Feiley Torts CAN Fall 2012

I.
SM: 3

INTRODUCTION TO TORTS [O: 2-7]

Evaniuk v. 79846 Manitoba Ltd., Man. QB (1990)

II.

NEGLIGENCE

A.

Introduction to Negligence [O: 25-27] CB: 157-158

3 core elements that need to be proven for negligence:

1. negligent act
a. not every act that causes damage is negligent and will result in liability
b. acts may become negligent if they fail to meet a reasonable standard of care
2. causation b/w act and damage
3. damage
Essential elements of negligence
1. harm
2. causation
3. below standard of care/negligent act
a. not every act that causes damage is negligent and will result in liability
b. acts may become negligent if they fail to meet a reasonable standard of care
4. duty of care owed
5. not too remote
6. plaintiffs conduct (not a requirement, but a consideration)
Where do you draw the line? How courts limit liability
1. Duty of Care - the defendant must owe a duty to the plaintiff to be careful. If no duty is owed, the
defendant is not liable for the damage caused. Relationships
2. Remoteness of Harm (Proximity) - the harm suffered cannot be beyond reasonable contemplation - if it
is, it is too remote for tort liability breaking the chain of causation - follow the chain of events up to the
point of reasonable foreseeability
1 remoteness of damage = excuse liability on the ground of fairness
Defences to Negligence - **what did the plaintiff do or not do?
** Remember to ask this on a test
Limit Liability
1. Contributory negligence: will result in reduction of quantum
a. Seat belt defence: The pl. shouldve been taking precautions
2. Utility of the def. acts
a. Bolton & Stone: the fact that it was cricket limited liability of an otherwise negligent act
3. Type of loss
i. is it foreseeable? pure economic harm vs. psychological vs. quality of life
ii. extent of damage - how far should this liability go, ex: lose job, marriage breakdown
where do you draw the line?
4. Illegality partial or complete If the claimant is involved in wrongdoing at the time the alleged
negligence occurred, this may extinguish or reduce the defendant's liability.
5. Exclusion Clauses: eg. back of ski ticket which says Sunshine is not liable for any harm that occurs
while you are skiing at their resort.
a. usually the court will rule for pl. if they didnt internalize any of the clause, didnt read it, just
signed it

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Complete
1. Voluntary assumption of risk: complete defence i.e. full contribution
2. inevitable accident: complete defence
B.

Standard of Care [O: 27-40]

1. Foreseeability of Risk (4 cases with kids and wires)
2. Likelihood of Damage (degree of foreseeability)
a. Bolton & Stone: distinction b/w foreseeable risks that are substantial and material and
foreseeable risks that are highly unlikely or mere possibilities
3. Seriousness of the threatened harm
a. while there may have been no greater risk of injury to the plaintiff, there was a risk of greater
injury to him (Paris v. Stepney: one eyed welder)
4. Cost of preventative measures
a. Wares Taxi - childproof locks are cheap. Court found breach of SoC.
b. Latimer v. AEC - cost to clean up oil was to close entire factory. Court did not find breach of
SoC.
5. Utility of Conduct
a. innocent bystanders vs. public safety (police chase)
i. Watt: volunteer firefighters, one must balance the risk against the end to be achieved. We
want to encourage volunteer firefighters
b. also look at disutility - conduct that is antisocial or of no value
6. Emergency Situations - show leniency in an event that causes excitement, confusion, or anxiety
7. Custom and Approved Practice - especially in medical cases
a. weight given to custom will vary
8. Post-Accident Precautions
9. Judicial Policy - standard of care is applied unevenly b/w activities
a. ex. high for drivers, carriers of passengers (planes, trains), manufacturers of products,
i. de facto strict liability
b. low for defendents in sporting events, professional persons (doctors)
10. economic analysis - can we reduce it to a balance of the costs and benefits?
11. hindsight - hindsight bias - easier to foresee something after it has happened

Applying the standard of care

1. Reasonable foreseeability of risk is KEY to applying the standard of care in all cases
2. A reasonable person recognizes what the risks are and takes precautions to protect others from them
1.

Unreasonable Risk

CB: 171

Bolton & Others v. Stone House of Lords. [1951] A.C. 850, [1951] 1 All E.R. 1078

KEY All about reasonable risk: What is reasonable?

Where on the spectrum will a reasonable person think its okay to not eliminate the risk.
Consider: possible AND probable
Wagonmond: doesnt matter if its probable if its possible it is unreasonable risk
W.Mound Bolton
fantastic possibility <ll> probability

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Before Bolton v. Stone there were two types of cases
(end of spectrum): impossible and probable
Now there was a third: Foreseeable BUT the chance of it occurring was infinitesimally small.
Analysis: Use this analysis to determine if the risk is reasonable: (the foreseeability of risk which reasonable
people will avoid)
Weigh the costs
1. Risk of harm
a. Likelihood: less likely > was a road not a school or busy intersection,
b. Foreseeability > ball had gone over before, but only 6 times - borderline
2. Degree of harm
Vs. the Benefit
3. Cost to eliminate the risk > cost for fence $$$$
4. Utility of Act > cricket is good for society
CB: 375

Wagon Mound (No. 2), PC (1966)

The test for standard of care can be for possibility or for probability or for something in between dependant on
circumstances: here they considered illegality.
2.

