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Tort Law Midterm Outline - Kodar

Criminal Law Tort Law - Guilt = reasonable doubt, 99% - Liability = balance of probability, 50% - Remedy = punishment. There are +1 victim compensation schemes, s.738 - Remedy = monetary compensation covers restitution orders and monetary - Focus of attention is personal or private payment injury - Focus of attention is offence against - Motive is compensation society - Motive is deterrence

- The same injury can be the subject of both criminal and civil proceedings. Section 11 of CC because of the burden of proof you can’t take the finding of liability as guilt, but guilt can be used for liability Contract Tort - Civil action - Civil action - Damages - Damages - Has to have been an agreement btw the - The obligations are imposed by law not parties agreement - Only parties to that contract can sue - Legal obligations are determined by agreement/content of contract

Objectives of Tort Law - Essentialist/Moralist: About correcting the relationship btw the parties that has been disturbed. For moralist compensation helps fix relationship (restores it) - Instrumentalist: For the instrumentalist it allocates the loss to the person who caused it. It compensates for actual loss or any future costs. o “Loss Shifting”: moving loss from person who suffered it to that who caused it o “Loss Spreading/ Loss Distribution”: ex is insurance, it has to do with how well the D can absorb the cost. The cost may be spread to the insurance company. A corporation may increase prices. P loss is shifted to the D, and then that person spread it across an institutional payer. This ensures compensation, but doesn’t always restore the relationship Functions of Tort 1. Punishment: the damage reward is a punishment. a. Punitive damages: are regular or punitive damage and extra punitive damages. Can be deterrent if insurance doesn’t cover. Normally in finding against government b. “damage to reputation”: don’t want the publicity 2. Deterrence: this is a future deterrent. But it is not really a deterrent if you can spread the loss or if insurance covers a. 3 types of deterrence i. Specific: for individual defendant from acting in such a manner in the future. Useful for professionals and manufacturers. ii. General: the possibility of liability will influence your actions and the risks you will take. Problems: people don’t know about tort law, getting caught is bigger determination, some ppl always take unreasonable risks (if injury and criminal sanctions not going to deter, the tort isn’t going to either) Also defendants less likely to be injured iii. Market: idea that tort liability puts costs on manufacturers. They will have to increase costs to deal with the tort. May led to exit market or change practices to stay competitive. It assumes that finding of tort liability will change price and that cheaper is always safer. 3. Psychological/Public vindication Function a. Provides non-violent means of vindication b. Is therapeutic to bring the court action, even if damages are not paid 4. Education a. Provides education about reasonable standards of conduct b. May not always be true because people don’t know about torts, etc. c. More in medical filed 5. Ombudsman Role a. Tort law allows the poor and powerless to challenge behaviour of the rich and powerful b. Lead paint, cigarette, etc. c. Even if law suits not successful, still may cause change in practice Who can be held Liable? Tortfeasor: a natural or jurisdict person (corporation or government) Joint Tortfeasors - A number of people may be responsible for the single tort act of one person. - Only need to prove a single tort. - This only arises where D has a special relationship or participates in a common venture or joint enterprise involving tortious conduct. The people have to act in concert. - When you are known as “joint tortfeasor, are jointly and severally liable for P’s loss” - There are four categories o One who instigates/encourages the other o Employer and employee if tort is committed by employee within the scope of employment o Principle and agent when the tort is committed by the agent within the actual of apparent authority of the agent o Residual or fact specific category, when you are “guilty by participation, not association” - Multiple Tortfeasors causing indivisible damage: all the tortfeasors are sued by the P in the same action and the D may then third party another person. Since it is joint and several, P can get full amount from one of the D who may then seek judgement against the other parties to receive their share Cook v. Lewis (SCC) - Facts: A group of men were hunting, Akenhead and Cook shot around that same time and so don’t know whose shot hit Lewis. Lewis argues that they should both be held liable as joint tortfeasors because they were going to share what they killed. Therefore a joint enterprise - Decision: SCC said they are not joint tortfeasors because they did not act together to cause the tort. Not sure who is at fault but it is unfair to put loss on victim so they created a new rule on causation which found both liable. They identified the categories of joint tortfeasors

Vicarious Liability - Can be with regards to trespass or negligent torts - This is a strict liability issue and the person who is liable did not commit the actual tort. But they are in a requisite relationship with the tortfeasor - Most common relation is o Employer and employee: they have to be in this requisite relation and tort must occur in the course of employment. Can’t hold employer liable for every act of an employee. Also the Bazley and Curry test to determine scope of employment. . The court has to decide if Independent Contractor because they are not normally held vicariously liable because they are their own discrete entity. . Doctrine of Indemnification allows an employee to seek reimbursement from an employee on whose behalf it has been found vicariously liable. o Principle and agent: this is when the principle empowers the agent in such a way as to affect her legal relationship with other. They are liable for the torts committed within the apparent scope of her actual or apparent authority. o Also car owners liable for negligent acts of those driving their cars - Policy Rationales o This type of scheme finds a party who is able to pay damages. o It is more a policy creation by the courts because it’s fair that the business owner should bear both the risks and benefits. In a better position to spread loss and pay damages because employees generally don’t carry third party o Just remedy because may deter future harm, by making employer even more careful even if no fault. It may have a deterrent effect in their policies and regulations - The test has two parts o Are they in a requisite relation (Sagaz states the particulars) o Did the tort occur during the course of employment 671122 Ontario Ltd. v Sagaz Industries Canada Inc (2001) - Authority which sets out criteria for an independent contractor. Also states IC not liable. - Facts: 67112 had been providing products to Canadian Tire for centuries. But Sagaz wanted that contract, so they hired a man to help obtain the contract. Sagaz obtained the contract but the hired consultant had bribed the Canadian Tire employee - Question: is Sagaz liable for the acts of the consultant (is he an employee) - Decision: The court found the consultant to be liable. But he was not an employee of Sagaz, he was an independent contractor and can’t be held liable for acts of independent contractors. - The court lays out many test to determine whether it is Independent Contractor o Historically it was control test. If the employer had direct control over the tortfeasor. But that is not necessarily sufficient because it assumes that the employer knows as much as the employee. Also had the integration or organization test and the enterprise test - TEST: o Central question is whether the person engaged to perform services as a person in business on his own account. In making this determination, the level of control the employer has over the worker’s activities will always be a factor. o However other factors will include whether the person uses their own equipment, whether the worker hires his or her own helpers, the degree of financial risk taken by the worker, the degree of responsibility for investment and management held by the worker and the workers opportunity for profit in the performance of his or her tasks. - There is some tension about the rules for hospital and doctors. Hospitals may be held VL for tortious conduct of their staff, but not for the tortious conduct of those with “hospital privileges”. But this may change in the future because in some situations patients don’t have a choice of the doctor. Also it should not be excluded simply because the hospital does not control how doctors provide their services. - Parents cannot be held liable for the torts of their children, but some provinces have rules regarding liability for intentional property damage. Under the statutes, there is a presumption of parental fault, unless the parent can prove to the court that were exercising reasonable supervision and made reasonable efforts to discourage the child from engaging in harmful behaviour.

