Tort Law Reading Notes Week 1 Mon Sep 8 Damages pp697-729 aim of damages: restore plaintiff to position he would

have been had the wrong not occurred o as this is impossible in cases of personal injury, monetary compensation is used o total amount is the amount that will release the target amount over the given span of years assessment is a matter if calculation, not impression (SCC 1978) 3 probs: o 1) what kinds of items must a defendant compensate for o 2) how does the court determine a present sum that will compensate into future o 3) what is the effect of insurance proceeds/other compensation on tort award non-fatal accident may have 3 economic consequences for victim medical/related expenses, impaired earning capacity, pain/suffering courts pay lump sums, not periodic payments o but, lump sum equal to the price victim would have had to pay in order to purchase an annuity (income, allowance) calculated to yield the periodic payment for the expected duration of the disability, and no more o why lump sum? 2 reasons. 1) economizes on administrative expenses 2) avoids disincentive of continuing money tied to continuing disability re: future lost earnings, assumptions about future changes in victims income and choice of interest rate (discount rate) greatly affect size of reward how to determine? o Step 1 age profile (remaining working years, etc) o Step 2 foresee wage change, a) secularly rise in labour productivity b) secular rise in inflation Most other factors are unforeseeable o Step 3 multiply each years wages (steps 1,2) by actuarial probability he will still be alive the following year o Therefore to determine wages lost by a 25 year old truck-driver in his 35th year, we would multiple todays wages of a 35 year old truck driver by 1.07 (0.3 expected productivity increase, 0.4 expected inflation rate), multiplied again by 1.07, repeating until compounded 10 times (for 10 years inflation). For each year do this (from 25-65) and then sum them. The total is future lost earnings. o But then, they must be discounted to present value 7% interest rate on long-term bonds means we could have just totalled using adjustments only life-cycle and mortality factors discount rate = long term interest rate minus inflation rate what about non-pecuniary (non-financial) income? Love, recreation, etc? o since wages compensate usually for these costs (forgone recreation, etc), should they not be deducted from net loss due to disability (now he has more time to pursue them, etc)?

no: law ignores non-financial costs of work and treats losses of nonfinancial earning capacity under rubric of pain and suffering

loss of limbs/vision reduces amount of satisfaction that can be bought per dollar, so large sum is often awarded as people would not exchange there lives for anything, but an infinite sum cannot be the correct amount awarded o why? It implies optimum rate of fatal accidents is zero, or close, but obviously society is unwilling to incur the costs of reducing the rate of accidents to this level Andrews v. Grand & Toy Alberta Ltd. (1978), 83 DLR (3d) 456 (SCC). Text p. 700. o DLR= Dominion Law Reports Man became quadriplegic after a traffic accident. No question about liability. At trial awarded $1mil plus, on appeal down to $500k, appeal said he should live in hospital, not have home care (appeal court reduced original $4135/month expected care cost to $1000). SCC overturned appeal, set figure at $800k, man receiving 75% of that (he was 25% responsible for accident). Grounds: only argument against home care is high social cost, due to incr insurance premiums. Yet it is monstrous to keep premiums down by depressing damages below their proper level (SCC Dickson J quoting Salmon LJ in Fletcher v. Autocar & Transporters, Ltd [1968] 1 All ER 726 at 750) (text p707). Mimimizing social burden may be factor in choice between acceptable alternatives, but can never compel choice of unacceptable (Dickson J). Dicksons assessment of damages: o 1) Pecuniary Loss a) Future care standard of care o not merely provision, but compensation (p706) life expectancy o before or after accident? Whats the gap? o Court chose after accident (p707) contingencies of life o might have become ill, had an accident, laid off, etc o might have been promoted, win the lottery, etc o not necessarily a scientific figure o 20% (Andrews case, but that becomes baseline for all other cases precedent) capitalization rate (discount rate) o investment to release total amount based on expected return/interest rate (10%) o offset by inflation rate (3%) o therefore use capitalization rate (discount rate) of 7% (in Andrews case) o Ontario courts have stipulated discount rate of 2.5% b) Prospective Loss of Earnings level of earnings

if child, based on job, level of education of parents (based on general statistics) p722 gender differences important too lower salary levels, take time out from job market, etc. (p723) length of working life o in this case, the victim does get money for the lost years, unlike in std of care/lifespan case contingencies capitalization rate duplication of cost of future cost of basic maintenance (p709) c) Considerations Relevant to Both Heads of Pecuniary Loss capitalization rate: allowance for inflation and the rate of return on investments allowance for tax o 2) Non-pecuniary Loss Canadian courts rarely provide punitive damages no money can provide true restitution. Money can provide for proper care: this is the reason the paramount concern of the Courts when awarding damages should be adequate future care (p.711,712). There is no objective way to translate non-pecuniary losses into monetary terms 3 approaches o 1) conceptual each faculty has a particular value, independent of individuals own use/enjoyment of it o 2) personal values injury in loss of human happiness for particular victim o 3) functional accepts approach 2, but instead of measuring happiness, it attempts to provide victim with reasonable solace for his misfortune Dickson J believes $100 000 (1978) should be upper limit for nonpecuniary damages in this type of situation (adjusted today around $200 000) plus special damages (those damages which have already occurred, therefore easy to calculate) unless injury is quantifiable; pursuing a lawsuit is often a waste of time o courts remain very suspicious of non-physical injuries, if they are unaccompanied by physical injuries o can you afford to lose the case? If you lose, you have pay both your and the defendants legal costs you have to be confident if youre going to sue a large organisation setting of the discount rate at 7% has been challenged by commentators o some argue to use the historical inflation rate rather than the current one o others argue it can be eliminated entirely as historically growth of real wages in favour of salaries has exceeded the real interest o there is no market for disability, death, but these judgements must pretend there is

victims are reduced to a capital asset, in the worst view Hutchinson believes this is certainly problematic in the law Common law knows the price of everybody, but the value of nobody

in order for deterrence to work, people have to know about it o how does it work when nobody knows what the law is? Ie contributory negligence

Tort Law Damages, p729-44 property can be important in torts damage to property, etc how do we assess damage to property? o Decrease in value Somethings are hard to value: paintings, jewelry What about objects that have little market value, but highly sentimental objects? Too bad! Market value is the only one that counts o Cost of repair o Replacement cost whichever one is the cheapest is the one you get subrogation: o usually plaintiff sues defendant plaintiff needs to ask what will I get if I win?, does defendant have this money? therefore defendants tend be institutions and corporations o unless individuals have insurance o often both parties have insurance, so litigation is between two insurers o insurers take over your rights/responsibilities; they subrogate your claims as plaintiff: insurer can pay, then they can choose whether to sue the defendant its out of your hands as defendant: insurer may choose to settle, event though you dont want to insurance allows you to walk away from trouble

Wilson v. Martinello (1995), 125 DLR (4th) 240 (Ont., CA) (text p729) key issue: circumstances in which a trial judge is entitled to incl a gross-up for income taxes and a management fee in a lump sum award for future pecuniary loss - appellant admitted liability for death of respondents wife and daughter in car accident, respondent wanted lump sum payment (mostly non-pecuniary losses: care & companionship, etc) so he could invest in a franchise o separate action brought on behalf of wife, by her estate (which will probably also be husband, but its a separate claim) o respondent also made claim for services provided, etc - defendants want to pay periodically, as they allowed to under the law -

in death case, case is brought by the estate, damages are distributed according to will if all parties agree, court may order defendant to pay all or part of the award periodically, under s116 of Family Law Act if plaintiff requests the amount in the award include compensation for tax, the court may order periodic payments, if the defendant has sufficient means to fund scheme of payments gross-up: the practice of increasing lump sum awards for future care costs and pecuniary losses in personal injury cases and for pecuniary losses in fatal accident cases to take into account the impact of taxation on the income generated (the interest earned) by lump sum awards structured settlement: a method of paying an agreed future loss on a periodic basis. It has been defined by Revenue Canada as a means of paying or settling a claim for damages through the purchase of an annuity so that amounts paid to the claimant are not eroded by tax o payments made under structured settlements are not subject to tax o structured settlements are identified with the period payment of damages by means of an annuity, purchased by the defendants casualty damages. Annuity payments guarantee payment (because the contract is owned by the insurer), are tax free, eliminate gross-up issue -> therefore incr popular eliminates plaintiffs investment risk, and need to consider management costs o defendants like periodic settlements because it is often cheaper over time no gross-up required s116 of the Family Law act o court can choose lump sum or periodic payments; must take into account plaintiffs best interest o court given power to impose a structured award upon a plaintiff for future pecuniary damages where the plaintiff seeks to include in the award an amount to offset any liability for income tax on income from the investment of the award. Martinello tried to avoid this at trial by stating he was not requesting gross-up But s116(5) states if structured settlements are not paid, gross-up must be awarded o In essence saying we are not requesting it, but you must give it to us clearly the act is drafted very badly o Finlayson JA trial judge was mistaken in going along with artificial posture adopted by the plaintiff o But, agrees that structured payments were not in best interest of plaintiff due to investment plan in Tim Hortons franchise o Victims are dead not necessary to provide for ongoing care o Once structure put forward by defendant is not in the plaintiffs best interests, the plaintiff is legally entitled to a lump sum

Cunningham v Wheeler (1994), 113 DLR (4th) 1 SCC (text p735)

Cunningham was injured when he was hit by a car, he was 46. He was employed by BC Rail, in hospital for 9 days, off work for 20 weeks (during which time he collected disability benefits worth $5327.15) No deductions were made from his pay for the disability benefits But, under collective bargaining package, if collateral benefits went down, there would be a corresponding rise in hourly wage Historically in courts, payments received for lost wages pursuant to a private policy of insurance should not be deducted from lost wages claim of a plaintiff Usually, plaintiff is not entitled to any double recovery for loss due to injury (the tension between compensation and deterrence) o Double recovery occurs usually from public benefits Public benefits must be deducted from awards given o Why the insurance exception? o Originates in Bradburn v Great Western Rail Co (1874), where plaintiff received both insurance money and damages from railway company, because there would be no justice in setting off an amount the plaintiff had entitled himself to, prudently purchasing insurance Causal reasoning: accident is not what causes the payment directly; an accident must occur, but it is his contract which causes him to receive the money o Later cases determined also that the plaintiff paid for the insurance, and did not pay for it to benefit the defendant Makes no sense for wrongdoer to benefit from the private act of forethought and sacrifice of the victim question: should the insurance exception apply where the disability benefits are obtained not privately but through collective bargaining? o CoA refused to except them, as they were not deducted directly from pay o But, SCC, (Cory J speaking, Sopinka, Iacobucci, Major JJ concurring) said the benefits clearly resulted in a reduction of hourly pay; therefore they were paid for just as much as a private policy would be o Wealthy individuals are more likely to have private insurance, so to deduct public benefits from (usually) poorer people would be socially skewed in favour of the wealthy; collective agreements are often a means for poorer people to gain security Cory says collective agreements should be counted as a private plan because of employee sacrifice o Evidence that employees have contributed into the plan should be enough for exception rule, ie: Evidence that there were trade-offs in the collective bargaining process Evidence of some money forgone by the employee in return for benefits Evidence of a direct contribution by the employee Evidence of payments by the employer for the benefits made on behalf of the employee which shows those payments were part of the employees wages o This status should not be confined only to unionized employees, but to anyone who can show proof of payment into disability schemes

McLachlin J (La Forest, LHeureux-Dube JJ concurring) dissented in part: First exception to rule against double recovery is in case of charitable gifts 2nd exception is insurance, as in Bradburn v Great Western Rail co. indemnity payment: is intended to compensate the insured in whole or part for pecuniary loss non-indemnity payment: payment of a previously determined amount upon proof of a specified event McLachlin believes Bradburns insurance was non-indemnity contract If insurance money is not paid to indemnify plaintiff for a pecuniary loss, then plaintiff has not been compensated for any loss. Therefore no double recovery. McLachlin J says disability benefits are clearly indemnifying; therefore should not be excepted from double-recovery claim Furthermore, if earnings were not lost due to a disability plan, what is victim being compensated for? He has no lost earnings. A plaintiff who is more/less vulnerable (in any way), as a consequence of defendants negligence will not be reflected in the actual award of damages the plaintiff is compensated to full extent of the loss, no more/less. Is there any additional deterrent effect by having tortfeasor pay more? McLachlin thinks not. Key principle for McLachlin: the measure of tort damages is what the plaintiff has lost, not what the defendant should be compelled to pay as the price of his negligence But, if the plaintiff can show that if they win all the damages they would have to pay back the insurance company, then they dont have to take it into account

Torts Reading & Lecture Notes, Week 3. (Std of Care p47-91, Duty of Care p111-143) Negligence: The Standard of Care under what conditions is someone liable for unintended harms? o Subject to some exceptions, one is liable for the harms caused by ones own negligence Negligence = creation of unreasonable risk = when you dont meet the std of care Acting negligently alone does not lead to a legal action Only if you injure someone does action arise Tort law doesnt care about risk (in terms of deterrence); it only comes into effect when the risk lead to an injury o Questions: what counts as a harm? What counts as a cause? What counts as negligence? If you keep to the std of care, nothing else matters, you are not liable for any injury

law says std of care, which is objective (what a reasonable person would do, not what defendant could do), must be observed in our interactions w/ others o but recognises incapacities of the young or the insane o therefore what is reasonable care? What is connection between reasonableness and practice/custom? o How does negligence law determine boundary between defendants freedom to act and plaintiffs interest in security? 1) The objective standard 2) Reasonable care 3) Proof of negligence (not assigned reading) is it a moral inquiry? Is it objective or subjective?

1. THE OBJECTIVE STANDARD Vaughn v. Menlove (1837), 132 ER 490 (CP) (text, p48) defendant built rick to store his hay, was warned about chances of fire (because it was built poorly, no adequate ventilation, etc), fire occurred, spread from rick to defendants barn and stables, then to plaintiffs cottages, which were entirely destroyed judge directed jury to consider if defendant had acted with gross negligence with reference to the standard of ordinary prudence appeal for a new trial on grounds that above std is too uncertain (what is prudent etc; std should be did he act bona fide to the best of his judgement? Tindal CJ: Appeal denied, good judgement std too vague, would vary with each defendant All cases should be judged on what a man of ordinary prudence would observe: the objective std o But, this std can be moved w/ the context o It is a moral inquiry in that in makes a general std that people should live up to; but it is not in the sense that we dont look into the motivations of the particular individual, we are not interested in the intentions of the person reasonable man of prudence is not the avg man = big difference o we set stds that people should aspire to; perhaps not all meet them

Buckley v. Smith Transport Ltd., [1946] OR 798 (CA) (text, 49) - truck driver slammed into streetcar, employer sued on basis of vicarious liability for employee - defendant said employee had become suddenly insane, doctors found he had syphilis of the brain (died 1 month later) - court held no liability applied to employer - insanity test = did the insane delusion make the defendant unable to understand the duty that rested upon him and unable to discharge that duty? Roberts v. Ramsbottom, [1980] 1 All ER 7 (QBD) (text, p49) plaintiff was getting out of car when hit by car driven by defendant shortly before, defendant had hit another van and knocked a boy off his bike defendant had had a stroke, at which point his consciousness was impaired

Neill J: defendant not aware that he was unfit to drive, so no moral blame can be attached While std of care for driving is independent of drive (ie learner, infirm, drunk, all have same level of duty), driver may be able to rebut case of negligence by demonstrating sudden affliction rendered him incapable of driving o Driver will escape liability if he is unconscious (automatism) o But, if he retains some control, his position is the same as driver who is old or infirm he is liable Contd to drive after realising he felt unwell and had hit the van Impairment of judgement is not a defence Morality is irrelevant to liability

Mansfield v. Weetabix, [1998] 1 WLR 1263 (CA) (text, p51) trucker was unaware he had condition that caused his brain to malfunction if his blood sugar was too low caused series of accidents after eating too little Legatt LJ overrode Ramsbottom case, saying driving liability is not strict, saying trucker was in no way to blame, he was not negligent Aldous LJ: trucker could not have reasonably known about his condition, therefore not at fault Hutchinson: why should plaintiff carry adverse consequences of lack of knowledge o Should be objective std we have to meet, regardless thats why we carry insurance o Policy argument rather than a moral argument

Holmes, The Common Law (text p51) unlike contract law, liability from arising from a tort are independent of previous consent law has never had a general view of the conduct which everyone may fairly expect and demand from others 2 theories of common law liability for unintentional harm o 1) The Austin Theory / The Criminalist Theory characteristic feature of law is sanction threatened by sovereign liability is nothing more than a penalty for disobedience liability based only on personal fault negligence is a state of the partys mind o 2) The State of Peril Theory under the common-law, man acts at his peril never liable for omissions except in consequence of a duty voluntarily taken the choice to act is key if the act was voluntary, it doesnt matter that the detriment that followed was unintended nor due to negligence multiple acts can be in between the action and result the length of chain is unimportant

unless the intervening acts are of such kind that they could not have been predicted Gibbons v. Pepper: horse frightened by 3rd party or accident, ran over a man. Rider not liable. But, if the horse had run because he was spurred by the rider, he would have been liable. Or had horse been known to be unruly, and was taken to crowded area to be broken, rider may have been liable. Nelson CJ: [no one can be subjected] to liability for an act done w/o fault on his part Otherwise any motion, however remote, could be claimed to set off a chain that resulted in an accident What is fault? How can jury judge if conduct was that of a prudent man? If we fall below the average in intelligence, prudence, it is not an excuse. Bad luck for us. In general, every man is presumed to possess ordinary capacity to avoid harm to his neighbours, unless a clear and manifest incapacity can be shown o Ie blind not expected to see at their peril, but is bound to consider that infirmity in regulating their actions Losses lie where they fall, unless prevention costs are less than accident costs o

McHale v. Watson (1966), 115 CLR 199 (Aust. HC) (text, p56) 12 year old girl injured (lost eyesight in one eye) by a boy who throw a metal dart he had made she said he aimed at her, he said he aimed at a post and it bounced off it and hit her at trial, judge (Windeyer) believed boy, found non-guilty o std of foresight is an impersonal test, but childhood is not an idiosyncrasy of a particular person, that should be ignored o injury not result of lack of foresight and appreciation of the risk at appeal (based on claim that Windeyer was mistaken in holding boy to different std of liability, and should have found guilty of negligence if he held him to correct std), judges divided McTiernan ACJ: o Lots of American authority in favour of applying lower std of care to children American Restatement of the Law of Tort: std of care expected is that which it is reasonable to expect of children of like age, intelligence and experience o Boy was too young to have forseen that dart may have been deflected if post not hit accurately, or possibility that he would not hit post accurately. Appeal dismissed Kitto J: o Limitation upon capacity for foresight or prudence is not personal to the boy, but characteristic of humanity at his stage of development and therefore normal. Appeal dismissed

Menzies J: o All people should be held to std of reasonable man; law adopted general std for good reason; law is not simple exercise of all skill capable of particular individual to avoid harm o Believed boy aimed at girl o A reasonable man or boy would not throw a 3-inch piece of metal, head high, in the direction of another person. Appeal should be allowed.

The Queen v. Hill, [1986] 1 SCR 313 (text, p61) - Wilson J: law treats all people equally, except when they are in a developmental stage on the way to full adulthood, and full legal rights and duties o This is reflected by having an incrementally adjusted measure of responsibility McErlean v. Sarel (1987), 61 OR 386, at 412-14 (CA) - when children engage in what is classified as an adult activity, he or she will not be according special treatment, and no allowance will be made for his or her immaturity o ie operating a power vehicle (in this case, trail bikes) Fleming, The Law of Torts, 8th ed. (text p64) The Reasonable Man - the reasonable man is the embodiment of all the qualities we demand of a good citizen - this means often people are found guilty of not living up to a std they cannot meet - but, if std were relaxed for those who cannot attain the normal, the burden of accident losses from the extra hazards created by the accident-prone would be put onto the innocent victims Moral Qualities & Knowledge - only objective community ideal determines if defendants conduct attains proper balance between self-interest and altruism o individuals moral notions and qualities are irrelevant - perception of risk is based on correlation of past experience and immediate situation, but substd perception or knowledge is no excuse o but, if defendant has extensive knowledge (ie doctor), wisdom of judgement of risk will be compared to what others with such knowledge would consider probable o field of expectable knowledge increases in step w/ scientific advances and general expansion of frontiers of human knowledge Physicians and Informed Consent - physician will be judged by the std of the average practitioner of his class; higher level of skill will be demanded of a specialist over a general practitioner Beginners - paramount social need is to compensate victims (over that of encouraging beginners, which is also important), so they must be held to same std of those who are reasonably skilled or proficient in the given calling

Need for Experts - for tasks requiring expert skill, especially those impinging on public safety, layman will be judged by std expert o ie if you choose to repair your houses electrical wiring by yourself, you are responsible for the following fuck-ups to the neighbourhood system as if you were a professional the reasonable homeowner should have known they needed and expert Physical, Intellectual and Emotional Characteristics - subjective std: the physically handicapped is judged by the std of what can be expected from a reasonably prudent person suffering from his disability - compromise is struck between allowing the handicapped a reasonable degree of freedom and safeguarding the general public - as far as mental and emotional characteristics are concerned, the objective test prevails: must meet stds of a normal person Age & Lunacy - considerable concessions given to children (see above) - but obligation of parents/school authorities to observe reasonable care in supervision of children under their control - some authority for similar discrimination in case of aged/infirm o allowance for lack of mobility may be made if charged with contributory negligence as pedestrians, but they must conform to objective stds when driving - insanity: varying positions in courts, but usually it is regarded as unfair to victims to take into account defendants mental abnormality Wealth (or lack) - is it relevant? - If you cant afford to do it properly, dont do it - But should there be an analogy of wealth to expertise? o From legal perspective, no Hutchinson: issues are not merely technical, often social o Defendants are often large corporations or towns o Should there be difference between stds on persons as corporations? Hutch thinks there should be different stds corporations should be held to higher stds that individuals reasonable should be aspirational

2. REASONABLE CARE Law & Economics Posner, The Learned Hand Formula for Determining Liability (text, p68) Posner believes we can use economics to understand areas of law that do not immediately lend themselves to the use of economics How do we measure value or preference for resources?

o Usually by how much they are willing to pay for it some believe that in a fully-functioning market, legal rules would be unnecessary but in reality, transactional costs of making deal with every individual would be huge so, legal rules attempt to mimic would market would produce if everyone could negotiate with each other freely and efficiently applying market thinking to injuries and accidents they desire an efficient level of accidents o in order to eliminate as many accidents as possible, you have to spend more money on the precautions than on the savings o that would be inefficient o you should spend up to the cost of the accident to prevent an accident, and nothing more

U.S. v. Carrol Towing Co., 159 F2d 169 (2d Cir. 1947) - ship became unmoored after owner left unattended, collided with another ship - Learned Hand J: owners liability for injuries is a function of 3 variables: o 1) probability that ship will break away (P) o 2) the seriousness of resulting injury (L) o 3) the burden of adequate precautions (B) o if B is less than L multiplied by Pnegligent Posners reformulation: - B is cost of avoiding the accident, L is the cost of the accident itself, P remains probability - PxL is the expected cost (the average cost that will be incurred over a period of time long enough for the predicted number of accidents to be the actual number) - Ie. Accident chance is 1/1000 (0.001). Per Accident cost is $10 000. Therefore the expected accident cost is $10. (10 000x0.001). This means if we observe the activity long enough, we will observe an average accident cost of $10. - PxL is also referred to as the benefits from accident avoidance (accident costs) - Negligence = failing to avoid an accident where the benefits of accident avoidance exceed the costs = prevention costs are less than accident costs o And also when the prevention costs of the defendant are less than the prevention costs of the plaintiff - If costs of safety measures exceed benefit of accident avoidance, society would be better off in economic terms to forego accident prevention - Economics says social utility is irrelevant as it is a function - Hutch: clearly problematic as creators of risk decide whether that risk is acceptable for everybody else, or decides who faces that risk o Commodification also raises serious issues - Posner: o A rule making an enterprise liable for accidents that occur in such cases cannot be justified on the grounds that it will induce the enterprise to increase the safety of its operations, because an enterprise would rather pay tort judgements than larger cost of avoiding liability Posner also talks about social function of negligence liability o No-fault std of liability (man was responsible for harm caused by his actions whether or not he was at fault) relaxed in 19th century, under

pressure from industrial expansion and rise of individualism (conventional view) Posner disagrees, 3 main points o 1st, says adoption of negligence std did benefit industries like railroads, but did not function as a subsidy, more like a tax being removed (since railroad companies no longer liable for ALL accidents at crossings, their costs went down) o 2nd, disagrees that main purpose of civil liability is to compensate victim for medical expenses, loss of earnings, suffering, etc. people could insure themselves against uncompensated accidents, if they so chose civil liability functions more to regulate safety creation of private rights is a means of regulation; rules are made by the judges aided by the parties; burden of investigation shouldered by the parties o this minimises the govt role, a popular idea in the 19th century rd o 3 , disagrees w/ orthodox view that negligence is a moral concept the morality of the fault system is different than that of everyday life can be negligent even though one did ones best to avoid an accident but happens to be a clumsy person injury caused by carelessness and injury caused by unavoidable action arouse different reactions thus it is not a moral question of helping the unfortunate therefore, dominant function of fault system is to generate rules of liability that will bring amount the most cost-efficient level of accidents and safety negligence means there was a cheaper alternative to the accident

Bender, A Lawyers Primer on Feminist Theory & Tort (text, p73) essentially a response to Posners support of the Hand Theory/Economic Conception of Negligence cost-benefit analyses turn losses, whether to property or persons, into commodities in fungible dollar amounts people are abstracted from their suffering, they are dehumanized another understanding of std of care is rooted notions of interconnectedness, responsibility, and caring reasonable man should be abandoned in favour of caring neighbour legal standard of care need not be set to the bare minimum law can be positive force instead of reinforcing divisions, disparities of power, and isolation conduct should be tortious when it does not demonstrate responsible care or concern for anothers safety, welfare, or health tort law should begin with premise of responsibility rather than rights tort liability should be greatest for std of care falling below accepted std within our families

Posner, Conservative Feminism, (text p.74) response to Benders critique

Benders proposal would shift liability in the direction of strict liability Reasonable man concept is important in that it prevents tortfeasors from arguing that while average person could have avoided the accident, they could not have done so due to some below-average capacity

Blyth v., Birmingham Waterworks Co. Alderson B: negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something that a prudent and reasonable man would not do. Bolton v. Stone [1951] AC 850 (HL) (text, p75) ball flew from a cricket match into a road, injured someone, woman wanted to sue cricket club Lord Reid: did cricket club meet std of care? wasnt a far-fetched possibility; had happened (not the injury) a few times before o prior to this case, all cases were 2 types: those where, before the event, the risk of it happening would be regarded as unreal because it was thought to be physically impossible or its possibility fantastic; or those where there was a real risk and then a reasonable man would have taken necessary steps to eliminate the risk in this case it was foreseeable, but chances were extremely small (the ball had left the ground approx 6 times over 30 years), even smaller that it would hit someone HL decided in favour of cricketers o Foreseeability alone is insufficient o Likelihood is also vital People not bound to guard against fantastic possibilities, even if they are forseeable Did not alter principle that person must be regarded as negligent if they do not take steps to eliminate a risk he knows or ought to know is a real risk Decision recognised qualification that it is justifiable not to take steps to eliminate a real risk if it is small and the circumstances are such that a reasonable man, careful of the safety of his neighbour, would think it right to neglect Foreseeability in and of itself does not determine breach of duty; magnitude of risk and its degree of probability remain to be considered Man must not create risk that is substantial Consequences also important o Extent of risk v consequence of risk however, difficulty of remedial measures are unimportant o if cricket cannot be played w/o creating substantial risk on a particular ground, it should not be played there at all o this statement by Reid is controversial in Wagon Mound 2, this is developed further, that considerable expense to eliminate a small risk is acceptable justification for not doing it social utility: is the relevance of the activity important?

Latimer v. AEC, [1953] AC 643 (HL) (text, p80) HoL judicial committee: members are appointed, then become lords, not the other way around they remain experts o Also constitute privy council for some commonwealth countries flooded factory due to rainfall. Floor became slippery when water drained due to mixing with oily substance used in factory. Supervisor spread as much sawdust as he had on the floor, but didnt have enough to cover all areas. Plaintiff worked on a gangway w/ no sawdust, slipped and hurt his ankle, sued employer for negligence. Porter L: o Respondents did best to get rid of the effects of the flood o Safety engineer took no further steps o No evidence partial closing of factory was possible o Appellant did not establish reasonably careful employer would have shut down the works or closed the factor o Shutting down entire factory would have overly severe economic effects (workers unpaid, etc) Did employers think would be cheaper to pay damages than shut down the factory (did not make this argument to HoL) o Had cheap remedies been available, the employer may have been negligence o No negligence Tucker L: o Question is: has it been proved that the floor was so slippery that, remedial steps not being possible, a reasonably prudent employer would have closed down the factory rather than allow his employees to run the risks involved in continuing work? o Given that no-one other than the plaintiff slipped, and no worker complained, it suggests that this condition was not met o No negligence o Cost of risk v cost of precautions

Watt v. Hertfordshire County Council 1954, English CA (text, p82) - fire truck sent out to answer call 300yds from station. Call required heavy jack to lift car. Usual vehicle to xport this unavailable. 3 men held jack on back of truck, nothing to lash it to. Fire truck had to stop suddenly, jack slid forward, 1 man injured. Sued employers. Lost at trial, lost at appeal. o Dening LJ Commercial end to make a profit is different than human end to save a life In a commercial case w/ no emergency situation, the plaintiff would likely succeed The saving of a life justifies taking increased risk It is always a question of balancing the risk against the end Extent of risk Consequence of risk Precautions must be taken into account Also social utility of saving a life

Trimarco v. Klein 436 NE 2d 502 (NY CA 1982) (text,p82) plaintiff sued landlord when his bathtubs glass door shattered, causing him injury recovered $240 000 at trial plaintiff said at trial since 1950s practice of using shatterproof glass in tubs had come into use, so that by 1976 (incident time), the glass door no longer met safety stds since 1965, it was customary for landlords who had to replace broken glass to do it with safety glass when certain dangers have been removed by a customary way of doing things safely, this custom may be proved to show defendant has fallen below required std proof of customary practice may establish due care (Bennett v. Long Is. R.R. Co) [custom not to lock switch on temp railroad siding during construction], or if coupled with evidence it was ignored and was proximate cause of accident, may establish liability (Levine v. Blaine Co) [custom to equip a dumbwaiter with rope which does not splinter] o courts tend to say if you are following custom, you are a long way to meeting std of care, but it is not a guarantee proof of common practice aids society in formulating general expectation of how individuals will act but, std practice is not enough to prove negligence; jury must be satisfied with its reasonableness judges order new trial because statutes referred to by plaintiff did not refer to him (his was not a new installation) to prove custom is not reasonable, 4 steps: o prima facie something unreasonable going on, some facts o in response, defence can also establish there is a custom, and have to prove that custom o defendant must show that they comply with the custom o defendant will not be liable unless the plaintiff can show the custom is unreasonable this is very difficult for plaintiff

The TJ Hooper, 60 F2d 737 (2d Cir. 1932) (text p85) the classic case on the significance of custom barges towed by tugs were caught in storm and sank; alleged to be unseaworthy because they didnt carry radios which wouldve alerted them of the storm Learned Hand J: o No general custom among coastal carriers to equip tugs w/ radios o But radios are relatively cheap now and would afford great protection o Courts must say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission o Owners of tugs liable

Weiler, Groping Toward a Canadian Tort Law: The Role of the Supreme Court of Canada

what people do and what they ought to do are different What is done by people in practice may be much more representative than a jury judgement custom is necessarily feasible in a technical and economic sense; it is a precise std of care, can be informed, impersonal, and a fair judgement but this is not enough o constraints of ltd budgets and market competition means people do not always do what they should o consumer may not be trusted to pay a higher price for greater safety and competition may be deterrent to adoption of safety devices o legislatures may not have acted yet to require it of everybody o so plaintiff comes to court as a one-man lobby for the recognition of the need for the safety device it is up to the court to recognise this

ter Neuzen v. Korn (1995), 127 DLR (4th) 577 (SCC) (text p.86) appeal concerned liability of physician for conducting an artificial insemination (AI) procedure which resulted in patient contracting HIV through infected semen of donor SCC must answer if physician can be negligent even if he conformed with std medical practice, and whether trial judge erred in telling jury that prevailing std of practice could be found negligent Doctor did not inform patient of the risk of HIV infection from procedure Procedure that resulted in infection was Jan1985, first report of HIV in female sex partners of AIDS infected men was in early 1983, heterosexual intercourse was believed to be possible source of infection, no link between AI and HIV Dec 1983, link of HIV to blood transfusions Oct 1983, link of STDs to AI in a letter to a journal, which was not widely read by gynaecologists and was not read by the defendant (defendant is gyneacologist) First documented case of HIV through AI was published in July 85 in newspaper, and medical journal in Sep 85 Mid-84, moratorium imposed on bodily fluid and tissue transfers in Australia, after infection of 4 babies through blood transfusion o Not widely publicized in North America, so general medical community in N.A. unaware of closure of Australian AI clinics Elisa test for HIV in blood and semen was not available in Canada until late 85 o Impossible to test semen of donors at the time patient was infected doctor unaware of possibility of transmission until July 85. Did not read letter mentioned earlier did not make connection that HIV was STD and could be passed through AI because there was nothing recorded to this effect. Doctors AI practice conformed to Canadian stds Judge told jury doctor could be negligent on 2 grounds: 1, he failed to comply w/ stds, 2, the practice itself was negligent o Doctor found negligent by jury Court of Appeal overturned, on grounds that it was not possible for a jury acting judicially to have found that, in 1985, the doctor ought to have known of the risk SCC agrees with CoA, doctor acting with established principles cannot be found negligent o Although a common practice can be found negligent if it is fraught w/ obvious risks, or doctor doesnt take obvious precautions

doctor not found negligent in general, if the defendant can prove they follow a custom, and the custom is not obviously unreasonable, they will be ok in the court