The Reasonable Person

Who is the reasonable person?
Average
Not perfect, but cautious
Can make mistakes and errors of judgment and be excused from liability
Acts within practical realities of their situation
Acts in a way the judge believes they ought to act - isnt how its supposed to be done, but it
usually in practice turns out this way
p.182, Note 6

CB: 179

Vaughan v. Menlove, Common Pleas (1837)

The Test: what would be the conduct of a reasonable person of ordinary prudence in the circumstances
of the defendant.
The test is not subjective, it is objective. It excludes personal characteristics such as intelligence,
strength, temperament etc. otherwise would vary on a case by case basis
o Haystack fire def. said: I did my best. Acting Bona Fide (in good faith) wont matter
Policy Consideration: it can be unfair: some will be held to a higher standard, and others lower

CB: 181

Blyth v. Birmingham Water Works, Exchequer (1856)

Example of applying C/B analysis and reasonable person test

It wasnt unreasonable for them to take this risk on - b/c they did account for the average temperature and not
extreme frosts
It is not negligence, but an accident, if an abnormal (outlier) event occurs which a reasonable person could not
have foreseen

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3.

Custom

CB: 186

Waldick v. Malcolm, SCC (1991)

Following custom is not a complete defence for negligence no amount of general community compliance
will render negligent conduct reasonable in all circumstances.
4.

Statutory Standards [O: 169-174

CB: 189
R. v. Saskatchewan Wheat Pool, SCC (1983)
Key Breaking a statute does not equal a tort (Is the case in the UK, prima facie a tort unless proven
otherwise)
1.
2.
3.
4.

Statutory breaches in any case are subsumed within the law of negligence
There is no standalone tort of statutory breach
Breach of tort can be evidence of negligence
Statute can define a standard of care for the situation which you can argue that the court should adopt as
a reasonable standard (ex. how an inspection should take place)
assumes elected officials wouldnt create an unreasonable standard of care in a statute

CB: 200

Ryan v. Victoria (City), SCC (1999)

Key Compliance with a statute is not a complete defence

1. Statutes dont extinguish obligation of reasonable care, they are relevant
2. Def. cannot avoid reasonable care obligation by merely showing evidence of compliance
3. The nature (intent) of the statute and the circumstances of the case are critical
4. A breach can be evidence of negligence and compliance can be evidence of non-negligence
Held: Rejected that the statute was the standard of care (public policy re: railroads and lower standard of
care due to their economic importance, but no longer the case)
CB: 196
Gorris v. Scott, Exchequer (1874)
Key only those consequences the statute was designed to prevent can be claimed in tort AND the
claimant must be someone whom the statute was designed to protect.
INTENT OF A STATUTE
5.

Particular Cases [O: 42-49]

Special standards can be higher or lower than those of reasonable persons

Lower: children, mentally disabled, physically disabled
Higher: professionals and specialists
a.
The Young
- apply the Heisler v. Moke test except where child is doing an adult activity. Why? Other people will have
expectation that an adult will be performing that activity. Ex.Sea-doo, dirt bikes, boat, car, snowmobiles, guns
CB: 204

Heisler v. Moke, Ont. High Court (1972)

The Test for whether a child meets the Standard of Care :

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1. Is the child capable of being negligent at law, or is the child able to assume responsibility for his or her
actions? Subjective specific to THIS child
a.Intelligence, experience, age, alertness
2. Whether the child was negligent and to what degree? Mix of Subjective and Objective
a. what would a reasonable child of that age, intelligence and experience be reasonably expected to
do? Subjective (another kid like this kid) and objective (reasonable child)
When do you stop using this test: 15? 18?
b.

Mental and Physical Disability

CB: 210
Fiala v. Cechmanek, ABCA (2001)
Key The law makes exceptions to the standard of care of individuals who are mentally incapable of acting
with reasonable care. The Def. must show that either of the following are true on the balance of probabilities.
Covers two exceptions
1. VOLITION: Where the defs actions are involuntary. An act must be voluntary, the def. must act on own
volition. The def. must have willed his/her body to act.
Ex. Seizure, asleep, heart attack, allergic reaction, if someone else pushes you (3rd party causes you to
make an action)
-if someone has these things continually (strokes, seizures) then maybe it is not safe for them to continue
driving in that manner and perhaps they could be found to be at fault for choosing to drive
2. FORESEEABILTIY: Where the mental disability prevents the def. from complying with an objectively
reasonable standard of care.
-burden of proof is on the defendant
-does the def. have the capacity to understand and appreciate the duty of care owed at the time?
Test: can the def. prove on her balance of probabilities that his/her mental condition prevented him/her
from foreseeing the injury that could result?
Physical disability:
If they are the def. use foreseeability test substitute physical disability
If they are pl. everyone must act in consideration that there are physically disabled persons
Arguments for and against lowering the standard of care for the mentally and physically disabled:
Victim Compensation

Mental Illness is not visible

Caregivers

Objective Standard

For Lowering
We need to consider the fault
element, we do not want to create
a strict liability system.