Joint and Several Liability - Joint = together and Several = separately - So jointly and severally liable is together and separately - Historically if severally liable that would mean you have to seek recovery from the portion of wrong that each person committed - This arises where the D has some special relationship or they participate in a common venture or joint enterprise involving tortious conduct. These D are known as joint tortfeasors and they are jointly and severally liable. - S. 4(2) of Negligence Act: This act allows everyone to be sued in one action and the court assigns a global amount of damages. Therefore you can seek recovery from just one of the parties. That party can then have separate actions to recover from each of the other parties. o This doesn’t seem fair but it creates a system in which the victim is not continually victimized o It is fairer for the party at fault to bear the loss as opposed to the party not at fault. More an instrumentalist approach to compensation - Many defendants, partially responsible but all parties sued in one action and the court will assign a global sum. Where more than one person is found to be at fault they are jointly and severally liable. The P can take all the money form one D, but then D can take action against the second for the percentage

Contributory Negligence - When your negligence contributed to the accident/tort, ex is jaywalking - It is used as a defence to argue that the unreasonable conduct on part of P, together with the conduct of D caused harm. - It is a partial defence that leads to the reduction of the damages payable to the D. The court has to determine the degree of fault of the P and reduce the damages accordingly, if they can’t decide, then 50/50 - We have to take reasonable care to protect ourselves - Historically it was a complete defence. The courts just wanted to find one wrongdoer and the person who contributed was found as being unworthy of damages. This was seen as unfair. So then made the last clear chance rule. The last party to be able to avoid liability was found 100% liable. This all or nothing, didn’t meet the proportionate rule. This is not proportionate to the level of fault. - If the faulty party includes the P, a court reduces damages a P can get by using contributory negligence. They don’t reduce the award, but the ability to obtain the full amount. - If awarded $100,000 and D1 = 40%, D2 = 40% and P= 20%. Then have to go after D1 and D2 to get the amounts - In B.C Section 2(c) of the Negligence Act says that since CN they have to receive from each party, they can’t just go after one party. This is because it is several, not joint - In other jurisdictions you can still go after one party, but different in B.C. - It may arise the three ways o The P negligence caused the accident o The actions of P are not the cause of the accident, but he has put himself in a position of foreseeable harm from the defendants negligence (going in car with drunk driver) o P failed to take protective measures in the face of reasonably foreseeable danger.

Trespass/Intentional Torts

History - The writ system was essential feature of common law - Writ: standardized pleading created by clerk. Plaintiff had to bring facts into writ - Trespass: assault, battery, trespass to land and the taking of goods o It was a forcible action o P had to plead that the action was with force and against the kings peace o The force could be literal or “fictional” . But the direct action had to be direct Trespass Trespass on the Case/Negligence - forcible, direct, no damages (income - Deal with the limitations of trespass loss, pain and suffering) - Lie when the conduct was indirect or - The conduct interrupted the Ps consequential tranquility peace and social security - Or when you give your property to the - The reason why no damages, damages care of another but it has been damages, is in the sense of destruction to peace, not forcible etc. - It required damages - No fault/strict liability - Loose fault requirement - Could recover if they had proved that - they had to prove that D did something the person had done something wrong. wrong Prima facie wrong - Acted with wrongful intent or - No fault requirement (initially), now negligence, whereas trespass D had to have fault prove he didn’t do it. - If D can prove didn’t intend to act or - Indirect/consequential injuries not negligent then they have a defence - Not forcible to the claim - Damages required - Shift to intent was during industrial - Loose fault requirement revolution. Encouraged risk taking and - Wrongful intent/negligence individual initiative, so strict liability in - Onus on P to prove all elements the absence of fault seemed silly - Directness - Liability w/o damages - Negligent/intentionally - Ds action = result for P - Onus of proof: P has to prove the interference and then D can have defence, say P consented or show w/o intention or w/o negligence

Trespass/Case - Directness - Onus of proof: Scalera Re-affirmed CDN position - Initially no fault requirement, strict liability tort o Focus on the external act, P had to prove D did the act – no need to prove intent o At the time direct interference was inherently wrong o Was very rigid, had to fit harm into narrow categories o Not available where D failed to act o So separate from of action developed . Trespass on the case, injuries that were indirect (consequential, damage not forcible, damages required, opposite of trespass . Loose fault requirement, wrongful intent or negligence Development of fault in trespass - 1850 onwards had the highway exception o Only sue for car accident in negligence and only remedied by case (negligence) o Onus on P to prove Ds negligence o Rationale – by going on highways there is a certain amount of reciprocal risk taking so unfair to impose damages on D when everyone takes on some risk . D only liable if they had taken an unreasonable risk o Created the idea of no tort unless fault, only some cases that have strict liability - Trespass shift to impose a fault requirement - In other jurisdictions not a big difference btw trespass and case but in Canada the difference is pretty clear - Trespass can be caused negligently or intentionally Directness - Would result have occurred “but for” the intervention by the Ds conduct - Ex of putting pepper in soup is indirect because not putting pepper in mouth Onus or proof - In negligence plaintiff has to prove all elements but in trespass, P just has to prove the interference. - The D has to have a defence (self-defence) or show he acted w/o intention and w/o negligence. Didn’t intend to harm the P or cause negligence - Cook v. Lewis set out the onus o In all other jurisdictions the P has to prove everything. But in Canada it is different in this respect - In 2006 the court had the ability to change the onus in Sclarea but didn’t. In dissent, he said sexual battery cases must be proved by P