DUTY & REMOTENESS: GENERAL CONCEPTS (text, p111) Wright, Cases on the Law of Torts determining when a risk is unreasonable involves a balance between gravity of risk created and social utility in of the conduct involved o traditionally the answer was left to the jury but not all conduct that is negligent involves liability o thus, duty of care, remoteness of damage, proximate cause, etc are all used to control juries and limit liability liability should be determined according to risk: risk to whom, and risk to what plaintiff has received injury, the defendant has not lived up to std of care o is that enough to show cause? No. need duty of care o must demonstrate clear source of injury; trace; cause o 1) show defendant was negligent enough to win? No o 2) must show defendant owed duty of care it is possible to have injuries caused by defendant, but they are not eligible for tortious recovery if they do not fall inside duty of care courts say you do not owe a duty of care to the entire world so who do you owe a duty of care to? at time of laws being formed (19th century), ideal of social norms are substantially different than norms now although we might use same test to find duty of care as 100 years ago, our understanding of it to practical facts has substantially changed o might use same test, but more things fall into the duty of care o but, in theory, there are still people who can be injured by someones careless conduct, but cannot recover but that group of people is getting smaller and smaller

1. Duty privity of contract = duties and responsibilities of contract apply only to the parties of contract (unless the parties agree otherwise) tort law is generally about liability outside of contract promises are not contracts, unless there is some kind of exchange o contracts are enforceable when value has been exchanged so, if someone gives you a cup of coffee, do you have any rights? o Traditional view is no: only obligations were to refrain from intentionally harming others, unless you entered into an agreement 19th laissez-faire view of the world

we were only obliged to others if we agreed to take on those obligations: no civil liability unless there was a contract but as time passed, court began to introduce limitations and exceptions to this idea:

Winterbottom v. Wright (1842), (text p112) - defendant was a contractor to supply mailcoaches, which he was also to keep in good condition, made contract with Postmaster-General - plaintiff was hired to drive mailcoach, which broke en route and threw him, causing injury - plaintiff sued defendant (manufacturer of mailcoach) - judgement in favour of defendant: o courts say must confine operation of contracts to the people who enter them o the right to recover is confined to those who enter the contract o there was no contract between defendant and plaintiff - plaintiff had not entered a contract with defendant, therefore defendant had no duty of care toward him o manufacture of article not liable to any 3rd party - Abinger CB: if we accept liability here it would open the floodgates o If we dont confine contracts to the parties, there would be no limits to the actions that could be brought would be outrageous to allow these kind of burdens to be put on manufacturers - Alderson B: if we take this one step, why not fifty? o If we move out of contract, its an abyss of legal actions o Must confine right of recovery to contractual parties - Rolfe B: hard cases are apt to introduce bad law o We should avoid emotion: plaintiff might seem deserving, but compensation would set dangerous precedent court laid out some exceptions: o things that were dangerous in of itself might give rise to 3rd party liability o manufacturer knew that thing had become dangerous due to malfunction might give rise to 3rd liability this principle was based on a fear of impeding industrial development, but has long since given way to policy of making negligent manufacturers, etc shoulder losses incidental to their activities advent of insurance has led to enormous widening of field of duty

Donoghue (nee McAlister) v. Stevenson (1932), (text, p115) appellant drank a bottle of ginger beer given to her by a friend, had been bought from a retailer bottle was glass, opaque bottle contained decomposed snail, suffered gastro-enteritis and shock claimed manufacturer owed her a duty to her as a consumer to ensure that there was no noxious element in the goods defendant said even if you prove there was something in the bottle, you cant prove cause of action

defendant made motion to throw out case as no action, this went all the way to HoL (if a snail can be proved to be there, does she have chance of winning? Ultimately HoL says yes, 3 to 2) o at this point, Stevenson dies, estate pays off Donoghue there never was a case. o This all rests on a motion to throw out case on grounds of no action: one of the most important cases in English common law in some sense never was Winterbottom v. Wright rule re: 3rd party has 2 exceptions o Where article is dangerous in itself o Where article is not dangerous in itself becomes dangerous by some reason of defect or another reason, and this reason is known to the manufacture Stevenson had contract with Minchella, owner of caf Plaintiffs friend has contract with Minchella, as she bought the drink o If friend had become ill, case would have been much easier: friend could simply have sued Minchella (as she had implied contract for merchantability of ginger beer, and gave consideration (paid)), but couldnt have sued Stevenson (under Winterbottom v. Wright, contract liability is strict) question: do manufactures offer duty of care to those other than whom they contract with, and in particular those who do not give them consideration? Key: Donoghue did not give value/consideration to Stevenson Note: torts usually arise when there are no contracts, but can also rise when there is a contract o Why might you be better suing in tort? Potentially higher damages Lord Buckmaster: principle of tort lies outside region where duty must extend to every person who uses the article made o Principles of law cannot be altered they are fixed o Donoghue may appear meritorious, but that is not enough of a reason o There can be no special duty attached to the manufacture of food other than that applied through contract or statute o Appeal should be dismissed Lord Atkin: a manufacturer of products, which he sells in a form that shows he intended them to reach the consumer in the form they left him with no reasonable possibility of intermediate examination, and w/ the knowledge that the absence of reasonable care may endanger customer, owes a duty to the customer of reasonable care o Law has to change to shifting social conditions o Liability for negligence is based upon a general public sentiment of moral wrongdoing But, acts or omissions which any moral code would censure cannot in a practical world lead to relief; there must be limit to the range of complaints and the extent of their remedy o You must take reasonable care to avoid acts or omissions which you can reasonably forsee would be likely to injure your neighbour Who in law is my neighbour? o

Persons 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 into question Note: neighbour principle is vital, but has to be seen in context; and it is not a principle that operates itself, it is not a mathematical test o It hides a deeper debate about values o There must be a connection between social values and law o Appeal should be allowed Lord Macmillan: on one hand, clear doctrine that no-one other than the parties to the contract can sue for breach of contract; on the other, clear doctrine that negligence apart from contract gives a right of action to the party injured by that negligence o These two rights co-exist independently o 2 approaches 1) the consumer who purchases from a retailer seems a stranger to the contract between retailer and manufacturer if the plaintiff is to succeed, he must bring himself into the case where the strictness of rule about 3rd parties & contracts has been mitigated in the public interest (ie issuing a chattel (any kind of moveable property) which is inherently dangerous or known to be dangerous) 2) look for evidence of carelessness on part of manufacturer ask if he owed a duty to be careful in a question with the party who has been injured then the fact that the injured party was not party to original sale becomes irrelevant case should be approached as case of delict (offence, misdemeanour), not breach of contract o conception of legal responsibility may be adapted in response to changing social conditions o manufacturer intends that his products will be consumed, therefore he places himself in a relationship with all potential consumers, to whom he owes a duty not to convert through carelessness an article which he issues them as wholesome into an article that is dangerous, appeal should be allowed o nb. Americans created system of transmissibility of contract (which ensures quality from customer to customer as something is resold) must draw line between people who have been affected by careless act, and those who have been affected but to whom a duty of care is owed need a limiting device o formal clarity: must have some degree of clarity (determinacy), easy to see where the line is o substantive justice: must connect with deeper principles of justice

Deyong v. Shenburn (1946), text p123

actors clothes stolen from dressing room, actor sued producer for not taking enough care to protect them judge held that defendant had not used reasonable care, but was under no duty to do so o just because of a relationship between 2 people, there is no requirement for one person to ensure the safety of the other persons belongings; no such duty has ever existed o relationship between actor and producer did not meet neighbour idea of Atkins in Donoghue v. Stevenson

Watson v. Buckley & Osborne, Garrett and Co. Ltd (Ogee ltd), (1940), text p124 hairdresser in Spain contracted with English company, hairdresser supplied Spanish hair-dye and English co (Ogee Ltd) distributed and advertised it solution was supposed to contain less that 4% chromic acid, but it was not in written contract and Ogee did not test it Ogee advertised as safe for sensitive skin Another hairdresser (Buckley) recommended it to a customer (Watson) on basis of advertisements, caused dermatitis Stable J: o Distributor liable o The 4% requirement was never made part of the agreement o They took no steps to check how the product was made, or tested once it was delivered Sample test taking 30secs could have been made That was carelessness o Ogee is not liable for original tortious act of the 10%, but it was their negligence as distributors which did the damage, through various acts and omissions

Clay v. AJ Crump & Sons Ltd (1964), text 125 owner hired architect to redevelop his garage, asked for one wall to remain standing temporarily, although it was scheduled for eventual demolition architect agreed w/o inspecting wall, relied upon opinion of demolition companys director, who relied upon opinion of his foreman in fact it was in a dangerous condition had it been properly inspected; two weeks later wall collapsed killing two workmen and injuring plaintiff at trial damages awarded against the architect (42% blame) and the demolition (38%) and building contractors (20%), affirmed by CoA o it was within contemplation of both architect and demolition contractors that builders would go onto the site, where they would be endangered o the duty owed was not affected by the fact that other people inspected the wall o even though building contractors had last chance to look, this did not break the chain of causation to cause the others to be negligent as well

Palsgraf v. Long Island Railroad Co. (1928), text126 (note: preceeds Donaghue v. Stevenson temporally)

plaintiff standing on platform waiting for train. Train stopped, two men ran to catch it as it began to move again. One boarded successfully. One looked unsteady and was pushed by one guard forward, while another guard reached to pull him. Man dropped a plain package, which turned out to be fireworks, which exploded when they hit the ground. The explosion threw some scales down the other end of the platform, injuring the plaintiff. Plaintiff sued the owner of the station. Cardozo CJ: o Action of guard may have been negligent, but not towards plaintiff o Bounds of plaintiffs immunity: protected against intentional invasion of her bodily security, protected against unintentional invasion by unreasonably hazardous conduct o Plaintiff cannot sue as the vicarious beneficiary of a breach of duty to another, only for wrong personal to her o Nothing in situation to suggest package was in any way dangerous at first o Negligence, like risk, is a term of relation; negligence in the abstract is not a tort; negligence is a tort if it results in the commission of a wrong, and the commission imports the violation of a right o Proving harm is insufficient; must prove that the act had such a strong possibility of danger to entitle him to be protected, even though the harm was unintended o Only foreseeable risk is negligent o Complaint should be dismissed Andrews J (dissenting): o Due care is a duty imposed on each one of us to protect society from unnecessary danger, not to protect only a, b, or c. o It does not matter that consequences are unusual or unforeseen But damages must be connected w/ the negligence to the point where we can say the latter is the proximate cause of the former Things have many causes; but only the proximate one interests us in torts The direct connection, w/o too many intervening interests o Agrees with complaint. If she had been standing close, she would get her complaint If she had been blown over by the blast, she would get her complaint The only difference is the blast hit something else first, which then knocked her over There is no significant remoteness in time or space from the cause; we can say her injuries were proximately caused by the explosion o But, there is a limitation of the forseeability in each step, so the chain cannot extend too far in modern negligence cases, the fact that the harm was caused by an intervening actor only prevents imposition of liability upon the first wrongdoer if the type of intervention was not within the risk Cardozos thinking is the paradigmatic example of the notion that the defendants duty is to be construed as correlative to the plaintiffs right o Because defendants conduct was not wrong toward the plaintiff, he was not held to be under a duty with respect to the plaintiffs loss

The plaintiff, to be victorious, would have to be within the class of persons whose rights were forseeably affected by the defendants unreasonable creation of risk

Prosser, Palsgraf Revisited (text, p137) Cardozos idea of the original risk (duty cannot extend past risk) that is forseeable is too restrictive forseeability of risk carries only an illusion of certainty in defining the consequences for which the defendant will be liable Palsgraf is a typical case of direct causation, nothing intervened Courts have said that direct consequences are always proximate, and recoverable Andrews doesnt go that far, but his main reason for permitting Palsgraf to recover is that injury to her was direct This approach has been condemned, for laying undue emphasis on physics It also draws no satisfactory line o The consequences are not infinite, but they may be fantastic Palsgraf case is a freak accident, and therefore no good rules can be drawn from it

Torts Reading and Lecture Notes Week 4, pp143-175 Haynes v. Harwood (1935), text p143 defendants owners of a two-horse van van driven by another man (Bird) Bird parked van on slope near wharf, placed break chain on the wheel, unloaded goods Instead of waiting with horses for a receipt, he took horses and van into another street to get receipt As he came out of building after getting receipt, one of two boys threw a stone at the horses, causing them to run away Plaintiff saw horses run, tried to stop horses when he saw women and children at risk in their path Succeeded in stopping horses, but one fell on him, causing him injury leading to pecuniary loss Defendant chose to leave vehicle in neighbourhood that was residential, many schools, children Defendants said: o no negligence on part of their driver o if there was negligence, the accident happened through intervention of some consciously acting person between the wrongful conduct of the driver and the accident (novus actus interveniens; chain of causation was broken) o volenti non fit injuria: damage plaintiff suffered was the result of his own act; he cannot recover Greer LJ: o Negligence is present: Negligence would be the failure of driver to use reasonable care for the safety of those who were lawfully using the highway

a policeman using the highway for the purpose of stopping a runaway horse is within the category of lawful use driver knew character of neighbourhood, clearly should not have left horses unattended in such a place no intervening act: Hadley v. Baxendale: is the accident the natural and probable result of the breach of duty? It is sufficient to show that this accident is of a class that might well be anticipated as on the reasonable and probable results of the wrongful act (do not need to demonstrate probability of specifics) volenti no fit injuria does not apply: no case law in UK, but in US: assumption of risk doctrine does not apply when plaintiff, as a result of defendants wrongful act, has consciously and deliberately faced risk to rescue another person from imminent risk but, rescuer can recover only if the cause of the peril is some negligent act o if there is no negligent act, there is no-one to sue

so what is the test of duty? Is it just reasonable forseeability? o Atkin searched for a general animating principle that allows us to explain previous cases and serve as a model o Buckmaster didnt look for a deep principle, look at previous cases as a guide

Wagner v. International Railway Co., (1921), NY CA, text146 danger invites rescue the wrongdoer who caused the danger may not have forseen the coming of the rescuer, but he is accountable as if he had o wrongdoer is therefore liable for injuries caused to the rescuer

Horsley v. McLaren (1971), SCC, text 146 Laskin J: liability to the rescuer is an independent duty, not a derivative duty of the negligent person o cause of action of the rescuer is based in tendency to induce the rescuer to encounter the danger o therefore immaterial that imperilled person suffers no injury o person who imperils himself by his own carelessness may be as fully liable to a rescuer as a 3rd person would be who imperils another

Urbanski v. Patel (1978), Man. QB, text 147 doctor mistakenly removed patients only kidney, thinking it was an ovarian cyst father of patient attempted to donate kidney, but it was rejected by patients body father successfully recovered damages for lost kidney on grounds that his effort was a result of the disaster that befell his daughter

entirely foreseeable that a member of her family would attempt to donate an organ to help her

Dobson v. Dobson; Canadian Abortion Rights Action League et.al, Interveners, 1999, SCC text147 note: Charter does not apply in cases of private law, but the values of Charter may influence development of the common law note2: foetus can only make claim if it is born alive; if the foetus dies before birth, no claim for damages can be made Cory J (Lamer CJC, Gonthier, Iacobucci, Binnie JJ concurring): If injury is caused to a foetus by prenatal negligence on part of mother-to-be, should mother be held liable for those damages when the child is born? Facts: woman driving negligently crashed car, allegedly injuring foetus, who had to be born by c-section the same day; suffers from permanent mental and physical impairment o Action brought by grandfather of baby o Owner of vehicle was father of baby, was insured against damages caused by negligence of drivers of his car City of Kamloops v. Nielsen: even where a duty of care exists, it may not be imposed for reasons of public policy o Although a duty of care toward child may exist, it should not be imposed on pregnant women for reasons of public policy Matters of public policy are concerned w/ sensitive issues w/ farreaching and unpredictable implications for Canadian society The legislature is a more appropriate forum for their resolution Imposing a Duty of Care in this Situation: o Test in Kamloops (taken from Anns v. Merton London Borough, 1977) determines whether mother should be liable Anns test: before imposing a duty of care, the court must be satisfied that there is: 1) sufficiently close relationship between parties to give rise to duty of care o proximity: degree of time and space 2) there are no public policy considerations that ought to negate or limit the scope of duty, the class of persons to whom it is owed, or damages to which a breach of it might give rise if 1 is satisfied, there is a prima facie duty, except if there are considerations of 2 note: hutch thinks this test is a joke policy is distinct from law; test is so vague as to be useless o first test can be satisfied if it is assumed that pregnant mother and foetus are separate legal entities but this goes against McLachlin J in Winnipeg, the law has always treated mother and child as one but, in this case, it is appropriate to assume, without deciding, that they can be treated as separate legal entities clearly they are as close as 2 people can be

forseeability: it is obvious that any careless act or omission on part of mother could lead to damage of child second test: public policy considerations clearly indicate that a legal duty of care should not be imposed upon a pregnant woman significant policy concerns mitigate against the imposition of maternal tort liability for prenatal negligence 1) the privacy and autonomy rights of women 2) the difficulties inherent in articulating a judicial standard of conduct for pregnant women

1) privacy and autonomy rights of women: o imposition of duty of care on pregnant woman would result in extensive and unacceptable intrusions into the bodily integrity, privacy and autonomy rights of women o although born-alive child can sue negligent 3rd party, we must recognise particularly unique relationship between mother and unborn child there is no other relationship in human existence that can serve as basis for comparison imposition of tort liability on 3rd party advances interests of both mother and child, but does not significantly impair the right of 3rd parties to control their own lives if woman held liable, the most mundane decisions in her daily life could be subject to scrutiny of the courts there is no rational or principled limit to the types of claims which may be brought about if such a tortious duty of care were imposed o tort liability would also carry psychological repercussions, potentially damaging the future relationship between mother and child, and even child and family yet family harmony is particularly important to create caring and nurturing environment for the injured child therefore neither best interest of child or mother are served through liability o purpose of tort law is to provide compensation to victim and deterrence to the tortfeasor but in ordinary course of events, imposition of tort on mother would provide neither compensation nor deterrence societal issue at heart of this appeal is lack of financial support available for the care of children w/ special needs 2) Difficulty of Articulating a Judicial Std of Conduct for Pregnant Women o if a duty of care is to be imposed on pregnant women, a judicially defined std of conduct would have to be met by what objective std could a jury be guided in determining a woman did all that was necessary to not breach a legal duty to not interfere with her foetus separate and independent right to be born whole o a) Reasonable Pregnant Woman Std inappropriate because it raises spectre of judicial scrutiny of lifestyle choices

a reasonable woman std would permit triers of fact to dictate manner in which pregnant woman should behave throughout pregnancy disparities in finances, ethnic background would lead to unfair application of uniform legal std pregnancy does not come only to those women who have within their means all that is necessary to ensure the best possible prenatal environment tort law is concerned only with application of objective stds of reasonable behaviour to impugned conduct; cannot address public policy implications raised by this appeal b) Lifestyle Choices Peculiar to Parenthood some say there is a dividing line between general duty of care toward public (therefore incl the foetus), and those activities that are peculiar to parenthood (which hold no duty) a general duty of care to the public does not exist it is only toward a foreseeable plaintiff therefore general duty cannot be used as a legal test for the imposition of tort liability in cases of prenatal negligence therefore there is no distinction that can be raised to suggest this case has no implications for social policy furthermore, actions which require a general duty of care to the public (and therefore the foetus) are extremely broad: ie rollerblading, lighting fireworks, spraying weedkiller in the garden, etc: these are all lifestyle choices which should not be controlled by the courts almost everything can be construed as a lifestyle choice c) Insurance-dependant Rationale judicial creation of motor-vehicle exception would rely on existence of mandatory insurance regime for automobile negligence this means liability would be imposed on mothers ability to satisfy a judgement by means of insurance coverage tort law is not result-oriented in this manner Hutch says this is ridiculous tort law is driven by insuracnce

McLachlin, LHeureux-Dube JJ concurring: o Charter does not apply, but the common law must reflect the values in the Charter o To apply common law liability for negligence generally to pregnant in relation to the unborn is to unacceptably hinder the liberty and equality interests of pregnant women o Liberty: virtually every action of a pregnant woman affects the foetus, so a std of care would bring the whole of her conduct under the scrutiny of the law This would jeopardize fundamental right of woman to control her own body (R. v. Morgentaler) o Proposal of CoA (liability restricted to situations where the pregnant woman already owes a duty of care to other people generally) violates

precept that common law duty of care arises from the relationship of the parties before the court, not from the relationship between the defendant and a hypothetical plaintiff Legislative action (as seen in UK) can accomplish ltd goal of permitting children in such cases to access motor vehicle liability insurance w/o these negative consequences; courts should not intervene

Major, Bastarache JJ dissenting: o Sufficient policy concerns have not been raised to cancel childs right to sue in tort o Appellant owed duty of care to others on highway and passengers in her car Unjustified to say appellant should not be held liable to born alive child on grounds that liability would restrict her freedom of action Suffering of born-alive child was foreseeable given risk of her negligent driving Could have avoided liability simply by driving nonnegligently o Liberty/equality interests not at stake: values of charter do not grant pregnant women any special interests in negligent driving o Grant of immunity from tort liability due to social policy considerations must rest on showing that freedom of action would be restricted by the imposition of duty of care to born-alive child o Matters where woman does not owe 3rd-party a duty of care can be distinguished In these cases freedom of action is an issue and therefore immunity can be granted Distinction is plain and obscured only by slippery-slope arguments o No other plaintiff would be compelled, w/o any fault on its part, to go through life carrying the seal of anothers fault, without any compensation o Removal of childs right to sue in tort for negligence lies within exclusive purview of legislature, subject to charter considerations response to Major: where do we draw the line? Major: include only where you are engaged in activities where you owe a duty of care to others

Duval v. Seguin (1972), text159 plaintiff successfully sued defendant for injuries suffered before she was born (but for damages suffered since birth), in a car accident

Weinrib & Weinrib, Constitutional Values & Private Law in Canada transactional equality is most important principle in private law o since plaintiff and defendant have equal status in relationship, the decision between them cannot be made on the basis of considerations that reflect only the position of one of them this principle excludes 2 solutions to Dobson case: o 1) woman be liable for any actions that foreseeably might injure foetus

no good because physical unity of mother-foetus means woman would be held hostage to interests of future child o 2) court adopted solution (importance of womans autonomy precludes liability to child) no good because it makes considerations pertinent to only one of the parties decisive for the whole relationship court should have worked through std tort analysis in a form that was relevant to physical unity of mother-foetus o tort duty to plaintiff exists if plaintiff is within class foreseeably put at risk by defendants unreasonable act o if this class includes others besides foetus, then there is no reason for law to treat the plaintiff differently that anyone else who might be in it o if the nature of the class is such that only the foetus could be in it, then the foetus injury is the result of a risk confined to the physical unity of the mother-foetus to grant liability in this case would be inconsistent with the womans autonomy o in such a system, a woman would not be liable to child due to excessive drinking during pregnancy, but would be liable for injury suffered by foetus in accident due to her drunk-driving

Wellbridge Holdings v. Greater Winnipeg (1970), text160 Winnipeg passed rezoning law to allow highrise apts to be built; company later formed, purchased land, made plan to erect highrise apt building Then bylaw changed due to ratepayer pressure, company sued city for negligence in passing law CoA said defendant was barred from recovery because since plaintiff was incorporated after passage of by-law, and because it could have been repealed before incorporation, defendant owed no duty to plaintiff and therefore there was no breach of duty o Neighbour principle of Donoghue did not extend to an entity not yet in existence SCC said that if municipality owed a duty of care to a class of persons, plaintiff could not be excluded simply because it did not come into existence until after the invalid bylaw was passed (obiter)

Renslow v. Mennonite Hospital (1976), text161 defendant negligently transferred wrong type of blood into future plaintiffs mother, no immediate harmful effect so nobody knew condition discovered during pregnancy, causing plaintiff to be born prematurely (induced) and requiring immediate transfusion of all plaintiffs blood successfully recovered damages from hospital some analysts concerned this judgement could lead to chains of claims leading into the future, and recommend statutory limitations (immunity for natural parents, 5 year time limit for commencement of legal action, limit recovery to situations where plaintiff is member of 1st generation to follow preconception negligent act)

Caparo Industries v. Dickman (1990), text 163

UK used two stage test (Anns test) seen in Dobson until it was abandoned in 1990 Traditional approach to finding existence of duty was to engage in elaborate classification of specific situations Modern approach is to find an element common to all cases where duty exists seeking a general principle Attempt to articulate this principle in Anns v. Merton London Borough (1977) with two-stage test (as seen in Kamloops case, above) But, since Anns case, decisions by Privy Council and HoL demonstrate inability of single general principle to determine whether duty of care is owed o Concepts of proximity and fairness are needed, but they cannot be defined precisely enough to serve as practical tests therefore, law should go back to developing novel categories of negligence incrementally and by analogy with established categories (Brennan J, High Court of Australia, Sutherland Shire Council v. Heyman, 1985) o analogize from previous cases o abandon 2-stage approach criticism of 2-stage test in Canada (Weinrib, 2000, text 165): o plaintiff can be denied compensation on basis of policy considerations that while pertinent to defendant, have no bearing on plaintiff, sufferer of the injustice o 2nd stage is one-sided: refers only to policy considerations that might negate liability, not confirm it o impossible to balance justice and policy considerations, for they are unrelated o two-stage test alters notion of forseeability to a low threshold for recognizing prima facie duty, makes it part of the test rather than simply an aspect of framework for thinking about parties relationship (as in Donoghue)

Cooper v. Hobart (2001), SCC, text167 appellant is investor who alleges that Registrar of Mortgage Brokers is liable in negligence for failing to oversee conduct of an investment company that it licensed o Registrar should have known about illegal acts of particular company does Registrar owe duty of care to members of investing public giving rise to liability in negligence for economic losses sustained by the investors? SCC: this duty is not recognised by Canadian courts, and this case does not lead us to recognise a new duty of care McLachlin, Major JJ: How far to extend principles of liability for negligence is a difficult problem since Atkins in Donoghue (which held a person is only liable for reasonably forseen harms, but also anticipated that not all reasonably foreseeable harms might be caught) Donoghue revolutionised common law by replacing old categories of tort recovery with a single comprehensive principle (the negligence principle) o Liability would lie where reasonable person would have viewed the harm as foreseeable and there was a close and direct relationship of proximity

after, Anns (aka Kamloops) test said that finding duty of care requires finding of proximity sufficient to create prima facie duty of care, followed by consideration of any factors negating that duty of care o importance of Anns is in recognition that policy considerations play an important role in determining proximity in new situations - debate about Anns: is first stage concerned w/ forseeability only or forseeability and proximity? If latter, was there duplication between policy considerations in first and second stage? - SCC says it is the latter, and Anns does not involve duplication because different types of policy considerations are involved in the two stages - What is proximity? o Used to characterize the relationship (close and direct) Proximity is a broad concept rather than a test, which is capable of subsuming different categories of cases involving different factors Eg: defendants act foreseeably causes physical harm to plaintiff or plaintiffs property; nervous shock; negligent misstatement; misfeasance in public office; duty to warn of risk and danger, etc o Sufficiently proximate relationships are identified through use of new categories (which are not closed) nd - 2 stage involves residual policy considerations, not concerned with relationship between parties but the effect of recognising a duty of care on the legal system and society in general - distinction between govt policy and its execution: govt actors not liable for negligence in policy decisions, but are liable in operational decisions o Registrar is, as an agent of executive branch, formulating policy - in this case, insufficient proximity between Registrar and investors, even if Registrar could have foreseen losses of investors; therefore no duty of care owed o if Registrar had duty toward particular investors, it would conflict with its duty to public as a whole, to ensure efficient operation of mortgage marketplace taxpayers did not agree to assume risk of private loss to investors to impose duty of care in these circumstances would be to effectively create a an insurance scheme for investors at the great cost to the taxpaying public Torts Reading & Lecture Notes Week 4 pp176-193 REMOTENESS - even if there was negligence, even if defendant owed a duty of care, you can only recover if the damages were not too remote - remoteness test must have clarity, has to do justice - remoteness speaks to the particular injury - why have a test of remoteness? o Proportionality between defendants negligence and their liability o People shouldnt be responsible for everything that flows from their negligence; there has to be balance In Re Polemis and Furness, Withy & Co. (1921), text 176 respondents chartered steamship to appellants, who used to transport petrol fumes built up due to leakage, spark caused by appellants crew (dropped a wooden plank) during offloading, entire ship destroyed

arbitrator awarded damages to respondents as fire was caused by appellants employees negligence; appellant appealed on grounds that damages were too remote to the owners of the ship Bankes LJ: given breach of duty constitutes negligence, and given damage as a direct result of that negligence, anticipations of the negligent person (forseeability) is irrelevant; damages are not too remote Warrington LJ: presence or absence of reasonable anticipation of damage determines quality of act as negligent or innocent o If negligent, recovery depends only on direct causation Scrutton LJ: appellants claimed damage was too remote from negligence as it could be reasonably forseen as a consequence o Must foresee that act might cause damage to be negligent, but o If the act would or might cause damage, it is not important that the damage it causes is not in fact the exact damage that had been imagined, so long as it traceable to negligent act

FW Jeffrey & Sons Ltd. and Finlayson v. Copeland Flour Mills Ltd. (1923), text 177 defendant received permission to dig under wall of a building for purpose of constructing another buildind; insufficient underpinning used, wall collapsed; tieins resulted in damage to several buildings defendants appealed after losing trial, on grounds that liability should stop with the first building, as they had no knowledge of the tie-ins that connected the buildings judge disagreed: even if only anticipatable loss was first building, the losses in the other buildings were clearly proximate appeal dismissed

Prosser, Palsgraf Revisited, text 178 the problem with the idea of proximate cause is that its extension causes imposition of liability without fault, or in excess of fault, over and above the liability consistent with the fault there is fundamental foolishness in saying that defendant who threatens injury to A is liable for unforeseeable consequences to A, but is not liable for same unforeseeable consequences to B, who is standing beside A

Overseas Tankship v. Morts Dock & Engineering (The Wagon Mound, No. 1) 1961, text 180 (Australian case) respondents ran a ship-building/repairing business on a timber wharf were repairing the mast of a ship on the wharf using blowtorches, etc another ship (the Wagon Mound) was docked, an oil-burning (and carrying) vessel, which considerable amount of oil into the harbour, due to carelessness of appellants employees Wagon Mound negligent, clear duty of care owed o Wharf could, if incident had finished here, easily have recovered for damage to wharf by oil, lost time to clean up, etc Wagon Mound departed; work manager of ship business noticed condition of water, halted use of blowtorches

Work manager checked with manager at an oil company that it was safe to continue, ordered work to resume, but instructed extra care should be taken to prevent inflammable materials falling into the water Eventually however something fell in the water and ignited the oil, causing significant damage to wharf At trial, judge said appellants could not have reasonably known about inflammability of furnace oil on open water not forseeable o Judge also noted respondents suffered other damage from oil aside from the fire But, liable at trial, so appeal are appellants liable for fire damage? Appeal judges (Privy Council in London), Viscount Simonds: Polemis should no longer be regarded as good law o It is not consonant with justice that for a negligent act, however slight, which results in some trivial foreseeable damage, the actor should be liable for ALL consequences, however unforeseeable and grave, as long as they can be said to be direct o Man must be responsible for the probable consequences of his actions; to demand more is too harsh a rule, to demand less is uncivilised Not because the consequences are probable, but because a reasonable man should have foreseen them o The only exception to this rule at common law has been Polemis o Polemis rejected forseeability test for direct cause test, which leads nowhere but to neverending and insoluble problems of causation o Proposition that forseeability is material to notion of negligence, going to culpability but not compensation is false Not the act but the consequences on which tortious liability is founded Cannot separate liability from context: cannot say B is or is not liable, and then ask for what damage he is liable for, because liability is in respect of that damage and no other King v. Phillips: the test of liability for (x) is the forseeability of injury by (x) unforseeability is NOT irrelevant, even if damage is directly caused the essential factor in determining liability is whether the damage/consequence is of such a kind as the reasonable man should have foreseen appeal should be allowed

Wagon Mound #2 - same incident, but owners of destroyed boat want to sue Wagon Mound owners, not that of wharf - found for the plaintiff why after wharf lost in Wagon Mound 1?? o In Wagon Mound 1, plaintiffs had problem that if they proved fire was foreseeable by owners of WM, it would be hard to prove it wasnt foreseeable by their manager Would have been contributorily negligent, which at the time was a complete defence in NSW o in WM2, plaintiffs didnt have this problem - evidence brought forward in WM2 was substantially different than in WM1

o found that defendants in WM2 would regard oil as very difficult or but not
impossible to ignite; experience was that this very rarely happened, would have regarded it as possibility, but could become an actuality only in very exceptional circumstances therefore WM liable on grounds proper chief engineer would have realised there was a real risk so law of reasonable foreseeability is same, but facts are different = different outcome