Against Lowering
Victim compensation is the aim of
tort law and we need to have
someone liable in order to make the
victim whole.

If we treat mental illness different

from physical illness we will
stigmatize the mentally ill.
Science has improved so that
mental illness is readily
identifiable.
Then why not hold the
caregivers liable if it can be
proven that they are negligent
instead of punishing the mentally
ill?
We have diluted the system for

How do we determine the extent of

someones mental illness? Wouldnt
everyone just claim mentally ill?

If we held them to the same

standard as an abled person it would
encourage a higher standard of
care by the caregivers.
Any consideration for mental illness

Osborne

c.

children. Need consistency in

the system - if we treat children
differently for certain reasons then
why would we not do the same for
the mentally ill?
Fairness and justice do we
really want to punish or deter
those who are in capable of
acting with reasonable care?
(p.43 O)

will erode the objective standard

used for the reasonable man.

Compensation and loss distribution

Professional Negligence

CB: 217

Challand v. Bell, ABSC (1959)

TEST: Wilson v Swanson (1956) SCR, surgeon found not liable.

1. The surgeon undertakes that he possesses the skill, knowledge and judgment of the average.
2. In judging that average, regard must be had to the special group to which he belongs (rural general
practitioner different than specialist in urban area).
3. If the decision was the result of exercising that average standard, there is no liability for an error in
judgment.
Lessons:
1. Standard of Care is that of an average professional in the group that the defendant belongs
a. Difficulty: what is that group? Should Urban v. Rural really matter anymore? Arguably no
because of technology
b. Age/experience is not taken into account (Defence cant be that you are new to your job)
Interns have different standard of care than a practising physician
2. An error in judgment is distinguished from an act of unskillfulness or carelessness or due to lack of
knowledge. Error in judgment is NOT necessarily negligence.
a) benefit of the doubt given to the Doctors - as long as you can find one Doctor who agrees with the
treatment, then the court can not find negligence
Medical treatments and procedures (ter Neuzen v Korn)
as a general rule, where a procedure involves difficult or uncertain questions of medical treatment or complex,
scientific or highly technical matters that are beyond the ordinary experience and understanding of a judge or
jury, it will not be open to find a standard medical practice negligent. On the other hand, as an exception to the
general rule, if a standard practice fails to adopt obvious and reasonable precautions which are readily apparent
to the ordinary finder of fact, then it is no excuse for a practitioner to claim that he or she was merely
conforming to such a negligent common practice
-exception would come up maybe when there is new information available to the public
CB: 240
Brenner v. Gregory, Ont. HC (1973)
1. Standard of care is of a reasonably competent and diligent solicitor
a. Specialties in law are informal, but would raise the standard of care
2. Error of judgment or ignorance of the law is not negligence
a. You need to know the basics
i. Central Trust Co: A solicitor is not required to know all the lawbut he must have
sufficient knowledge of the fundamental rules or principles of law applicable to the
particular work he has undertaken.

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b. If you dont know you must seek advice - you have to know what you dont know
Consideration: do we want crown prosecutors to be sued in tort? Same rational as judges a judge is making a
decision based on the information that they have at the time. Public Policy no precedent for this in Canada.
d.

Emergency

CB: 352
Emergency Medical Aid Act, RSA 2000, c. E-7, s.2.
1. Statute that lowers the Standard of Care to gross negligence in the case of emergencies.
2. Recognizes that in that lower standard there is one for the health professional and one for the ordinary
person = and implies that they are no equal. Health professionals will have a higher standard of care.
3. Why? Encourage rescue, utility of act, public policy.
C.