Non-Marine Underwriters, Lloyd’s of London v. Scalera - Facts: It was P against 5 D’s for sexual battery. But Scalera had an insurance policy and he wanted them to defend him in the policy. So he had a second lawsuit going on against Non- Marine Insurance Underwriters on the question of duty to defend. The claim against Scalera was for damages due to bodily injuries, but the insurance has an exception that says it will not cover claims arising out of intentional acts - Issue: Whether the insurance company has to defend him and whether the traditional onus in trespass should remain the same (esp in sexual battery). Specifically whether it should be switched so that P has to prove no consent. - Decision: Came to conclusion that it should remain the same. McLachlin provides an explanation of Canadian position. 3 reasons to retain it o The directness requirement: in trespass actions that result in injury have a direct relation btw Ds action and injury whereas in negligence this doesn’t exist. So, once the P has shown a violation, the D should pay (para 11) o Because injuries are direct, the D has more evidence that is unavailable to the P. In negligence the D may not know how injury came about. So in trespass there is a good evidentiary reason for this (para 12) o Concerned with shifting the onus because proving you didn’t consent is hard. There is a high “demoralization” cause (para 14) - This tort is based on protecting personal autonomy and violation is on this autonomy, not fault. - In this case, they could have shifted the burden, but they upheld the Canadian position. As long as direct trespass can be negligently or intentionally committed. - Due to partial onus, it gives more options to plantiffs since trespass is easier for client - If D is liable, they are liable for all the damages in trespass whereas in negligence the court can say that certain damages are too remote

Assault - “reasonable apprehension of an imminent battery” - Any direct and intentional act that causes a person to apprehend immediate harmful or offensive bodily contact is an assault. - It protects our right to be free from physical harm, intimidation, harassment. - There is general disturbance to the peace when you threaten someone - In the absence of police, you would retaliate but this prevents that and so the state has an interest in deterring such conduct - An assault can be committed intentional/negligently. o For intentional assault, just need the intent of D to create this reasonable apprehension in the P. It doesn’t matter if they intended to create the actual assault, but that it was reasonably certain that it would create the apprehension or they intended to create apprehension - Imminent threat o Traditionally it was at the moment but in contemporary society this may expand into future o Don’t have to be afraid, just apprehend the physical conduct. As long as a reasonable person would have felt threatened, doesn’t matter if afraid. o If your sleeping, your sense of physical security not threatened so no assault - Assault in contemporary society o Damages are not very high, unless aggravating circumstances, like bullying o Usually part of a self-defence claim. The justification for using reasonable force in defence

Battery - “Offensive physical contact” - A direct, intentional and physical interference with the person of another that is either harmful or offensive to a reasonable person is a battery. - Actionable without proof of damages - Intentional/negligent o Direct, offensive, physical conduct that the D intended or was reasonably certain to occur. Have to intended the physical contact, not the harm o The intent is “subjective” reasonable person o Negligent battery is cause by disregarding a risk. They may not have intended or were certain it would occur - Physical contact o Hitting or pushing. Using weapons or other objects will also suffice. Pulling clothing or hitting a package out of hand (actual bodily contact is not essential) o Doesn’t have to be physically harmful or cause personal injury o The P doesn’t have to have knowledge of the contact at the time because bodily injury is so important that don’t have to know it happened o But need to establish directness - “ Offensiveness” o Hostile action. But will always be somewhat contextual o It can be offensive physical conduct even if person didn’t intend harm o Even if it is beneficial, the person still has to consent - Onus o P only has to prove that D directly interfered with his person in a harmful or offensive way. o D then has to prove that his conduct was neither intentional nor negligent or that some legally recognized defence applies.

False Imprisonment - Where one person, who doesn’t have lawful authority stops or detains another against their will. Confines someone within confines - Protects your personal liberty and freedom for movement - Normally used against police officers and security guards - May be accompanied by assault/battery - Two elements: “false” and “imprisonment” where “False” = not having lawful authority - Don’t need damages and usually intentional but can be unintentional - Intentional/Negligent: Up to last year, no cases of negligent false imprisonment in Canada - Onus of Proof: P has to prove “imprisonment” and D has to prove that it was not “false”, that they had lawful authority (actions not negligent nor intentional) - Imprisonment: Bird v. Jones case that created this o Facts: P had been walking across a bridge and then one day it was blocked off. So he climbed the fence and the PO told him that he can’t go over this way and had to go back and cross on the other side. He refused; officers told him he could not go on. o Decision: He wasn’t falsely imprisoned because only a partial obstruction, he had a way to get out. This meant something more then not being able to walk the way you wanted to. o Total restraint of liberty is required. As long as route which is known, then not imprisoned but has to be reasonable route. Also can’t have serious risk of injury or inconvenience for the reasonable alternative o Can also have psychological imprisonment, like you could physically leave but something mental is stopping you - False: Unauthorized or legally wrong and the confinement doesn’t have to be incorrect o Jeeves v. Swanson . Facts: mother and child were in a jewellery store, she tried to leave w/o paying and the owner locked the door. . Her confinement was unauthorized or legally wrong. They treated her as an offender of some law, not as the justifiably aggrieved customer they knew her to be. . The infant didn’t know what was happening and won’t remember when she gets older so no FI for her. o Can also unlawfully imprison someone in prison. Someone kept in segregation in violation of prison rules = false imprisonment. Nolan v Toronto (Metropolitan Police Force) - Facts: he was arrested by officers who had outstanding warrants for someone else. They kept him overnight and didn’t do a thorough investigation. Also made racist and derogatory remarks which inflicted mental distress. Officers should have realized the mistake at the station, but kept overnight. The first officers were not liable, but the officers at the station didn’t act properly. - Sued for FI and “wrongful infliction of mental suffering” o Incorporates trespass and case (hybrid) - Decision: what happened once he got to the station was FI. He was imprisoned was without lawful authority. The wrongful detention and the derogatory treatment was a direct consequence of his depression in the future. They really focused on the racist conduct

