing activitys value to community vs dangerous attributes. Tresspass T commits trespass to land if intentionally a.Enters LOs land (or compels 3rd person to do so); or b.Remains on the land; or c.Fails to remove from land an object T is obligated to remove. Intent is a low bar. Just have to intentionally walk where youre walking. Defence of necessity Private necessityMust pay for damages

Public necessityDont need to pay for damages. Consent, express or implied. Can be time or scope limited. Vicarious Liability Vicarious liability is described as strict because it requires no proof of personal wrongdoing by the person subject to it. The establishment of the requisite relationship between the defendant and the tortfeasor is the key to vicarious liability. It does not displace the personal liability of the tortfeasor. It merely provides the plaintiff with an alternative defendant who is more likely to be solvent. An employer is strictly liable for the torts of her employees committed within the course of their employment. This is done for justice and deterrence. The employer has created an enterprise which creates a risk of employee wrongdoing. Course of employment has been interpreted broadly (Ira s Bushey). Covers most tortious acts that are broadly incidental or related to the employment function. Any wrongful or unauthorized mode of carrying forward the employment function is normally within the course of employment. *Difference between telling employees how work should be done, or what work should be done. If I say only drive insured cars but you drive an uninsured car, liable. If I say, DONT DRIVE, and you do, probably not within the course of the employment. 5 factor test for employer vicarious liability in torts: (E.B. v Order of the Oblates) 1.) Opportunity that the enterprise afforded the employee to abuse the power. a. Did the nature of the enterprise significantly increase the risk of sexual assault? 2.) Extent to which the wrongful act may have furthered the employers aims (hence be more likely to have been committed by the employee) 3.) The extent to which the wrongful act was related to friction, confrontation, or intimacy inherent in the employers enterprise 4.) The extent of power conferred on the employee in relation to the victim. 5.) The vulnerability of potential victims to wrongful exercise of the employees power. Much depends on the nature of the power and authority given to the employees position, and the degree to which they are enabled to use that authority to insinuate themselves into the intimate lives of their victims. Court found that there was no link between what the employer was asking the employee to do and the wrongful act. (Strong dissent) Vicarious liability does not exonerate the tortfeasor, employer can seek contribution. Contractor liability

The employer of a contractor isnt liable for their torts generally. They are able to take their own risk management and accident prevention measures into account and arrange for the appropriate insurance. 1.) Employer has a duty of care in selecting, instructing and supervising the contractor (Direct liability) 2.) Non-delegable duties of the employer, arising out of some relation toward the public or plaintiff create liability. (caused harm through dangerous shit, keeping safe workplace, statutory duties to act) 3.) Work which is specially, peculiarly or inherently dangerous. Tests for employee v contractor: 1.) Control-- An employee is a person who is under the direct control and supervision of the employer who is empowered to tell the employee how, when and where to work. Independent contractors arent under the employers control, but are hired to perform a particular task and are controlled by the terms of the contract not particular instructions of the employer. 2.) Entepreneur testOwnership of tools, employees, chance of risk and profit. 3.) Organization testHow integrated is the worker into the employers business enterprise? Independent contractors are usually a discrete and independent business. 4.) EnterpriseImposes liability where the employer controls the activities of the worker, where hes in a position to reduce the loss, where he benefits from the activities of the worker. Key question is for independence is Has he been engaged to perform the services as a person in business on his own account, or on account of his employer. Foster parents arent employees, The difference between an employee and a contractor is control. An employee is a person who is under the direct control and supervision of the employer who is empowered to tell the employee how, when and where to work. Independent contractors arent under the employers control, but are hired to perform a particular task and are controlled by the terms of the contract not particular instructions of the employer. Plumbers, builders, etc. Other factors like whether they hire their own people, bring their own tools are important, or bear risk of loss or profit. Also the degree Contribution After you establish fault and damages, the court can apportion liability across defendants, and allow them to recover against each other proportionally. *Contribution only takes place between defendants. The plaintiff can recover fully against one defendant, and then the burden is on them to bring others into the fold.