Damage [O: 65-66] CB: 159 **Make sure to include this**

Damage = harm suffered is necessary to have negligence

Why? Otherwise we would have needless lawsuits (policy)
Damages = $$
Pecuniary = measurable (medical expenses, future care costs, loss of income, trial costs)
Non-Pecuniary = qualitative (pain and suffering, loss of enjoyment, pure economic loss)
o Capped at $25-k RT 1965; Uncapped in US
Punitive = designed to punish - controversial
Limitation periods: Discoverability Rule: time starts from the moment the injury is discovered usually 2
years, 1 year for medical other legislated exceptions (child abuse, spousal abuse, physical or mental disability,
victim is a minor)
D.
Causation
** Causation cases are unpredictable in which way they will go. Maybe mention this.
Causation is an expression of the relationship that must be found to exist b/w the tortious act of the
wrongdoer and the injury to the victim in order to justify compensation of the latter out of the pocket of
the former. (Snell)
The Pl. must prove on the balance of probabilities that the Defs wrongful act caused the Pls loss.
Test: But for test
But for the defendants negligence, would the pl. have suffered the loss?
o No = then the def. caused the loss
o Yes = then the defs negligence is not a cause in fact of the pls loss
Application:
1. Identify the harm that is alleged to have been caused by the def.
2. Isolate the specific act(s) of negligence by the def.
3. Adjust the defs conduct so that it satisfies the standard of care of a reasonable person, all else equal.
4. Ask if the pls harm would have occurred.
5. Answer the but for question.
Examples:
Marek: firecrackers in movie theatre, if def had turned on the lights injury would not have occurred.
East Texas Theatres: bottle thrown at head in movie theatre, court found injury might have still occurred if
owner had thrown rowdy people out of the theatre.
1.

Basic Approaches [O: 53-60]

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CB: 162
Kauffman v. TTC, Ont CA (1959),
affd SCC (1960)
Application of the but for test.
1. Pl. fell backwards on an escalator and suffered physical harm. There were teenagers fooling around on
the escalator, which caused a man to fall which caused her to fall. Pl. is suing the transit authority
(vicarious liability)
2. Failure to provide a better hand rail (rubber and oval) or provide an attendant
3. Provide a better hand rail and have an attendant
4. Would the Pl. harm have occurred?
a. no evidence that the man or the youths attempted to grasp for the hand rail during the event
b. no evidence that pl. would not have fallen if her hands had been grasping a rubber oval hand rail
c. no evidence that an attendant would have been able to stop the kids from rough housing
5. But for better hand rails and an attendant, would pl. have suffered harm? YES
CB: 163
Athey v Leonati, SCC (1996)
R: As long as the def is part of the cause, he is liable even though the act in question alone is not enough to
create the injury
Exclusivity: pl. does not need to prove that the defs negligence was the sole cause or predominant cause of the
pls damage, as long as it is a cause.
F: Pl: pre-existing injury, 1st accident, 2nd accident, stretching
I: Can an injury be apportioned b/w tortious and non-tortious causes?
H: All 4 causes combined resulted in herniated disc, but car accident def. is fully liable for the total injury
A: Policy: the def. needs to made whole again.
Thin Skull Principle: you take your victim as you find them. If the damage is greater b/c of a preexisting condition that does not diminish your liability.
o Like an exception to foreseeability: you may not have foreseen that the guy already had a bad
back and would get a herniated disc but too bad.
Crumbling Skull principle: the pl. cannot be put in a better position than that which existed prior to the
negligent act.
o If the damage would have occurred anyways, then def. cannot be liable.
CB: 260
Snell v. Farrell, SCC (1990)
Where defs have special knowledge of the facts, very little evidence on the part of the pl. will justify
the court in drawing an inference of causation if there is no evidence to the contrary
The pl. must show evidence that is more than de minimus (replaced in Resurfice)
The def. should answer it to avoid an adverse inference of causation.
The Pls evidence does not need to be scientific proof
F: Pl. became blind after receiving eye surgery, the surgeon negligently continued operation
Pl. had other issues: 70 yrs old, diabetes, blood pressure, already blind in one eye.
I&H: Whether the surgeons negligence caused the blindness? Yes
Law: The HoL had shifted the burden of proof in McGhee. Why we dont like this:
pl. would always win
insurance companies and the medical community felt this was too harsh
public policy: defensive medicine (too many tests, not going ahead with risky treatments)
SCC: McGhee was too harsh and we did not want to shift the entire legal burden onto the defendant. SO
Where it is scientifically impossible for the pl. to prove their case definitely on the balance of probabilities, the
burden of proof on the pl. can be relaxed. NO SHIFT.
Difficulties: have we replace the but for test? What is very little evidence? Have we lowered the
burden of proof for causation?