The Hybrid: Intentional Infliction of Mental Distress - Also known as intentional infliction of mental suffering and intentional infliction of nervous shock - Wilkinson v. Downton (1897)  Facts: the D played a prank of P, she suffered violent shock to her nervous system that caused a lot of psychological harm.  The D claimed that she couldn’t sue because there was no tort, no assault, battery, nor was she falsely imprisoned. The Ps lawyer claimed it was fraud, but this doesn’t apply because the injury occurred as a result of hearing the statements.  Decision: Created a new tort that deals with intentional conduct that causes harm but is not assault. Provides a remedy from the intentional infliction of harm arising from outrageous conduct. The D wilfully calculated to cause physical harm to the P, infringe her legal right to personal safety and has in fact caused her physical harm.  It has three elements (combines elements of trespass and case) o Has to be an act or statement o Has to be calculated (intended) to produce harm to P (intent is trespass part) o Has to cause harm (can be indirect) - Prior to Wilkinson, courts were afraid of the floodgates and so they were reluctant to create a tort that dealt with psychological harm. - They had concerns about  False, trivial and numerous claims  Conduct that would usually be socially acceptable that causes harm to sensitive people  Problems in assessing damages for mental distress in the absence o physical/psychopathic illness - But they created control mechanisms to deal with this  Reasonableness requirement: any reasonable person with this information would expect this reaction, or intend this reaction. Like if they knew of the Ps particular sensitivities then the reaction would be considered reasonable. It they didn’t know of the sensitivities then can say that it was not a reasonable reaction on the part of P  Harm requirement: require some kind of objectively verified physical or psychological harm. You need some sort of medical evidence of specific injury - Nolan v Toronto (Metropolitan Police Force)  This hybrid was used and was said to be actionable, P to be successful, the actions of D have to be extreme and not tolerated by regular society  The quality of the outrageousness is to be determined by the content of the relationship.  The factual finding is that the course of conduct not only falsely imprisoned him, but it also is a tort.  Whether it is calculated to intended harm, the court infers the intent from the extreme and outrageous conduct  The actual harm is set out by the P and his teaching assistant. The court said that prior to this event, he was doing well in school. The court doesn’t require separate medical evidence. Defences - Defence: Something that a D will say to absolve themselves of responsibility - Accident: Are not generally held liable because the D is not found to be at fault - Mistake: An act committed by mistake can also be intentional  Ex. If you operate on the wrong part of the body, make a mistake  This is an actionable battery, because although the conduct, was mistaken, it still interfered with the body although it was mistaken. May be a negligent battery - Difference  It is an accident when the tree falls on the neighbours party without you intending it  It is a mistake if it falls where you wanted it to, but it turns out that the property isn’t yours but your neighbours - Volition: Your capacity to voluntarily control your bodily movement  The D does not have the capacity to form the intent then in a fault based system, the tort is not made out  D can be relived of liability because the conduct was involuntary or because they lacked the requisite intent to do that act. - Capacity: This has do with the mental capacity to from consent Infancy - Infancy may excuse actionable conduct because you don’t have the capacity to form the consent. - D’s conduct must be voluntary for liability but age is not a defence for trespass unless the child is not old enough to appreciate the nature and consequences of their conduct and know that it’s wrong. - No limitation date for child sex abuse, but other cases it normally is two years. - If you don’t have Volition and Capacity then the tort isn’t made out T.O, v. J.H.O. - Facts: two brothers who were 4 years apart, the older brother sexually abused the younger brother for a period of 7 years. The sexual conduct was not in dispute but D said that he didn’t know that what he was doing was wrong. - Issue: Whether the Ds age showed that he was capable of forming the requisite intent also whether the P had consented to the sexual contact and if so was he legally able to. - Decision: No set age as to when the child will be liable. Requisite intent is about intending the physical contact, not the harm.  The D understood the nature and quality of the contact but didn’t understand that it could cause harm. The P only has to prove the physical contact and the D that it was consented to. Although he didn’t understand that it was harmful, it did cause interference. Further, the P was too young to consent, so is a battery. - Policy Considerations: They are going to look at the particular child (D), in every single case. Not going to use the CC capacity to commit a crime, not creating an age cut off. But for the capacity to consent they are going to apply the criminal age of consent.  The capacity to consent should not be approached in the same way as the capacity to commit. Difference due to public policy reasons. Self-Defence - A person can use reasonable force to repel actual violence (battery) or a threat of immediate violence (assault) - The key word is REASONABLE, is it always contextual (surrounding circumstances)  Type of attack, force needed to repeal the attack  Size of the other party, their strength, weapons  Other non-violent means of defence available - Not available if they used unnecessary force or after the threat of battery gone, wanted to punish the person. Can’t use it after the offence is over or in retreat - Not going to lose the protection of the offence if more serious injuries were caused then may have been unnecessary. Can have situations where the P suffered more injuries then expected - D needs to show on a balance of probability that they reasonably believed that they would be attacked and that the response was reasonable in the circumstances. Defence of 3 rd Party - The same rules apply when trying to protect a third person.  No danger or threat to the D, so you have to be careful  The D is not in the same position to determine the threat as the person being harmed  They can’t determine the reasonable position of the threat Babiuk v. Trann - Facts: In the course of a rugby match, P stepped on the face of the third party and so the D hit him in the jaw in response. There were a lot of disputed facts - Decision: Babiuk in stepping on the face of the third party was doing an unlawful assault, and Trann had established that he was justified in using force to protect his teammate from injury. No explicit mention of reasonable, but he acted to protect rather than revenge  The criminal case was diverted to mediation, so no finding of criminal liability  P argued that can only use third party if you are saving a family member, the traditional common law approach  But the court rejected this, it looked at the proportionality of the force and found that Tran used third party reasonably Consent - This is a complete defence, it will render the defendant not civilly liable for the interference. It negates the actions of the D - We are entitled to permit to the interference of the body. - Like the contact in sports, can be consented to. But have to draw a line between conduct that is acceptable in a game and that which is not. 2 approaches: treat all contact as prima facie battery and the D has to prove it was consented to or use the standard of care analysis from negligence. - Can also consent to interpersonal violence like fighting. But the courts has to assess the scope of the mutual consent, and if any party exceeded that. - The onus is on the D to prove that the P consented, it will not be presumed (Scalera) Consent in Medical Context - Consent is paramount in medical treatments Adults - When any health care professional touches the body of a patient without their consent, it is considered battery. - In certain situations, the court may require some people to undertake certain treatments if it deals with the public good. But at a basic level everyone has the right to refuse to medical treatment and to consent to it - Doctors make you sign many forms but the courts will look at the circumstances surrounding the signing the forms. Like the language of the forms, the language of the explanation, just because you signed doesn’t mean you understood - Also the issue of extended procedures, if you can deal with situations while the person is under, then it is a lot less risky. But you are not consenting  The courts have said that if the treatment is necessary for health and life, then the emergency doctrine is invoked and so the doctor will not be liable. Malette v. Shulman (1990) - Facts: An unconscious woman was brought into the hospital and she needed a blood transfusion. She had a card which stated that she was JW and refused blood transfusions. - But the doctor did the transfusion anyway because he said he didn’t know for sure if the card was still valid, or if she had been faced with this choice, she would have made the same decision. The doctor was not being malicious. - She recovers but then she sues the doctor. She gets awarded damages but doesn’t get costs. The doctor appeals on the damage award and she appeals on the costs - The Court of Appeal decision: They agree with the trial judge and uphold the damage award.  