IF they cant, theyre pooched, not the plaintiff. (Stetar) Plaintiff has no duty to make sure all who caused are sued. Settlement If a plaintiff settles against one defendant, that defendant no longer has to pay contribution to other defendants, and the plaintiff cannot recover more for that portion of the damages. If A and B cause injury to C with 50/50 culpability, and C settles with A for $1000, but the judge says that the damages were only 1000 after the settlement, then B doesnt owe anything to anyone. That said, if the damages were 4000, the most C could get would be 3,000.667 Fitzgerald v Lane* The apportionment of liability between plaintiff and defendant is DIFFERENT and SEPARATE from the apportionment of contribution between defendants. 1.) First the plaintiff must show that the defendants negligence caused damage to the plaintiff. 2.) Next step is to see if the defendants have proven that the plaintiff contributed to the damage that he suffered by his own negligence. a. Such a finding reduces the damage that the plaintiff is entitled to recover, i.e. he wont be able to recover the damages that he himself caused. b. This considers the plaintiff, versus the other defendants jointly. 3.) Once you have the total dollar figure of damages that the plaintiff is entitled to recover, then you consider contribution between defendants. Defendants are liable to the plaintiff for the whole amount for which he has obtained judgment, and their relative fault has NOTHING to do with the extent that the total damages were reduced by the plaintiffs contributory negligence. Statutes 1.) Negligence Per Se a. Permits the plaintiff to point to a standard of conduct thats set out in a statute/regulation. E.g. a statute that says if you need glasses you must wear them while driving. This means that a P doesnt need to show that D failed to live up to a common law reasonable person standard. b. Caveat: The harm has to be within the risk. I.e. if Im at the red light, stopped, and someone rear ends me, I could say, the fact that I violated the statute had nothing to do with the accident. c. This is really just a claim in negligence thats made a bit easier. 2.) Wrongful Death Acts a. It used to be that if you kill someone, any harm that youve incurred died with the victim. The wrong was to the victim, and there was no duty to the spouse/children. b. Wrongful death relaxes the harshness of the duty requirement and create a cause of action for survivors.

c. Plaintiffs must still make out negligence/tort. d. Damages include lost future earnings of both victim and survivor, household/childcare expenses, pain and suffering of victim before death. 3.) Implied Right of Action a. Plaintiff can point to a standard of conduct set out in statute/regulation. Unlike NPS P is suing for a distinct wrong defined by the statutes substantive terms. In NPS all the statute does is make the claim easier to bring. b. In IRA, if you didnt have the statute, you wouldnt be able to bring suit. Securities fraud is illegal (insider trading) but there wouldnt be a common law cause of action for it. IRA England: IPA is all good. Its easy to show. Must show that there was a breach of a statute, and that there were damages. The rationale is that this simplifies the negligence analysis,. US: Not as gung-ho about IPA as England, but they are able to recognize it. A statutory violation constitutes negligence per se. SCC says that it might be a little too wide in scope. Canada: Only if the statute expressly provides for a cause of action. Where theres no duty of care in common law, breach of a non-criminal regulation shouldnt affect civil litigation. *Civil consequences of a breach of statute should be subsumed in the law of negligence Use the statute as evidence of a breach rather than recognizing a new tort. *In Sask Wheat pool, the court is worried about adding tort liability in the case of minimal fault. If youve breached a statutory duty, but havent been negligent, and only breached it a little, you pay full compensation damages. -Plus, in this case, the statute already imposed penalties in the statute, i.e. replace the grain, we shouldnt go looking for more. *If a statutory body has administrative paths that you can use, then use them. HRC developed a comprehensive statutory regime with tribunals, inquiries, and JR. No implied right of action. *Maybe if there was NO recourse? Trespass/Punitive Damages 5 factors for punitive damage. Has to be willful conduct with malice or reckless, disregard. More than just negligence. Vulnerability of P Criminal Sanction Blameworthiness of D Harm to the P

Criminal Sanctions Theyll be smaller or larger depending on the degree of the above things. Has been given in the case of a trespass. Its discretionary. The reason is we just dont want people violating peoples property rights.

Wrongful Death Statute says that you can recover for lost wages of family members and pain and suffering. Lost future earnings (victim) Lost future earnings (survivor) Household/childcare expenses, Pain and suffering of victim before death. -Still must make out negligence for alleged Tort.