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CB: 270
Cook v. Lewis, SCC (1951)
Shift the burden of proof to the def. to exculpate himself on the balance of probabilities when the twopronged test is met:
1. A small number of negligent actors have acted below the standard of care and owed a duty to the pl.
(Tort: Negligence causing harm)
2. The pl. is unable to prove causation because the defs have impaired the victims right to establish
liability (Tort: Inability to prove causation)
A: Legal effect is that more than one def. can share liability (if you cant exculpate yourself you can both be
liable)
1. Both did not contribute to the pls harm of being shot
2. Both contributed to the pls inability to prove causation
CB: 267
Resurfice Corp. v. Hanke, SCC (2007)
The but for test is the starting point: establish a substantial connection.
The Material Contribution test can only arise if the circumstances allow for it.
F: Pl. poured water into gas tank, badly burnt, claimed negligent design of Zamboni. Courts confused over what
test you use when there are multiple causes.
Law: SCC clarifies that you use the but for test as a starting point
Burden of proof is on the pl. to demonstrate that the defs conduct has a substantial connection to the
pls injury. (replace very little evidence in Snell)
The material contribution test is only used in special circumstances:
1. it must be impossible for the pl. to prove causation using the but for test
2. the impossibility must be outside of the pls control (like scientific knowledge)
3. the def. must have created an unreasonable risk of injury to the pl. in breach of duty of care owed to the
pl.
4. pl. must have suffered injury from that risk
A: 1/2. There is no evidence of impossibility AND 3/4. There is no substantial connection between the defs
alleged breach with the pls harm. So we apply the but for test.
H: But for the design of the machine, would the injury have occurred? Yes. Court found for 100% pl.s
contributory negligence.
SM: 8
Clements v. Clements, SCC (2012)
This is the key case regarding the state of Canadian law with regards to causation. It overruled all
previous cases and reconciles Fairchild to Canadian case law.
[46] The foregoing discussion leads me to the following conclusions as to the present state of the law
in Canada:
(1)
As a general rule, a plaintiff cannot succeed unless she shows as a matter of fact that she
would not have suffered the loss but for the negligent act or acts of the defendant. A trial judge is to
take a robust and pragmatic approach to determining if a plaintiff has established that the defendants
negligence caused her loss. Scientific proof of causation is not required.
(2)
Exceptionally, a plaintiff may succeed by showing that the defendants conduct materially
contributed to risk of the plaintiffs injury, where (a) the plaintiff has established that her loss would not
have occurred but for the negligence of two or more tortfeasors, each possibly in fact responsible for
the loss; and (b) the plaintiff, through no fault of her own, is unable to show that any one of the
possible tortfeasors in fact was the necessary or but for cause of her injury, because each can point

to one another as the possible but for cause of

balance of probabilities against anyone.

10

the injury, defeating a finding of causation on a

F: Pl. on back of motorcycle with husband. Motorcycle overloaded and driven too fast. Nail punctures rear tire.
Motorcycle crashes. Pl. brain injury.
I: Whether the husbands negligent behaviour (overload, speeding) caused the pls injury?
Whether the but for test should be used?
L: But for is a test of facts that must be applied in a robust and common sense fashion.
Burden of proof is on the pl.
SCC says a common sense but for test was used in: Snell, Athey, Walker Estate, Resurfice.
all about inferring from evidence, this is the but for test, giving the courts evidence to answer the but
for question
o impossibility is not met in these cases: it is about factual impossibility not scientifically
impossible: about pointing the finger at each other
The court infers evidence which the def. can rebut.
Material contribution is a test of risk when common sense impossibility is present.
*Absence of scientific evidence will not oust the but for test.
Pl. must prove negligence, burden of proof is on the def. to exculpate himself.
It is a matter of policy to meet goals of negligence:
o Compensation, fairness, fault element (across all defs), deterrence (no pointing the finger to
escape liability)
To be used in rare situations where justice and fundamental principles of tort require it:
1. Multiple tortfeasors (Note that in Walker there is only one def, but the causal chain broke down and
the MC test is applied).
2. All are at fault, and one ore more has in fact caused the Pls injury.
3. The pl. would not have been injured but for their collective negligence
a. The but for breaks down when applied individually
4. Because each def can point the finger at the other it is impossible for the pl. to show on a balance of
probabilities which one caused the injury.
THINK OF THIS WAY: Apply the but for test to the global situation/collective group. If yes, then
move to the material contribution test to hold individuals liable.
When can we NOT use MC? The injury is due to factors unconnected to the def. and not the fault of
anyone (Resurfice, Clements)
A: But for the overloading and speeding would the accident have happened? NO
Why not use the MC test?
o Expert evidence says the but for test fails it isnt scientific, but good enough.
o Not multiple tortfeasors, a single defendant case.
CB: 273
Fairchild v. Glenhaven Funeral Services Ltd., HL (2002)
We step away from but for test when there are good policy reasons to do so. We can only do this
when: there is impossibility of proof (more than one tortfeasor) AND when the injury suffered is the same
as the risk created.
F: Multiple employers exposed employee to asbestos. No way to determine which employer caused disease.
I: Causation: there is no way to prove which employer caused the disease due to the nature of the disease and
the characteristics of asbestos.
Policy: balancing need of employers to not be held responsible for damage they did not cause vs. need to
compensate pls who have suffered grave harm.