The right of self-determination is primary in the doctor patient relationship. It is for the patient to decide what treatment they are going to consent to. It also goes to the right to not want medical treatment. For this choice to be meaningful, people should be allowed to make decision based on their own beliefs regardless of how silly they are  Emergency Doctrine: there is an exception for consent when someone is unconscious. The patient is deemed to not be in the capacity to consent, and the doctor can treat the patient if it is necessary to save life, or preserve the health of a person. Only if there are no advance directives. - In this case, if there was no card, then the doctor would have been within his legal right. It had the same effect as the refusal to consent. The P is carrying this card for this very reason. Mulloy v. HopSang (1939) - HopSang was the P, before going into the surgery he told the doctor don’t cut off my hand. But once the doctor examined that hand, he realized the P would get blood poisoning if it remained attached. - The operation was performed against his will and so he received damages. Although other doctors agreed with this, he still went against the advanced directives of the P - Right to refuse treatment also extends to the right to discontinue treatment. Nancy B v. Hotel Dieu de Quebec (1992) - Applied for an injunction to get taken off the ventilator - The judges said that if you can only be treated with consent, once you revoke the consent, the treatment has to stop. - Can also revoke during the middle of a treatment and the doctor has to comply unless it is very serious and will cause death or serious harm Reibl v. Hughes - Facts: He had elective surgery to reduce the risk of stroke in the future. During or immediately after the surgery, he had a serious stroke that caused paralysis. The doctors knew that stroke and paralysis could happen after the surgery, but didn’t tell him. He told the patient that the risk of paralysis was more if he didn’t have the surgery - The patient said he would have waited for the surgery had he known this because he was entitled to a full pension plan if he waited a year and half. He had not been properly warned of the risks involved with the surgery. The surgery itself was not performed negligently. Due to the problems, he was unable to work and so brought an action against the doctor for failure to inform - Issues: Is this battery or negligence action - If you are not informed of all the risks of the surgery, can you consent properly? o This action was brought in battery but the courts said you have to sue in negligence, you consented to the surgery, just weren’t properly informed of the risks. . It is not the same as not consenting, the failure to disclose information or give insufficient information goes to negligence. o The consent is not ignored by the failure to disclose all the risks of the surgery, incomplete disclosure doesn’t create an uncontended imposition on the body. Would be different if they misrepresent the treatment, or conducted a different surgery. It is only in the situations where the risk isn’t disclosed and then materializes that people will bring the action in battery - Case represented a change in the way that law is applied o You don’t have to have damages for a battery case, also the onus of proof is on P to show interference and for D to prove it was lawful. o Whereas in negligence the burden P to prove all the elements (TEST) . They have to prove that they were not informed of the material risks . And they have to show that a reasonable person would not have consented to the procedure if they had been properly informed of the material risks. (this is very hard to prove for a patient) o Most of the cases, the courts say that the reasonable person most likely will consent if doctor advises them to o But in this case, he would not have agreed because of the issues of his pension. He would have waited in those circumstances. BC Legislation - They have codified the common law in relation to medical consent - The patient has to be mentally competent, treatment specific, informed and voluntary - Also states who can act as a substitute decision maker - Section 4 discusses refusal, request particular treatment, right to be involved in the greatest degree possible in the decision making and planning - Section 5 prohibits any kind of treatment without consent. - Section 6 sets out the elements of consent o Here you have legislation that says in order to have consent, have to be informed of all the risks and the alternatives o Seems to add another element of common law, the failure to know all the risks can overturn consent, whereas Reibl said otherwise - Sections 11-15 sets out the situations where someone else can make decisions for you. o S. 12 and 12.1 set out the emergency doctrine Minors - Basic rule is that in an emergency situation, in the absence of necessary refusal, do what is necessary to save life. - If you are treating someone in a non-emergency situation you must have permission of parent or child, if they are mature, if you don’t then it’s a battery - A parent’s consent is not absolute, where a parent or minor refuse consent to treatment that two medical practioners believe is necessary to save life or impair serious harm, then they have to apply to a court for an order to proceed. Section 29 of the Child, Family and Community Services Act. Court can make an order for treatment if they agree it is necessary (s.29(3)) - In BC it is for under the age of majority (19) and is set out by legislation - It reflects the fact that we gradually mature, and parents have the authority to begin with. - Immature minor: 6-12/14 they can’t be treated without parental consent but starts to be grey area with respect to non-therapeutic treatments (ear piercing, blood donations). So suggestion that as a child becomes close to mature minor, it is good practice to get both parent and child consent. Another area is medical research - Mature minor: capable of fully appreciating the nature and consequences of the treatment, if they are capable they don’t need the parents’ consent Mature Minors - If they have the capacity to appreciate the nature and consequences of treatment, and the risks and benefits, and they are mature enough, they can consent or refuse consent - It varies depending on the child and the test is “subjective”: is this particular child able to consent to this particular treatment - This is codified in section 17 of the Infants Act o A minor can consent if the health care provider believes that it is in the best interest of the child, and has explained and believes that the infant understands the nature and consequences of the activity. o The healthcare provider must try to ensure the decision is best for the child. Infants Act - They have tried to deal with some of the grey areas that are created by the mature minor common law rule. Section 17 - The Infants Act codifies the common law rule, that they can consent if they understand that nature and consequences of the treatment. But the doctor must have made efforts to determine and concluded that the health care is in the infant’s best interest. If they don’t think it is in the best interest, the legislature overrides the mature minor rule. - Have to talk to parents, so it undermines the mature minor rule and confidentiality - Once it has been determined that someone is a mature minor, the courts cannot step in and use their parental jurisdiction (New Brunswick case) Region 2 Hospital Corp. v. Walker - Facts: 16 year old boy needed blood transfusion but him and his family refused consent. The doctors agreed that he was a mature minor and old enough to make this decision and that forcing him to have transfusion not in his best interest. The doctors wanted an order saying they would not have to give him blood until he consented. If he changed his mind, his consent would override his parent’s refusal. Wanted a recognition that he is a mature minor capable of making his own decisions - The trial court didn’t actually order blood transfusion but said he must be given it, if the doctors believed he was going to die without it. Found that he was a mature minor and could refuse consent, but made the Ministerial order anyway. - Issue: Appeal of a decision to give the Minster of health authority over the child - Decision: The AC overturns the lower court decision, he is said to be a mature minor and that they lower court made two mistakes o The common law didn’t recognize minors abilities to consent, that is not true o They seemed to be operating under the assumption that the right to consent did not mean right to refuse, that was also said to be incorrect consent is said to include refusal - Once you have determined that someone is a mature minor, there is no room for the courts to step in and become a parent. This is only invoked when someone is not capable to decide for themselves. Cannot be used to override a decision made by a competent person. - Dissent: doesn’t agree that the legislation does or was ever intended to include allowing minors to refuse. The ministry has the authority and need to intervene for imminent danger the refusal represents S.J.B (Litigation Guardian of) v B.C. (Director of child, family and community services) - Facts: The girl was fourteen and was refusing blood transfusions. The doctors tried to prevent giving blood products. They allowed her blood levels to fall lower than normal but when her condition got bad, called the Ministry for a court order. The director of child and families went to court to get an order under s. 29 for use of treatment. Wanted authorization that blood or blood products be used. - Issue: Whether s. 29 can be used to override the decision of a mature minor. o The family argued that the court cannot override the minors decision, the government can only step into the shoes of the parents o The courts decided against them and said that the legislation overrides the common law. They can go against the wishes of the mature minor. The legislature is clear and they decided to override the wishes of the child. Different from Walker because he had the right to refuse under the Manitoba legislation and no one made the request to the court.