Smith v. Leech Brain & Co., Ltd. (1962), text 184 man injured on the job; subsequently died from cancer attributed to injury, but also worked in an industry prone to cancer job was dipping articles into molten metal using a crane there was a piece of corrugated iron to be used as a shield, but on the day in question he somehow put his head outside the shield and was splattered with molten metal on his lip Parker CJ: o Liability clear: there was a known danger of molten metal flying from the tank; foreseeable for any reasonable employer that operator would need protection o Protection provided was not adequate, as workers had to look around it to see what they were doing o Most other plants had switched to proper shelters o Common law negligence clear o Employers said cancer injury is too remote, although prepared to pay damages for a burn: not foreseeably reasonable that you will die of cancer as a result of being hit by molten metal o Next question is whether mans cancer was caused in whole or in part by the burn 3 options: 1) cancer was caused by burn without there being any pre-malignant condition 2) malignancy itself existed long before the accident 3) pre-malignant changes occurred due to work in gasworks, the burn was the promoting agency that made the cancer develop judge believes #3 damages: using Wagon Mound as a guide, assuming negligence proved, and assuming burn caused whole or in part the cancer, plaintiff would be entitled to recover o WM did not explicitly do away with thin skull rule question is not whether defendants could foresee burn leading to cancer, but rather they could foresee a burn o how much the victim suffers from the burn is irrelevant: thin skull rule o if its foreseeable you would have done some damage, it doesnt matter how much damage actually occurs, or the particular kind of injury distinction between type of injury and extent of injury

Stephenson v. Waite Tileman Ltd (1973), text 187

appellant injured on job operating a crane wire rope on crane broke free, slashed his hand rope was rusty, appellant developed fever, eventually become chronically infirm sued employer for negligence for letting rope get into such condition two doctors testified: one said no pre-existing condition and unknown virus entered through wound, the other said pre-existing nervous disorder, triggered by anxiety while in hospital jury found initial cut was reasonably foreseeable, but damage could not have reasonably been foreseen, therefore company not liable for total damages appealed on grounds that foreseeability of final consequences was not an issue for the jury Richmond J: central issue is correct application of Wagon Mound 1 to actions for bodily injury It would be illogical to allow recovery in respect of disease latent in the plaintiffs body but activated by physical injury and at the same time deny recovery in respect of illness caused by an infection entering the plaintiffs system as the result of a wound We should accept the principle of liability for harmful consequences arising from a new risk created by a foreseeable kind of injury the principle goes hand in hand with Wagon Mound 1 o The question of foreseeability must be ltd to the initial inquiry only o If original injury was foreseeable, the link between the ultimate consequences and the negligent act need only be one of adequate cause and effect appeal allowed; judgement on foreseeability of final consequences should not have been put to jury

Cotic v. Gray (1981), text 190 - man injured in car accident, committed suicide 6 months later, had pre-existing neurotic condition and severe depression which turned into psychotic condition after accident - at trial, jury found defendant negligent in accident, but denied liability for death as suicide was unforeseeable - on appeal: o Lacourciere JA: unnecessary to decide if suicide foreseeable, or foreseeable but an exception to the requirement Tension between thin-skull and foreseeable (how can a thin-skull be foreseeable?) o Wilson JA: defendant liable, thin-skull principle would be thwarted by ascribing independent causal significance to the victims peculiar vulnerability While actual consequence is unforeseeable, once personal injury was foreseeable, thin-skull principle would operate on its own This amounts to essentially abandoning remoteness Hutch thinks this is where the courts are heading Hughes v. Lord Advocate (1963), text 190 - Post Office employees working on underground telephone cables, erected canvas tent to cover manhole cover they used, placed 4 paraffin warning lamps around it - Had break at 5pm, left site, pulled tarpaulin cover over the entrance to tent, put ladder next to it

While absent, 8yr old boy & 10yr old boy entered tent, took with them the ladder, some rope, and a tin can - Swung one of the lamps on the end of the rope, entered manhole to explore - After they emerged back from manhole, lamp was either dropped or knocked, big explosion, boy had severe burns - Reid LJ: PO workmen at fault in leaving manhole unattended o Owed duty of care o At trial, boys couldnt recover damages because injury was not foreseeable But, burns are certainly foreseeable The cause of this accident was a known source of danger, which simply behaved in an unpredictable way no source of defence o appeal allowed - Guest, LJ: liability is proved if the accident is of a type that should have been reasonably foreseen by a reasonably careful person o Precise sequence of events need not be envisaged Torts Reading & Lecture Notes Week 5, 193-223 Doughty v. Turner Manufacturing Co. Ltd (1964) - who should bear the burden of a lack of knowledge? o In this case plaintiff o Hutch disagrees defendant was negligent. Why are they escaping burden of ignorance? Losses lie where there fall, but Hutch suggests there are good reasons for shifting burdens in this case tension in tort law between compensation and deterrence o the answer the 2 questions may be different o but in tort law you have to give only one answer

Keeton, Legal Causes in the Law of Torts, text 195 Hill v. Winsor, man injured while repairing bridge that boat negligently bumped into o Judge: not necessary that injury in precise form should have been foreseen; enough that it appears to be a natural and probable consequence Was result (injury) within the risk created by defendants negligence? o if we use generalized description of type of harm that was foreseeable, the conclusion that the result was within the risk is inevitable o if a court chooses generalized over particularized descriptions of risk, it will be more favourable to plaintiff o general = type of harm, particular = mechanism of harm o cases will produce different opinions as to which description is most appropriate Carey Case: husband and wife camping by road, truck w/ loose fastner flew by, can of oil dropped off, top blasted off, struck man in head causing severe injury, woman had miscarriage due to panic o At trial, damages awarded to both, at appeal to neither, at SC split: man able to recover, woman not

In womans case, SC judgement leaned towards mechanism of injury Were Mrs Careys injuries foreseeable? Keeton says ambiguous question 1) injuries ambiguous type oriented or mechanism oriented? 2) ambiguity about existence of other limitations beyond bare foreseeability misleading implication that scope of legal responsibility extends to every consequence that is foreseeable as a possibility in any degree Keeton says a better std is expressed as: whether injuries were within those risks by reason of which the defendants conduct was characterized as negligent o o

Morris, Duty, Negligence, and Causation, text 199 - after negligent event causing damage, and question of foreseeability is raised, cases fall into 3 classes: o 1) damages resulting from misconduct so typical it is impossible to convince judge and jurors they were unforeseeable builder drops a brick on passing pedestrian even though pattern of skull crack is unforeseeable, a head injury of some kind is not o 2) freakish consequences of act, unarguably unforeseeable truck breaks down, defendant negligently doesnt put warning flares up and leaves it on highway at night, car crashes into it, bursts into flames, rescuer-plaintiff comes to save couple in car, man in car has been temporarily deranged by accident, shoots rescuer in leg o between the above two extremes, details in case are arguably significant: if they are held to be significant, the consequences are unforeseeable, if insignificant, they are foreseeable foreseeability can only be determined after significant facts have been described peg-leg case: man trying to tow a stuck car, tied them together, as truck started he slipped in the mud and his artificial leg became stuck in a hole in the road (caused be negligence of defendant to take care of road), he grabbed truck to pull him out of hole, as he did the rope wrapped around his good leg and broke it the foreseeability requirement cannot function as a test in the 3rd class: must state logical analysis of foreseeability or unforeseeability so, plaintiff will try argue bizarre details are unimportant, defendant the reverse Jolley v. Sutton London Borough Council (text 201) o Boys playing on an abandoned rotten boat which defendant failed to remove o Boys propped it up to repair it, it slipped off their jack and injured them o Defendant liable at trial, but won at appeal, then overturned by HoL

Hoffman LJ: plaintiff must show injury was within Councils scope of duty (which is determined by whether or not the injury fell within a description which could be said to be reasonably foreseeable) Prior to Wagon Mound 1, law was that liability required 2 step test: 1) was injury foreseeable (existence of duty) 2) was injury caused by negligent act, regardless of foreseeabiliy After Wagon Mound 1, law is simply: unless injury is of a description that was reasonably foreseeable, it is outside the scope of duty (too remote) Foreseeability is not to the particulars, but to the genus Again, courts moving to remove remoteness: as long as some injury is foreseeable, liability is present So in this case, trial and appeal two different views: trial judge asked was there a risk that children would meddle with the boat and get hurt?, appeal judge asked was there a risk that children who were drawn to the boat would climb upon it and be injured by the rotting planking giving way? Reasonably foreseeable is not fixed point on scale of probability WM 2: many factors must be considered in deciding whether a given probability of injury generates a duty to eliminate the risk Bolton v. Stone (cricket ball): risk was not enough to justify expense of eliminating it But, WM2: reasonable man would only neglect risk, no matter how small, if he had a valid reason for doing so

Bradford v. Kanellos (1973 SCC), text 203 - Martland J (Judson and Ritchie JJ concurring): o Couple sitting in restaurant, fire breaks out on grill, quickly extinguished, but sound of extinguisher leads one other customer to shout about gas leaking, causing general panic, woman sustains injuries when pushed by another person running out of restaurant, couple sues owners of restaurant o At trial, couple won: negligence in flash fire due to unclean grill Person who yelled idiotic, but nonetheless panic from a fire is foreseeable o At appeal, couple lost: the person guilty of the original act could not have reasonably anticipated the subsequent intervening acts which were the direct cause of the womans injuries; then appealed to SCC o Martland agrees w/ CoA Restaurant had excellent fire suppression system installed, which fulfilled its function and quickly put out the fire The consequence of a customer becoming hysterical cannot be fairly regarded as within the risk created by the negligent act (not reasonably foreseeable); appeal dismissed - Spence J dissenting (& Laskin J): o Any reasonable person would know a greasy grill may catch fire, and that the extinguishing system might make a hissing or popping sound, and panic might well result o The store used a gas stove, it was foreseeable that a customer hearing a hissing sound might think it was a gas leak

The consequences were all part of a single chain, like in the Squib Case (Scott v. Shepard 1773)

Home Office v. Dorset Yacht Co. Ltd. (1970), text 206 borstal boys = young male offenders 15-18 who could be detained and given training and instruction in a borstal, rather than in a prison group of borstal boys working on an island, escaped, boarded a yacht, collided with another yacht, which they then boarded owner of 2nd yacht sued home office to recover damage to boat, won at trial, HO appealed did H.O or borstal officers owe duty of care to yacht owners? Reid, LJ: o Case for yacht owner: officers were in breach of their instructions, in that went to bed and left the boys to their own devices o Officers ought to have known boys would try to escape; they all had criminal records o Likely consequence that they would attempt to board a vessel, and damage to it might occur o Case for H.O: under no circumstances do borstal officers owe any duty to any member of public to take care to prevent trainees under their control from injuring public or his property, H.O has 3 reasons for this argument: There is no authority for imposing this kind of duty Reid: this used to be a strong argument, but now law of negligence depends on a principle No person can liable for a wrong done by another who is of full age and capacity and who is not acting on behalf of that person Reid: ground for liability in this case is not responsibility for acts of escaping trainees, but liability for damage caused by the carelessness of the officers in the knowledge that their carelessness would result in the trainees causing damage Causation argument: event though one of connecting links is deliberate human action, the law does not prevent the sufferer from saying that damages are recoverable from the original wrongdoer (ie Scotts Trustees v. Moss balloon descended into wrong field at a fair, damage caused by crowd) To be classified as not novus actus interveniens, the act must be regarded as very likely to occur, not simply foreseeable o This serves to close down the zone of liability o If it was intervening act was likely to happen, it does not matter if it is tortious, criminal, or liable; if it is likely to occur, it will not exempt the original wrongdoer from liability Public policy requires that these officers should be immune from this liability (to encourage flexibility and new approaches to dealing with criminals) Reid: officials are of good character, will always act in good faith, cannot be dissuaded of their duty by fear of lawsuits

Damage to yachts very likely, therefore appeal by HO dismissed (HO liable) Diplock, LJ: o Is duty of cared owed by HO to prevent trainees from escaping to persons whose property would likely be damaged by tortious acts of trainee? o Answer will have big effect on public policy: how wide is the sphere of the duty of care in negligence? Courts must assess demands of society for protection against the carelessness of others o In common law, people have no duty to others unless there is some special relationship: there is no good Samaritan law in civil cases o In this case, the damage was the result of conscious act of a 3rd party, and there are 2 separate neighbour relationships o In Ellis v. Home Office and Darcy v. Prison Comrs, it was established that custodian owed duty of care to prisoner to prevent him being assaulted by another prisoner But, that situation was different than present, in that custodian was presumed to have power of control over both at all times So, the relationships to both prisoners meant the custodian had a duty of care o Since tortial acts in this case took place after they had ceased to be in custody of the borstal officers, the question is what is the relationship between the H.O and the trainees? It is lawful for them to be detained in a borstal institution or outside under the custody of an officer o The risk of sustaining damage from tortious acts of criminals is shared by all public, and has never given rise to action against anyone except criminal himself So long as Parliament is content to have remedy lie against the criminal himself, courts cannot overstep by recognising a wider duty of care to the public Cannot owe duty to wider public Therefore, borstal officers only owe duty of care to people whom he could reasonably foresee had property in the area where the detainee was likely to attempt escape from So it would depend on each detainee: who is likely to attempt escape? o Therefore, if it were likely foreseeable that these detainees would attempt escape and do so using a boat moored near where they were working, the borstal officers (and vicariously the HO) would be liable for the damage caused Viscount Dilhorne (dissenting): o Cannot limit duty to people in immediate vicinity surely it is foreseeable that various vehicles could be used and a tortious act could occur far away o The question, who is my neighbour? (Atkins) while important to determining to whom a duty of care is owed, cannot determine whether a duty of care exists o There is no authority for imposing this duty, and the courts cannot simply create new duties, regardless of how good an idea it might be That is the function of parliament o

Lamb v. London Borough of Camden (1981), text 218 Denning, MR (master of the rolls): o Woman let house in London to a tenant while she lived in NY o While in NY local council decided to replace sewer in road next to house, negligently broke water main, ruined foundations of house, unsafe to live in o Tenant moved out, woman got agents to look after her interests, began plans for repair work, damage so extensive she moved all furniture out of house and went back to NY, house became sitting target for squatters, who invaded it o Woman returned for Christmas holiday, appalled at state of house, squatters ordered to leave, father and neighbours nailed up some boards to prevent their return o Squatters later invaded again, womans agents did what they could to get them out, gas and electricity cut off, squatters ripped out heating system, tore down walls, etc, eventually arrested on charge of larceny o While squatters at police station, womans agents put up elaborate reinforced defences o Can woman recover from the council 30,000 the squatters did in damage? (council agreed to pay for water damage admit negligence in that specific aspect, but said squatters damage was too remote) o Reids test of very likely to occur is wrong it would extend liability of Home Office beyond all reason So what is alternative test? If reasonable foresight is criterion in negligence, it should also be in remoteness of damage. This test too is not acceptable: would extend range of compensation too widely o It is not every consequence of a wrongful act which is the subject of compensation: there has to be a line drawn somewhere, court has various devices: limiting the range of persons to whom duty is owed saying there is a break in causation saying consequence is too remote to be a head of damage o but ultimately, it is a question of policy for the judges to decide o whose job was it to prevent squatters from entering or to evict them? Denning says clearly it was the owner of the house No-one wrote to council asking them to evict, they were not in occupation of the house nor did they have a right to enter it All they did was break a water main o These criminal acts are usually covered by insurance, spreading the risk of loss through the community o Policy is clearly linked to insurance o The council are not liable for the squatters damage Oliver LJ: o It is inconceivable that the reasonable man, wielding his pick in a road, could be said reasonably to foresee that his puncturing of a water main would fill the plaintiffs house within uninvited guests a year later

o Agrees with Denning that straight test of foreseeability, where acts of

independent 3rd parties are concerned, produces results that extend liability beyond all reason o Reid understated the degree of likelihood required before the law can or should attribute the free act of 3rd person to the tortfeasor; a stringent standard is required to make his test work Watkins LJ: o If the sole and exclusive test of remoteness is whether the fresh damage has arisen from an event which is reasonably foreseeable, or foreseeable as a possibility, bizarre results might occur o The WM test should be applied with no qualifications or extra words such as likely o Instinct is often a good guide how does the case feel? o Even though squatters damage is foreseeable, it is, on instinct, too remote

Tort Reading & Lecture Notes Week 5, pp225-244 CAUSE IN FACT injury is essential to liability for negligence; no matter how culpable the defendants act, the defendant cannot be held liable for negligence unless the defendants act resulted in an injury o w/o materialization of risk into injury, no liability can arise cause in fact damage must be consistent w/ kind of risk Hutch: cannot talk about cause simply in factual terms: would extend anywhere into past, a great big hole of analysis o Must talk about cause in value terms: the responsible cause o Partly factual, partly evaluative o Did negligent act break chain of causation? Evaluative: predictions about what would have happened w/o negligent act: if same things would have happened, defendant probably not liable tort law distinguishes between 2 meanings of cause o 1) proximate cause (remoteness) connects negligent act and injury by looking at whether injury suffered is within reason for regarding defendants actions as wrongful does the unreasonable risk created by defendant encompass the injury? Often boils down to a policy judgement o 2) causal act connects negligent act and injury simply by asking whether former produced latter factual inquiry resolved by production of evidence can cause 2 kinds of difficulty 1) conceptual difficulty about causation o std approach is but for test; but this may be inadequate in certain cases of multiple causation (in

this case courts may refer to substantial factor or material contribution 2) certain situations of causal uncertainty be make it hard for plaintiff to prove causal connection, yet burden of proof falls on plaintiff

The Nature of Factual Causation Barnett v. Chelsea & Kensington Hospital Management Committee (1968), text 226 plaintiff widow of man who died from arsenic poisoning, claims damages on behalf of herself and their 2 children, and on behalf of estate deceased was night watchman, drank some tea with 2 other watchman on a break, all 3 men began to vomit soon after, went to hospital when day shift arrived Dr at hospital told them to go home and call their own doctors; man left and died later that day Judge found defendants breached their duty by not admitting him Question is did this cause the death or would he have died anyway? Judge finds plaintiff fails to establish that defendants negligence caused death; very little chance of man being diagnosed properly and receiving specific treatment given that he died 5 hours after arriving at the hospital Negligent act did not change timeline of death o Current law: plaintiff can move against either for 100% of damages, D1 must then in turn go after D2 for his share (even if D2 doesnt have the money, or cant be found) If both parties are found to have caused the injury

Lambton v. Mellish (1894), text 228 plaintiff was lessee and occupier of a house, 70 yards away from house of defendant Mellish & 130 yards away from defendant Cox (who were rival refreshment contractors, served a park that was next to plaintiffs house) defendants made a great deal of noise trying to sell their products to children during the summer, including organs that played from 10am to 6pm defendant Mellish said his organ was smaller than Coxs and made less noise, but was charged by plaintiff as contributing to the total noise and therefore the nuisance complained of Chitty J: find for plaintiff Each man adds his quantum to the total; each is separately liable (presuming they were both negligent) o Impossible for plaintiff to demonstrate what share each defendant has; unnecessary to prove if acts of two persons, each being aware of what the other is doing, amount in aggregate to an actionable wrong, each is liable plaintiff must sue both defendants at the same time (same action)

Kingston v. Chicago and NW Ry (1927), text 230

sparks from defendants locomotive started fire, which merged w/ another fire of unknown origin, which then destroyed plaintiffs property fires were of comparatively equal strength, burden is on defendant to show that his own fire was not proximate cause of damage impossible to apportion damage or say that either perpetrated any distinct injury that can be separated from the whole plaintiff should not be under burden to specifically determine origin of both fires in order to recover damages for which either or both fires are responsible

Peaslee, Multiple Causation & Damage, 1934, text 231 when one cause of damage is innocent, and one culpable in origin, must negligent actor pay whole loss? As long as innocent cause is on operation before wrongful act becomes efficient, it the wrongful act cannot be considered cause of loss Causation is a matter of fact If one concern is innocent, the tortfeasor is responsible only for his own wrong and its results: ground which joint tortfeasor is held for all the damage does not exist where one of the causes is innocent

Wright, Causation in Tort Law, 1985, text 231 necessary element of a sufficient set (NESS) test of cause of fact o particular condition is cause of specific consequence if it was necessary element of a set of antecedent actual conditions that was sufficient for the occurrence of the consequence means that if each of the causes is by itself insufficient to cause the injury, the defendant can still be found liable if, when combined with others, they cause the injury sufficiency of small causes also not affected if 1 cause is so large as to be sufficient alone

Sunrise Co. Ltd et al v. Ship Lake Winnipeg (1991) SCC, text 233 LHeureux-Dube J (Lamer CJC, Wilson, La Forest, Sopinka JJ concurring) o Kalliopi L met but did not collide with Lake Winnipeg on St. Lawrence o Immediately after meeting, the Kalliopi L ran aground o Trial judge found Lake Winnipeg entirely responsible for grounding (negligent) o In anchorage area, Kalliopi L went aground again, but not through fault of Lake Winnipeg (no negligence in 2nd act); 2nd incident unrelated to 1st o Time in dry dock for repairs was 27 days; 27 days attributed to 1st grounding alone, 14 to second if they were carried out separately o Who is responsible for loss of profits for 27 day period? o No causal link between 2nd incident and loss of profit suffered by Kalliopi L, such damage being coincidental o Lake Winnipeg must bear responsibility for full 27 days McLachlin J (dissenting in part)

o o

If an event occurs after the tort and independently of the tort and diminishes the loss caused by the tort, that dimunition must be reflected in award of damages How to measure that? 2 possibilities 1) to extent that loss is caused by a cause other than the tort, it is not compensable in this case it would mean plaintiffs would receive compensation for only 13 days (27 days minus the 14 it would have been out of commission for anyway) problem: if 2nd event causes greater damage than 1st, plaintiff may not be able to recover for 1st to avoid this, we must introduce a factor other than pure causation a rule is required that says: (a) one of the two causes of concurrent loss is responsible or (b) the concurrent delay should be apportioned between two causes of concurrent loss 2) pro rata apportionment two causes for detention of ship: 13 days solely due to defendants act and 14 days were due both to tortious act and 2nd act fairness says the losses flowing from 14-day period should be divided equally between the 2 causes this conforms w/ principle of placing plaintiffs in same position as they would have been had tort not occurred it accords w/ modern philosophy of apportioning damages between successive causes of loss liability should be in proportion to degree of fault; where fault cannot be established, liability shall be apportioned equally 2nd choice is clearly superior

notes: Lheureux-dube says shipping cases not comparable to personal injury cases because of inherent differences in nature of injuries Baker v. Willoughby: o Plaintiff suffered severe leg injury due to defendants negligent driving o Sued for income lost o Subsequently, but before trial, he was shot, inflicted such damage leg had to amputated o Defendant argued he was not liable to plaintiff for lost income after date of robbery o HoL rejected this argument, holding that actions of defendant and robber were concurrent cases of loss of income, and therefore defendant had to compensate plaintiff for the losses he had caused Jobling v. Associated Dairy o Defendants negligence caused plaintiff to suffer back injury that incapacitated him for anything but light work o Subsequently, but before trial, plaintiff was found to be suffering from spinal disease unrelated to the accident, which would have rendered him disabled anyway

Question whether defendant liable for loss of earnings on basis of partial incapacity continuing through period which in absence of spinal disease would have represented balance of defendants normal working life, or whether liability ltd to loss of earning up to point that disease resulted in total incapacity Damages were reduced accordingly, based on life expectation, etc (2nd choice) Intervening event of spinal disease changed original situation (which we are trying to return victim to), not injured situation o Distinction between situation w/ 2 tortious events vs 1 tortious and 1 nontortious o Lord Keith: While logical to say that original tort and supervening event are concurrent causes of incapacity, it does not necessarily provide best solution Given that illness would have overtaken plaintiff anyway, we must take into consideration Additional considerations come into play when dealing w/ problems arising from 2 or more successive and independent tortious acts Necessary to ensure plaintiff is fully compensated for aggregate effects of all his injuries Would be highly unreasonable if aggregate of both awards were less than total loss And unjust to reduce damages awarded for first tort because of occurrence of 2nd tort But, award against 2nd tortfeasor cannot in fairness fail to recognise that plaintiff was already incapacitated Should deduct 2nd amount from total loss suffered by victim and award the balance against 1st tortfeasor o Therefore, in proceedings against 1st tortfeasor, occurrence of 2nd tort cannot be relied upon by defendant to reduce the damages he must pay Saunders System Birmingham v. Adams (1928) o Green rented a car w/ defective brakes, hit Adams through negligent driving o Adams sued rental company o Jury instructed that Adams cannot receive damages from company if Green was travelling so fast and used brake so late that even a perfect brake would not have stopped Greens car in time o Athey v. Leonati (1996 SCC), text 238 o Plaintiff suffered back injuries in 2 successive car accidents; later experienced herniated disc during stretching, caused by combination of injuries and pre-existing condition o Major J: o Judge determines accidents responsible for 25% of injury o Defendants therefore claim they are liable therefore only responsible for 25% of damages (or even 0% as it is less than 50% of cause)

Judge throws this idea out

o Principle: defendant is liable for any injuries caused or contributed

to by his negligence presence of non-tortious contributing causes does not reduce extent of defendants liability o Causation is established when plaintiff proves to civil std on balance of probabilities that defendant caused or contributed to injury Usually but for test, but unworkable in some circumstances so may be materially contributed test Not necessary to establish that defendant is sole cause of injury o Apportionment of blame between causes only permitted where multiple causes are tortious o Crumbling skull rule recognises pre-existing conditions, which can be taken into account to reduce overall award on grounds they would have adversely impact future happiness But unless you can prove this man would have inevitably had a herniated disc, you are still liable o Loss of chance doctrine: Defendant liable only for increase in risk of herniation Not supported by factual findings: injury contributed to actual herniation itself, not merely increased the chances o If defendants negligence exacerbated an existing condition and caused it to manifest in a herniated disc, then the defendant is the cause of the disc herniation and fully liable Torts Reading & Lecture Notes Week 6, pp244-286 Factual Uncertainty Blackstock v. Foster (1958), text 244 Foster sitting in parked car when Blackstock negligently drove into back of it, later a malignant inoperable growth in Fosters chest appeared Jury determined blow to chest from steering wheel was cause, awarded Foster 6071 in damages Blackstock appealed, said damages too high Medical evidence: prior to accident, respondent must have had a deep-seated growth in chest, blow to chest may have caused it to become malignant No doctor went further than to say the connection between the blow and the tumour was possible, but not probable Evidence above cannot justify jurys inference that it was more probable than not there was a causal connection; if medical science cannot provide the data, the layman certainly cannot It is for plaintiff to prove balance of probabilities that blow caused malignancy o Appeal upheld, new trial ordered ltd to issue of damages

Cook v. Lewis (1951), text 245 men out shooting grouse, some confusion over a warning shouted (plaintiffs thought it was merely an alert to presence of the dog near the tree) birds fly up from near tree, two men shoot at them, turns out one of them hit a man sitting in the tree (which was the reason for the alert)

both claim it could not have been them that fired the shot that hit the plaintiff jury unable to find which of defendants fired the shot in question Cartwright J: in criminal law: when it is certain 1 of 2 individuals committed the offence charged, but it is uncertain who is guilty, neither of them can be convicted this rule is also applicable to civil situations, unless special circumstances exist to render it inapplicable o plaintiff claims such circumstances exist: joint tortfeasors engaged in joint enterprise (had agreed to share catch), therefore liable for the acts of each other o however, no authority that hunting together and agreed to divide catch renders such a group liability o but, US case of Summers v. Tice: if shooting towards tree (which both did) constituted breach of duty to plaintiff, then both can be found liable when both are negligent, the burden of proof shifts to the defendant: if they can absolve themselves, so be it both defendants are both negligent, therefore both should be liable Rand J: in this case the obstacle to proof is multiple discharges that confuse their individual effects Polemis v. Furness Withy: if A is guilty of negligent act to B, the total direct consequences of that act are chargeable to A, unless they arise from reactions unforeseeable by ordinary person acting reasonably If a new element is introduced into the scene that is foreseeable (in this case another person shooting at the same time), and it confuses the act due to environmental conditions, the onus is shifted to the wrongdoer to exculpate himself: a question of burden of proof between him and the other members of the party The risks involved in this sport require refinements in foresight The negligent actor has culpably participated in the proof-destroying fact (the multiple shooting); culpable actor must bear the burden of explanation Locke J (dissenting): sharing the catch at the end of the day, an expression of friendship, should not be the basis for legal liability No joint venture but rather individual ventures carried out in the company of others Action should be dismissed

Sindell v. Abbot Laboratories et. Al (1980), text 250 plaintiff brought class action suit against drug companies, which promoted and administered carcinogenic drug (DES) to mothers for purpose of preventing miscarriages o drug caused cancer in daughters of mothers who took drug o cancer manifests after latent period of 10 or 12 years most of cases in class action settled in favour of defendants, because of failure of plaintiffs to identify the manufacturer of DES while defendants cannot identify manufacturer either, they may be able to prove they did not manufacture it o ie one defendant dismissed as it proved it did not manufacture DES until after plaintiff was born

Notes -

defendants argue there is no rational basis upon which to infer any defendant (over 200 companies) caused which plaintiffs injuries Mosk J: this argument is persuasive if measure mathematical chances possibility that any of 5 defendants supplied DES in this case is so remote it would be unfair to require each defendant to exonerate itself o Substantial likelihood that none of the defendants made the particular substance that caused this particular injury but, adaptation of Summers rule will overcome this difficulty advances in sci-tech create fungible goods that may harm consumer and cannot be traced to any specific producer o courts must respond to changing needs, or deny recovery to those injured o most persuasive reason is same as in Summers: between innocent plaintiff and negligent defendants, the latter should bear cost of injury o defendants better able to bear cost of injury resulting from defective product it is reasonable to measure likelihood that any of defendants supplied product which injured plaintiff by measuring market share o 6 companies produced 90% of DES marketed o the injustice of shifting burden of proof to defendants that they could not have marketed it is significantly diminished each defendant will be held liable also on basis of market share, unless it demonstrates it could not have made product not unmindful of practical problems of determining market and market share defendants argue unfair to hold one manufacturer responsible for the others if plaintiff ultimately prevails but under this rule, each manufacturers liability for injury would be approximately equal to the amount of DES it manufactured Richardson J (dissenting): Plaintiffs concede they are unable to identify which manufacturer made the drug consumed by their mothers; chose to sue only 5 of over 200 companies who made it Plaintiffs argument foregoes 100 years of tort law that requires negligent conduct and injury to be matched o plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was the substantial factor in bringing about the result market share will fall unevenly on those manufacturers based in California, as others states are unlikely to adopt to such a radical rule deep pockets theory of liability popular, but wealth is not a reliable indicator of fault smaller members of drug industry may not be able to bear economic costs of imposing industry-wide liability this problem should be solved through legislation, not judicial action

Sindell has aroused significant controversy in the US Extends principles of Summers to drug cases, presumptive apportionment between defendants must be determined by market share, with each defendant free to absolve himself if he can

Difficulties emerge when it is asked what type of evidence will suffice to rebut presumption o Ie defendant has 10% market share of state, 5% market share of city where plaintiff lives o What if plaintiff can show 50% chance pill was red and round? Are all makers of blue pills dismissed from case? Or is their market share value simply altered? should defendant drug company be held liable even if it can prove on balance of probabilities that it was not cause of injuries suffered? o Liability is based on overall risk produced, not causation in a single case (Hymowitz v. Eli Lilly, 1989) o Fortuitousness of making easily identifiable pill in no way diminish culpability of marketing the product, which is the basis of liability in this case

McGhee v. National Coal Board (1972), text 257 Appellant labourer, job to empty pipe kilns, one day sent to empty brick kilns, hotter and dustier than usual, cycled home after work w/o washing Suffered dermatitis attributable to this Was common law duty to take reasonable care to provide adequate washing facilities? Lord Reid: o Negligence was in not providing washing facilities o Defence is unusual: breach of duty admitted, and fact that disease attributable to work environment also admitted What is not admitted is that breach of duty led to condition o Washing only practicable method of removing danger of dermatitis By bicycling home w/o washing, danger of dermatitis was greatly increased (production of sweat, etc) Defendants claim this 2nd action is what caused the dermatitis o But, law is that even if there are 2 separate causes of, it is enough to show that 1 of the causes arose from fault of defendant Even if defendants cause is not alone sufficient to cause the disease (Bonnington Castings Ltd. v. Wardlaw) o No substantial difference in saying defendants materially increased risk of injury or what defendants did made material contribution to injury Therefore defendant must disprove causation, if plaintiff can prove increased risk and an injury that fell inside that risk Lord Wilberforce: o Bare logic: a plaintiff must show that increased risk caused or materially contributed to the disease o There are considerations beyond logic Where a person negligently creates risk, and injury occurs within that risk, the loss should be borne by him unless he can show there is some other cause

Why should victim who can show that employer should have taken precautions, because without them there is risk, have the burden of proving that it was the addition to risk that caused the injury? Honest medical opinion cannot segregate causes of an illness between compound causes o In absence of proof that culpable condition had no effect, employers should be liable for injury o If plaintiff can show injuries are consistent w/ the risk, the onus shifts to the defendant to prove that negligent act did not cause injury Lord Simon: o Where injury is caused by 2 or more factors, where one is negligent and one is not, and it is impossible to ascertain proportion in which factors produced the injury, the law does not require plaintiff to prove the impossible Must prove on balance of probabilities that breach contributed substantially to causing injury o If factors are cumulative, it is immaterial if they are concurrent or successive o Failure to take steps to materially reduce risk involves substantial contribution to injury o Failure to reduce risk = substantial cause of injury Lord Salmon: o Burden rests on plaintiff to prove, on balance of probabilities, causal connection between injury and negligence o However, not necessary to prove negligence was sole cause of injury Factor may be insufficient alone yet clearly still causal o When it is proved that employer has been negligent and this negligence has materially increased risk of employee contracting an industrial disease, then employer is liable if the employee contracts the disease, even if employer is not responsible for other factors which have materially contributed to the disease (Bonnington Castings Ltd. v. Wardlaw, Nicholson v. Atlas Steel Factory)