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Dont want an absurd result re: deterrence: if we
did not find an employer liable they could continue
their practices without liability by only hiring employees with previous exposure to asbestos.
A: If the 6 characteristics at the top of p.274 are present then whichever approach we use will afford a remedy
to the plaintiff. Three possible approaches.
1. Apply material contribution to all employers
2. Shift the burden of proof to the defendant they dont do this.
3. Apply policy considerations
H: The defendant must bear the impossibility of precise segregation of the cause (think 2 fire example) based
on the material contribution test based on the creation of risk.
Clements allows Fairchild to exist with Canadian Case law.
Before Clements:
Fairchild + Snell = NO: causation was based on evidence adduced, not solely on the basis of the risk created.
Fairchild + Cook = Yes in result, No in reasoning. Fairchild did not reverse the burden of proof.
Fairchild + Walker = No: only one tortfeasor and he was a third party.
2.

Medical Disclosure and Causation: A Different Case or Not? [O: 148-156]

Duty of Care: (i) to answer questions, (ii) to volunteer information

extent of either is based on facts of the case
Standard of Care: full disclosure standard (Reibl) NOT a professional standard (we dont hand it to the
medical profession)
sufficient information, the medical community DOES NOT determine what this is
all material risks disclosed (low risk of serious AND high risk of minor)
unclear how much physician must inquire about patients personal circumstances
o (i.e. emergency doctor will know less about the patients circumstances than a family doctor)
def. must assure that patient understands (use language, dont rely on videos/brochures)
provide info about alternative treatment
patient may waive this right
applies to all medical practitioners
EXCEPTION: emotional or psychological condition of the pl (they cant handle it) or an emergency
Causation: Whether the patient would have consented to the procedure if the def. physician had performed her
duty to inform the patient of the material risks of treatment?
Material Risk = significant risks that pose a real threat to life, health or comfort.
o Includes unusual or special risk = not ordinary but have been known to occur occasionally
Test for Causation
Subjective: Ask the patient what they would have done (will always allow patient to win)
Objective: what would a reasonable person have done (will always allow Dr. to win)
Modified: What would a reasonable person in the pls particular circumstances have done
Circumstances= age, income, marital status, issues raised with physician, patients reasonable
beliefs, fears, desires, expectations. (What is reasonable? Think about cultural diversity)
CB: 225
Reibl v. Hughes, SCC (1980)
The standard of care is full disclosure. Causation is based on what a reasonable person in the patients
position would have done.
F: Pl. 44 years of age, underwent serious heart surgery for blockage, surgery was competently performed,
during or immediately following pl. suffered a massive stroke left him paralyzed on the right side of the body
and impotent.

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If surgery: stroke, paralysis and death; If no
surgery: stroke, death
Pl. was a year away from receiving a lifetime retirement pension, Immediate surgical treatment was not
imperative
I: Whether the physician committed battery or negligence?
H: No battery this requires lack of consent to the operation itself (Ex: consent for hernia operation and
surgeon fuses spine p.227).
Negligence
Breach of SoC: pl wrongly understood he would be better off and Def admitted to not disclosing all risks
Causation: No immediate requirement for the procedure, Pl. would have waited until pension to have
surgery, or opted for a shorter normal life rather than a longer disabled life

E.

Duty of Care [O: 67-82]

1.
Duty Generally
limiting device to deny or restrict liability even when the defs negligence may have caused a loss, where
the loss suffered
is not one that the law deems worthy of protection,
where the activity is one that tort law does not consider appropriate to regulate
where the person hurt is not thought to be someone who is entitled to the protection of the law
Duty and the Govt: why is the govt different?
acts for everybody
makes policy
if individuals can sue the govt anytime the govt is negligent, the govt would spend more time
defending themselves
the cost of this would be super high and would be bourne by the taxpayers
the govt makes decisions all the time, balancing various interests
Statutory Duties
will trump the common law
does the statute exempt gov employee from liability?
Type of harm: courts more likely to find duty in the case of physical harm or harm to property as they are
measurable. Psychological and financial harm are not as easy to prove.
CB: 286
Donoghue v. Stevenson, HL (1932)
Established neighbourhood principle of duty based on concepts of proximate relationships and
foreseeable damage.
Categories of negligence are never closed; we can introduce novel duties of care.
Who is my neighbor:
o persons who are so closely and directly affected by my act that I ought reasonably to have them in
contemplation as being so affected when I am directing my mind to the acts or omissions which are
called in question
you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely
to injure your neighbour.
CB: 291
Cooper v. Hobart, SCC (2001)
The leading case for Canadian approach to duty
Test (Cooper/Anns): the pl. bears the burden of establishing a duty of care, the burden of proof is on the
def to negate that duty by showing policy considerations