Sexual Wrongdoing and Trespass Torts

- The Charter is only useful for government claims, and anti-discrimination and human right legislation is limited to specific spheres. - So there has been a growing interest to use trespass torts to address historical disadvantage. - We don’t have a tort for discrimination but rather torts have been used in new ways to address the rights based aspects. They have been used to seek justice and compensation for survivors of rights violations and systemic harm. - Offensive physical contact or offensive physical conduct can include an isolated incident or a series of incidents over time. The unwanted contact can be emotional and it often perpetrated on vulnerable groups. It involves a relationship of trust and is normally on a specific group. o Unwanted sexual contact is direct, unwanted and is the type of contact that can be classified as battery. - Problems of secrecy/exploitation of the secrecy and limitation periods. o In BC you have two years to bring a tort action, after discovering the damage. o This was challenging for victims of childhood abuse, but for children this doesn’t start until nineteen. The realization of damages normally happened long after two years after nineteen. o This issue has been brought by survivors, activist lawyers, and the courts have become more willing to expand the time - Trespass has some advantages of addressing sexual violence over criminal law o Lower burden of proof, balance of probabilities o The P has more control over the process, they get to tell their experience (but this can be a disadvantage) o The way the issue is framed, what actions are brought are controlled by P o They also get to choose whether to sue o They get to discuss the effect of the conduct o Has a deterrent effect o Compensation, may be of material health in healing o May have an educational or psychological benefit, it is seen as being empowering, the perpetrator is held accountable to her o Helps to educate lawyers and public, also helps to clarify social standards. - Disadvantages of bringing an action in tort o Can be very expensive o The D may be “judgement proof”, they have no money or assets o They have to relive the experience which may have disempowering effects o Cross-examination o A lot of the actions are undefended, like a judgement proof D may not bring a defence. . Because many D are often judgement proof, litigation has become very complex because P have added many other parties like the government, churches, etc. - Normally brought as an action of battery Norberg v Wynrib - Facts: The P was addicted to a pain killers and the doctor said he would give them to her if she did sexual favours for him. He did not try to help her when she asked him for help, he just told her to quit, and didn’t offer her any medical help. She was charged with double doctoring and then went to rehab. - Is a case revolving around sexual battery in a doctor-patient relationship (recognized as being unequal) - She brought an action for battery, negligence, breach of fiduciary duty and breach of contract - Trial Judge: o The battery claim was dismissed because she had consented and because the doctor did not use force or threats. Also the drug addiction didn’t affect her decision to consent. o The drugs hadn’t done her any harm so no negligence. She was claiming psychological harm. o Did find the fiduciary duty claim to be true, but he didn’t owe her damages because the law should not be used to compensate people for the losses they suffer when they are committing a crime (the double doctoring and immoral/illicit relationship). Both parties engaged in the relationship and any harms arouse out of their choice in that relationship - The court of appeal agreed with trial judge - The SCC said that the doctor was liable but for three different reasons o Majority said it was battery (not true consent for the purposes of law) o Spokinka said it was breach of contract o McLachlin said it was breach of fiduciary duty (she said that there was consent, because that’s what the trial judge found, so no battery) - LEAF o They argued that the SCC did not over turn or provide their take on the standard of consent; which was that a woman will be held to have consented unless she actively consented or was forced. They were concerned about the standard of consent that was being set up by the SCC and the trial judge. o A broad definition of consent was created that didn’t show the difference between genuine consent and coerced consent. They didn’t look at things like inequality of sexes, disability or unequal relationships. o Permitted the powerful or those in power to exploit those without it and put the burden on the exploited. They wanted the SCC to hold that the standard of consent should recognize the inequalities of power. Dolphin Delivery: Common law should develop in ways that reflects Charter values Majority – La Forest, Gonthier and Cory - Treated the case as an action for battery. - The approaches to consent taken by the two lower courts were too limited, failed to take into account the unequal power btw the parties. - Analogy to contract. There may be no genuine consent when there is an unequal power relationship and the more powerful party exploits this relationship to the determinant of the other. - In order for consent to be genuine it must be free and voluntary. So created a two part test to determine if there was this genuine consent. o Does a power dependency relationship exist? Look at the relationship o Is there proof of exploitation - No genuine consent on the facts because (addiction coupled with behaviour) o Unequal power relationship: she was a young woman with an addiction; in contrast the doctor was a physician with power. o Plaintiff particularly vulnerable o Defendant had knowledge of Ps medical problem (and skills to help her) but instead acted to satisfy his personal sexual interest. Exploited her - Unequal power between the parties and the exploitative relationship removed the possibility of the P providing meaningful consent to sexual contact. - He awarded her a very low damage award. - He said no connection between the double doctoring and the harm that she suffered. If she hadn’t been double doctoring, she would have still suffered the same harm. Dissent – Sopinka J. - He bases it on negligence and contract. The P consented to the act so no battery - Physician’s fiduciary obligation extends only to confidentiality of patient’s records and the issue was confined to whether D met obligation to provide reasonable or careful treatment - On the facts D has not satisfied obligation to treat the Ps health problem. Dissent – McLachlin and L’Heureux-Dube - Liability based on breach of fiduciary obligation because the doctor patient relationship inherently fiduciary in nature. - She finds that the plaintiff can succeed, disagrees with the majority. - She says that she did consent, but the physician was liable for breach of fiduciary duty, it is equitable (separate from tort and contract). - In this relationship one party exercise power over another and they pledge to act in the other persons best interests. The beneficiary places their trust in the fiduciary. Beneficiary gives up some power, assuming the other person will protect their best interest. - Characteristics of fiduciary relationship o (1) The fiduciary has scope for the exercise of some discretion or power o (2) The fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary’s legal or practical interests o (3) The beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power. - They had been construed very narrowly in the past by the courts, just in relation to medical records. But she adopts a much broader notion of fiduciary duty in this decision. - Her position that the fiduciary duty claim was the best way to frame this case. It best addressed the harms that she experienced. - On the facts o Elements of power relationship, i.e. the ability of powerful party to act to detriment of the other’s interest; vulnerability of the latter. He can treat her with drugs o Doctor used power for his own personal satisfaction not, as the relationship required, to serve best interest of patient; i.e. her health and medical needs. She was at his mercy o Plaintiff was not blameworthy; she was victimized. - He owed her all the duties that exist in a fiduciary relationship o Loyalty o Good faith o To act in a manner that avoids conflict of interest and self interest - He clearly violated these duties, he had abused the power that had been entrusted in him as her fiduciary - Her opinion that this was the only ground that the defendant was liable. She had consented to the sexual contact which was irrelevant in the breach of fiduciary claim. The action of the fiduciary is what is at issue. - Her position that contract and tort were ill fitting moulds to try and fit the facts of this case. It was preferable and necessary to characterize the claim, because without doing so, the plaintiff cannot be properly compensated. She awarded a higher damage then the majority. - This decision has had a larger impact in this area because it locates the problems in the structure of the relationship. Other examples, parent/child, teacher/student, doctor/patient relationships are types of fiduciary - The majority is important for the consent discussion and the minority is important for extending the fiduciary duty relationship and highlighting the onus on the fiduciary to avoid harmful conduct.