Notes text p260 - rules of conduct are not designed to protect all people under all circumstances from all risks - but, where plaintiff relies upon rule of conduct designed to protect against the very type of risk to which plaintiff was exposed, courts have little patience w/ defendant trying to question sufficiency of the proof of cause o clear interdependence of policy and factual likelihood o cases usually reach jury if plaintiff shows slightest factual plausibility Reynolds v. Texas and Pac Ry: Fat woman hustled down stairs in train station by friends, fell, sued on grounds of inadequate lighting Rail co said 250lb woman going fast down stairs very well may have fallen regardless of lighting But, court said: where negligence greatly multiplies chances of accident, the mere possibility that it might have

happened w/o negligence is insufficient to break chain of cause and effect Wilsher v. Essex Area Health Authority, (1988) text 262: o Plaintiff prematurely born baby suffering from retinal condition that severely impairs vision o Claimed hospital negligent in monitoring partial pressure of oxygen levels after premature birth o But, multiple possible causes of condition, according to experts o Judge analysed McGhee v. National Coal Board, concluded that has hospitals negligence was one of 5 possible causes, it was sufficient for the court to conclude that the negligence was taken to cause the injury, unless defendant can prove otherwise (Wilberforce in McGhee) o But, decided that Wilberforce in McGhee was expressing a minority opinion (and therefore not good law) that ran contrary to Wardlaw (burden of proof is not reversed) o No satisfactory evidence that oxygen is more likely to cause condition than other 4 candidates o This is different than McGhee, where there was only one candidate that could have caused condition, and failure to take precaution against that candidate led to the condition o Failure to take preventative measure against one of five possible causes is no evidence as to which of five caused the injury o Onus of proving causation lies on the plaintiff (goes against McGhee) o Shift to a robust, pragmatic conception of causation Hutch says this is reflection of changing political attitudes of the time (Thatcher, Reagan, etc)

Fairchild v. Glenhaven Funeral Services (2002), text 264 Lord Bingham: o If C was employed at different times by both A and B, o and A and B were both subject to a duty to take reasonable care or all practicable measures to prevent C inhaling asbestos dust, o and both A and B were in breach of this duty with the result C inhaled excessive quantities of asbestos dust during both periods of employment, o and C is found to be suffering from mesothelioma, o and the cause of it must be inhaling the dust, o but C cannot prove on balance of probabilities that it was result of inhaling during employment with A, or with B, or with both, o is C entitled to recover damages against A, or B, or both? o CoA said no applied conventional but for test of tortious liability, C failed against both A and B, separately o Incidence of mesothelioma is 1000x greater in those exposed to asbestos dust than in regular population, and this was known since the 1960s But, even w/ increase, still a very low chance of getting it (1/1000 workers, original chance 1/1000000) o Condition may be caused by single fibre, a few fibres, or many fibres; but the greater the number inhaled, the greater the risk o No way of identifying on balance of probabilities the source of fibres which led to tumour

McGhee shows that no distinction is to be drawn between being material cause of injury and materially increasing the risk of contracting it A pursuer who could not show the defendants breach was the cause could nevertheless succeed If pursuer can demonstrate injury fell within type of injury that might be expected from the increased risk, they can recover o Wilsher case should no longer be treated as authoritative (although result was correct) even if you apply McGhee correctly to Wilsher, there would be no liability o In most jurisdictions globally, the problem of attribution would not be a fatal objection to plaintiffs claim o This case does raise clash of policy considerations: May impose liability on employers for whole of disease for a claimant who only worked with them for a short time susceptible to unjust results Tort system sometimes results in imperfect justice, but it is best common law can do On the other hand, strong policy argument to compensate those who suffer great harm Would be greater injustice to deny redress to victim Employers should be liable for injury squarely within risk they created o C should be allowed to recover against both A and B Lord Hoffman: o In these circumstances (duty exists, breached, injury, unestablishable exact causation), a rule requiring proof of a link between defendants asbestos and claimants disease, with obvious exception of singleemployer cases, would empty duty of content If liability depended upon such proof, it could not exist o Is increasing risk the same as proving causation? o Yes, defendant should bear the burden Particular in employer-employee relationship o Would be inconsistent w/ law and morally wrong to impose causal requirements which exclude liability o McGhee is powerful support for saying law should treat material increase in risk as sufficient to satisfy causal requirements for liability o Wilsher shows dangers of over-generalisation If we followed Wilsher, there would be no liability in this case o Rule should only be applied where 5 factors exist (p269) Lord Rodger: o Parallels with McGhee are striking o Cases diverge w/ number of possible wrongdoers (McGhee only 1, this case 2) o Certain conditions are necessary for applying the McGhee principle: Claimant must prove all he can, but state of science leaves uncertainty over exactly how injury was caused Defendants conduct created material risk of injury to the claimant himself, not just a class of persons Defendants conduct must have been capable of causing the injury o

Claimant must prove injury was caused by eventuation of kind of risk created by defendants wrongdoing Claimant must prove injury was caused by agency that operated in same way as defendants wrongdoing Other possible cause is similar wrongful act or omission of another person still doesnt show exactly how much increased risk will result in liability

Farrell v. Snell (1990, SCC), text 274 Sopinka J: o Does a plaintiff in a malpractice suit have to prove causation in accordance with traditional principles, or do recent developments in law justify a finding of liability on basis of some less onerous std? o Plaintiff (70) consulted ophthalmologist about her sight, she was legally blind in right eye o Advised to have cataract removed, consented o During operation, doctor noticed small retrobulbar bleed (usually cause to stop), but as it was small, doctor continued o Later, it was discovered optic nerve had atrophied, due to loss of optic nerves blood supply, woman lost all sight in that eye o Another doctor determined woman had suffered a stroke in the back of the eye at some point, could not identify what caused the stroke o Major cause of stroke is high blood pressure or diabetes, both of which woman had o Woman also had severe glaucoma, which can also cause nerve atrophy Unusual to have in only one eye, like woman did, unless there had been some intervention The only intervention in the eye had been the operation o No experts were able to express with certainty what caused the nerve atrophy o Trial judge found it within emerging branch of the law of causation, whereby onus to disprove causation shifts to defendant in certain circumstances (relied on McGhee) Woman had prima facie proved defendant had injured her, and defendant had not satisfied onus that shifted to him o However, principles arising from McGhee are only necessary where defendant with substantial connection to injury would otherwise escape liability o In most cases, std principles of burden of proof are sufficient: The onus is on the party who asserts a proposition Where the subject-matter of the allegation lies particularly within the knowledge of one party, that party may be required to prove it o Reversing burden of proof is only acceptable where defendants destroy means of proof at plaintiffs disposal o In many malpractice cases, facts lie within the knowledge of defendant Very little affirmative evidence from plaintiff will justify drawing inference of causation in absence of evidence to contrary

o o o o o

o Note text 279 -

Sometimes described as shifting burden of proof to defendant, but more accurately means evidence adduced by plaintiff may result in inference being drawn adverse to the defendant: defendant runs risk of an adverse inference in absence of evidence to the contrary Legal burden remains on plaintiff, although inference of causation may be drawn even though scientific proof of causation has not been adduced Therefore not essential that medical experts provide firm opinion supporting plaintiffs theory of causation Trial judge found defendant negligent in continuing operation after finding retrobulbar bleeding uncontested 2 possible causes of stroke that led to nerve atrophy: operation or natural stroke defendant greatly increased risk of injury by continuing to operate after discovering bleed trial judges comment plaintiff prima facie proved defendants actions caused plaintiffs injury and defendant has not satisfied the onus shifted to him can be read in 2 ways: 1) finding of causation inferred from circumstances and in absence of evidence to the contrary in satisfaction of the evidential burden cast upon defendant 2) acceptance of McGhee formulation, reversing ultimate burden upon finding risk was created and injury occurred within that area of risk dont like McGhee formula, but #1 is ok appeal dismissed (finding for the injured woman)

Walker Estate v. York Finch General Hospital (2001) o Man contracted AIDS from blood transfusion and died, estate sued Canadian Red Cross Society (CRCS) for inadequate screening o Estate held that American Red Cross pamphlet identifying high-risk groups was std of care that CRCS should have matched (CRCS did not identify high risk groups) Donor was within high-risk group identified by ARC o CRCS said there was no proof they were cause of injury, because donor might have contributed blood anyway o 6 months after CRCS changed pamphlet and donor contd to donate, testified he did not know of connection between gay community and AIDS o Major J: this is an atypical area o But-for test is unworkable in such a situation, where multiple independent causes may bring about single harm o Impossible to prove what donor would have done had he been properly screened o Question is not whether CRCSs conduct was necessary condition for plaintiffs injuries using but-for test, but whether conduct was a sufficient condition o Did negligence materially contribute to injury? o In this case, clear that it did

Hotson v. East Berkshire Area Health Authority (1987), text 280 Donaldson, MR: Can a plaintiff recover damages for loss of chance or loss of opportunity? 13 yr old boy at school, fell from rope he was swinging on, damaged leg in particular way that, because his body was still growing, would in future lead to avascular neurosis, which will result in pain, restriction in mobility, and virtual certainty of developing osteo-arthritis cost of disability assessed at 46000, figure not in dispute negligence of hospital: after injury, x-ray taken of knee, no injury, but no x-ray taken of hip or femur given bandage for knee, told to return in 10 days if necessary 5 days of excruciating pain later, he was re-examined and the true nature of injury was discovered, emergency treatment by traction and manipulation was performed, plus reduction and pinning of the fracture awarded 150 in damages for pain over 5 days, no appeal for that is he entitled to further damages? Turns on long-term effects of the delay in diagnosis and treatment o surgeons agree that immediate treatment is necessary to relieve pain, but no evidence it would avoid the onset of avascular neurosis trial judge made 4 findings of fact, all accepted by defendants: o even w/ immediate treatment, 75% chance injury would have followed same course o this 75% risk was translated by breach of duty into an inevitability o had avascular necrosis not developed, plaintiff would have made full recovery o delay sealed fate because (medical explanation) trial judge awarded 11650 (150 + 25% of 46000) defendants appealed: std of proof in civil cases is balance of probabilities: plaintiff must satisfy court more than 50% o in this case, plaintiff only proved 25% likely that defendant caused injury o therefore cannot establish any loss flowed from injury and therefore cannot claim any damages in theory, this is true: court does approach issues on balance of probabilities: <50% = it did not happen, >50% = it did in common sense, unjust there should be no liability for failure to treat a patient, simply because chances of successful treatment were less than 50% o similarly, if chances of cure are slightly higher than 50%, doctor cannot be held liable as though it was a guaranteed cure essence of plaintiffs claim is that he lost any benefit which he would have derived from visiting hospital categories of negligence are never closed, no reason that categories of loss should be closed either if plaintiff is to rely on loss of benefit of timely treatment, he still has to satisfy court as to value of this treatment, on balance of probabilities appeal dismissed (finding for plaintiff, hospital 25% liable) hospital appealed to HoL Lord Mackay: Not correct to say he had a 25% chance of recovery

There was 25% he still had sufficient blood vessels to repair the damage in the leg o If insufficient blood vessels remained, he had no chance of recovery Court must determine, on balance of probabilities, if any blood vessels remained connected to the femur prior to entering hospital Do not want to lay down rule that plaintiff can never succeed by proving loss of chance in a medical negligence case o Situation therefore unresolved Appeal allowed (hospital not liable, majority view)

Notes, text 285 Lawson v. Laferriere (1991, SCC) Defendant removed lump from plaintiffs breast in 1971, diagnosed it as cancerous, did not inform patient of diagnosis, patient did not discover cancer until 1975, died in 1978 - No proof that informing patient in 1971, on balance of probabilities, would have prevented death - Plaintiff claimed doctors failure to inform deprived her of chance to benefit from proper medical treatment - Plaintiffs case dismissed on grounds it is inappropriate to focus on degree of probability of success and to compensate accordingly o Necessary to that probability translate into concrete benefit for the patient which she can said to have lost as a result of doctors fault Torts Reading & Lecture Notes Week 7, pp289-301 Defences defences cannot be looked at in isolation can only look at them after plaintiff has jumped through all of the hoops establishing liability means court has decided 100% liability exists, if defences fail o this is the starting assumption question of defences is to what extent are we prepared to reduce liability? volenti non fit injuria: no wrong occurs to one who wishes it (the consenting cannot suffer injury) o consent o voluntary assumption of risk o interpretation of waivers is constructed strictly for defendant, but plaintiff still signed off on it, so be wary o but huge distinction in law between knowing the risk, and assuming the risk signed documents likely constitute assumption of risk warning signs only point to knowledge, unless written into another contract waivers cant be implied o courts need to know both you had knowledge of risk, and you agreed to waive your legal claims Hutch: freedom of contract is a myth ex turpi cause non orbitur action: no liability arises out of a base cause

1. Contributory Negligence Under common law, originally contributory negligence was a complete defence however, all jurisdictions in Commonwealth have passed legislation saying contributory negligence is a partial defence contributory negligence in US is still a complete defence o but, have lifted the std very high, so courts will not deprive plaintiff of remedy what we call contributory negligence, they call comparative negligence

Butterfield v. Forester (1809), text 289 due to obstruction on road, plaintiff was thrown from his horse and injured defendant had put a pole across road for purpose of making repairs to his house plaintiff left pub at 8pm, not enough light to see object at 100y plaintiff had been riding violently, if he hadnt he likely would have seen obstruction Bayley J: if jury satisfied that ordinary person riding w/ reasonable and ordinary care would have seen the obstruction, defendant not liable

Davies v. Mann (1842), text 290 restricts contributory negligence defence so it does not apply to situations where plaintiffs negligence contributed to the injury but the defendant, who was also negligent, had the last clear chance to avoid the injury defendants wagoner negligently ran over (driving too fast) and killed plaintiffs donkey o plaintiff partially negligible because left it on the highway but, as defendant could have avoided injuring animal, but did not, he is liable defendant still bound to go along the road at such a pace that was sensible

Prosser, Comparative Negligence (1995), text 291 why rule of contributory negligence so readily accepted in common law? Most cases talk about proximate cause: o Plaintiffs negligence serves as intervening, insulating cause but this only works if proximate cause is assigned a bizarre meaning: o if this was true, two automobiles that collided and injured a bystander, the negligence of one driver would supersede the other and relieve the other of liability this is not the case another reason: intended to punish plaintiff for own misconduct o but this cant explain cases of last clear chance, which put no blame on negligent plaintiff another reason: to discourage accidents by denying recovery to those who fail to use proper care o but speeding motorists are unlikely to mediate on the potential of a victorious lawsuit

best explanation is simply a reflection of the individualistic attitude of the common law of early 19C o courts likely found development of this defence simply a convenient way to keep control over juries and curb liabilities of rapidly growing industries

Fleming, The Law of Torts (1992), text 291 contributory negligence defence sustained the growth of industrial and business enterprise by lightening the burden of compensation losses for accidents associated w/ rapidly expanding economy

Bohen, Contributory Negligence (1908), text 291 development of c.n. defence was necessitated by enormous growth of protective duties as part of industrial revolution o relations between individuals went from few and simple to a multitude and complex in the space of a very short time o extent of social duties to another became far greater o unfair for entire burden of protective duty to fall on only one of the parties plaintiff can ask from others no higher respect for his rights than he himself pays to them

Negligence Act, 1990, text 292 where fault/negligence of plaintiff contributed to damages, damages shall be apportioned accordingly if respective degree of fault cannot be determined, parties shall be deemed equally at fault question of degree is for jury to determine, if in a jury trial where damages are occasioned by fault of more than one party, court has power to direct that plaintiff shall bear some portion of the costs

Posner, Economic Analysis of the Law, 1997, text 292 if you apply Hand formula to defendant only, the most efficient solution may not always be produced o if accident cost of $1000 could be prevented by defendant for $100, but by plaintiff for only $50, and only the defendant can be liable, the plaintiff has no incentive to take preventative measures, and the value maximising solution would not be obtained o so, doctrine of contributory negligence is answer to this problem if plaintiff could have prevented accident at lower cost than discounted accident cost, he cannot recover but what if plaintiff can prevent it for $100 and defendant for $50? Under strict contributory negligence, then defendant has no incentive to take more efficient measure o So, in some jurisdictions, contributory negligence is replaced w/ comparative negligence, whereby plaintiffs damages are reduced by % which his own negligence contributed to accident This also is not correct measure: it would result in parties spending more than the efficient amount on accident prevention

Both would spend, resulting in $150 spent to avoid the accident, or neither would (in reliance that the other was) resulting in avoidable cost of $950

Froom v. Butcher (1975), text 293 plaintiff driving car w/ wife and daughter, he and wife not wearing seatbelts driving safe speed, got in an accident that was entirely the other drivers fault damages for injuries assessed at 450; trial judge held that amount should not be reduced because he wasnt wearing a seat belt; defendant appealed question is not what was cause of accident, but what was cause of damage o in most accidents, the bad driving that causes the accident also causes the damage o but in this case, the causes are separate if plaintiff is to blame in not wearing seat belt, damage is in part his own fault it is compulsory to fit all cars w/ seat belts, although it is not compulsory for people to wear them o suggests that parliament thinks it sensible to wear seat belts, but people are free to do what they wish so, plaintiff free not to wear seatbelt, but is responsible for the consequences law eliminates personal equation in determining responsibility doesnt matter if plaintiff is part of a minority view that seatbelts do more harm than good where damage might have been avoided by plaintiff, they must share some portion of the blame o where damage would have been entirely avoided, damages should be reduced by 25% o where damage would have been partially avoided, damages should be reduced by 15% in this case damages reduced by 10%, as finger would have been injured regardless of wearing a seatbelt

Klar, Tort Law, 1996, text 298 Canadian jurisprudence on seatbelts Plaintiffs failure to employ seatbelt may or may not be unreasonable, depending on circumstances o Some judges reject seatbelt defence on grounds that defendant should bear full responsibility for the accident and consequent injuries o Others reject defence because of lack of evidence that injuries were actually worsened by not wearing belt o but once defendant proved plaintiff did not wear belt, the onus is on plaintiff to explain why he didnt failure to employ safety device must have been causal factor in injuries o as difficult to measure specifically which injuries were magnified, courts generally apply a percentage reduction fact that failure to employ safety device was or was not in breach of legislation cannot conclusively determine contributory negligence issue o but, since all jurisdictions in Canada require belts, it is more likely than ever that failure to employ them will constitute contributory negligence failure of drivers to ensure children are secured w/ belt or car seat may be negligent conduct, regardless of legislation requiring it

Posner, The Economic Approach to Law, 1975, text 299 economic analysis of law is often counter-intuitive, which makes it difficult to understand ie seatbelts: o intuitively, it seems obvious that seatbelt regulations would reduce number of deaths and injuries from automobile accidents o but, by increasing drivers safety, the seatbelt reduces cost of fast driving, which according to economic theory would lead to increase in driving speed and therefore in number of accidents, possibly off-setting beneficial impact of seatbelt requirement in particular there will be an increase in number of pedestrian accidents, since they will experience no benefit to seatbelt use confirmed in Peltzmans study: found a relative increase in pedestrian injuries and in automobile deaths and injuries due to seat-belt requirement

Atiyah, Accidents, Compensation, and the Law, 1993, text 219 effect of a finding contributory negligence is very different than effect of a finding of negligence o negligence: shifts loss away from plaintiff, and spreads it by means of insurance or other processes o contributory negligence: leaves part or all of the loss on the plaintiff thus, finding of contributory negligence falls much more heavily on plaintiff than negligence does on defendant negligent people do not pay for consequences of negligent actions in practice (due to insurance), but contributorily negligent people do pay o in essence, the only significant group of people who have pay for the consequences of their negligence are the accident victims themselves principle of reducing damages for contributory negligence appears based on simple moral, but the principle is far from straightforward has to be determined on degree of fault relative to that of the defendant o amount depends not just on extent of his fault but also on extent of loss itself 3 problematic examples: o plaintiff who is 50% to blame for accident w/ 100 loss will lose 50, but a plaintiff who is only 10% to blame for an accident w/ 10 000 loss will lose 1000 o driver who is trivially negligent and collides with a grossly negligent driver in an 1000 accident will be contributorily negligent for perhaps 10% to blame, and so recover 900, but he if he collides w/ a driver who was also trivially negligent he may only recover 500 (50%), even though the act of negligent is identical in both cases o combo of contributory negligence principle w/ the no-liability-without-fault principle produces the result that a person injured w/o fault of anyone receives no tort compensation, whereas a person largely to blame for his injuries can receive some tort compensation

contributory justice therefore operates basically as a penal device: the contributorily negligent plaintiff is punished by being deprived of some of the compensation to which he would otherwise be entitled - penal laws are justified on their deterrent value, but it is unlikely that contributory negligence has any deterrent value in personal injury cases - but if we got rid of it, there would be a considerable and wasteful use of tort liability and liability insurance rather than the personal accident insurance of the vehicle owner Torts Reading & Lecture Notes Week 8, 302-319, 321-337 Defences: Voluntary Assumption of Risk Lambert v. Lastoplex (1971 SCC), text 302 Laskin J: Is a manufacturer of an inflammable product liable in tort to user of the product, who is aware of certain caution notices on the labels? Mechanical engineer, wanted to seal floor using Supremo W-200, a fast-drying lacquer sealer, fire caused by pilot light in furnace Product has very low flash point Warning labels said keep away from heat and open flame lights, etc, competitors label referred specifically to pilot lights, spark producing switches, etc o So plaintiff claimed negligence due to inadequate warning of dangers manufacturers owe duty to consumer to see that there are no defects in manufacture that are likely to give rise to injury in ordinary course of use o duty does not end if product is by nature dangerous: cannot pass the risk to consumer easily where manufactured products are by nature dangerous, although put to use for which they are intended, manufacturer has a duty to specify the attendant dangers, as it knows them in a detail not known to the ordinary user o general warning of inflammable will not suffice o required explicitness of warning will vary w/ the danger likely to be encountered in the ordinary use of the product labels on Supremo lacked required explicitness, due to degree of danger of its use in gas-serviced residence duty resting on manufacturer cannot be excluded w/o voluntary assumption of risk of injury by consumer, which can only be shown if consumer appreciated the risk in leaving the pilot light on appeal allowed, in favour of consumer

Dube v. Labar (1986 SCC), text 305 Estey J (McInture, Chouinard, Le Dain JJ concurring): Plaintiff and defendant co-workers at construction site, recent acquaintances, went partying and drinking all night, in morning began drinking again, drove around, picked up some hitchhikers, crashed car Defendant had blood alcohol level of .25 Defence at trial was volenti non fit injuria (no wrong occurs to one who wishes it (the consenting cannot suffer injury) ), and contributory negligence

Plaintiff argued that no wrong occurs to one who wishes it (the consenting cannot suffer injury) volenti non fit injuria cannot be applied to case of negligence on highways o SCC: wrong, this defence is available in principle to defendant driver, but only in unusual circumstances Car & Gen. Ins. Corp v. Seymour (1956): can defendant reasonably claim that risk of injury from his own misconduct was required by him to be and was accepted by complainant? Was there a bilateral exchange of terms? Miller v. Decker (1957): for negligent driver to be relieved of liability, plaintiff must have agreed expressly or by implication to exempt defendant from liability for damages Lehnert v. Stein (1963): where volenti non fit injuria is used as defence by driver, the burden lies on the defendant to prove that plantiff agreed to exempt the defendant of liability common sense dictates that rarely will plaintiff genuinely consent to accept risk of defendants negligence in almost every modern act of negligence, where this defence has been raised it has failed Glanville Williams: key to understanding volens defence is in drawing distinction between physical and legal risk o Legal risk is the risk of damage for which there will be no redress in law o Defence of volens does not apply where plaintiff decides to take a chance but does not communicate the waiving of his rights to defendant defence of volens inapplicable in most drunk-driving cases: requires an awareness of the circumstances and consequences which are rarely present given the facts but, jury fairly decided that plaintiff had been contributorily negligent, appeal dismissed

Priestly v. Gilbert (1973, Ont. CA), text 307 -

Schroeder JA: At trial, plaintiffs action dismissed on ground that defence of volenti non fit injuria was entitled to prevail Appealed Plaintiff passenger in car, driver drunk, accident killed two and gave plaintiff severe injuries No question as to negligence, appeal is based solely on whether defence was correctly applied by trial judge Trial judge: plaintiff drank with defendant, recognized that risk would arise if defendant became impaired (although said he never reached conclusion defendant was impaired) o Plaintiff engaged in joint venture which he knew, or should have known, would endanger life and limb, and voluntarily accepted the risk of personal injury involved consent should be inferred from joint venture undertaken by friends of long standing, involving consumption of large quantities of alcohol and driving of motor vehicle by one of them

Miller v. Decker: original choice to assume risks foreseeable in an evening of drinking voluntary intoxication does not end this choice While sympathetic to plaintiff, appeal dismissed

Birch v. Thomas (1972), text 309 defendant unable to get insurance, therefore placed sticker (on advice of insurance company) on his window warning that all passengers ride at their own risk and that no claims shall be made defendant told plaintiff he was not insured against passenger liability, pointed out sticker, plaintiff chose to ride serious accident, plaintiff suffered head injuries and amnesia o could not be inferred that plaintiff read sticker o but, in light of words spoken, plaintiff had agreed to exemption from liability, had assumed risk of precisely the injury that occurred, therefore could not recover

Defences: Illegality Hall v. Hebert (1993), text 310 Defendant a boy-racer, drove car to party that plaintiff also attended Defendant drove his girlfriend home at midnight, returned to party and contd drinking, after party drove w/ plaintiff to baseball field where they contd drinking Car wouldnt start, attempted rolling start, plaintiff got in drivers seat, lost control going down hill on start attempt, went into gravel pit, plaintiff suffered head injuries Defendant knew that muscle car would be difficult to control on gravel road in the dark, knew plaintiff was drunk (although didnt consider him too drunk to drive) At trial defendant claimed defence of ex turpi causa non oritur action (no liability arises out of a base cause), both parties engaged in a criminal enterprise and as a result could not be held liable Trial judge decided acceptance of a ride knowing that driver was impaired did not constitute common enterprise; only joint enterprise was consumption of alcohol, which was finished before plaintiff drove the vehicle o Also decided breach of Liquor Control Act (drinking in public) was no serious enough to make court decline to compensate plaintiff o Defendant liable defendant appealed, CoA allowed appeal on grounds that ex turpi was applicable and action could be dismissed on that basis plaintiff appealed to SCC Cory J: SCC has approved 2 stage test for considering foreseeability, proximity, duty of care (Anns test) This test is broad enough to take into account policy questions which might negate existence of duty of care Ex turpi doctrine should be eliminated from application to tort cases This issue should be considered on policy grounds Therefore, there is no policy reason why plaintiff should be prevented from recovering compensation Appeal allowed, plaintiff recovers

McLachlin J (LaForest, LHeureux-Dube, Iacobucci JJ concurring): Courts should only be able to bar recovery on grounds plaintiffs conduct was immoral or illegal in very ltd circumstances o This power should exist only where integrity of legal system is in question o Recognised concern that people might benefit from wrongful act, or permit evasion of penalty in criminal law But, should not deny damages for personal injury, as they are claim for compensation, not profit This power of court to deny recovery should not be dealt w/ as part of the duty of care Historical Use of Power to Deny Recovery for Immoral Acts: o Roots are in principle that justice system should not be used for abusive or illegal purposes o Doctrine of ex turpi causa is used to prevent abuse and misuse of judicial process, particularly in contract or insurance law o Less clear in tort law Academic opinion generally critical of its use in tort o So where is it ok to use (in tort)? Where allowing plaintiffs tort claim would permit plaintiff to profit from his wrong Profit = direct pecuniary award for act of wrongdoing Compensation does not equal profit But claim for personal injuries under head of loss of future earnings, where occupation is illegal, not allowed Exemplary damages would also count as profit and therefore non-recoverable (Katco v. Briney, burglar injured, received $10000 in punitive damages US case, unlikely to be followed in Commonwealth given this doctrine) o To allow recovery for illegal acts would create intolerable fissure in laws conceptually seamless web (Weinrib) o Ex torpi causa should also be invoked in any situation where a criminal attempts to utilize tort laws mechanism of shifting losses to avoid the consequences criminal law has imposed upon him for his conduct, even if it is not a matter of profit Ie, burglar caught due to negligence of partner, receives fine, tries to recover fine this should not be allowed Even though this cannot be explained as profit and is essentially compensatory How can we best protect judicial systems integrity? o Cory J: eliminate ex turpi causa doctrine and replace it with power of courts to disallow plaintiffs claim, on account of wrongful conduct, by finding that no duty of care arises (using Anns test) o McLachlin disagrees o Ex turpi causa principle operates naturally as a defence o Power of court to deny recovery in these cases is outside relationship between claimant and defendant o Donoghue v. Stevenson does not say neighbour principle only applies to neighbours who act morally and legally; tort does not require plaintiff to have certain moral character to bring action

Where we must think about moral character, it is better done through a defence than by altering notion of duty of care (which negating through Anns does) o 3 practical reasons to use ex turpi causa as a defence 1) if principle arises during investigation into existence of duty of care, onus will lie of plaintiff to prove why he should not be disentitled due to his conduct a plaintiff would then have to dis-prove illegality in order to proceed w/ his suit, as onus is on plaintiff to establish valid cause of action since power to deny recovery runs against general principles of tort, the onus of establishing exceptional circumstances should lie on the defendant; plaintiff should not be required to disprove illegal/immoral conduct 2) duty of care is an all or nothing approach, and cannot be selectively applied to particular heads of damages if ex turpi causa is used as defence, it can be applied to negate particular damages (ie, punitive, exemplary) still allowing general compensation to be received 3) consideration of illegal/immoral conduct at stage of determining duty of care raises procedural problems in tort the onus would be on the plaintiff to disprove conduct, while in contract it would be raised as a defence to the claim inconsistent therefore, the power of court to deny recovery based on conduct is better viewed as a defence than as a factor going to the existence of a duty of care in this case, compensation can be reduced to the extent of contributory negligence, but cannot be wholly denied by reason of criminal or disreputable conduct appealed allowed, plaintiff recovers o

Contribution law treats each tortfeasor as liable to the plaintiff and allows judgement to be executed against each one of them as the plaintiff wishes, although the plaintiff cannot recover compensation in excess of the damages contribution refers to power of defendant to call upon other tortfeasors to bear their share of the damages common law historically denied this right, but it has been changed by statute

Merryweather v. Nixan (1799), text 321 man brought action against both plaintiff and defendant for injury (damage to equipment in a mill?) suffered in amount of 840, recovered all of it from plaintiff in this case plaintiff in this case brought action to recover part of this money from defendant at trial, non-suited (thrown out?), judge said no contribution could be claimed between joint wrong-doers, appealed, lost

Negligence Act, 1990 (text 322) court can apportion blame between joint tortfeasors, one must indemnify the other to the degree they are found to be at fault

Contributory Negligence and Concurrent Wrongdoers, Alberta Institute of Law Research & Reform, text 322 contribution is based on principles of justice, that burden imposed by law on two men should not be borne wholly by one of them contribution is a mechanism rooted both in equity and in common law (in terms of broad principles), even though claim depends on statute law should treat wrongdoers fairly, and in absence of compelling reason to the contrary, fairness requires that a burden which the law imposes on two parties should be borne wholly by one of them Bryanston Finance Ltd v. de Vries (1975): if plaintiff reaches settlement w/ one tortfeasor out of court and proceeds w/ action in court against the other, the amount he received out of court should be taken into account in assessing damages if plaintiff recovers more, he gets the extra, if he recovers less he loses and has to pay the extra

County of Parkland No. 31 v. Stetar (1974 SCC), text 324 car accident, one dead several injured, one driver negligent, dangerous intersection, signs posted but one was missing Stetar 75% responsible, County 25% (at trial) Questions for court: o Was County under any duty, the breach of which contributed to the accident? o Can Poires family & Car Rental Company (victims in original case) recover 100% of their damages from Stetar, even though he was only 75% responsible? at trial Poires claimed 100% from Stetar, saying he could then recover from County Appelate court disagreed, saying Poires had lost their case against County at trial and did not appeal, therefore they could not collect indirectly from County First question (SCC, Dickson J): yes, county owed duty 2nd question: in answering must consider 3 things: o attribution of fault 75/25 o failure to win claim against county for not giving timely notice o statute Tort Feasors Act, 1955 (Alberta), which does not admit claim for contribution by one tort-feasor against another when the other has been sued by the injured person and not held liable, supported in case law (George Wimpey Co. v. British Overseas Airways Corp, Aleman v. Blair and Canadian Sugar Factories Ltd., Hart v. Hall & Pickles Ltd., etc) principle in these cases essentially: where damage is suffered by person as result of a tort, any tortfeasor liable may recover contribution from another tortfeasor who is, or would if sued, be liable for same damage, whether as joint tortfeasor or otherwise

this principle does not cover situation where other tortfeasor has been sued and held not to be liable fundamental principle of tort is that plaintiff is under no obligation to proceed against all tortfeasors; he may elect to recover full amount from tortfeasor only partially to blame therefore, Stetar has no enforceable claim for contribution against the County

Fitzgerald v. Lane (1988, HL), text 327 22 yr old plaintiff employed by real estate company crossed road against light, struck by 2 cars, paralyzed at trial, damages estimated at 596,553.67, all 3 parties negligent, impossible to say one more liable than the other, responsibility should be borne equally between 3 judge found defendants each liable for 2/3 of damage both defendants appealed, CoA allowed appeal, altered judges order so it specifically provided that judgement was against each defendant for 50% of the total claim, then sent on to HL Lord Acker: Only after liability and total liability suffered has been established can defendants then establish that plaintiff was in part responsible Then , it is up to court to decide what extent to reduce the damages recoverable Apportionment of liability between defendants and plaintiff is separate from apportionment of contribution between the defendants Although each defendant is liable for entire amount, proportions between the defendants do not have any direct relationship to the extent by which total damages have been reduced by contributory negligence Contribution proceedings may be heard in trial or separately Trial judge erred by combining these two stages: he allowed his judgement on issue of contributory negligence to be coloured by his decision regarding apportionment of blame between defendants