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1. Does this fall within a recognized category of
relationships where a duty of care has previously been
recognized? YES = duty, NO = novel case.
2. Donoghue Test: Was there a proximate relationship such that the harm to the pl. was reasonably
foreseeable as the consequence of the defs acts or omissions? YES = prima facie duty
3. Micro-Policy: are there any reasons that tort liability should not be recognized vis a vis this relationship
b/w the def. and the pl? (Anns) NO = Prima facie duty
expectations, representations, reliance, property, other interests
4. Residual Policy: If there is a prima facie duty of care, are there any residual policy considerations
outside of the relationship of neighbourhood that may negate the duty of care?
Society generally: do we want to establish this duty in our society
Indeterminacy: how far will the duty extend? What about endless losses
o Law needs to be determinate
o Tort law doesnt want to bankrupt defs
Government policy v operation (Just Case: barriers on Whistler highway, gov liable)
o Policy: pure policy decisions are immune from tort. Gov needs freedom to make decisions,
govern, choose policy this is why we elect them. And who is the tortfeasor? All of
parliament?
o Operation: liable for the carrying out of the policy b/c you can identify the tort feasor (truck
driver, inspector).
F: Gov employee at a registrar, didnt shut down a fraudulent investor, public lose money
I: Should the law of negligence recognize a duty of care b/w a statutory regulator and member of the public
foreseeably affected by his/her decisions?
A: 1. New duty. BUT there is a statute which creates the job and the duties. The statute does not impose a duty
of care to investors except for actions in bad faith (fraud, theft)
2.Foreseeable? Yes; Proximate? No
4. Residual Policy: registrar is balancing private and public interests, decisions are quasi-judicial (discreation to
create policy), where would liability end (3,000 investors but what about kid who cant go to university),
taxpayer would pay for the loss
CB: 301
Hill v. Hamilton-Wentworth Police Services Board SCC (2007)
added that residual policy considerations must be compelling and serious i.e. evidence that it will
occur
Police owe a duty of care to those they investigate, the standard of care is that of a reasonable police
officer. But courts are reluctant to find professional duties because of repercussions (police, Dr)
F: police do shoddy work to arrest aboriginal suspect for robbery (line-up, other clues..)
Application of Cooper/Anns Test to the Police/Suspect relationship
1. Neighbourhood test: proximate and foreseeable, direct personal relationship, suspect is singled out
2. Micro-policy AGAINST a duty
would a duty inhibit or interfere with their duty owed to the general public?
o public private duties are incompatible
Increased costs of investigation
Chilling effect - will this lead to police not investigate things in order to not be held liable
do we want police having to look over their shoulder on their day to day work?
o do we want to also burden them with potential negligence lawsuits? Their overall duty to the public
should predominate their relationship
police: my relationship has nothing to do with guilt or innocence, that is the job of the courts
Micro-policy FOR a duty
this is a recognized duty - a recognition of neighborhood

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public duty vs. rights of the suspect = more weight should be given to the rights of the suspect: Someone
going to jail: losing job, losing freedom
Further, the supreme law of Canada is the Charter, this duty would enhance Charter rights
Public interest - we want to avoid wrongful convictions
o if there is no disincentive for investigating officers to be careful we will likely have more wrongful
convictions than less.
Institutionalized Racism - all of Canadas policies: multiculturalism, Charter. We dont operate on racism this is applicable in light of this evidence
Denial of justice - absence of remedy suspect could never be made whole again if he is wrongfully
convicted
3. Residual policy
Quasi-judicial powers, in the case law, have been found to not have an associated duty (judge)
Requirement for use of discretion- do we want courts second guessing acts of discretion
Chilling effect - broad sense across Canada
Flood of litigation - anyone found not guilty would have a cause of action
Indeterminate liability - where does this end? What are the boundaries?
Tort recovery for acquitted persons who may be guilty - do we want people who may are guilty but have
been acquitted have the ability to get damages in tort, this isnt a just outcome
H: not enough evidence that the policy considerations outweighed the prima facie duty of care.

2.

Unforeseeable Plaintiff or Policy?

CB: 321
Hay (Bourhill) v. Young, HL (1943)
There is no such thing as a derivative duty, the duty must be owed to the pl. and not to somebody
else
Pl. must be foreseeable, not the pls type of harm.
CB: 324
Dobson v. Dobson, SCC (1999)
A mother does not owe a legal duty to her unborn child
Duval v Seguin : a duty exists between an unborn child and a third party
o A tortfeasor is as liable to a child who as suffered prenatal injury as to the victim with a thin skull or
other physical defect.
Example of a duty failing for policy reasons :
o Micro-policy: uniqueness, autonomy of mother, impact on religious choices
o Residual policy: society should encourage women to be pregnant, would impact all fertile women,
doesnt meet goals of tort (deterrence, compensation), legislation is preferred
3.
Failure to Act CB: 329 - 330
Should we impose criminal liability for failure to intervene?
higher burden of proof in criminal law and will better protect the rescuer
o would require that there is no doubt that they couldve intervened without danger to themselves
o would better protect freedom and autonomy b/c of this higher burden of proof
downside: once it is criminal the victims will not be made whole again
o you get revenge
o but no $$ compensation > could establish a criminal fund (this is a thing)
is the penalty associated with a criminal conviction too high?
o would we want to make it a summary offence: you dont get a criminal record
o less ramifications than an indictable offence

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a.