Non-Marine Underwriters v. Scalera - Facts: he was one of 5 defendants in a tort action. This case was outside the main action by the plaintiff, she was not part of this claim. He had a home owner’s insurance policy and the issue was whether the exclusion clause applied, so they wouldn’t have to pay any damages. - Issue: Must insurance companies defend an insured person against allegations of battery in a sexual context? Since the policy excludes conduct of intentional or criminal nature is sexual battery an intentional act? o His policy said that he was not insured for intentional bodily injury o Big deal for insurance companies and people who were sexual assault survivors in respect to judgement proof defendants. - The SCC is unanimous that the exclusion clause does apply and they don’t have to pay any damage awards (is intentional action), but they split on what party has to prove consent in a trespass action for non-consensual sexual contact. Iacobucci (Minority) - He creates a new tort of sexual battery which abandons the Canadian onus of proof by requiring a P to prove o That sexual contact occurred o That she did not consent - Unlike more traditional batteries, sexual activity is not inherently harmful. It is generally harmful only if it is non-consensual - Therefore because sexual activity is not inherently harmful, the P must prove not only that the D acted knowingly but also that offensive contact occurred and as well, the she did not consent to the sexual contact. - He assumes there is consent, unless the P says otherwise - Minority says traditionally battery actions arouse out of an inherently harmful act, since sex is not this, then a special kind of battery is needed that needs its own special rule. McLachlin (Majority) - She says no reason to create a new tort, or abandon the traditional approach to battery. Battery is already applicable to unwanted to sexual contact. - The traditional onus of proof should not be changed for the trespass torts generally. - She responds to minority by saying that sexual contact is not the kind of activity where consent is implied. It involves singling out another person’s body in a deliberate act. - To require the Plantiff to prove that she did not consent, or a reasonable person would not have thought she consent, would deny the P the protection that the law traditionally has afforded on the P o Runs the risk of victim blaming, also to change onus would run contrary to the direction of criminal law. o Also requiring the P to prove constructive consent seems unfair because the relevant facts are at the hands of the D. Only he knows if the P was consenting and if believed this is in the best position to explain this. - Majority says that battery exists to respond to violation to personal autonomy by infliction of physical contact by what is generally expected in life. Sexual contact does not fall within the category of everyday activity, so no need for a special rule. Onus is on the D to prove consent, just like the onus is on medical practitioner to prove that there is consent to a procedure. o Putting the burden on the P, puts an onus on them that is not present in other batteries, there is no reason to do that. Can also lead to some real injustices, they can’t prove consent o Reaffirms the traditional onus of proof. o Can’t have a negligent sexual battery, if this were true, then the home owner clause would apply. They are always intentional - On a practical level, this onus reduces chances of getting damages - Judgement suggests that even when the D has an insurance policy, may result in a judgement proof defendant - Another problem is limitation periods which are set by statutes. Limitation Period - Traditional Rationales for limitation periods o (1) Certainty: the D should be secure with the knowledge that they won’t be held liable for ancient problems. Limitation acts are “statutes of repose” o (2) Evidentiary: the longer you wait, more likely the evidence will be stale, people die, and evidence fades. Concern about a claim on stale evidence, also it you don’t have limitation period then have to hold on to documents forever. o (3) Diligence: P should have to bring their suits in a timely fashion, having this encourages people to bring their claims in a timely manner. - They define the time within which a claim can be brought - In BC it has to be brought within two years, doesn’t have to be complete but initiated within two years - The defence has to raise this justification, the court will not enforce this - But what happens if you don’t realize the effects until after the period. Example of car accident but don’t have problems until after 2 yrs. - This is where The Discoverability Rule (s.6(4)) comes in o The two years start not the day of the accident, but the day when you realize you have damages (material facts). - Ultimate limitation period is 30 years and Fiduciary Duty is 6 years. M(K) v M(H) - Facts: She had been sexually assaulted by her father as a child. She was in her mid-20’s when she realized her psychological problems as an adult were not due to her own physical failings, but due to the childhood sexual abuse - The SCC applied the discoverability principle for a lawsuit of childhood sexual abuse. The cause of action from which time runs does not arise until the survivor of incest has a complete and full understanding of both the wrongfulness of the Ds act and the casual relationship btw those acts and the psychological and emotional consequence of the acts in adulthood. - The jury found her claims were true but the claim was dismissed because it didn’t meet the Ontario limitations period. Court of Appeal agreed but was overruled by the SCC - She would have been a minor, only 4 years from the date of abuse to bring claim, she was 28 - The SCC applied the discoverability rule; she knew the facts but waited, the traditional approach. But in the cases of incest the limitation should not start until they realize the relationship between harm suffered and the action. Created the presumption that until the P received some sort of therapeutic help, date would not start. o For the purpose of diligence, these periods create an incentive for P to bring action in a timely manner, but this simply doesn’t apply because in most cases of childhood sexual abuse, most of the damages remain latent until the P is an adult. Also when the damages become apparent in adulthood the causal relationship with the sexual assault is not always clear o Also in relation to evidentiary basis, in these types of cases, the evidence is going to be stale already because they are not going to bring the action until they are 19. Unlikely that the parent will bring a claim against themselves. It will be years before the child victim will bring the action. - The Dissent agreed that the date didn’t result until the P realized the damage between the harm and the action. But they didn’t agree with the presumption that this started when they received therapeutic help, not relevant. - Also this presumption may be rebutted by the D by arguing that they learned this relationship before that. - After this case many provinces amended their legislation so no limitation (no ultimate) periods for victims of childhood sexual abuse. Since this covers only sexual abuse, doesn’t apply to physical abuse, or cultural abuse. If it is all in one action, can only get the compensation for the sexual abuse. In Manitoba it is childhood physical and sexual abuse. Muir v. Alberta - Facts: This case arose out of the eugenics movement. Muir was held in an institution for mental defectives for almost eleven years. She was sterilized under Alberta legislation that allowed for sterilization of defective people. This was done without informing them. - This case also had limitation period issues, she was over them. - She claimed the government committed battery and false imprisonment. The government agreed with the battery claim. The board exceeded its jurisdiction because the legislation had clear rules but the board did not follow them and went beyond its mandate to order the sterilization - The court also found in her favour for false imprisonment, negligence and breach of fiduciary duty, along with the province conceding battery. - The treatment by the province was high-handed and had total disregard for Muir’s human dignity. The court declined punitive damages because o Had already awarded aggravated damages (these are compensatory and are awarded when Ds conduct aggravated the injury. Like humiliation, distress). o Also because Alberta did not raise the defence of limitation. The state could have easily shot down her claim - Following this decision, the government made many out-of court settlements with other people who had been wrongfully sterilized and made public a apology DE v BC (2005) - This was a similar case to Muir’s, was brought by the former patients in the mental institution in BC. Claims of sterilization for 1933-1968. - The government raised the limitation defence, said the claimants were out of time. - The trial judge made two rulings o One that they were out of time o And two that the superintendent of the hospital had not acted out of their role, unlike Alberta board, they acted within the legislation - This was appealed, the majority held that 9 of 18 had been wrongfully sterilized because the superintendents had exceeded their role and there was wrongful sterilization. No likelihood that these people would be discharged. Also found that sterilization fell under sexual assault, and in fact the Ps were not out of time. Dissenting judge said not sexual assault. Ultimately settled out of court, the province decided not to appeal. - Future courts have not held that sterilization is sexual assault - Crown Proceeding Legislation: historically had to get permission from Crown to be able to sue, so they may argue that for cases post 1970’s, they would not have given permission