James, Contribution Among Joint Tortfeasors: A Pragmatic Criticism, text 331 an existing rule of law which has a tendency to effect loss distribution over a large segment of society ought not to give way to a rule which will bring about a less effective distribution unless there is a very good reason for it o is the notion of fault (as in contribution) a good enough reason? objections to contribution o contribution tends to embarrass and disfavour plaintiffs makes it harder to settle cases where there are multiple wrongdoers defendant will not settle unless all do, for he might be called to contribute if they are found liable, regardless of the settlement however, this could be altered by statute or by established practice o contribution tends to favour large and wealthy defendants because individuals tend to sue insured or wealthy corporations, those wrongdoers could use contribution to shift loss from themselves, who are strategically placed to distribute the loss, to one who is unable to distribute it at all

James essentially thinks that loss should be shifted to whoever is better able to pay, who can then pass on costs to society at large (through increased prices, or insurance)

Gregory, in response to James criticism of contribution - contribution is based on idea of rough fairness - James idea would create irresponsibility among those unable to share burdens of loss - James idea of statistically unavoidable loss on to large segments of society is not necessarily bad (ie Workers Comp), but it should not be achieved at the expense of the stronger members of society through manipulation of common law rules developed in an entirely different social context o James is either fostering social irresponsibility or has a weak thesis - James idea is a considerable social programme that cannot be achieved through the archaic common law of torts and tort litigation - Contribution among tortfeasors does not interfere with privileges that plaintiffs are intended to have James response - both Gregory and James agree that comprehensive scheme of social insurance for accidents is better solution to problem of civil liability than principle that recovery must be based on fault - only disagreement is how to reach that goal Torts Reading & Lecture Notes Week 9, 339-363, 365-385 silence in law is entirely textual where legislators say nothing, judges have to interpret what this nothing means

The Role of Statutes wrongful behaviour that tort law addresses also regulated by statutes designed to promote safety and penalize those who endanger others what happens where people breach these statutes? statutes may not expressly allow injured party to sue for compensation o although some statutes contain provisions for what happens in a breach that allow individuals to seek compensation o some statutes may expressly forbid civil actions o many are silent neither provide nor prohibit private cause of action does such silent legislation have any role in tort litigation? What if you comply w/ all the statutory schemes? o Can you say you cant sue me in tort? No, a cause of action may still exist o Complying w/ statutory regulations does not eliminate potential of tort action (Ryan, SCC 1999) raises big institutional competence questions o who gets the last say regarding policy? Usually courts Courts essentially say you can pass as much legislation as you want, but well tell you what it means, and if you dont like what were doing, pass more accurate legislation

courts dont like legislation, see it as moving in on common law o but, common law is also fairly individualistic legislation is required to set minimum floors to protect the public: ie common law freedom of contract, right to private property are huge and require legislation to tame them (consumer protection, zoning laws, etc)

Posner, Economics, Politics, and the Reading of Statutes and the Constitution, text 339 economic theories of legislation: public interest, interest group public interest theory: o both ideal and actual function of legislation is to incr economic welfare by correcting market failures such as crime and pollution o may involve xfer of wealth from rich to poor o public wealth redistribution is a public good no different in kind from protection against crime or pollution o legal view: legislation is designed to protect the public interest, defined in utilitarian terms interest group theory: o legislation is a good demanded and supplied like other goods, so legislative protection flows to those groups that derive the greatest value from it, regardless of overall social welfare o important determinant of net benefit of legislative protection is cost of organizing effective political action cost incr as membership becomes larger and more diverse as group becomes larger, benefits also decr, so individual incentive to contribute to group endeavour will be weakened if group attempts to overcome this by seeking a very large redistribution, resistance from outside group will incr o effective interest groups are therefore small and directed toward single issue o interest group theory is pessimistic toward purpose and effect of legislation, as it redistributes wealth away from large group to small ones implied rights of action: o statute often does not state whether private individuals can bring action to enforce it o can private right of action be implied? o Can violation of statute be used as evidence of negligence? (ie breaking the speed limit) Answer may depend on your theory of legislation Public interest theory suggests statute should be given great weight: legislature is better equipped to determine safety stds than courts Interest group theory suggests there is no presumption that legislative safety std represents sincere effort at optimal safety, therefore if there is no evidence legislature intended it to be used in private cases, courts should not use it choice between theories of legislation has implications for 4 specific issues regarded use of legislated stds in tort cases, and for one issue regarding implied private use of action

1. Legislative Intent interest group theory asks only if legislature intended for court to use the statute as a private std public interest theory asks only if legislative std is pertinent to the issues in the case, intent is a given tort courts usually ask if plaintiff claiming benefit of statute was one of the people the legislature was trying to protect: seems most similar to public interest theory o 2. Technical Invalidity what if statute about health/safety std is enacted but later invalidated because of a defect in enactment process? p.i. theory says statute should given effect unless defect raises doubt about intention of legislature; technical defect does not nullify content of statute i.g theory has no assumption about content of statute; if legislation is defective it has no power and therefore should not influence or bind courts o 3. Federal Stds in State Courts what if state court is asked in private tort action to determine std of care from federal safety statute? p.i. theory says any pertinent federal stds may be introduced i.g. theory says courts have no reason to pay any attention to federal statutes o 4. Tortious Acts Outside the Legislative Purpose courts usually hold that violating a statute that results in a harm unrelated to the intent of the statute will not result in liability (Gorris v. Scott, animals not penned in on ship, washed overboard, but statute requiring pens was to prevent contagion) hard to understand from p.i. perspective but from i.g perspective, if we added sanctions for violation it might upset deal struck in legislature between i.g. and govt actors by giving more power to i.g. o 5. Implying Private Right of Action if courts find remedial public scheme incomplete or defective, they are more likely to allow a private remedy this is only defensible under p.i. theory absence of effective remedies implies to i.g theorist that the group that procured the legislation lacked adequate political muscle to get an effective statute, and it is not courts job to give i.g. what it couldnt get in legislature in reality, the choice is not binary, and courts will likely act inconsistently o

Landis, Statutes & the Sources of Law, text 342 statutes can never encompass all human activity that the law is called upon to order but, statutes still have function in solution of problems beyond their reach when legislatures determine an act to be undesireable, they rarely think beyod imposition of a criminal penalty, which carries the judgement of culpability

the courts recognise this, and have enlarged tort liability by giving statutes the effect of attaching culpability to action in disregard of the statute legislation in this area is permitted by courts only to exercise ltd function: crystallizing principles of liability into more rigid rules to cover recurring type situations Landis thinks statutes should be used more extensively: they often represent wider and more comprehensive grasp of situation that analogous cases do Reason for ltd use is idea that legislation is often free of principle Landis: but there are many kinds of statutes and we can determined the principled ones Legislatures freq override courts; cases (doctrinally) cancelled out in most legislative sessions If law reflects and should reflect experience rather than logic, legislation born of such an idea demands sympathetic consideration

Jordan House v. Menow (SCC 1973), text 344 breach of statute and consequent suffering of personal injury is not enough to attach liability to the party who breached in this case hotel served alcohol to intoxicated individual, who later was hit by a car

Littley v. Brooks (SCC 1930), text 345 man killed in accident when train struck his car at crossing plaintiff (mans family) pointed to 1917 Ontario regulation restricting speed of trains at crossing to 5mph o but in 1919 the company had been made a federal company, therefore governed exclusively by federal regulations Rinfret J: 1917 regulation was rightly rejected as being binding, but was pointed to as offering evidence that the crossing was dangerous this evidence presents a std of reasonableness upon which a jury might act but had that rule ever been repealed or altered, it would cease to have any evidentiary value new trial ordered

Chipchase v. British Titan Products (1956), text 345 Denning J: Man injured painting house, fell off ladder, claimed against employer, plank he was standing on too narrow (9in) Building regulations stipulate width of 34in for workers 66 off the ground Man only working 6 off the ground, argued that so nearly within regulations that they ought to be taken into account Denning disagrees: common law claim must be considered independent of regulations Man chose to use only one plank and worked on it w/o complaint

The Queen in the Right of Canada v. Sask Wheat Pool (SCC 1983), text 346 Dickson J:

Where A has breached a statutory duty causing injury to B, does B have a civil cause of action against A? If so, is As liability absolute, or is A free from liability if the failure to perform the duty is through no fault of his? Wheat Pool is a grain dealer, the Board is an agent of the crown authorized to buy, sell, market wheat, oats, barley Huge amount of grain received every day by Pool (hundreds of railway carloads), visually checked for insect infestation Adult rusty beetles cannot always be seen, require longer test, cannot be conducted on the spot, takes 2-3 days at which point grain will already be in terminal elevator or on a ship Board surrendered some wheat to Pool, directed it to be loaded onto a ship, visually inspected etc, rust beetle infestation determined 3 days after ship had sailed, first ever instance on a ship, cause unknown Canadian Grain Commission ordered Board to fumigate ship, Board did so and diverted ship to Kingston, paid $100,000 to vessel owner and elevator operator at Kingston for detention claims, cost of unloading and reloading grain, and fumigation of grain and ship Board makes no claim of negligence, relies entirely on alleged statutory breach (Canada Grain Act prohibits delivery of infested grain) Act says nothing about right to a civil action At trial, judge found in favour of Board, and that evidence of reasonable care on part of defendant not enough to absolve civil liability (statutory duty absolute) On appeal, trial decision reversed, court found that Grain Act not intended to benefit any particular class of persons, it is a statute to regulate the grain industry and protect the public interest, and therefore does not grant private right of action to persons who suffer loss resulting from breach of statutory duty SCC: Two positions regarding breach of statute and civil cause of action, as seen in England and in America British position: o London Passenger Tpt. Bd. v. Upson (1949): HoL affirmed existence of a tort of statutory breach distinct from any issue of negligence Plaintiff need show only breach of statute and damage caused by breach o But others criticize this for saying that legislatures silence on question of civil liability points to conclusion it either did not have it mind or it deliberately omitted to provide for it (Fleming) o Civil cause of action for statutory breach was not allowed at beginning of 1800s, and then was allowed at the beginning of the 1900s for reasons of policy and convenience to accommodate rising incidence of industrial accidents; courts looked for screening mechanism to determine when the action would be allowed o Crucial test is whether duty created by statute is owed primarily to the State, and only incidentally to the individual, or vice versa A duty to the entire public does not give rise to private cause of action, whereas a duty to an individual (ie a worker) may Purpose of statute must be protection of certain class of individuals of whom the plaintiff is one and the injury suffered was of the kind the legislation was intended to prevent o Both requirements narrow and heavily criticized

No general principle established relies heavily on interpretation of legislative intent o Provides fixed stds of negligence and replaces judgement of amateurs (jury) w/ professionals in technical areas; provides for absolute liability in fields determined to be desireable, like industrial safety o Statutory torts therefore do exist American position: o Fleming: general law of negligence has assimilated civil responsibility for statutory breach Statutes do not contemplate or provide civil remedies Any recovery of damages must rely on common law principles However, the court may adopt the legislative formulation of a specific std in place of an unformulated std of reasonable conduct o But, differing opinions on effect of this assimilation One end: breach of statutory duty constitutes negligence per se Other end: breach is merely evidence of negligence Application of criminal std of care breach would give rise to penal consequences to civil action (Thayer) Majority view is that of negligence per se, in certain circumstances Prosser: where statute is applicable (class of person, etc), courts hold that unexcused violation is conclusive on issue of negligence, and court must so direct the jury o Major criticism of this approach is the inflexible application of criminal std of conduct to a civil case (SCC agrees w/ this criticism) Defendant in civil case does not benefit from the technical defences or protection offered by the criminal law; civil consequences may outweigh criminal consequences; purposes of criminal and civil liability are very different Compensatory aspect of tort liability has won out over the deterrent and punitive aspect (unlike criminal liability) Canadian position: o Use of breach of statute as evidence of negligence is more intellectually acceptable o Avoids fictitious hunt for legislative intent as in England o Avoids inflexible application of criminal stds of conduct as in US o Where there is no duty of care at common law, breach of nonindustrial penal legislation should not affect civil liability unless the statute provides for it o Recognition of absolute liability in industrial statutes does not justify extension of doctrine to other fields o In any event, statutes more and more often are speaking plainly about civil responsibility (Consumer Protection Act, Rental Acts, Business Corp Acts, etc) o So Canada still holds position of negligence, but the std can be set high (which would push towards strict liability) or low Reluctant to assume torts give rise to nominate torts tort transformed in 20C, w/ nominate torts eclipsed by negligence; the concept of duty of care expanded into areas previously untouched by tort law the reason for shifting loss to defendant is that he has been at fault, and should be punished while the other is compensated o

but, there is little reason for holding a defendant who unwittingly breached a statutory duty to be negligent and obligated to pay even though not at fault no justification to add civil liability to existing as it would produce liability w/o fault o minimum fault may subject defendant to heavy liability inconsequential violations should not subject violator to any civil liability at all but should be left the criminal Courts for enforcement of a fine parliament has not provided for civil cause of action for anyone injured by breach of Grain Act, yet it could if it so chose o must refrain from conjecture on unexpressed intent no evidence of negligence or failure to take care on part of Pool appeal dismissed 1. civil consequences of breach of statute should be subsumed in law of negligence 2. notion that unexcused breach leads to absolute liability is rejected 3. proof of breach may however be evidence of negligence 4. statutory formulation of duty may offer specific and useful std of reasonable conduct

Board of Governors of Seneca College v. Bhaduria (SCC 1981), text 354 pre-Charter o but charter applies only to state dealings anyway o no private cause of action under the Constitution, courts not keen to establish one plaintiff highly educated East Indian woman, Ph.D in maths, Ontario teachers certificate, 7 years teaching experience, applied for advertised teaching job at Seneca 10 times, never received interview nor reason for her rejection alleged positions were filled by less qualified candidates because of her race claimed for damages for being deprived of teaching opportunities and salary, mental distress, loss of dignity, etc HRA a statute to combat the failings of the common law to ensure a discrimination-free society claims tort in 2 ways o claims tort of discrimination, consistent w/ HRA o claims tort of negligence from breach of HRA dimissed at trial, she appealed, won in OCA, Seneca appealed to SCC Laskin CJC: At issue: should court affirm recognition by OCA of a new intentional tort (that of discrimination)? o Tort was recognised to protect plaintiff against unjustified invasion of his interest not to be discriminated against in respect of prospect of employment on grounds of race/national origin OCA: plaintiff argued that civil right of action flowed directly from breach of Ont Human Rights Code o Wilson JA: tort arose at common law through invocation of the public policy expressed in the Code as supplying applicable stds, did not address plaintiffs argument o There is a tort of discrimination o Should go back to trial to determine its existence

SCC addresses from this perspective: can breach of Code itself be sufficient to establish civil liability w/o calling in aid common law principles? There is no known case where such a tort is recognised Plaintiffs claim that right of action springs directly from breach of OHR Code fails Code contains substantial provisions for complaint procedures, including enforcement where a breach is found o Self-contained Narrow line between a civil cause of action coming directly from a breach of a statute, and a civil cause of action at common law by reference to policies reflected in statute and stds fixed by the statute CoA concludes that this is a new type of economic tort, founded on a statute outside a fully recognised area of common law duty This is wrong It is ok to apply common law duty of care to stds of behaviour under statutory torts It is not ok to confer an economic benefit on certain persons, with whom the defendant has no connection, and solely on the basis of a breach of statute which itself provides comprehensively for remedies for its breach The Code forecloses any civil action based directly upon breach thereof, and it also excludes any common law action based on invocation of the public policy expressed in the Code o No statutory tort that feeds off the HRA and the HRA prevents judges from interpreting the common law in that way Intent of legislature is to only refer to the HRA: plaintiff must use remedies within the HRA Hutch thinks this (cutting off common law) goes much too far; shortsighted The Code itself lays out the procedures for vindication of that public policy, which the plaintiff did not see fit to use Appeal allowed, OCA judgement set aside, trial judgement dismissing the action restored

Retail, Wholesale, & Dept Store Union Local 580 v. Dolphin Delivery (SCC 1987), text 360 where private party A sues private party B relying on the common law, and where no act of govt is relied upon to support the action, the Charter will not apply however, the judiciary ought to develop and apply the principles of the common law in a manner consistent w/ the Charter

Weinrib and Weinrib, Constitutional Values and Private Law in Canada, text 360 court views litigants as participants in a social relationship within a world of shared social meanings o the juridicial significance of the parties conduct is variable and relative to societal contexts and understandings court must draw on public culture to give meaning to capacity of participants as equals in the transaction content of rights are therefore derived through reference to beliefs, values, and modes of reasoning that have public plausibility statutes in Canada are regarded not as formulating a per se std or as grounding a distinct tort of statutory breach, but as providing evidence for determining

whether the defendant should be considered negligent under the general principles of tort law statutes can assist in specifying the content of private law categories in contexts beyond its scope as a legislative command constitutional protections of human rights are similar o these rights may be held not to be directly applicable to private law, but constitutional values are available for specifying dignity included within the private law o the constitution crystallizes in a conspicuous way the values to be recognised in the process of ascribing meanings to the rights and duties of private law constitutional values can become relevant to private law at the stage of specifying content of private law categories private laws use of the constitution resembles its use of statutes o both flesh out the meaning of private law categories and stds o however, judiciary is only required to develop common law in manner consistent with Charter values, not those of statutes constitutional values can guide courts in elaboration of principles and stds that govern private law relationships o constitution is a repository of principles animating the polity as a whole

Duty & Remoteness: Special Problems the following areas are those in which courts treat differently than usual tort practices why dont we just apply DvS principle? In DvS, once item has been consumed, the act is over w/ a negligent statement, it could be reused and passed on continually

Negligent Misrepresentation Candler v. Crane Christmas & Co (1951), text 365 defendant accounting firm placed advertisement on behalf of client mining co, seeking investment plaintiff answered advertisement, decided to invest 2000 plaintiff asked to see accounts first, which ended up being negligently prepared, and then invested investment disaster, lost everything at trial, action dismissed on ground that although defendant had been negligent, in the absence of fraud the defendant owed the plaintiff no duty of care Denning LJ (dissenting): Plaintiff argued that D v. S shows that close relationship in absence of contract can lead to duty of care Defendant argued that duty was purely contractual duty, and therefore not liable for negligence to party to whom that had no contractual duty o This goes against DvS In every difficult case, judges are split on whether to grant a new cause of action: fortunately for the common law the progressive view has prevailed

Defendant also argued that duty of care only arose where the result of a failure to take care will cause physical damage to persons or property o Incorrect: liability does not depend on nature of damage professionals have a duty to take care in their work, and those whose profession it is to make reports to upon which people (regardless of existence of a contract) rely, have duty to take care in their statements o not reliable for casual remarks made in course of conversation, nor for statements outside their work to whom do professionals owe this duty? o To their employer or client, and to any 3rd person to whom they themselves show the accounts, or to whom they know the employer is going to show the accounts o But not to strangers of whom they have heard nothing and to whom their employer may show the accounts without their knowledge to what transactions does the duty extend? o Only to those transactions for which the accountants knew their accounts were required appeal should be allowed Asquith LJ: D v. S has never been applied where the injury was not physical If negligent misstatements were liable: o Simply using proximity would also disastrous: could a map-maker be sued for an incorrect map? Nobody would make maps! Different rules apply to negligent misstatement and negligent circulation/repair of chattels Appeal should be dismissed

Glanzer v. Shepard (1921) text 370 defendants were weighers who had been hired to certify weight of bags of beans sold to plaintiff by vendor plaintiff paid on faith of measurements on discovering weight was less than certified, plaintiff sued defendant for amount overpaid to vendor Cardozo J found for the plaintiff: Law imposes duty to both buyer and seller Weighers knew use of their certification was the aim of the transaction Defendants professed to be skilled and careful Even though it grew out of contract, it has an origin not exclusively contractual o Given the contract and relation, the duty is imposed by law o Defendants obligation can be stated in terms of duty, because they were not acting as servants, but in pursuit of an independent calling

Ultramares v. Touche (1931) text 371 Cardozo CJ: Defendants firm of public accountants who negligently prepared an audit that was relied upon by the plaintiffs in lending money to the audited firm Action dismissed If liability in this situation existed, a thoughtless slip or blunder, or failure to detect a theft or forgery, could expose accounts to unlimited liability

However, this ruling does not free accountants from consequences of fraud o Or if audit was so negligent that they had no genuine belief in its adequacy (also fraud)

Hedley Byrne & Co. Ltd v. Heller (1964), text 373 plaintiff advertising firm entered into contract with customer (Easipower Ltd), to place orders for advertisements on Easipowers behalf on credit terms plaintiff unsure of Easipowers finances, asked their bank to obtain report their bank called Easipowers bank, and were told everything was ok plaintiff asked for another financial report, their bank asked Easipowers bank (Heller) about specific numbers, received positive response but disclaimer (this advice given w/o liability) and that figures are larger than we usually see plaintiffs eventually lost 17660 when Easipower went into liquidation sued Easipowers bank (Heller) on grounds the info was given negligently, trial and appeal court determined Heller owed no duty of care Lord Reid: Can a person recover damages for loss suffered by reason of having relied on innocent but negligent misrepresentation? Defendant argued that the relationship was not sufficiently close to give rise to a duty of care; they did not know the purpose of the inquiries o This argument is rejected: they knew the inquiry was in connection w/ an advertising contract, and it was at least probable therefore the info was wanted by advertising contractors o Immaterial that they did not know who the contractors were plaintiffs first argument was based on D. v. S o important decision but no direct bearing on this case o the law must treat negligent words differently than negligent acts o D v S talks about the reasonable man: reasonable men often express definite opinions in social situations, without the care they might if asked for their opinion in a business situation. But, reasonable men do not put into circulation a negligently made bottle of homemade wine in a social situation For liability, the setting must be professional, and the advice-giver must be speaking to their area of expertise There has to be a special relationship, and the plaintiff has to reasonably rely on the advice Also, a negligently made product will likely only cause one accident, whereas words can be spread without consent or foresight of the speaker Good sense that innocent but negligent misrepresentation gives no cause to action o There must be something more than mere misstatement Plaintiff also argued that only person bound by the waiver is the plaintiffs bank, not the plaintiff themselves as they are 3rd party Derry v. Peek (1890): action against companys directors in respect of false statements in prospectus o HL: no fraud w/o dishonesty o But did not establish universal rule that in absence of contract innocent but negligent misrepresentation cannot give rise to action Nocton v. Lord Ashburton: solicitor sued for fraud o Fraud not proven, but still found liable for negligence

in this case, plaintiffs claim not of negligence in sense of carelessness, but in sense of misjudgement the duty here was to give an honest reply, which the defendants did HL says if there is to be liability in such a case, it must be tighter than DvSs neighbourly formulation: this is the special relationship o Because statements last longer, if you can have recovery, recovery must be ltd to be workable appeal dismissed Lord Pearce: Reason for divergence in law of negligence for word and act is clear: negligence in word creates problems different than those in act If the mere hearing or reading of words were to create sufficient proximity, there might be no limits to the liability of the speaker Sheills v. Blackburn: a man acting gratuitously can only be held liable for gross negligence if the act falls within the range of his special skill and he does not live up to that skill a person who holds himself out in a calling or profession has duty of skill and care when taking on task within the range of that calling or profession but, innocent misrepresentation per se gives no right to damages but, some relationships may give rise to an assumption that both care and honesty is demanded the words used between the parties prevent such a relationship from arising in this case: both parties expressly said there shall be no liability, therefore none can be assumed Lord Devlin: Defendants do not deny they were performing a performance: defence is they were performing in gratuitously, and therefore no liability can arise o This is not the law (see above) many categories of special relationships that may be equivalent to contract but in absence of consideration (payment), they are hard to determine o necessary to exercise greater care in distinguishing between social and professional relationships however, in this case, the disclaimer of responsibility is conclusive: appeal dismissed out of this case comes 2 main requirements for liability for negligent misrepresentation: o professional relationship (see Cognos) o reliance (see Grand Restaurants)

Grand Restaurants v. City of Toronto (1981), text 379 plaintiff concluded contract to buy restaurant in reliance on citys assurance that it did not have a file related to outstanding work orders and building violations w/ respect to property in question misrepresentation by city was negligent however, plaintiff aware of prior work orders against the property, and court found reasonable person w/ plaintiffs experience in restaurant industry would have been sufficiently alerted by this knowledge to make further investigations reliance that is unreasonable simply goes to reducing the damages the plaintiff can claim

Avco case (check quicklaw) - can reasonably rely and be contributorily negligence - because w/o reasonable reliance, there is a total bar to recovery Queen v. Cognos (SCC 1993), text 380 defendant hired plaintiff to work on project, plaintiff told project was major, successful candidate would be involved with it for great period of time relying on this info, plaintiff quit secure job and accepted position projects funding had not yet been approved, was scaled down, plaintiff terminated, plaintiff sued Iacobucci J: Defendant under obligation to exercise due diligence throughout hiring interview w/ respect to the representations made about the company and the employment opportunity Special relationship (Hedley Byrne type) clearly present What is test to determine when special relationship exists between representor and representee that will give rise to duty of care? o Some say foreseeable and reasonable reliance on representation is key o Some say voluntary assumption of responsibility by representor is key o Iacobucci: who cares? regardless of test, foreseeable that plaintiff would be relying on info given to him in order to make his career decision it was foreseeable that the plaintiff would suffer damages should the representation be false there was a relationship of proximity between the parties at all times it would be unreasonable in this case not to impose a duty of care confining duty of care to professionals (Hedley Byrne) is simplistic

Notes: -

HL has stated principle of Hedley Byrne is not restricted to negligence misrepresentations upon which plaintiff has detrimentally relied, but incl situations where defendant has assumed responsibility to perform professional services for plaintiff who is harmed by their being negligently performed (Spring v. Guardian Assurance plc 1994)

Nunes Diamond Ltd. v. Dominion Electric Protection (SCC 1972), text 382 plaintffs safe was protected by defendants alarm system, which the defendant knew (but the plaintiff didnt) could be circumvented by someone w/ particular knowledge after burglary at another diamond store which used same alarm system, plaintiff requested defendant to come and check system defendant knew that system could be overridden, yet told plaintiff even they couldnt crack it w/o setting off alarm (negligent misrepresentation) contract between the two expressly negated any conditions, warranties, or representations, and liability for breach was ltd to $50

eventually plaintiff suffered robbery, brought action for negligent misrepresentation on basis of statement by employee and copies of letters sent to insurance brokers that touted effective performance of system Piegon J (Martland and Judson JJ concurring): Plaintiff relies on Hedley Byrne case which said that in certain situations there might be liability for negligent misrepresentation In this case, the plaintiff seeks to escape the rights and obligations he fixed in contract due to alleged misrepresentation of the infallibility of the system Hedley Byrne is inapplicable where relationship is governed by contract, unless negligence relied on can properly be considered an independent tort unconnected to performance of contract It is essential basis of this contract that defendant is not to be in situation of an insurer The misrepresentation cannot be considered to have so fully changed the nature of the contract between the two Not an independent tort, part of the contract, therefore no liability Spence J (dissenting) (Laskin J concurring): o Written clause in contract limiting liability cannot operate as a bar to a claim based on tortious misrepresentation made many months after the contract had been executed o Mere existence of antecedent contract cannot foreclose tort liability

Spring v. Henderson - job-seeker relied upon negligently prepared reference; lost many jobs - add notes from text! Torts Reading & Lecture Notes Week 10, 385-403, 404-432 Central Trust v. Rafuse (SCC 1986), text 385 defendant solicitors negligent in arranging mortgage loan on behalf of corporate predecessor of plaintiff trust company 9 yrs later when plaintiff attempted to foreclose, mortgage was held to be void, plaintiff sued for breach of contract and negligence in preparing mortgage o contract claim held to be barred by statute of limitations tort claim, Le Dain J: o duty of care created by proximate relationship not confined to relationships that arise outside contract the question is that of proximity, not of how the proximity arose o what is undertaken by the contract will indicate nature of relationship, but nature and scope of duty must not depend on specific obligations or duties created by terms of contract o claim is not in tort if it depends on contract to expressly define the asserted duty of care o concurrent liability can run between contract and tort o however, concurrent or alternative liability in tort will not be admitted if its effect would be to permit the plaintiff to circumvent or escape a contractual exclusion or limitation of liability but subject to this, plaintiff does have right to assert cause of action that appears to be most advantageous to him

these principles apply to liability of a solicitor to a client for negligence in the performance of his professional services cause of action arises not when damage occurs, but when material facts are known or ought to have been known by plaintiff therefore cause of action in tort is not barred by statute of limitations o

BG Checo International Ltd v. BC Hydro & Power Authority (1993 SCC), text 386 plaintiff successfully bid to erect transmission towers and string transmission lines over defendants right of way defendant said right of way would be cleared by others before construction began, clearing was not done, making plaintiffs work more difficult and expensive, plaintiff sued for breach of contract and negligent misrepresentation La Forest, McLachlin JJ (Lheureux-Dube and Gonthier JJ concurring): BC Hydro liable to Checo for breach of contract and can also sue in tort Law should move toward elimination of unjustified differences between remedial rules in contract and tort, thereby reducing the significance of existence of separate forms of action and allowing victim full access to all relevant legal remedies Right to sue in tort is not taken away by contract, although the contract, by limiting scope of the tort duty or waiving right to sue in tort, may limit or negate tort liability o Need an explicit waiver to remove tort rights Where given wrong prima facie supports action in contract and tort, the party may sue in either or both, except where contract indicates that the parties intended to limit or negative the right to sue in tort (Central Trust Co. v. Rafuse) o This preserves individual liberty and commercial flexibility o Individuals maintain right to arrange their affairs and assume risks in a different way than would be done by the law of tort: it is only to the extent that this private ordering contradicts tort duty that tort duty is diminished the contract in this case did not negate Hydros common law duty not to negligently misrepresent that it would have the right of way cleared by others therefore Checo may sue in tort what are the damages? o Contract: plaintiff to be put in position it would have been in had the contract been performed o Tort: plaintiff to be put in position it would have been in had the misrepresentation not been made o Difference between the two is due to the exclusion of bargain elements in std tort compensation o Also difference in limitation periods, difference in std of care (can be stipulated in contract) o Contract usually concerned w/ expectation damages, while tort usually concerned w/ reliance damages o Denial of expectation damages will occur when it is concluded that but for the misrepresentation, no contract would have been entered into at all (Rainbow Industrial Caterers v. Canadian National Railway) o This case not like Rainbow Checo had clear desire to break into BC market, likely would have entered contract anyway

Therefore quantum of damages in tort and contract likely similar, because elements of bargain unrelated to misrepresentation are reintroduced in tort, Checo entitled to be compensated for all reasonably foreseeable loss caused by the tort, direct and indirect exact calculation should be referred back to trial court Iacobucci J (dissenting): No duty of care in tort can be concurrent w/ duty of care created by an express term of contract Dont need a waiver to remove tort rights o Simply a parallel express term implies a waived tort right If parties choose to define a specific duty as an express term of contract, then the consequences of breach of that duty ought to be determined by the law of contract, not tort law Tort duties are of uncertain scope, and do not belong in complex commercial contracts, which depend on certainty for their effectiveness and to keep transaction costs down Context is important in assessing whether a claim in tort is foreclosed by the terms of that contract o Transaction was in commercial context between 2 large corporations, w/ relatively equal bargaining power o If bargaining power unequal, an explicit waiver of tort right may be required Checo knew, or ought to have known, that disputes as to the condition of the right of way would potentially be governed by the contract Checo should therefore be ltd to any remedies which are available under the contract

Haig v. Bamford (SCC 1976), text 391 defendant firm of accounts asked by furniture-manufacturing co to prepare audited financial statement in order to facilitate expansion of business report showed business to be profitable, in reliance on this evaluation plaintiff invested $20000 turns out there was a mistake by the companys bookkeeper, had marked a $28000 debt as part of revenue o defendants negligently failed to spot this error, and had not done audit on companys books o simply getting report wrong is not enough, must show negligence plaintiff invested a further $2500 to meet payroll, but company collapsed and he lost entire investment sought to recover total investment from defendant at trial, negligence was proved, upheld on appeal, main issue before SCC is whether or not a duty of care was owed by defendant to plaintiff difference from Candler: dont know who Haig is, but do know there is a small class of investors who will see the report Dickson J (Laskin CJC, Ritchie, Spence, Pigeon, Beetz JJ concurring): Was there in the relationship of the parties sufficient proximity as to give rise to a duty of care?