Nonfeasance and Misfeasance

CB: 330

The Holy Bible

CB: 331
Horsley et al. v. MacLaren, SCC (1972)
Authority for: no duty to rescue in Canada
TJ: there is no duty to rescue another person in peril even where there is little risk or effort involved
CoA: there is no duty to take positive action > most deeply rooted principles in the common law
Donoghue only talks about a duty not to cause harm, it doesnt extend to a duty to confer a benefit
CB: 333-334 Relationships Requiring Rescue this will be evidence of a duty, but not a slam dunk
b.
Relationships of Economic Benefit
Look for: any indirect economic benefits: social situations can create economic beneifts (having the boss over,
business meeting, Tupperware)
Crocker and Sundance Northwest Resorts: ski resort with tubing competition and alcohol.
Duty: to intervene (+) and stop drunks from going down the hill and to rescue (omission) him from himself.
Policy reason: we dont want people to $$ from exploiting others
CB: 334
Jordan House Ltd. v. Menow, SCC (1974)
A duty is established:
Proximity: the bar knew him, he had been ejected before, known for taking risks
Foreseeability: weather, night, not wearing bright clothes, raining, snow banks narrowed road, closest
way home was highway
This decision hinged on the relationship for economic benefit
Because scope of duty only applies to situations where people pay for alcohol
Otherwise duty would be too broad (think of how often people drink alcohol)
Policy considerations
Cost-benefit: bar gets the profits, but taxpayers pay for any damage (healthcare system)
Statutes Use statutes to bolster policy: if there is a statute related to the issue then legislature has
found that there is a policy reason why this duty should be recognized
Decision didnt turn on this, but it helped
2 separate statutes indicate that you shouldnt sell liquor to intoxicated persons evidence that a breach
of the statute is a breach of the SoC legislature obviously wants this to be part of the SoC
look for whether a governing body has addressed this and they have taken on a policy position
Importance of knowledge:
Stewart: couple runs a tab at a hotel so hotel knows how many drinks are ordered, men over drink and
drive, women not drunk, car accident.
Duty? Yes, over-servers can owe a duty to an innocent third party
Causation not met hotel didnt know sober woman wouldnt have driven
c.
Relationships of Control or Supervision CB: 346
Person MUST enter into relationship willingly, knowing that situations may develop which will require them to
act in order to assist others.
Ex: parent/child, teacher/pupil, employer/employee, carrier/passenger, prison/inmate, hospital/patient,
occupier/entrant (Waldick), lifeguard
d.

Creation of Danger

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CB: 347
Oke v. Weide Transport Ltd., Man CA (1963)
If you create a danger, and you recognize it, you have created a relationship and therefore a duty
Collision with sign was not negligent, but he is different from other motorists because he got out of his car,
investigated the damage, and recognized the danger.
Duty: Was the harm foreseeable? He created a proximate relationship with other drivers since he recognized
a risk he created to other drivers. Evidence = telling the garage.
SoC: to notify the police
e.
Reliance Relationships
Can be created with behavior
Mercer: defs practice of locking a wicker get, left it unlocked once, someone hit by train, def found liable
Nord Deutsche: crown permitted lights to be displaced which caused a collision b/w two ships who relied on the
lights

CB: 349
Zelenko v. Gimbel Bros., New York SC (1935)
Store owner created a duty by moving a sick person to another room, created a relationship of reliance.
If a def undertakes a task, even if under no duty to undertake it, the def must not omit to do what an ordinary
man would do in performing the task.
You can create/assume a duty. When? by meddling in matters with which legalistically you have no concern.
f.

Statutory Duties

CB: 353
ORourke v. Schacht, SCC (1973)
Private duty to rescue can be imposed when there is a statutory duty
Police officers get power from statute: Police Act and Highway Traffic Act.
Are these duties owed to the public or to the pl. in particular?
Police officer is different from a passer-by, they owe a duty to an individual citizen
Diff. b/w general duty and specific duty:
o General duty = firing, internal punishment
o Specific duty = civil liability
g.

Categories or Principles?

CB: 339
Childs v. Desormeaux, SCC (2006)
just having a party where alcohol is served, and ppl over drinking is not enough to impose a duty to 3rd parties
that may be injured
you need to have KNOWLEDGE
duty comes out of finding creation of unreasonable risk for foreseeable plaintiff
o having the party creates a risk
o > how to approach this on a test: look at factors and determine if they either increase or decrease
the risk
increase: no food, no way home
decrease: serving food, taxi chits
what would the duty be? something Reasonable
General knowledge of the risks of D&D is not enough to find a duty of care. Duty will be found:

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o Host attracts and invites 3rd parties to an
inherent and obvious risk that the host has created or
controls (Crocker, drinking games)
o Paternalistic relationship of supervision and control exists (Sutter: mom buys keg)
o Public function or commercial context (commercial at bar, firm party networking, golf tournament)
o Reasonable reliance (invitation says: leave your car at home)