At trial, judge said Haig, while not in the picture, was in the class of persons who could be foreseen by accounts as relying on the statement they prepared, so duty was owed (foreseeability test) o At appeal, judges determined that no duty was owed Accounts had been informed by company that purpose of statement was to induce investment, but there were no specific investors they had in mind compensation to injured party is relevant consideration but not the only consideration o fear of unltd liability (Cardozo etc) several tests could be applied to invoke duty of care on part of accountants o foreseeability of use of/reliance upon financial statement and auditors report by plaintiff o actual knowledge of the ltd class that will use and rely on the statement important that it is ltd group (makes this case significantly different than Caparo) o actual knowledge of the specific plaintiff who will use and rely on the statement in this case, 2nd test is most appropriate the fact that the accountants did not know Haigs name is unimportant, he was in the anticipated class of plaintiffs however, Haig can only recover the original investment, as at the point he put forth the $2500, he knew the full state of affairs and did so of his own volition appeal allowed, minus the $2500 o

Caparo Industries v. Dickman (1990 HL), text 395 Dickman an accounting company (appellants), audited a public company (Fidelity, manufacturer-vendor of electrical equip) Fidelity announced (poor) results of fiscal year on May 22, resulted in dramatic drop in share value Caparo (respondents) began to purchase shares of Fidelity on June 8 June 12 results of accounts (audit) sent to shareholders of Fidelity, publicly announced July 4 Caparo bought 100,000 shares but not registered as members of Fidelity until after June 12 Contd to purchase more shares until it had over 90% control Caparo alleges that purchase of shares after June 12 and bid for control of company were all made in reliance upon the accounts, and that the accounts were inaccurate and misleading Had true facts been known, Caparo contends they would not have bid for all the shares Claimed Dickman was negligent in certifying that accounts showed true and fair view of Fidelitys position Caparo did not get independent assessment, court seems to suggest they should have had Dickman was doing an audit, not preparing a report for potential investors big difference from Candler or Haig Trial found Dickman was negligent, question to HL is was a duty owed? Lord Bridge:

In cases of negligent misrepresentation, key is that defendant giving information was fully aware of nature of transaction which the plaintiff had in contemplation, knew that the info would be communicated to him directly or indirectly, and knew that it was very likely the plaintiff would rely on that info in deciding whether or not to engage in the transaction The situation is entirely different where a statement is put into more or less general circulation and may foreseeably be relied on by strangers to the maker of the statement for any number of purposes o To hold maker liable in such a case would be to pull a Cardozo and also confer on world an unwarranted entitlement to appropriate the benefit of the expert knowledge attributed to the maker of the statement the limiting mechanism rests on the necessity to prove (as ingredient of proximity) that plaintiff would be likely to rely on it for purpose of deciding whether or not to enter upon that transaction the statutory req for an annual audit establish a relationship between auditors and shareholders of company, but crucial question is the extent of the shareholders interest that the auditor has to protect in real world, shareholder will almost always be able to recover from negligent auditor through claim in name of company, not individually o one possible situation: there is a negligent undervaluation of the company which encourages an individual shareholder to sell then he might have to recover privately against the auditing company Lord Bridge thinks this a fallacious argument: reliance would not be on audit, but rather on the effect of the report on the market value of the shares before the decision to sell was taken it is not sufficient to ask whether A owes B a duty of care; it is always necessary to determine the scope of the duty by reference to the kind of damage from which A must take care to save B o the actual nature of the damage suffered is relevant to the existence and extent of any duty to avoid or prevent it (Sutherland Shire Council v. Heyman) o thus there is a duty owed to the shareholders, but it is only as shareholders as they control management, not as shareholders as investors assuming that relationship between auditors and shareholders is sufficiently proximate to give rise to duty of care, the scope of that duty cannot possibly extend beyond protection of any individual shareholder from losses in the value of shares which he holds as a purchaser of additional shares in reliance of auditors report, he stands in no different position from any other investing member of the public, to whom auditor owes no duty Lord Oliver: What is the purpose behind the legislative requirement for annual audits? Who is it intended to protect? o It is to protect the company from undetected errors o It is to protect the shareholders, who by necessity are removed from day to day management of the enterprise o They must be given accurate information so they can make the necessary decisions about the Board, during the annual general meeting cannot be fairly said that the info from the auditors is available is solely to assist those interested in attending general meetings

Caparo argues there is an additional, wider commercial purpose: enabling those to whom the accounts are addressed to make informed investment decisions It is readily foreseeable by anyone who gives information about businesses that it might be relied upon to make such decisions The legislation is intended to help public at large make such decisions No relationship of proximity and thus no duty of care exists between auditors and investing public in general Therefore it is difficult to say that a duty arises from the receipt of same audit report by person who happens to be registered holder of share in company o If this were the case, and there shareholder were owed a duty, if he showed a friend the same report, the info used and losses sustained would be identical, but only one could recover o This is an unreasonable distinction o To make this distinction, CA said relationship was proximate in reality, proximity is merely a convenient label to describe circumstances in which the law will attribute a duty of care o impossible to isolate liability from context (Wagon Mound 1) o Brennan J, Shire of Sutherland, duty of care must be stated in reference to the kind of damage plaintiff has suffered and in reference to the plaintiff or plaintiffs class Cannot say, for example, that defendant is guilty of failing to discharge a duty to avoid personal injury, and then hold him liable for unrelated economic loss before it can be concluded that the duty is imposed to protect the recipient against harm which he suffers by reason of the particular use that he chooses to make of the information which he receives, one must ascertain the purpose for which the info is required to be given o DvS: essential ingredient of liability was that the article be used in a manner that was intended no evidence that parliament intended statute to provide info for the assistance of purchasers of shares, no ground to assume legislature intended to foster a market for existing holders of shares or prospective holders purpose of statute is to provide those entitled to receive the report w/ info to enable them to exercise in conjunction those powers which their respective proprietary interests confer upon them and not for the purposes of individual speculation w/ a view to profit the duty of care owed is to the shareholders as a body, not to individual shareholders o to widen beyond this to include losses suffered by individuals relying on accounts for a purpose for which they were not supplied is not reasonable appeal allowed (finding for Dickman, the auditors) abandon Anns, no longer seek general negligence principle, return to discrete categories of negligence potential investors should seek out 3rd source for financial background info Caparo case is v. important o Judges talk a lot about nature of proximity o Seek to draw clear limits on liability, courts interested in pulling back (reflective of Thatcherism, which sought to remove state from lives of people)

Hercules Managements v. Ernst and Young (1997 SCC), text 402

plaintiffs relied on defendants negligently prepared annual reports, invested in company that later went into receivership SCC applied Anns test (LaForest J): o 1st stage: proximity can be seen to inhere between the defendant and plaintiff when 2 criteria in relation to reliance may be said to exist: a) defendant ought reasonably to foresee that plaintiff will rely on his representation b) reliance by plaintiff would, in particular circumstances of the case, be reasonable o 2nd stage: inquiring about whether defendant knew plaintiff or whether plaintiff used info for particular purpose is in reality simply a means, for policy reasons, to limit scope of potentially infinite liability requiring that defendant have knowledge about plaintiff, and that plaintiff use statements in manner they were intended, is tacit recognition that basic fairness may sometimes give way to other pressing concerns adding further requirements to basic duty of care test is manner to allow policy concerns (which while important are extrinsic to justice) to be taken into account in final analysis, while deterring negligent conduct by auditors is important, it is outweighed by socially undesireable consequences that might stem from imposition of indeterminate liability (incr insurance premiums, higher costs of business, etc) o prima facie duty arose, and plaintiffs reliance was reasonable and foreseeable, but duty was negatived by policy concerns o purpose of reports was not to safeguard individual interests of shareholders, but to enable them to collectively oversee the management of the corporation

ECONOMIC LOSS Hydley Burne cases extends liability to negligent statements using special relationship principle, which allows recovery of economic loss statements give rise to economic loss what if acts lead to economic losses? Can you recover? What is the bridge between the two? o Plaintiff suffers property and economic loss (Spartan steel) o 3rd party suffers property damage and plaintiff suffers economic loss So then, people ask why can you recover economic loss using spec rel principle but not DvS negligent acts/omissions principle? economic loss has 2 categories: pure and consequential o prop damage/personal injury plus ec loss = consequential loss (Spartan Steel) o prop damage/personal injury to a 3rd party plus ec loss = consequential loss (Norsk Steamship) o pure economic loss (Winnipeg condo) what if acts/omissions give rise to consequential economic loss?

Weller v. Foot and Mouth Disease Research Institute (1966), text 404 defendants owned land where they conducted experimental work relating to foot and mouth disease cattle in vicinity became infected (virus negligently released), govt ordered markets closed, plaintiffs sued for financial losses Widgery J: Plaintiff applies neighbour principle, says defendants should have foreseen damage to plaintiff but nevertheless failed to take proper precaution against escape of the virus If this argument is sound, liability may extend far beyond loss of plaintiffs, because foot and mouth can affect businesses in a huge area: this is why the case is important But, case law suggests that plaintiff cannot recover if the act or omission did not directly injure, or at least threaten to directly injure the plaintiffs person or property, but merely caused consequential loss (ie upsetting business relations w/ a 3rd party) (Cattle v. Stockton) In this case, defendants duty to take care to avoid escape of virus was due to foreseeable fact that virus might infect cattle in the neighbourhood o Duty is therefore owed to owners of cattle in the neighbourhood o But plaintiffs are not owners (they were auctioneers in the market), and have no proprietary interest in anything that might be damaged by the virus therefore plaintiffs claim fails

Barber Lines A/S v. M/V Donau Maru (1985), text 405 oil spilled from defendant ship into Boston Harbour, preventing plaintiffs ship from docking, so plaintiff incurred extra fuel, labour, transport, docking costs court denied recovery for extra expense: several pragmatic or practical administrative considerations for limiting recovery for negligently caused pure financial harm o number of persons suffering foreseeable financial harm much greater than in case of physical harm notion of foreseeability would draw vast numbers of people within class of potential plaintiffs for even minor accidents threatens to significantly raise costs of even relatively simple tort actions tort already very expensive: plaintiffs usually recover only 28-44 cents of every dollar paid by defendants o financially injured may find it easier than physically injured to arrange for cheaper, alternative compensation o some of the financially injured will have suffered harm that is noncompensable because it is not significantly distinguishable from minor harms typical of ordinary living must also look at disproportionality between liability and fault o tort liability provides powerful set of economic incentives and disincentives to engage in economic activity or to make it safer

liability for pure financial harm (being potentially vast and unknowable) could create incentives that are perverse might it make auto insurance to high for avg driver? plausible though abstract support for reluctance of court to impose tort liability for purely financial harm o

Benson, The Basis of Excluding Liability for Economic Loss in Tort Law , text 407 first exclusionary principle is typified by circumstances where defendant damages something in which plaintiff may have contractual interest, and this impairs the plaintiffs interest, causing him financial loss in such circumstances, defendant cannot be liable for in negligence for the loss, whether or not it was foreseeable relational economic loss = financial loss that arises from physical damage to something which the plaintiff neither owns nor possesses if plaintiff does not own something, he has no right to constrain defendant from using it how he sees fit, even if it harms his interests

Spartan Steel & Alloys Ltd. v. Martin (1972), text 408 Denning MR: Plaintiffs have factory in Birmingham, factory obtains electricity via direct cable to power station of Midlands Electricity Board Contractor defendants (Martin) doing road work, damaged cable o Clearly electricity board would have claim against Martin At time, factory working 24hrs/day, electricity off for 14.5 hours While power out, factory had prevent metal from solidifying through alternative means, this resulted in reduction of value of metal of 368, lost profit on that melt of 400 Total profit lost for other melts not completed during the time was 1767, all figures claimed in loss Defendants admitted negligence Contest solely on amount of damages o Defendants admit liability for 368 physical damages and 400 loss of profit on first melt as it was consequential of physical damages (confirmed under SCM v. Whittall) o Deny liability for other lost profit; say it was merely economic loss for which they are not liable plaintiffs claimed parasitic damages o heads of damage which alone would not be recoverable, but could be annexed into other legitimate claim for damages Denning hates phrase parasitic damages connotes abuse, damages that should not be allowed but succeed by hanging on Question of recovering economic loss is one of policy o It is best just to consider each case separately and determine, on a policy basis, whether economic loss should be recoverable o Hutch points out that policy is just as open-ended as remoteness and duty, so courts recognise its policy, but bring it down to level of proximity and remoteness and play policy arguments out through that

Denning is saying judges are essentially legislators big legislative competency arguments Hutch: unless you consider policy to be a science electricity board has never been held liable for economic loss only, so no reason that contractor should be liable when electricity is cut off, most people respond simply by doing more work the next day it is a natural hazard allowing purely economic loss would incr the risk of fraud will allow economic loss truly consequential on material damage to plaintiff o this is not such a case appeal should be allowed, damages reduced to 768 (recover for first melt, and profit on that because it is consequential to the material loss) Edmund Davies LJ (dissenting): Both types of loss equally foreseeable and equally direct consequences of admitted negligence; both should be recoverable o WM1: plaintiff cannot recover for unforeseeable consequences even if they are direct; it does not decide that a plaintiff can always recover for foreseeable consequences even if they are indirect appeal should not be allowed, all damages recoverable Lawton LJ: Can plaintiff recover from negligent defendant, foreseeable financial damage which is not consequential on foreseeable physical injury or damage to property? Financial damage cannot be recovered save for when it is the immediate consequence of a breach of duty to safeguard plaintiff from that kind of loss Negligent interference w/ public services (gas, water, electricity) is a fact of life Loss resulting from their interruption is not been recoverable since Cattle v. Stockton Waterworks Co Differences between cases have arisen due to policy concerns; a single policy should be enunciated by HL Appeal should be allowed, damages reduced o

Seaway Hotels v. Gragg (1959), text 413 example of parasitic damages claim that Denning never wants to hear again defendant severed electrical cable, cutting power to hotel for 20 hours, plaintiffs tried to recover losses for business and for spoilt food McLennon J found for plaintiff: Direct damage to plaintiffs food by reason of failing refrigeration equipment: it is an actionable wrong Can therefore recover all damages, even if some part of damage considered by itself would not be recoverable

Caltex Oil Pty Ltd v. The Dredge Willemstad (1976 Aus HC), text 413 Stephen J commenting on Spartan Steel case: Spartan Steel offers 3 solutions: o Dennings consideration of all facts leading to a policy decision But this invites uncertainty and judicial diversity o Lawtons rule that economic loss only recoverable if immediately consequential upon injury to property or person

But it should be irrelevant as matter of justice that defendants liability for economic loss has not at same time negligently inflicted some injury o Edmund Davies rule that economic loss recoverable if reasonably foreseeable and direct consequence of failure in a duty of care Foot & Mouth case: economic loss might be recoverable if defendants act or omission either directly injured or threatened to injure plaintiffs person or property There is a need for some control mechanism based upon notions of proximity between tortious act and resultant detriment to replace the idea of the exclusionary rule o Can be found through body of cases, a gradual accumulation of decided cases that denote sufficient proximity in this case, defendant negligently broke underwater pipeline carrying petroleum from refinery to oil terminal, plaintiff sued for costs of bring petroleum to oil terminal by ship, pipeline did not belong to plaintiff (Caltex), belonged to refinery (AOL) Stephen J found for plaintiff Difference between this case and Spartan Steel: o In Spartan Steel, 2 heads of damage o In this one, 1 head (consequential loss only = equal to the subsequent 4 melts in Spartan) Features mean sufficient proximity exist to entitle plaintiff to recover reasonably foreseeable loss o 1. Defendant knew that if pipeline were to be damaged, it would inherently cause an economic loss o 2. Defendant knew that pipelines existed in the area, and therefore obviously would be used to convey products from refinery to terminal Caltex therefore within reasonable contemplation of defendants as person likely to suffer economic loss if the pipelines were cut Because they knew 1 & 2, they must also have known that more than one party was likely to suffer loss if pipes damaged o 3. infliction of damage to property of 3rd party, as a result of breach of duty of care to that party o 4. nature of damage suffered by plaintiff o 5. nature of damages claimed not lost profit, but expense directly incurred in employing alternative modes of transport not laying down a rule that says will always get recover for loss consequential to 3rd party damage o recovery subject to 5 features listed above o damage to 3rd party is necessary but not sufficient

Canadian National Railway v. Norsk Pacific Steamship (1992), text 417 McLachlin J (LHeureux-Dube, Cory JJ concurring): Can a person who contracts for use of property of another sue a person who damages the property for losses resulting from his inability to use the property during period of repair?

Can purely economic losses such as this be recovered, or is the right to recover in tort confined to cases where plaintiff can show his property or person was injured? Tug owned and operated by N.P negligently struck a railway bridge owned by Public Works Canada (PWC), CN was primary user of bridge (86%) (has contract with PWC for use of bridge) NP knew bridge was essential to CNs operations CN sued for additional cost incurred as result of closure of bridge for repairs Principled mechanism of limitation has always proved elusive o Law began by limiting recovery to cases where tortfeasor had caused physical loss or injury to plaintiff (Cattle v. Stockton Waterworks Co) Denied recovery of relational losses: only a person or property damaged can recover in tort Successfully ltd recovery, but appeared arbitrary and sometimes unjust why should right to recover economic loss be dependent on physical loss? o So courts began to allow recovery of pure economic loss, but have not been uniform nor uncontroversial as courts recognise new categories of cases where economic recovery is available, rules will emerge o new categories will arise from time to time; in this period the law may be uncertain until the courts rule, but it is the price the common law pays for flexibility, and is worth it must look at proximity, which should be treated not as a test, but as a broad concept which is capable of subsuming different categories of cases involving different factors o proximity is an umbrella, covering a number of disparate circumstances in which the relationship between the parties is so close that is just and reasonable to permit recovery in tort o meaning of proximity is to be found in viewing circumstances in which it has been found to exist and determining whether the case at issue is similar enough to justify a similar finding pure 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: proximity is the controlling concept which avoids the spectre of unltd liability, and may be established on a number of factors, depending on the nature of the case this allows principled but flexible approach while proximity is critical in establishing the right to recover pure economic loss in tort, it does not always indicate liability; it is a necessary but not sufficient condition of liability o 2nd branch of Anns test allows rejection of liability for pure economic loss where indicated by policy reasons not taken into account in the proximity analysis what are economic arguments used in support of restricting recovery? o Comparative evidence Little historical support for need for rule to confine recovery of economic loss to where plaintiff has also suffered physical loss o Economic theory (McL doesnt support) Certain type of loss should not be seen in terms of fault, but rather as the inevitable by-product of desirable but risky activity

It is just to distribute costs of this activity among all those who benefit from the activity, rather than simply individuals who cause the loss (collectivisation of loss, loss distribution) Rejection of concept of personal fault on which tort is based Why do this? (McLachlin rejects all 3) 1) insurance argument o Plaintiff in better position to predict economic loss contingent on accident, and therefore better able to obtain cheap insurance against the contingency, which will result in overall saving (macro) Counter-argument p,421 2) loss-spreading argument o it is better for economic well-being of society to spread the risk among many parties that place it on shoulders of tortfeasor counter-argument p,421 3) contractual allocation of risk argument o law of negligence has no business compensating people within a contract who suffer economic loss due to damage to property of another, because it makes better economic sense for them to provide for possibility of damage by negotiating term in contract counter-argument , p.422 plaintiff suffered economic loss as result of being deprived of contractual right to use bridge applying Kamloops (Anns), its right to recover depends on 1) whether it can establish sufficient proximity and 2) policy questions clearly proximate relationship between CN and Norsk also proximate relationship between CN and property damaged, so much that it can be characterised as a joint venture, under which recovery for purely economic loss has been recognised in maritime law cases from UK (The Greystoke Castle) and US (Amoco Transport) o where plaintiffs operations are so closely allied to operations of party suffering physical damage that it can be considered a joint venturer w/ owner of the property, plaintiff can recover loss Hutch: does this mean the other users of bridge cant recover? policy considerations: o recovery serves purpose of permitting plaintiff, whose position is essentially indistinguishable from that of owner of damaged property, to recover what actual owner could have recovered o this is fair result, does not open floodgates to unltd liability recovery should be permitted o Hutch thinks McL wants essentially to parallel recovery for economic loss coming from negligent statements neighbour plus / special rel tighten the requirements of proximity Stevenson J: Policy rationale which precludes recovery for most relational losses does not exist if there is no danger of indeterminate liability

In this case, the loss was identifiable, the victim identifiable, the damage almost inevitable, no danger of indeterminate liability Recovery should be permitted La Forest J (dissenting) (Sopinka, Iacobucci JJ concurring): Issue: whether A who contracts for use of property belonging to B can sue C who damages that property for losses resulting from As inability to use the property (contractual economic loss) bright line rule people cannot sue tortfeasor for suffering losses to their contractual rights w/ the owner of the property by reason of damages caused to that property by tortfeasor o may be subject to exceptions for policy reasons, but in this case, no reason to exclude CN from general rule o this conclusion is not a rejection of recovery for pure economic losses in general terms: it is ltd to cases where property damage to a 3rd party has occurred and where plaintiffs interest is contractual La Forests Analysis;: o The need to recentre the analysis on contractual relational economic loss Pure economic loss is recoverable in some cases, but it does not follow that all economic loss cases can be analysed in same way, or that policy concerns can be ignored Contractual relational loss cases are different than other economic loss cases Right of action of property owner already puts pressure on defendant to act w/ care: deterrent effect of tort law already present o Imposing further liability cannot be justified on grounds of deterrence Exclusionary rule does not have effect of necessarily excluding compensation to plaintiff for his or her loss: it channels potential liability (to plaintiff) and right of recovery (from tortfeasor) to property-owner Perfect compensation of all contractual relational economic loss is almost always impossible because of ripple effects Contractual relational economic loss cases typically involve accidents o Distinguishes them from products liability economic loss cases (Rivtow) and negligent misrep cases (Hedley Byrne) Good rule determining liability must place some incentive on both parties to act in an economically rational manner Rule must serve to do more than simply exclude indeterminate liability Does liability need to be determinate before or after the accident? Under exclusionary rule, liability is determinate before the accident o Refined proximity analysis in contractual relational economic loss cases Crucial problem w/ proximity test as it is usually described is that it looks at the problem strictly from perspective of defendant

Defendants negligence places it in position of liability vis-vis the whole world; however if it can show its liability to be indeterminate, it can be excused the plaintiffs ability to foresee and provide for the particular damage in question is a key factor in proximity analysis o legitimacy of this type of consideration it is legitimate to consider which party is the better loss bearer in this type of case must ask which party is in better position to predict frequency and severity of CNs economic loss when bridges are damaged, and to plan accordingly avoiding loss and avoiding accident are 2 different things tort law has not given much analysis to loss-bearing ability policy concerns w/ regard to loss-bearing are important for 3 reasons: 1) policy concerns w/ respect to deterrence and cost internalization are generally at least substantially met by tortfeasors primary liability to property owner 2) policy concerns can be raised since current law denies recovery 3) crucial problem remains of limiting liability it is legitimate for these reasons for the plaintiff to bear the risk of loss in this type of case CN in better position than Norsk to bear loss, estimate potential risks of bridge failure CN in better position thatn PWC to estimate potential cost of bridge failure to CNs operations CN better placed to protect itself form consequences of those losses: insurance, contracts w/ bridge owner or their customers, etc o Contract In many cases contractual allocation of risk does not supply rationale for refusing recovery; however in this case it does Parties well aware of risk of bridge failure Contractual allocation of risk, in absence of insurance, is allocated to potential victim of interrupted service, who benefits from lower price and who is best placed to take other measures to deal w/ accidental interruption of contractual benefits the critical effect of allowing recovery is that it would require defendants in Norsks position to insure for potential contractual relational economic loss, since they will never know beforehand whether the bridges damaged will be used by particular plaintiff o principle beneficiaries would be insurance companies five reasons to support current state of law (exclusionary rule w/ regard to contractual relational economic loss) o denial of recovery places incentive on all parties to act in ways that will minimise overall losses o denial of recovery allows only 1 party to carry insurance o results in great saving of judicial resources

eliminates problems of sharing impecunious defendants ltd resources between relational and direct claims o traditional rule is certain this is not even a borderline case, CN has no property interest of any kind recovery should be denied o

DAmato v. Badger (SCC 1996) text 429 defendant negligently injured DAmato who was 50% shareholder and principal repairperson in plaintiff auto repair company plaintiff sued for economic loss from having to hire employee to replace DAmato Major J: While 2 approaches in Norsk differ in principle, they often have same result o In this case, the appellant cannot succeed w/ either principle cannot succeed in claim for pure economic loss under La Forest approach o La Forest calls for general exclusionary rule subject to any policy concerns which militate in favour of recovery o In this case policy reasons would militate against recovery if injury to shareholder in small corp was held to be sufficient to warrant recovery, then the indeterminate possibilities w/ larger corps are obvious cannot succeed w/ McLs approach either o under Anns, plaintiff must show loss was within reasonable contemplation of defendant so as to raise duty of care, and no policy considerations exist to limit its scope, must also be sufficient proximity o in Norsk, McL lists proximity factors: physical propinquity, assumed or imposed obligations, close causal connection o in this case, only last has any relevance o insufficient proximity in this case to warrant rise of duty to allow recovery here would be to invite claims by multi-membered plaintiffs, and would remove the incentive for contracting parties to negotiate on who will bear risk of loss, and for corps to plan for events such as this, through insurance or other means

Notes (text 430) in Norsk, La Forest J expresses his disagreement w/ Stephen Js (in Caltex) comments on importance of insurance o Stephen J: o Task of courts remains that of loss-fixing rather than loss-spreading If loss-inflicting consequences are reasonably foreseeable etc, no reason why tortfeasor should not bear consequences of his conduct Tortfeasor should compensate victim, victim should not bear the loss o While loss insurance may be relatively efficient device to spread loss, there is no justification for courts when deciding actions in tort between private litigants to make use of views of benefits of insurance as policy determinants Matter for the legislature Stapleton, Torts, Insurance, and Ideology

If comparative insurability is to be used as a factor infl tort liability in all cases, by what criteria can we evaluate who is the better or cheaper insurer? No such criteria exist Therefore the availability and cost of insurance should not be a relevant factor in considering which party is better able to bear the loss First party (loss) insurance is not necessarily cheaper and more effective method of protecting against loss than liability insurance

Exam issue: what if bridge had been a swing bridge (opens/turns)? As they open bridge, boat stops and blocks bridge, but doesnt damage bridge boat is stuck, everything else same no property damage to bridge. Can CN recover? Torts Reading & Lecture Notes Week 11, 432-459, 460-481 Norsk shows that there is no longer easy on/off switch between pure and consequential loss o Liability will depend on existence of certain facts On exam, must explain what facts would be required ifthen etc Norsk suggests that if Spartan Steel were revisted, they probably still couldnt recover, but in the presence of certain factors (proximity perhaps they were the only user of the electricity etc) they might

Winnipeg Condo Corp No. 36 v. Bird Construction (SCC 1995) LaForest J: Issue: may a contractor responsible for construction of a building be held tortiously liable for negligence to a subsequent purchaser of the building, who is not in contractual privity w/ the contractor, for the cost of repairing defects in the building arising out of negligence in its construction? Bird constructed building for Tuxedo Properties, entered subcontract w/ masonry company to do part of work Building converted from apts to condos when purchased by Winnipeg Condo 6 years later Later discovered flaw in exterior of building, repairs cost $8100 7 years later, more severe flaws (parts began to fall off) discovered requiring replacement of large section of cladding, cost $1.5m sued architects, Bird, and masonry subcontractor sufficient proximity? o Yes: reasonably foreseeable to contractors that if they design or construct a building negligently, and the building suffers latent defects as a result, subsequent purchasers may suffer personal injury or damage to other property when those defects manifest themselves Reasonable likelihood that defect will cause injury is sufficient to ground contractors duty in tort to subsequent purchasers of the building for the cost of repairing the defect if it is discovered prior it causing any injury

The duty in tort serves to protect bodily integrity and property interests of inhabitants Of course this is ltd by reasonable time certain products have a certain lifespan strong underlying policy interests in holding contractors liable for cost of repair of dangerous defects Bird should not be insulated from liability simply because current owners of building acted quickly to alleviate danger that Bird helped to create Bird relied on Murphy case (cost of repair cannot be characterised as recoverable loss because owner of defective article may simply discard it and remove the danger) o LaForest: this might have some abstract logic, it is not sufficient to preclude imposing liability on contractors for cost of repairing dangerous defects o Choice to discard a home is no choice at all few will choose to sell or abandon the home rather than repair it contractors ought reasonably to foresee that subsequent purchasers of the building will incur expenses to repair dangerous defects created by their negligence during the life of the building o this also includes subcontractors, architects, engineers any considerations to negate scope of duty, or class of persons to whom it is owed, or damages to which a breach of it may give rise? o 2 concerns: warranties respecting quality of construction are primarily contractual in nature and cannot easily be defined/ltd in tort recognition of this duty interferes w/ doctrine of caveat emptor (in absence of express warranty, there is no implied warranty of fitness for human habitation upon purchase of house that is already completed at time of sale (buyer beware) ) LaForest: these are both versions of more general fear of unltd liability Doctrines of privity of contract and caveat emptor provide courts w/ useful mechanism to ltd liability But difficult to justify their use in any principled manner apart from utility as mechanisms for limiting liability concern w/ overlap between tort and contract duties o duty on part of contractors to take reasonable care in construction can be conceptualized in absence of contract and will not result in indeterminate liability to contractor o tort duty can arise concurrently w/ contract duty, so long as tort duty arises independently of contractual duty (Rafuse case) o tort duty to construct building safely is a circumscribed duty that is not parasitic upon any contractual duties between contractor and original owner o no risk of liability to indeterminate class: ltd to those who will live in the building o no risk of liability in indeterminate amount: ltd to reasonable cost of repairing dangerous defect o little risk of liability in indeterminate time: ltd to useful life of building

also, over time, it will be incr difficult for owners to prove that defect is not due to deterioration brought on by age caveat emptor concern o cannot serve as complete shield to tort liability for contractors o doctrine of caveat emptor stems from laissez-faire attitudes of 18th/19th centuries, and notion that purchasers must fend for themselves assumption is that purchaser is better placed to inspect building and bear risks LaForest: this assumption is not responsive to realities of modern housing market Five policy reasons mitigate against rigid application of doctrine (see p. 438) finding for plaintiff, losses are recoverable o general rule: no recovery for pure economic loss exceptions: unless there is danger to persons or property (this case) extremely close proximity (Norsk) fact that you cant sue in contract is revealing (due to lack of contract), courts are saying too bad in general cant sue in torts can only sue for injury, not pure economic loss

Murphy v. Brentwood District Council (HL 1990), text 439 - shows HL has taken more restrictive approach to liability for defectiveness of building or chattel than SCC - defendant council negligently approved design of foundations in new housing development, plaintiff noticed serious defects in foundations, unable to afford repairs, sold house for 500 less than it would be if it were structurally sound, unsuccessfully sued to recover that amount - Lord Bridge: - If manufacturer produces are sells chattel that is merely defective in quality, the manufacturers liability at common law arises only under and by reference to terms of any contract to which he is a party in relation to the chattel o Only liable if injury is caused o If no injury occurs, loss sustained is purely economic, and is recoverable only against parties who owe plaintiff a contractual duty o Economic losses are recoverable if they flow from breach of a contract, but in absence of special relationship of proximity they are not recoverable in tort - Exception from Winnipeg case: if defect in house is potential source of injury to persons or property on adjacent land, owner ought to be entitled to recover from builder cost of remedying defect, so as to protect himself form potential liability to 3rd parties o HL disagrees w/ this exception o problems of requiring imminent danger as ingredient of cause of action: what is the owner to do when advised that he can choose to spend 1000 now to fix a problem, or wait until it becomes dangerous and he then has a cause of action to recover cost? No answer!

What if defect is not discovered and leads to complete collapse of building, but no-one is injured and no other property is harmed? Now there is no imminent danger seems silly to say that owner should be w/o remedy if would have had full remedy had he discovered the defect before collapse HL: for acts/omissions, no recovery for pure economic loss o But statements may lead to recovery (see other cases)

Benson, Basis for Excluding Liability for Economic Loss in Tort Law, text 441 plaintiffs financial loss consists of repairing something defective which he owns so that he can continue to use it o defect has arisen from defendants liability o Murphy case: once plaintiff is aware of defect, it will never cause an injury unless plaintiff causes it to do so by courting a danger of which he is aware, and expenditure is incurred not in preventing an inevitable injury, but in order to enable him to continue using the property or chattel Falls under exclusionary rule, no recovery where claim is in respect to an interest in the use of something over which the plaintiff lacks an exclusive right as against the defendant, hard for plaintiff to recover

Bryan v. Maloney (1995 Aus HC), text 442

plaintiff was 3rd owner of house, sued builder for negligence in construction Mason CJ: Is there a sufficiently proximate relationship between owner and builder? o Yes o House is connecting link, a permanent structure to be used indefinitely, and represents very significant investment by owner o Duty is not extinguished either by lapse of time or change of ownership builder should be aware that subsequent owners will assume that house has been competently built policy considerations to support: o builder in better position to avoid, evaluate, and guard against financial risk posed by latent defect in house due to superior knowledge, skill, and experience Brennan J (dissenting): The interests protected are appropriately governed by law of contract: the parties fix their own rights and liabilities on issues of purely economic significance Should not impose transmissible warranty of quality on builder o Would add considerable cost to builders and have economic effects on purchasers however, builders should be liable for cost of repairing defects that are dangerous o analogous to situation of a rescuer protecting victim from defendants negligence

White v. Jones (1995 HL), text 445 court draws distinction between acts/omissions, statements, and in this case services

o cant recover pure economic loss for acts/omissions (except for extreme
proximity, dangerous articles), can for statements, this is a 3rd way (services) after quarrel, father of plaintiffs cut them out of his will later reconciled, instructed solicitors (defendants) to prepare new will leaving plaintiffs 9000 each before will was executed, father died, plaintiffs sued solicitors for negligent delay in preparing will Lord Goff: Reasons why solicitor should owe duty to disappointed beneficiary: o If duty not recognised, the only persons who might have had valid claim (estate) have suffered no loss, and only person who has suffered loss (disappointed beneficiary) would have no claim this is bizarre! o Injustice of denying remedy is reinforced when one thinks about the important of inheritances in a society that recognises right of citizens to leave their money to whom they wish o There is a sense in which solicitors profession cannot complain if such liability is imposed upon their members: if one of them has been negligent, he must regard himself as very luck if the effect of the law is that he is not liable It can involve no injustice to him if he is liable o Professional role of solicitors requires liability a solicitor may be held liable to client not only in contract but in negligence under principle of Hedley Byrne v. Heller however, it is hard to assume that solicitor has undertaken responsibility to beneficiaries of will o work is done for client, not beneficiary o in absence of special circ, there will have been no reliance by intended beneficiary, may not have even been aware solicitor was involved in relevant task o but, HL can fashion remedy to this gap in law (well call it services) HL should extend principles of responsibility to clients in Hedley Byrne to intended beneficiary Remedy should be allowed Lord Brown-Wilkinson: Agree w/ Lord Goff By accepting job, solicitor assumes responsibility for task of procuring the action of a skilfully drawn will, knowing that beneficiary is wholly dependant upon his carefully carrying out his job o This assumption of responsibility is feature of categories of special relationship in majority of situations, negligence will lie hidden until it takes effect upon death of testator, at the very point when normally the error becomes incapable of remedy, under strict rules of law this is unacceptable remedy should be allowed Lord Nolan: Contract was w/ head of family, but duty clearly owed to entire family Remedy should be allowed Lord Mustill (dissenting): Temptation to blame solicitor for misfortune of beneficiaries should be resisted

Rule of law is that distribution of property is ineffectual unless embodied in valid will o From time to time this defeats intentions of testator, and appears to be an injustice o But situation would be same if solicitor was prompt but death were sooner solicitor promised beneficiaries nothing, and therefore has broken no promise complaint is that solicitor didnt do something which beneficiary never asked him to do there is no special relationship in this case, in fact there is no relationship at all

Hill v. Van Erp (Aus HC 1997), text 452 woman instructed solicitor to draw up will which had plaintiff as beneficiary, solicitor negligently had plaintiffs husband sign as attesting witness, rendering it null and void court found for plaintiff 5-1 Brennan CJ: Liability can be based on plaintiffs loss even w/o infringement of a right Plaintiff suffered no loss failed to obtain benefit to which she had no legal entitlement But, since after death property ceased to be donors and went to another beneficiary, it can count as a loss, it is a loss that follows immediately from breach of the solicitors duty to safeguard intended beneficiary against that type of loss A benefit plaintiff would have received but for negligence of defendant is a loss, whether or not benefit would have been gratuitous Dawson J: General reliance combined w/ solicitors assumption of responsibility suffice for tort duty What is important is position of solicitor as professional person of specialised skill and knowledge There is a general reliance extending beyond clients placed on solicitors in relation to preparation and execution of wills Gaudron J: Defendant infringed a right of plaintiff but for argument o what would the situation be had there been no negligence? o Plaintiff lost her legal right to have testators estate properly administered in accordance w/ terms of the will proximity is irrelevant: it is simply not legitimate to infringe on legal rights of others Gunmmow J: Where relationship between parties is equivalent, tort law can complete the contractual obligation McHugh J (dissenting): In absence of infringement of existing right of plaintiff, tort liability in this case would disturb the doctrinal integrity of the law o Anglo-Aus law has never accepted proposition that person owes duty of care to another simply because he knows that his careless act may cause economic loss to another person

 3. Psychiatric Harm -

Aside from wrongful interference (intimidation, conspiracy, etc), this is in the nature of free-market economy

has to be evidence of psychiatric condition Hutch wonders why judges still ask if this an injury o Only question is duty of care o Same debate as choice between Anns and discrete categories o HL say its an area of recovery unique to itself, it is not a physical injury so it has different rules than physical injuries o Hutch: why? Can be equally or more devastating can last a lifetime

Alcock v. Chief Constable of the S. Yorkshire Police (1991 HL), text 460 Hillsborough disaster Constable admitted liability for deaths (95) and physical injuries (400) 16 actions brought against him, none of those people were in the disaster area although 4 were elsewhere in the ground they were all connected to people in the disaster area (relatives, fiance, etc) o brought actions for nervous shock resulting in psychiatric illness Lord Ackner: McLoughlin v. OBrian (woman sees child in morgue) establishes that o (1) a claim for psychiatric illness resulting from shock caused by negligence can be made w/o necessity of plaintiff establishing that he was himself injured or was in fear of personal injury, and o (2) a claim for damages for such illness can be made when shock results from: a) death or injury to plaintiffs spouse or child, or the fear of such death and injury, and b) the shock has come about through the sight or hearing of the event, or its immediate aftermath to succeed in this case, plaintiffs seek to extend boundaries of this cause of action by removing restrictions on categories of people who may sue, and extending means by which shock is caused, so that it incl people watching live TV, and modifying the requirement that the aftermath must be immediate nervous shock is a type of claim in its own category; it is not a variant of physical injury reasonable foreseeability test for nervous shock is not applicable: o even though risk of psychiatric illness is reasonably foreseeable, law gives no damages if psychiatric injury is not induced by shock ie experience of having to cope w/ deprivation following death of wife attracts no damages o even where nervous shock and subsequent psychiatric illness caused by it could have been reasonably foreseen, damages for being informed of, or reading about, the incident are not recoverable o mere mental suffering, although reasonably foreseeable, is not a basis for a claim for damages o there is no liability for injured person who causes shock to other people through self-inflicted injury or death

shock is the sudden appreciation by sight or sound of horrifying event, which violently agitates the mind it does not incl psychiatric illness caused by accumulation over period of time of gradual assaults on nervous system shock is capable of affecting wide range of people, so must be limits on extent of admissible claims 3 elements should be considered in connection w/ these claims: o 1) class of persons whose claims should be recognised degree of love and affection, be that of a relative of friend, and whether the defendant should have reasonably foreseen the shockinduced illness, has to be decided on case-by-case basis o proximity of persons to the accident, in time and space must be close in time and space being at the match and seeing is not necessarily sufficient seeing in the morgue is not necessarily sufficient o Hutch: well, what is sufficient? Courts seem to be focussing primarily on relationship direct and immediate sight or hearing of accident is not req can come from immediate aftermath o means by which shock has been caused simultaneous TV cannot be equated w/ immediate sight and hearing if it does not show suffering by recognisable individuals but cannot in all cases be ruled out as providing equivalent claims from plaintiffs watching on TV must fail Hutch: but these people did suffer psychiatric harm o Why do courts care how close the relationship is? Court clearly trying to retreat from McLachlin v. OBrien, limiting recovery to primary victims o

White v. Chief Constable of S. Yorkshire Police (1999 HL), text 467 Hillsborough again, but plaintiffs were police officers who had tended to victims In Alcock, HL decided that liability for psychiatric injury should be restricted by control mechanisms, essentially arbitrary conditions plaintiff had to satisfy o Mother who finds childs body in mortuary may not recover not immediate is this fair? should HL take incremental step to extending liability for psychiatric injury to rescuers? o perhaps this would encourage people to offer assistance this extension would be unacceptable to ordinary person, because it would offend notions of distributive justice o why should policeman receive comp if relatives receive nothing? However, American Firemans Rule should also be rejected o FR: a person whose occupation requires him to run risk of injury is not able recover for such injury caused by negligence o Rejected by HL in Ogwo v. Taylor (1988) should not extend liability for psychiatric injury to rescuers o likely have coping mechanisms within the profession

probably got compensated by benefits under employment injured while doing job workers comp, health benefits, etc this is likely to be a claim by insurer trying to recoup their loss how would family of victims feel if they recovered nothing, but police (who were liable for the disaster) could recover? o Unacceptable from policy standpoint Hutch: this case is largely driven but unfortunate result of Alcock o Thinks it would have been reasonable to allow recovery in both

Tame v. NSW (2002, Aus HC), text 469 boy working at defendants cattle stn, working alone, went missing, found dead after several months, defendant negligent in protecting boy due to prior agreement not to send him off by himself psychiatric harm (beyond merely being upset grief is not sufficient) for plaintiff parents was over long period during search, not through sudden perception, but they still recovered Gleeson CJ: Factual indicators of proximity are often inflexible and indispensable Reasonableness defies rigorous categorisation of its elements Rigid distinction between protracted and sudden loss (ie witnessing car accident) is indefensible Here there was relationship between parties sufficient, in combination w/ reasonable foreseeability, to give rise to duty of care Circumstances of death and disappearance were more, rather than less, foreseeable o Clearly likely to result in mental anguish that could give rise to recognised psychiatric illness Gummow and Kirby JJ: Fundamental objective of law of negligence is promotion of reasonable conduct that averts reasonable harm Protection of mental integrity from unreasonable infliction of serious harm, unlike protection from transient distress, answers the general public sentiment underlying the tort of negligence Assessment of reasonableness is inherently adapted to the vindication of meritorious claims in a tort whose hallmark of flexibility of application ADD MORE NOTES FROM TEXT a rule that renders liability in negligence for psychiatric harm conditional on the geographical or temporal distance of the plaintiff from the distressing phenomenon, or on the means by which the plaintiff acquires knowledge of that phenomenon, is apt to produce arbitrary outcomes and to exclude meritorious claims fact that harm took place over long period of time is irrelevant abandon extra conditions, just look at it like other physical injuries foreseeability, proximity, etc. o Hutch: faced w/ Alcock, they would probably allow recovery for some, but would likely resort to some control mechanism due to the numbers involved likely would use strangers as limiting mechanism easy to decide this case because of bond between parent/child

relationship seems key

Greatorex v. Greatorex (2000), text 473 man injured in car accident through own negligence, father is one of fireman rescuers, father suffered severe long-term post-traumatic stress disorder, sued son action dismissed a person is under no legal duty to look after his own life and limb simply to save his dependants the likely psychical effects on them if he is killed or maimed o to impose such a duty would be to restrict a persons self-determination in a manner inconsistent w/ our legal system (German court, 1971) Hutch thinks this is bizarre case relationship of parent/child has never been a bar to recovery before

Page v. Smith (1995), text 476 Lord Keith (dissenting): Plaintiff involved in relatively minor car accident (July), sustained no injury, but had previously been suffering from chronic fatigue syndrome (CFS) Had suffered from severe attack several months before accident (March), and had hoped to return to work in September Claimed accident had made CFS so permanent he would never be able to return to work At trial, awarded 162,153, reversed on appeal Plaintiff appeal to HL Issue: whether claims in damages due to nervous shock in all cases it is incumbent on plaintiff to prove that injury by nervous shock was reasonably foreseeable by the defendant, or whether it suffices, where the plaintiff himself was involved in accident, for him to prove that personal injury of some kind was reasonably foreseeable as a result of it Clearly reasonably foreseeable that plaintiff might suffer some physical injury in accident, though he did not Is plaintiff req to prove that it was reasonably foreseeable that he would suffer such nervous shock as was capable of leading to some identifiable illness o Keith: yes, plaintiff req to do so defendant can only be liable if reasonable man should have foreseen that plaintiff, regarded as person of normal fortitude, might suffer nervous shock leading to identifiable illness the plaintiff suffered only because of his peculiar susceptibility appeal should be dismissed Lord Jauncey (dissenting): Plaintiff who is directly involved in accident required to establish that physical injuries sustained by him were the foreseeable consequences of negligence Therefore, why should a plaintiff who suffers merely nervous shock and its consequences not be required to prove that it was similarly foreseeable? since the positions must be established independently, why would this be different if there was only non-physical injury? In all cases where plaintiffs have recovered for nervous shock, the event has been of dramatic and horrifying nature o This was not the case here

this case is far removed from those in which foreseeability of nervous shock has been established appeal should be dimisssed Lord Lloyd (for majority): If plaintiff had suffered physical injury, and then consequential illness, likely never would have reach appeal court Can it be the law that this makes all the difference? Foreseeability of psychiatric injury remains crucial ingredient when plaintiff is secondary victim, for the very reason that secondary victim is almost always outside area of impact, and therefore outside range of foreseeable physical injury o Not enough however also requires proximity (so as to limit liability) Proximity in time, space, and relationship o Also requires that defendant should have foreseen injury by shock to person of normal fortitude o These control mechanisms do not apply to primary victim But in this case, victim is primary victim, so we dont have to worry about Alcock, just look at foreseeability, proximity Since defendant under duty of care not to cause plaintiff physical injury, it is unnecessary to ask whether he was under separate duty of care not to cause foreseeable psychiatric injury Nor in case of primary victim is appropriate to ask if he is of normal fortitude o No difference in principle between eggshell skull and eggshell personality principle Note: dissenters say these principles only kick in where kind of injury suffered has been proven reasonably foreseeable the principle only goes to extent ie haemophiliac: if you can show cut was foreseeable injury, then if they die they can recover In this case no foreseeable injury, non suffered Hutch: remoteness is therefore problematic w/ this decision o Number of claimants is naturally ltd by nature of case appeal should be allowed majority of HL agree w/ Lloyd (finding for plaintiff)

White v. Chief Constable of SY Police (text 481) Lord Goff: Criticizes Page v. Smith as going too far What price remoteness?

Hutch says carving off psychiatric harm to a separate section creates more problems than it solves Torts Reading & Lecture Notes Week 12, 482-510, 559-585 WRONGFUL LIFE & WRONGFUL BIRTH Hutch: these issues relate to serious discussions about abortion, disability o Courts agenda has 2 parts regarding torts Compensating victim Deterring defendants o At some level, these are all cases of medical malpractice, which fall under rubric of DvS

o o

Had these cases led to physical injuries (ie during a vasectomy), they would not be hard to resolve These cases have, rather, a secondary claim which does not involve injury as such to a 3rd party Doctor does not cause injury to anyone, but peoples lives are heavily affected by doctors negligence Driving policy concern of courts regarding proportionality, therefore issue is pure economic loss Do we treat these cases same as other pure economic loss cases (ie Norsk)? Hutch distinction is that these are about peoples lives Must also distinguish between claims by children and claims by parents

MacKay v. Essex Area Health Authority (1982), text 482 infant plaintiff handicapped as result of mother contracting German measles while pregnant defendant hospital negligent in failing to diagnose disease mother said had she known she would have had abortion infant claimed damages on ground that failure to diagnose disease was breach of duty owed to her o mother has a separate, independent claim for parenting costs issue: should infants claim be struck out as disclosing no reasonable cause of action? Stephenson LJ: Hospital, doctors owed duty to child not to injure it, had injuries occurred after birth, recovery would be simple Thalidomide case: Distillers Co. v. Thompson Born child can sue for injuries occurring to it while in womb (Duvall v. Seguin) o Exception, cannot sue mother (Dobson v. Dobson) Difference here is that plaintiff has been injured by rubella, which infected mother w/o fault on anyones part o No injury caused through carelessness only right she (the plaintiff infant) can rely on is right not be deformed or disabled, which would mean a right to be aborted or killed the only duty which either defendant can owe child infected w/ rubella is duty to abort or kill her or deprive her of that opportunity o or perhaps the duty is to mother to give opportunity to choose abortion o woman would have to prove that she would have had the abortion injuries not result of act or omission of defendant, so they are only responsible for letting her be born (thus wrongful life) o Hutch: how can you quantify damages on this ground? but how can their be a duty to take away life? How can it be lawful? Because doctor can through statute perform abortion does not mean he is under legal obligation to foetus to do it, or that foetus has a legal right to die A duty may be owed to the mother, but it cannot be owed to the child o It would mean regarding life of a handicapped child as less valuable, so much less that it is not worth preserving This is unacceptable

another policy reason: cannot open door to handicapped children suing their mothers for not having abortion only way to measure damages would be to compare against the value of a healthy child, and it would not be just to make someone pay for those damages as if they had injured the child, when all they did was not take steps to prevent it from being born difficulty in assessing damages is bad reason not to proceed, but impossibility in assessing damages is a good reason o how can we measure loss of expectation of death? o Could only be achieved by personal value judgments this case discloses no reasonable cause of action by child for wrongful life o child not injured by doctor, they came from independent source it would be against public policy to entertain such claims as these Hutch: why do we let the doctor escape the costs of his negligence? o Ultimately policy

Arndt v. Smith (SCC) [1997] 2 SCR 539 (not in text) woman gave birth to disabled child can she get costs for bringing up costs of disabled child? At issue is causation Suggests that mothers might be able to recover not only for continued costs of pregnancy, but for upbringing of disabled child (difference between cost of raising normal and disabled child)

Zaitsov v. Katz (1986 Israel SC) text 486 same situation as MacKay case Barak J found for plaintiff: Infant does not seek return to non-life, and he has no right to this The claim is against life with a defect and the alternative is life w/o a defect The physician was negligent and caused life w/ a defect o Negligence created both life and defect simultaneously w/ no possibility of separating them o Existence of defect presupposes existence of life existence of harm is not to be conceived through comparison of life w/ defect and non-life, but through comparison of life w/ a defect and life w/o a defect

Feinberg, Rights, Justice and the Bounds of Liberty Williams v. State, infant girl sued NY state for damages resulting from negligent operation of mental hospital o Infants mother was sexually assaulted by attendant at hospital, resulting in birth of plaintiff to incompetent mother Did not win case argument against such recovery is that people might be encouraged to seek compensation for any conditions they were born into that they see as adverse: race, hereditary disease, poverty, etc reply: not all interests of newborn qualify for prenatal legal protection, only the very basic ones whose satisfaction is indispensable to a decent life

Williams case, appeal court: being born under one set of circumstances is not suable wrong, (although Feinbery thinks feeble-mindedness, heroin addiction, etc, might well be) o There is no obligation of State to a person not yet conceived (appeal court) o Feinberg: court too hasty Obligation was to mother to protect her, and as a result of breach, the rights of another (the infant) were violated There is moral req that children should be brought into the world only where certain minimal conditions of well-being are well assured, and basic future interests are protected in advance

Kealey v. Berezowski (1996), text 489 defendant doctor negligently performed tubal litigation, plaintiff became pregnant and gave birth to healthy, normal child, make claim for costs of having child they didnt anticipate having different than McKay in the sense that the doctor in somehow contributes to pregnancies courts talk about proportionality between negligent act and damages o Hutch: another group of elite professionals suddenly gets keen on proportionality surprising? all these following cases are about pure economic loss, not injury Lax J: 3 principal approaches courts use to deal w/ damages consequent upon wrongful pregnancy o 1) total recovery for all reasonably foreseeable damages consequent upon a wrongful pregnancy, based on ordinary principles of tort law damages recoverable for pecuniary and non-pecuniary loss associated w/ birth and for economic costs of raising child o 2) offset/benefits approach recovery permitted for birth costs and consequent economic costs of child-rearing damages offset by benefits which birth and rearing of child normally brings to parents Hutch: this is silly regardless of your love for child, the reality is they will cost money to raise o 3) ltd damages approach recovery permitted for unplanned pregnancy, but not for unplanned child damages for child-rearing costs are denied for public policy concerns, causation concerns, or both total-recovery approach traces foreseeability doctrine down an endless path o no regard whether injury has relationship to wrongdoing or legally protected interest o assumes that birth of healthy child is an injury o when strictly applied, this approach is flawed in this case, injury has unexpectedly transformed into priceless happiness it is not enough that plaintiffs injury was foreseeable in order to give rise to this head of damages

o plaintiffs injury must fall within scope of the wrongdoing if it is an inheritable genetic condition that prompted the sterilisation, likely would be able to recover if child had that condition but offset/damages also a bad idea o raised possibility that beneficial child could completely offset the award o the greater recovery would go to parents who did not want their children and were lacking in affection for them parents and children, from moment of birth have corresponding obligations to each other the financial responsibilities of upbringing a child are the responsibilities of parents in wrongful pregnancy case, question is to what extent defendants negligence impairs plaintiffs ability to meet those responsibilities o the court must determine the interest which a successful sterilisation would have protected to determine if result is an injury or a blessed event in this case, the negligence in no way prevents parents from fulfilling their responsibilities, and accordingly child-rearing losses are not a compensable loss economic consequences are indeed foreseeable result of negligence, but must apply tort principles of mitigation o reasons for sterilisation were personal as matter of family planning o made equally personal choice to continue pregnancy once it was discovered this will not apply to all cases of unplanned pregnancy, and damages must be calculated separately in each one general damages awarded of $30k, none for child-rearing costs

McFarlane v. Tayside Health Board (2000 HL), text 492 Lord Slynn: McFarlane underwent vasectomy, wife became pregnant o Remoteness/proximity trouble: duty of care owed to father, but mother is claiming as well o Hutch: still a special relationship existing between doctor and mother due to very purpose of operation Claim for pain/stress in pregnancy and birth for wife, claim for both for costs of rearing child Easy to decide first claim: entitled to recover 2nd claim much more difficult reject argument that failure to abort or give up for adoption was new act which breaks chain of causation o no legal/moral duty to abort or give up unplanned child but, not enough to say economic loss foreseeable o the question is not simply quantification of damages, but of extent of duty of care to parents sufficient proximity between doctor and wife o but (Carparo) has to be proximity between kind of damage suffered and duty o in Carparo, accountants owed duty of care, but only for purpose of controlling management duty of care did not apply to general loss of investment

doctor undertakes duty of care in regard to prevention of pregnancy, does not follow that duty includes avoiding costs of rearing the child if born should be compensation for physical effects of birth and pregnancy, but not for consequential economic losses o if client wants to be able to recover such losses, it must do so through contract this conclusion is not drawn from public policy, but rather from inherent limitation of reliability relied on Lord Steyn: On corrective justice approach, parents claim might succeed But distributive justice approach has different result o Focuses on distribution of burdens and losses among society o The birth of a healthy child is not a loss distributive justice answers moral questions idea of fairness o mitigates against allowing recovery for upbringing of a healthy child but, nothing objectionable to allowing recovery for costs of pregnancy and birth Lord Hope: Question is ultimately one of law, not social policy If law is unsatisfactory, it can be altered by legislature In field of economic loss, foreseeability is not the only criterion that must be satisfied o Must be relationship of proximity between negligence and loss, and attachment of liability for harm must be fair, just, and reasonable but, law is not so harsh as to drive parents alternatives of abortion or adoption parents receive substantial benefits from having children costs of meeting obligations during childhood are not recoverable Lord Clyde: Issue is not existence or non-existence of a duty of care Pain and suffering can clearly qualify as head of damages Offsetting benefits of childrearing is inappropriate would not offset loss to parents of childs death due to savings in maintenance costs o In order to claim, a parent would have to say child is more trouble than he is worth Kealey v. Berezowski holds that if parents are able to meet obligations, they have not suffered any loss o This is from a consideration of public policy but not such a strong policy basis in this case reality is there will be an expenditure on maintenance there is no issue of mitigation cannot be reasonably claimed they could have surrendered the child but, expense of childrearing would be wholly disproportionate to doctors culpability (could incl private education fees, etc) Lord Millet: Solution not to be found in process of categorisation Claims in present case brought under extended Hedley Byrne principle o Should not matter whether unwanted pregnancy results from negligent supply of incorrect information or from negligent performance of operation itself present question does not depend on whether it is pure or consequential loss either o

distinction is artificial and made irrelevant by fact that birth was thing the doctor was called upon, in his professional context, to prevent not persuaded by Kealey v. Berezowski nor persuaded that remedy is disproportionate to wrong should we deny recovery because they could afford child? Should we deny recovery because there was no threat to mother? But, there is something distasteful in treating birth of healthy baby as matter for compensation Offset approach also inappropriate Human condition is that we take the good with the bad Reject both compensation for birth-related pain and stress and upbringing costs But, have suffered loss of freedom to limit size of family, and should be awarded general damages of 5000 to reflect this o Although, if parents threw out baby equipment (strollers, etc) on basis that they thought they would have no more children, they should be entitled to recover them on grounds that info they were given was wrong, and that was a direct and foreseeable consequence o

Parkinson v. St. James and Seacroft Uni Hospital NHS Trust (2002), text 502 doctor at hospital administered by defendant negligently performed sterilisation procedure on plaintiff plaintiff already had 4 children, didnt want more, became pregnant catastrophic could not resume work or move to larger accommodation, husband couldnt cope w/ financial strain of new baby and left family shortly before it was born, plaintiff told child might have disability, chose not to terminate, born w/ autism (not caused by negligence) Hale LJ: Right to bodily integrity is first and most important of interests protected by tort law o Every persons body is inviolate (Collins v. Wilcock) o Right is to physical autonomy and not to be subjected to harm economic interests are less important in the middle are cases where invasion to right of bodily integrity has caused not only pain and suffering, but also financial consequences McFarlance v. Tayside Health Board (2000): to cause a woman to become pregnant against her will was invasion of fundamental right to bodily integrity o It was not reasonable to expect any woman to mitigate her loss by having an abortion consequences of pregnancy last after pregnancy is completed, including physical/emotional consequences parental responsibility is more than financial law recognises claim of injured person to be compensated for costs of caring for him o when care is provided by family member, claim is made by injured person by loss is the family members here, the care is provided by the person who has been wronged, and legal obligation to provide it is direct and foreseeable consequence of that wrong common law has been reluctant to recognise cost of care to carer in cases of wrongful birth disabled child has same status as normal child, simply costs more

at what point does the disability arise? o Birth or conception? o Argument for conception is that this is when the major damage was caused, from which all else flows o Argument for birth is that although conception is when losses start, it was not when they end; another is that it is only when child is born that the benefits begin any disability arising from genetic causes or foreseeable events during pregnancy (rubella, etc) up until child is born alive will suffice to found a claim if there is sufficient proximity between tortfeasor and father who meets his parental responsibilities, father should also have a claim difference between normal and disabled child is primarily in the extra care that they need, it is right therefore that parents who bear those extra burdens should have a claim so cant recover for healthy child, but can recover additional costs of disabled child does this get around McKay?

Rees v. Darlington Memorial Hospital NHS Trust (2003), text 508 plaintiff had genetic problem that left her almost blind, so she elected to be sterilised thinking she would have difficulty raising a child o doctor knew/should have known about condition and purpose of sterilisation procedure performed negligently, plaintiff gave birth to non-disabled child, sued for costs of maintaining child Hale LJ: Principal detriment suffered by one who becomes a parent against their will is the legal and factual responsibility to look after and bring up the child; the out of pocket expenditure is a consequence of that responsibility But, non-disabled people are able to discharge their parental duties, even w/ difficulty, alone Disabled people may need help to discharge the most ordinary tasks involved in the parental responsibility placed upon her through the defendants negligence Therefore, just as extra costs involved in discharging that responsibility towards disabled child can be recovered, so too can the extra costs involved in a disabled parent discharging that responsibility to a healthy child Waller LJ (dissenting): Where court is concerned w/ birth of a healthy child, one must justify any exception to the general rule stated in McFarlane (stare decisis) o Precedent is not simply about following cases when it suits us On basis of distributive justice ordinary people would think that it was not fair that the disabled person should recover when mothers who may in effect become disabled by ill-health through having a healthy child would not Hospital appaled to HL: HL split 4-3 in favour of plaintiff receiving some damages, but not costs of raising disabled child o Generally attempt to follow McFarlane 3 convinced by Hales argument in CoA that there is difference in this case from McFarlane, say plaintiff can get extra costs of raising healthy child

The other 4 say she can get some of her damages, not all of them, gave 15k (damages for losing choice, cost of pregnancy) but generally an arbitrary figure

Cattenach v. Melchior [2003] HCA 38 (not in text) same situation as McFarlane Aus High Court went the other way, allowed recovery for costs of raising healthy child Always more willing to award pure economic loss than HL

INFORMED CONSENT first have to ask if injury is result of operation (Snell v. Farrel, Wilshire) o causation question 3 possible situations in medical malpractice: o battery (not in cases we study) doctor performs operation w/o consent, can lead to criminal charges all operations are batteries unless there is consent doctor may exceed consent in emergency situation, entitled to assume consent does not have to be injury simply unconsented interference w/ your body o someone has consented to procedure, and plaintiff has been injured in some form due to doctors negligence straightforward, have studied previously, duty of care, std of care, etc o informed consent, operation takes place, and through no negligence by doctor procedure goes wrong and there is an injury until recently, those facts would lead to no recovery because there was no negligence now, there is possibility of bringing action based upon informed consent patient claims if they had been given sufficient information about risks involved in procedure, they wouldnt have agreed to procedure (either at that time, or in that way, or at all)

Reibl v. Hughes (1980 SCC), text 559 Laskin CJC: Plaintiff underwent heart surgery, during which or immediately after suffered massive stroke that left him impotent and paralyzed on right side of body Year and a half away from retirement at Ford (which would have given him full benefits and pension for rest of his life), no indication he was at immediate risk if he didnt have the surgery Plaintiff had consented to procedure but claimed it was not informed consent, sued for damages, at trial won $225,000, CoA ordered new trial, now before SCC

o Surgeon didnt offer alternatives, warn of serious risk o But, he didnt tell doctor of his pension situation Relationship is clearly proximate, gives rise to duty of surgeon to disclose all material risks in surgery that is recommended o Hopp v. Lepp: surgeon should answer any specific questions, and should disclose w/o being questioned nature of operation, its gravity, any material risks, and any special or unusual risks; scope of duty must be considered case-by-case o Even if risk is mere possibility that would not normally be disclosed, if its consequences would be serious, it must be disclosed w/o question a material risk in this case, but also a material risk if surgery did not proceed execution of surgery is not faulted in the claim how specific must the info be for the patient to be able to make an informed choice? trial judge found that defendant did not sufficiently explain the purpose of the operation and the attendant risks, and was therefore liable in battery Laskin disagrees: o Tort of battery is intentional, consisting of unconsented invasion of bodily security o Cannot be battery where consent was given to the surgical procedure, even if there was not sufficient explanation of the risks o Battery is where there was no consent at all, or treatment beyond that which was consented to o Consent was not vitiated by failure of disclosure of risks CoA said std of disclosure of risks should be left to judgement of doctor in each case (professional medical std in determining what risks are material) Laskin disagrees: what is important is the patients right to know what risks are involved in undergoing or forgoing surgery or treatment; all material risks must be disclosed o Although the materiality of risks is for the trier-of-fact to determine Likely to be common risk or uncommon but serious risk (but not known risks, ie scarring) o But, medical evidence will prove important o Risks that should have been disclosed also depend on modified obj std in this case, 4% chance of death, 10% chance of stroke o clearly a material risk NYUL: since proximate causation exists only if disclosure would have resulted in patient foregoing proposed treatment, std must be developed to determine whether patient would have decided against the treatment had he been informed of all the risks o subjective: whether if informed patient in question would have forgone treatment o objective: whether avg prudent person informed of risks would have forgone treatment o objective is preferable: subjective std has gross defect in that it depends on plaintiffs testimony as to state of his mind, exposing doctor to hindsight and bitterness Laskin: safer course on issue of causation is to consider objectively how far the balance in the risks of surgery or no surgery is in favour of undergoing surgery

This will incl specific considerations affecting the particular patient (modified obj) In this case, 1.5 yr remaining until he got full pension benefits from Ford o Adoption of objective std does not put issue of causation completely in hands of doctor: patients particular situation would reduce the force, on objective appraisal, of doctors recommendation a subjective test would inevitably result in liability, unless there was a finding of no breach in this case, reasonable person in plaintiffs position would, on balance of probabilities, have opted against the surgery at that point in time, had he known all the risks appeal allowed, trial judgement restored o

White v. Turner (1981), text 566 Linden J: Canadian doctors obliged to disclose to their patients the nature of proposed operation, its gravity, material risks, special/unusual risks (Reibl v. Hughes) o Doctors are not to set their own stds risk of conflating own interest w/ public interest These problems are to be analysed w/ negligence law theory, not law of battery Language of informed consent should be avoided as it confuses these 2 theories of liability Future use of battery is ltd to where there is a real lack of consent; problems of inadequacy of info are to be handled w/ negligence theory Analogy between duty of manufacturers to explicitly warn in detail consumers about dangerous products (Lambert et al v. Lastoplex Chemicals Co) and duty of doctors to warn patients of risks Reibl v. Hughes also tells us that no longer does medical profession alone collectively determine, by its own practices, the amount of info a patient should have in order to consent o Court also has voice in deciding appropriate level of info that must be conveyed essential issue then is to determine what reasonable patient in position of plaintiff would consider to be material risks or special/unusual risks about which he would want to receive information o court will hear on expert medical evidence on question of what the risks inherent in op are, how serious they are, how frequently they may arise, and what info doctors usually convey to their patients o but, court will also give consideration to evidence of patient and his family as to his general situation, and what info he would want to know in the circumstances o court will then assess what reasonable patient would like to know in these circumstances o right to know is no longer ltd by what medical profession customarily tells patients o patients right to make intelligent choice transcends interest of medical profession in setting its own stds what is a material risk will have to depend on the specific facts of the case

unusual or special risk: those that are not ordinary, common, everyday matters, but are known to occur occasionally, and have unusual or special character not all risks need be conveyed: everyone is expected to know that there is a chance of infection in any procedure

Plante, An analysis of informed consent text 569 physician has clear duty not to mislead patient whether by silence, misinformation, or ambiguity judicial approach for misinformation is quite different than that found in battery cases doctors obligation and patients right corresponding right is less clear obligation to advise of collateral hazards cannot be stated rigidly; factors will influence whether there is a duty to inform of danger: o emergency situations o danger of alarming patient or causing adverse psychological effects o likelihood danger will materialise o this is not an exhaustive list physician sued for medical negligence in failing to disclose hazards has more room on which to base a defence than one sued for battery issue of causation is more complicated in negligence than battery o plaintiff must show that if he had been fully advised he would have undergone the procedure

Englard, The Philosophy of Tort Law, text 571 courts reluctant to stigmatise doctors w/ label of battery led to doctrine of informed consent enhanced protection of patients right to self-determination is an important element in the modern striving for individual emancipation but, basic problem is that concrete harm for which patient seeks compensation is not direct result of infringement of his right to self-det, but of medical treatment itself from exclusive perspective of self-det, non-disclosure is by itself a violation; however such harm is essentially to dignity, and therefore non-pecuniary Katz: the law of informed consent is essentially mythic as far as advancing patients rights to self-decisionmaking Most people do not process information in a logical, predictable way The reasonable person is not an objectively rational decision-maker Must therefore ask, paradoxically, how irrationally does a reasonable person decide?

Hollis v. Dow Corning Corp (1995, SCC), text 574 La Forest J (LHeureux-Dube, Gonthier, Cory, Iacobucci JJ concurring): Issue: whether manufacturer of silicone breast implants may be held liable in tort to patient who suffers injuries from an unexplained rupture in the implants when the manufacturer has failed to give adequate warning to patient or surgeon concerning risks of rupture? At trial, woman received damages, Dow held liable for negligent manufacture of implants

At appeal, Dow found not negligent of manufacture, but appeal dismissed on grounds Dow failed to warn woman of danger of rupture, Dow appealed this to SCC Dow does not contest fact that woman suffered great deal of pain, lost income, etc, but submits it is not responsible for the injuries Dow argues it gave adequate warnings to doctor and that was sufficient to meet duty to woman, and if it did breach duty to woman then this breach was not proximate cause of injuries 1. Dows duty to warn and the learned intermediary rule o a. the general principles i. the duty to warn manufacturer of product has duty in tort to warn consumers of dangers inherent in use of product of which it has or ought to have knowledge o continuing duty have to warn if new info becomes available o even if use is illegal, if company is aware of use (ie glue sniffing) it has duty to warn about dangers heavy onus on manufacturers of medical products to provide clear, complete, current info on inherent dangers in ordinary use a higher std because its going in the human body; great potential for danger principles of informed consent of doctor-patient are applicable to that of manufacturer-consumer, which is an attempt to redress inequality between 2 parties ii. The learned intermediary rule in exceptional circumstances, manufacturer may satisfy duty to consumer by providing warning to a learned intermediary it is not so much a rule as an application of common-law principles of intermediary cause developed in DvS rule applicable where product is highly technical in nature and intended only to be used under supervision of experts, or where nature of product is such that consumer cannot receive direct warning from manufacturer intermediarys knowledge must approximate that of manufacturer, must be expected that they will pass on the information o this leads to an expanded duty on the doctor only an exception in general, primary duty relies on manufacturer o b) application of general principles to case at bar learned intermediary rule is applicable in this context Dow entitled to warn doctor concerning risk of rupture w/o warning patient directly Surgeon in best place to see packaging and read any warnings, not consumer analogous to prescription drugs However, for rule to exonerate Dow they must prove intermediary was fully apprised of all risks, and that its knowledge approximated theirs

On evidence, Dow did not adequately warn doctor of risk of postsurgical rupture 2. Did Dows breach of duty to warn cause plaintiffs injury? o Two causation issues: would plaintiff have elected to have op if properly warned of risk? (Dow says reasonable woman would still have consented) And would doctor have warned plaintiff if he had been properly warned by Dow of risk? o a) Would plaintiff have consented to operation if warned of risk? i) the appropriate test trial judge: would reasonable woman in plaintiffs particular circumstances have consented to surgery had she known all reasonable risks? (Reibl) however, objective test deemed inapplicable in products liability cases (Buchan case) but risk of subjective test is that patient will always say she wouldnt have used it this concern is fair in case between doctor-patient, but between patient-manufacturer it can be addressed through cross-examination and trial level (therefore subjective is ok here) o Hutch: this is in essence and application of strict liability if you fail to provide information, you are in trouble ii) application of test to case at bar plaintiff would not have opted for surgery if she had known the risks o b) would doctors conduct have been same whether or not Dow was in breach of duty to warn? Had doctor been adequately warned but not passed on info to patient, Dow would be absolved But this does not mean that for Dow to be liable, the patient must prove that the doctor would have informed her had he known Dow says he wouldnt have told her anyway, so it made no difference if they didnt tell him Similar to Lewis v. Cook, where onus is reversed because hunters destroyed plaintiffs power of proof In this case, not destroyed but seriously undermined if they are called on to prove what doctor would do in hypothetical situation Manufacturer should not be able to escape liability for failing to give a warning it was under duty to give by presenting evidence that doctor would not have passed it on Would lead to situations were plaintiff could never recover damages conclusion: Dow breached their duty to the doctor, and is therefore liable to woman for her injuries Sopinka J (dissenting) (McLachlin J concurring): Agree w/ LaForest in analysis of principles relating to duty to warn and learned intermediary idea, but disagree w/ analysis and application of causation principles Causation: o The test:

LaForest adopts a subjective test Sopinka thinks this is no good Subjective test fails to take into account inherent unreliability of plaintiffs self-serving assertion Most reliable approach in to test plaintiffs assertion by reference to objective evidence as to what a reasonable person would have done (Reibl v. Hughes) No reason why test should be different for physician and manufacturer; cannot be redeemed on basis that stricter std for manufacturer can be expected Sopinka believes in the modified obj std for both relationships Burden of proof: Plaintiff must show breach of duty by defendant and also that breach was cause of injury in question Proving that Dow breached duty to warn of risk of rupture is not enough Burden remains on plaintiff to show that injuries would not have occurred had Dow not breached its duty to warn doctor of dangers inherent in implants She must show doctor would have warned her Absent this proof, it cannot be said w/ certainty that failure of Dow to warn physicians was cause of her injuries Burden of proof is only properly reversed where defendant has somehow participated in destroying means of proving case against it or where defendant somehow controls the relevant evidence Nothing of the sort in this case Causation Has to be some evidence that doctor would have passed on information Need clear rules, like in Snell v. Farrel (which Sopinka wrote) Hutch: tie these 2 cases up If doctor fails to pass on information, then patient can go after doctor Hutch: but this assumes there are no barriers to going after doctor, leading to risk of patient being squeezed between the two, unable to claim against either, leaving her high and dry

Arndt v. Smith (1997 SCC), text 582 medical negligence case again, at issue is factual causation requirement that applies to negligent failure to disclose medical risk woman pregnant, found to have chickenpox, doctor does not tell woman she has chickenpox, child born disabled as result of chickenpox claimed had she been told about chickenpox, she would have aborted Cory J (Lamer CJC, La Forest, LHeureux-Dube, Gonthier, Major JJ concurring): Reaffirmed modified objective test

Test relies on combination of objective and subjective factors in order to determine whether failure to disclose actually caused the harm of which the plaintiff complains Requires court to consider what reasonable patient in same circumstances of plaintiff would have done if faced w/ same situation In this case, decided at the time, woman would not have had abortion if she had known about risk because risk was low, therefore no causal connection, could not recover

Torts Reading & Lecture Notes Week 13 NONFEASANCE (OMISSIONS) common law distinguishes wrongful infliction of harm (misfeasance) from failure to prevent harm (nonfeasance) the saving of a life is a charitable act demanded by conscience, not law Hutch: major problem with a duty to rescue is causation, along w/ proportionality DvS: acts or omissions o Misfeasance consists of acts and omissions Omission: failing to brake and hitting someone o Non-feasance is linked to omissions, but there is a line between the two o Generalising the distinction is problematic o Non-feasance is where there is no connection between you and the victim, and you dont owe a duty (ie walking past a pond in which someone is drowning)

Union Pacific v. Cappier (1903), text 587 Smith J: Action brought by Cappier to recover damages resulting from loss of her son, who was run over by car of appellant, not through their negligence o At trial, no careless act of UP employees was shown, refused to permit case to be considered by jury on allegations of attempting proof of such negligence o but, UP employees had not rendered assistance after accident, so Cappiers son bled to death (although they did call an ambulance) o judge allowed recovery on that UP appealed courts not concerned w/ humane side of question it is the omission or negligent discharge of legal duties only which come within the sphere of judicial cognizance o law based on moral obligations would release courts from duty of administering law, and put in the place of law the varying ideas of morals which judges might entertain over time (Bishop) duty must be owing from defendant to plaintiff, otherwise there can be no negligence, so far as plaintiff is concerned appeal allowed, trial judgement reversed, no duty owed

Notes: - but, 3 exceptions to no duty to rescue in modern Canadian law:

1) if you assume responsibility if you begin a rescue, you must finish it 2) if you have special relationship may be on your property (Hutch: if this case were done today, there might be a very different result) if you negligently create the peril straddles line w/ misfeasance

Stovin v. Wise (1996 HL), text 590 Lord Hoffman: Good reasons why omissions are treated differently than acts: o It is hard to justify making somebody do something is it an invasion of freedom? a duty to prevent harm or render assistance to a person in danger may apply to a large and indeterminate class of people who happen to be able to do something in economic terms, the efficient allocation of resources usually requires an activity should bear its own costs liability to pay compensation for loss caused by negligent conduct acts as a deterrent against increasing cost of activity to the community and reduces externalities (costs on other people) o but there is no similar justification for requiring a person who is not doing anything to spend money on behalf of someone else may be a duty to act of one has undertaken to do so or induced a person to rely upon one doing so difference between pure omission and omission as part of a larger activity (ie failure to apply handbrake) but still main distinction between acts and omissions o distinction based on recognition that requiring person to take positive action is a serious request for a duty to exist, must be more than a simple bystander

Epstein, A Theory of Strict Liability text 591 should be no duty to rescue: once forced exchanges, regardless of level of payment, are accepted, it will no longer be possible to delineate sphere of activities in which contracts (or charity) will be required in order to procure the desired benefits and the sphere of activity in which those benefits can be procured as of right o impossible to tell where liberty ends and obligation begins

Weinrib, The Case for a Duty to Rescue text 593 if neither tort law nor criminal law impose a duty to rescue, the relations between rescuer and victim are left entirely to the contractual arrangements between them o law of contract presupposes a certain social equality of those who engage in the bargaining process common law position on nonfeasance generally relies on contract law, and hence on the market, to regulate provision of aid to others for independently existing dangers

but, there are exceptions that require a person to abate a risk to another even though he had no part in creating the risk o a relationship exists between existence of tort obligation and absence of any social value in the liberty to contract o ORourke v. Schacht (SCC 1996): cop held liable for not informing drivers of a dangerous highway condition that he had not created tort obligation exists when values of contractual liberty are absent o ie family members owe each other a duty if potential rescuer struck bargain w/ drowning victim before giving him a rope, agreement reached would be unenforceable as unconscionable or made under duress duty of rescues resource expended cannot be traded on market, so no level of socially desireable level of benefits could be created its not a problem like Eptsein thinks (duty to charity, etc) deonotological argument: individuals are under a moral duty because health and life are of distinctive importance o concept of a duty applies only to an individual endowed w/ capacity to make choices and to set ends for himself o respect for anothers security need not entail foregoing ones own when there is an emergency that the rescuer can alleviate w/ no inconvenience to himself, the general duty of beneficence is temporarily revealed to identify a particular obligor and oblige, and to define obligations that are specific enough for judicial enforcement o

Bender, A Lawyers Primer on Feminist Theory & Tort, text 597 law students are taught to reject their emotions, instincts, ethics and to view accidents and tragedies abstractly, removed from social and particularised contexts, and to apply rationally derived universal principles and a vision of human nature as atomistic, self-interested, and as free from constraint as possible if we think about stranger as a human being, we may realise that there is much more involved that balancing one persons interest in having his life saved and anothers interest in not having affirmative duties imposed upon him in absence of special relationship

Oke v. Weide Transport (1963), text 599 defendant truck driver, non-negligently, knocked down traffic sign in middle of highway, removed debris except for metal pole imbedded in ground, did not report it to police next day Oke driving, went onto gravel strip to overtake truck (illegally), killed by pole which came up through bottom of his car majority held that even if defendant under a legal obligation to report damage to sign, the accident that occurred was unforeseeable o had no duty to fix peril, because it was not negligently created Hutch: this is an incredibly stupid decision, but the principle is right (for duty must have negligently created peril)

Moch Co. v. Rensselaer Water Co. (1928), text 600

defendant a waterworks company contracted w/ city to furnish water to fire hydrants plaintiff owner of a warehouse destroyed by fire when defendant failed to provide enough water to extinguish blaze Cardozo CJ: Since plaintiff not a party to contract, could not recover in contract, and tort liability was excluded because defendants failure to provide water was merely a nonfeasance If conduct has gone forward to such a stage that inaction would common result, not negatively merely in withholding a benefit, but positively or actively in working an injury, there exists a relation out of which arises a duty to go forward Failure in these circumstances to furnish an adequate supply of water is at most the denial of a benefit, it is not the commission of a wrong

Doyle v. S. Pittsburgh Water Co. (1964), text 601 -

same facts as Moch case where party to a contract assumes duty to other party in contract, and it is foreseeable that breach of duty will cause injury to 3rd person who is not a party to contract, the contracting party owes a duty to all those falling within foreseeable orbit of risk of harm

Horsley v. MacLaren (SCC 1971), text 602 Lake Ontario v. cold, hypothermia likely within 3 mins Laskin J (dissenting): Invited guest on board boat accidentally fell into lake, during course of rescue another guest dived in to help him, who subsequently died (along with rescuee) Was there liability by boat owner for rescuer? Liability to rescuer should not depend on whether there was original negligence which create the peril and therefore prompted the rescue effort Owner of boat owed duty of care to his invited guests to exercise reasonable care for their safety, which extends to rescue from the perils of the sea Rescuer was forced to expose himself to danger upon MacLarens failure to carry out his duty to rescue the first victim o MacLaren was negligent in the way he manoeuvred the boat while attempting to rescue the first victim, forcing Horsley to help MacLaren didnt create original situation of peril, but exacerbated it o But, Matthews still cant recover because even if there had been no negligence in rescue, because he would have been dead anyway (water simply too cold) o Therefore recovery for Horsley, but not Matthews (dissent) majority said MacLaren was not negligent in manouevering boat, therefore no recovery for Horsley or Matthews

Crocker v. Sundance Northwest Resorts Ltd (1988 SCC) Wilson J: Issue: whether ski resort had a positive duty to take steps to prevent a drunk from competing in tubing competition

Crocker was visibly drunk, manager suggested it would be a good idea for him not continue in races, but he did anyway, rendered quadriplegic by accident At trial, Sundance found liable for 75% of damages, Crocker 25% contributorily negligent Early common law reluctant to recognise positive duties to act Reason for reluctance: draws from philosophy of individualism Canadian courts incr willing to expand number and kind of special relationships to which positive duty to act attaches o Normally some element of control or some economic benefit inuring to the person as a result of the relation Sundance owed duty of care clear relationship between Crocker and S, S set up dangerous competition to promote its resort, provided liquor to Crocker, owes duty to him to ensure he does not come to harm S did not meet std of care: numerous steps open to S to dissuade C from competing Not acceptable for resort to open its dangerous competitions to persons who are obviously incapacitated

Jordan House v. Menow (SCC 1974) text 605 leading SCC authority on imposition of duty to take positive action to protect another plaintiff struck by car after being thrown out of tavern Laskin J: Close enough nexus to require imposition of duty of care on hotel tavern o Duty required defendant to take positive steps to avoid potential calamity one is under a duty not to place another person in a position where it is foreseeable that that person could suffer injury plaintiffs inability to handle situation in which he has been placed is element in determining foreseeability of injury

Depue v. Flatau et al. (Minn SC 1907) Brown J: Plaintiff was cattle buyer, went to defendants to inspect some cattle, too dark to check, asked to stay overnight, turned down, bought some furs, invited to stay for dinner, after meal felt ill, fell to floor, again asked to stay overnight, turned down again, left, found next day nearly frozen to death, lost fingers due to frostbite Did D owe P any duty which they negligently violated? Did D know or ought to have known of Ps weakened condition, and that it would endanger his life to send him home unattended? In this case, applicable principle is: whenever a person is placed in such a position w/ regard to another that it is obvious that, if he does not take due care in his own conduct, he will cause injury to that person, the duty at once arises to exercise care commensurate w/ the situation in which he thus finds himself, and w/ which he is confronted, to avoid such danger; and a negligent failure to perform the duty renders him liable for the consequences of his neglect In this case, acts humanity demands are not always legal obligations o But, P was an invited guest, and was taken ill while he was their guest

Notes 3 exceptions to lack of duty to rescue o if the rescuer negligently creates the peril o if you assume the duty to rescue, you have to carry it through std in both of these is quite low. People do not have to engage in heroics or put themselves in danger o existence of special relationship between the parties

parents, in loco parentis (babysitters, teachers, guardians, etc)

line between public/private institutions blurry judicial review available only on public bodies

Just v. Queen in Right of BC (SCC 1989) text 611 Cory J (Dickson CJC, Wilson, La Forest, LHeureux-Dube, Gonthier JJ concurring) Issue: what approach should be taken by courts when considering liability of govt agencies in tort actions? Appellant and daughter going skiing, driving to resort, boulder crushed car, daughter killed Department of Highways had checking crew, should have known rock constituted danger to users of highway, didnt check that area Anns test appropriate to use Duty established Not option for province to go out of business cannot have unltd liability o Impossible to check every mile of road in BC (7m+) Was decision of dept as to quantity and quality of inspections a policy decision exempting respondent from liability? (Cooper v. Hobarts) o Policy decision can only be challenged through judicial review, not through tort law Continuing judicial struggle to differentiate between policy and operation o Liable for o, not for p, so govts are not restricted in making decisions based upon social, political, economic factors distinction between policy and operational factors is not easy to formulate, but dividing line is: o a public authority is under no duty of care relation to decisions which involve or are dictated by financial, economic, social, or political factors or constraints (Sutherland Shire Council v. Heyman) high level decision is more likely to be policy, low level more likely to be operational duty of care should apply to public authority unless there is a valid basis for its exclusion a true policy decision undertaken by govt agency constitutes such a valid basis for exl. The manner and quality of inspection system is part of operation side, and must be addressed in consideration of std of care New trial must be held to determine whether respondent had in all the circumstances met the std of care that should reasonably be imposed upon it with regard to the freq and manner of the rock inspections

Sopinka J (dissenting): Other judges thinking would considerably expand liability for negligence of public authorities by subjecting to judicial review their policy decisions w/o evidence that policy was passed w/ ulterior motive, it is inappropriate for court to pass judgment on it Hutch: this means essentially that public bodies should set extremely low standards, and then exceed them o Policy decisions can reduce the level, but once the level is established, the public body must live up to that level operationally

Anns v. London Borough of Merton (1977 HL) text 619 marked new departure for tort liability of public authorities plaintiffs alleged that foundations of flats had not been built by builder in accordance w/ plans approved by defendant local council local bylaws gave council power to approve building plans and inspect foundations Lord Wilberforce held that local council was under duty to plaintiffs Relationship between council and owners of houses was proximate, but cannot be merely based upon neighbour principle o Such a basis would neglect an essential factor which is that the local authority is a public body, discharging functions under statute: its powers and duties are definable in terms of public, not private law distinction between policy (discretion) and operational is convenient, but a matter of degree: many operational powers have an element of discretion within them o but, the more operational the power, the easier it is to impose upon it a duty of care council under duty to give proper consideration to the question if they should inspect or not on principle there must surely be a duty to exercise reasonable care; std of care must be related to duty to be performed o in this case: to ensure compliance w/ bylaws if plaintiff can prove that action taken was not within limits of discretion exercised, he should in principle be able to sue (a duty was owed)

Stevens-Wilson v. City of Chatham (SCC 1934) Lamont J: Fire department refused to fight fire until electricity shut off by utilities commission (scared that they would be electrocuted), at which point fire had destroyed mill Result of ignorance, someone on force should have known enough about electricity given that the city is powered by it However, municipality is not liable for mere inactivity of its employees

Swinamer v. AG Nova Scotia (1994 SCC), text 622 McLachlin J: Public authorities owe no private duty to individuals capable of founding a civil action, unless such a duty can be found in terms of authoritys enabling statute Anns v. Merton:

2 types of statutes statutes conferring powers to interefere w/ rights of individuals in which case an action in respect of damage caused by exercise of such powers will generally not lie except in case where the local authority has done what the legislature authorised but has done it negligently statutes conferring powers but leaving scale on which they are to be exercised to the discretion of local authority. Here there is an option on the local authority to do the thing authorised, but if they do and do it negligently, then the policy decision having been made, then there is a duty of care at the operational level there is no private law duty on the public authority until it makes a policy decision to do something only then does the duty arise at the operational level o

Stovin v. Wise (HL 1996) text 623 HL repudiates Anns criteria for liability in exercise of statutory power Lord Hoffman: Distinction between policy and operations is inadequate o Hard to define o No reason that law should superimpose duty of care anyway in case of statutory power, legislature has chosen to confer a discretion rather than create a duty o indication that the idea was not to create right to compensation SCC inconsistent: sometimes frequency of inspections is considered policy (Barratt v. District of N. Vancouver), sometimes operational (Just v. BC) o Demonstrate inadequacy of concepts of policy and ops to provide convincing criterion for deciding when duty of care should exist creation of duty of care on highway authorities would distort priorities of local authorities, which would be bound to play it safe by incr spending on roads this is a case of nonfeasance, therefore there is no responsibility on public authority Lord Nicholls (dissenting): Public authorities are entrusted and charged w/ responsibilities for public good Compelling a public authority to act does not represent intrusion into private affairs in same way when a private individual is compelled to act Concurrent common law duty would not impose on council any greater duty than the obligation already imposed by its public law duties But, when parliament conferred statutory power, they chose not to confer duty why? Therefore, there must be some special circumstance, beyond mere existence of power, to make it fair to subject authority to duty sounding in damages o It is the presence of the special circumstance which imposes the duty and determines its scope

Roncarelli v. Duplessis (SCC 1959),text 626 policy decision is open to challenge on basis that it is not made in the bona fide exercise of discretion discretion implies good faith in discharging public duty any clear departure from intended operation of statute is just as objectionable as fraud or corruption

City of Kamloops v. Neilsen (SCC 1984), text 626 municipal council did not take steps to prevent construction of house that was being built w/o proper foundations builder was councillor, pleaded w/ colleagues not to enforce bylaw since it was to be his retirement home and therefore no-one else would be affected later sold to plaintiff unaware of its history, it collapsed, P successfully sued municipality for negligence Wilson J: Municipality clearly had duty and P was foreseebable, knew that work was progressing in violation of bylaw Inaction for no reason or inaction for improper reason (in this case) cannot be policy decision taken in the bona fide exercise of discretion

Jane Doe v. Metropolitan Police (1990 Ont Div Ct) text 672 victim of serial rapist allowed to sue police for failing to warn her of danger of attack police knew or ought to have known victim belonged to narrow and distinct group of potential victims claimed police made conscious decision not to warn her and use her as bait Doe found claims in judicial review and lobbying was going nowhere, brought action in tort but tort is just damages if Stevenson wants to be negligent, he can be o therefore tort is a poor arena to solve this problem o she hoped publicity would force change police said they did not owe victims of crime a duty of care is there sufficient proximity between victims of crime and police? o Consistent court answer is no o But in this case, court said yes Doe was in describable group of women based on practice of rapist, incr the proximity to a special level The decision of police was an operational one, therefore liable recovered $200k, but did this change police practices? o Tort has no devices other than exacting payment o Hutch: need a better device than torts to change public practice But, Doe had no other device available in this case

Torts Reading & Lecture Notes Week 14, text 661-694 VICARIOUS LIABILITY Jones v. Hart (1698) (text 661) defendant pawnbroker, defendants servant lost plaintiffs goods Holt CJ: Act of a servant is act of his master, where he acts by authority of the master

Notes (text 661)

Example of common law doctrine of respondeat superior (let the superior answer) Modern formulation is that employer is liable for torts committed by his employee in course of employment Liability has 3 elements: o Employee must have committed tort Respondeat superior is not an example of strict liability; law has simply broadened the liability for the fault by imposing it on additional innocent defendant o Person committing tort must be an employee of defendant Traditionally defined as control of employer over employee (Yewens v. Noakes) Difficult to apply to skilled workers and professionals (ie doctors working for hospital) So modern approach is organisation test: is employee a cog in defendants organisational machinery? Ontario Ltd. v. Sagaz Industries Canada (2001 SCC): No one conclusive test to determine whether person is employee or independent contractor Must search for total relationship court looks beyond formal relationship Level of control employer has over workers activities will always be a factor Also: whether worker hires own helpers, ability to profit from own work, financial risk taken on board, etc o Tort must be committed in the course of employment However, employer is liable if deviation from prescribed task can be construed as merely a detour Canadian Pacific Railway v. Lockhart (1942): Employer liable even for acts which he has not authorised, provided they are so connected w/ acts he has authorised that they may rightly be regarded as modes, although improper, of doing them (doing an authorised thing in an unauthorised way) o In this case, employee improperly used his own uninsured car to travel from one work site to another, and injured someone along the way employer found liable Baty: vicarious liability expanded through mis-analogy and carelessness, and it serves to check enterprise and penalise commerce La Forest J articulates policy concerns underlying respondeat superior in his dissent to London Drugs v. Kuehene and Nagle International (1992 SCC): o Vicarious liability regimes allows plaintiff to obtain compensation from someone who is financially capable of satisfying judgement o Person who employers others to advance own interest should be placed in a corresponding liability o Promotes wide distribution of tort losses since employer is most suitable channel for passing them on through liability insurance and higher prices o Vicarious liability is also a coherent doctrine from perspective of deterrence

V.l. not merely a mechanism by which employer guarantees employees primary liability; it responds to wider policy concerns than simply desire to protect plaintiff ; it xfers risks created by activity of enterprises agents to enterprises

Ira S. Bushey v. United States (1968) text 665 US Coast Guard ship in drydock for repairs, seaman drunk while off-duty, played w/ some valves, flooded drydrock, damaging it (no personal injury caused) Govt claims not at fault since seamans actions were not within scope of his employment Other cases find liability if employee did something he thought was in interest of employer (Nelson v. American-West African Line) (motive test) o Hard to see that here but, policy analysis not sufficient to either to justify proposed expansion of vicarious liability (trial had claimed expansion would lead to greater economic efficiency, due to better screening of employees, appeal court disagrees) o respondeat superior rests in deeply rooted sentiment that a business enterprise cannot justly disclaim responsibility for accidents which may fairly be said to be characteristic of its activities human frailties are not separable from working abilities o risks are inherent in working environment seamans conduct was not so unforeseeable as to make it unfair to make govt liable o however, what is reasonably foreseeable in this context is different that what is reasonably foreseeable risk of harm that leads to negligence o employer should be held to expect risks that arise out of and in the course of his employment of workers seaman are known to be frequently drunk however, activities of the enterprise do not reach into areas where servant does not create risks different from those attendant on the activities of the community in general (ie setting fire to the bar where he was drinking)

notes converse of employers vicarious liability for torts of employee is the doctrine that the employer of an independent contractor has no vicarious liability for the contractors torts o exceptions: negligence of employer is selecting, instructing, supervising the contractor non-delegable duties of employer arising out of some relation toward public or particular plaintiff work which is inherently or specially dangerous employer who is liable under doctrine of r.s. has right to indemnity from employee , but it is not an implied term of the contract (Lister v. Romford Ice and Cold Storage) ? London Drugs v. Kuehene & Nagle Industries o Re issue of employees personal liability

Employees of warehousing operation were being sued by owners of stored transformer for negligently damaging xformer when lifting it Contract between plaintiff and warehouse ltd liability to $40, so plaintiff attempted to get all damages from employees Majority of SCC held that employees were protected by contractual provision limiting liability if the clause was expressly or implicitly for benefit of employees and the employees were providing the services provided for in contract This carved out an exception to privity of contract doctrine LaForest dissented, said employees should have no liability whatsoever (majority ltd it to $40) In modern economy, employees capacity to cause loss bears no relation to his salary Shifting loss to employee upsets policy foundation of v.l. In terms of fairness, loss distribution, and deterrence it is better to eliminate employee liability entirely In Germany: damage done by employee w/o intention or gross negligence while engaged on a dangerous job is one of the employers business risks and must be borne by him alone o Employer is better able than employee to deploy technical and organisational measures to reduce special risks of the business We should create an indemnity regime If alleged tort is independent from contract, the employee is liable to plaintiff if elements of tort action are proved If tort is related to contract, must ask if any reliance by plaintiff on employee was reasonable (whether plaintiff reasonably relied on eventual legal responsibility of defendants under the circumstances)

Bazley v. Curry (SCC 1999): McLachlin J (for court): Vicarious liability aka strict or no-fault liability, because it is impose on the absence of fault of the employer Issue: does v.i. exist for an employees sexual abuse of children in his care? Childrens Foundation hired Curry, not knowing that he was paedophile, to work in there Vancouver facility Curry convicted of 19 counts of abuse, later died Bazley (victim) sued Foundation for compensation Foundation took position that it had committed no fault in hiring or supervising Curry, therefore not legally responsible for what he had done Bazley recovered at trial, CFs appeal dismissed, now further appeal to SCC Sub-issue should non-profit employers be exempted from liability (if it exists)? Salmond test: o Employers are vicariously liable for 1) employee acts authorised by employer

2) unauthorised acts so connected with authorised acts that they may be regarded as modes, albeit unproper, of doing an authorised act CF says Currys assaults were not modes of doing an authorised act Bazley says they were Hard to distinguish between modes and independent acts, so must look for brightline in past cases, if none found must look at broader policy rationales for imposing liability Previous cases: o 3 categories cases based on rationale of furthering employers aims works well for torts of negligent accident, but not for intentional torts cases based on employers creation of situation of friction ie liability of owner of bar for provoked bartenders assault on obnoxious customer works for intentional torts: like accidents, they can be expected to arise because of the nature of the business dishonest employee cases hard to justify vicarious liability for employee theft or fraud, but courts occasionally do o common theme: where employees conduct is closely tied to risk that the employers enterprise has placed in the community, the employer may justly be held vicariously liable for the employees wrong policy considerations o v.i. has always been concerned w/ policy o narrowing of v.i. came w/ expansion of commerce and trade and rise of industrialism compromise between social interest in compensation and desire to not burden enterprises too heavily Fleming: 2 concerns underlie v.i. Provision of just remedy for harm o Palsgraf v. Long Island: a person who introduces risk incurs a duty to those who may be injured o While charitable enterprises may not employ people to further their economic interests, other factors make it fair that they should bear burden of providing a just and practical remedy for wrongs perpetrated by their employees Goal of effective compensation Effective compensation must be fair/just It is fair that the organisation that creates the risk bear the loss Deterrence of future harm o Even though employer not responsible, may have deterrent effect by reducing accidents and wrongs by encouraging better organisation and supervision workers may commit acts at workplace for which employer is not liable: ie one worker finds out his wife his cheating on him w/ a co-worker and he assaults that co-worker while at work

but this negative policy consideration is really just the absence of the 2 positive policies of fair compensation and deterrence o since independent of employer, there is nothing he could have done to prevent it, nor does it respond to notions of fairness we focus on general cause, which is broader than specific foreseeability, but does not imply a simple but-for test courts should be guided by 3 principles in determining if v.i. should exist (p.681) it is ultimately fairer to place the loss on the party that introduced the risk and had the better opportunity to control it CF vicariously liable for sexual misconduct of Curry o Opportunity for intimate private control and the parental relationship and power required by terms of employment created the special environment that nurtured and brought to fruition Currys sexual abuse

Jacobi v. Griffiths (1999 SCC) test 685 defendant non-profit club, employed Griffiths as programme director, abused plaintiff children brother and sister sexually did so off premises and after hours, and it was not part of his job to entertain children off premises or hours action by children was dismissed by SCC Griffiths had no job-created authority to insinuate himself into the intimate lives of the children Sexual abuse is already a crime Little an employer can do to deter such conduct by employees beyond what exists The clubs enterprise was to offer group recreational activities for children to be enjoyed in the presence of volunteers and other members Sexual abuse only possible because Griffiths managed to subvert the public nature of the activities o The links that led from nature of programme to Griffiths acts could not be characterised as an inevitable or natural outgrowth o Mentoring is not a slippery slope to abuse o Club did not confer any meaning power on Griffiths over participants natural tendency to want to impose vicarious liability for virtually all instances of abuse where employer is dealing with children because of inherent vulnerability o but, vulnerability itself does not provide strong link between enterprise and sexual assault that imposition of no-fault liability would require McLachlin J (dissenting): To treat torts as discrete incidents that occurred at Griffiths house is to ignore the careful plan of entrapment that Griffiths laid, which stemmed from fostering trust at the club, the ability to do which flowed from the requirement of his employment that he forge bonds of intimacy and respect Almost all relevant factors suggest the torts were linked to Griffiths employment Clubs goals are laudable, but cannot immunise it from responsibility generated by its employees conduct

Lister v. Hesley Hall (HL 2001) text 691 warden for boarding house for troubled boys sexually abused residents; victims sued wardens employers

Lord Steyn: Salmond also said: employer is liable even for acts which he has not authorised, provided they are so connected with acts which he has authorised, that they may rightly be regarded as modes of doing them o This is the basis of the close connection test in Bazley and Jacobi this analysis allows us to consider question of v.i. on basis that employer undertook to care for the boys through the services of the warden and that there is a v. close connection between the torts of the warden and his employment o the acts were committed in the time and on the premises of the employer while the warden was also busy caring for the children judgements of SCC in Bazley and Jacobi are luminous and excellent in this case, abuse was inextricably interwoven with the carrying out by the warden of his duties v.l. is present Lord Clyde: Given that warden had general authority in management of house and in care and supervision of boys, employers should be liable for the way in which he behaved towards them in his capacity as warden of the house; should be v.l. for injury and damage they suffered at the hands of the warden Lord Millet: Wardens duties provided him with opportunity to commit indecent assaults on the boys for his own sexual gratification, but that in itself is not enough to make school liable School was responsible for care and welfare of boys, which it entrusted to warden o He abused the special position in which the school had placed him, w/ result that assaults were committed by very employee to whom the school had entrusted the care of the boys o School therefore liable