Vicarious Liablilty 2 Part Test - (1) Requisite Relationship: between the tortfeasor (D) and the alternate party [employee/employer, Principle/Agent] o Sagaz Industries sets out the test for whether a tortfeasor is an employee or indirect contractor (the list of factors) - If YES (then Salmond or Bazley) - (2) Was the tort committed in the course of employment? Salmond Test o (a) if the employer authorized the act. If you are a driver and get in an accident, the employer is VL because they authorized the act o (b) unauthorized the act, but so connected to an authorized act – that it is another mode of doing authorized act. - This test is not helpful, how can sexual and physical abuse be authorized Bazley v. Curry - “Enterprise Risk Test” [is applied in the intentional/trespass torts, mostly for sexual/physical abuse cases only, not for medical battery ones, Oblates] - (1) Look for precedents: to help you decide on way or another if VL or not - If NO PRECEDENT THEN - (2) Apply policy rationales for VL o “Fair Recovery”: Deterrence and compensation o 5 Factors . Opportunity to abuse power . Extent to which employees conduct furtherance of employers goals . Relationship of tort to confrontation, friction, intimacy, created by enterprise . Extent of powers given to employee in relation to the victim . Vulnerability of plaintiff - In this case VL was found but there was a narrowing of this test in subsequent cases E.B. v Order of the Oblates of Mary Immaculate - Facts: Appellant was in a residential school and was sexual abused by one of the employees, who is now dead. So he sues the employer on the basis of VL - Majority (Binnie): The connection between the wrongful act and the job task was not strong. Just because you are employed in residential school, doesn’t mean this increased the risk. o Further, if the employer was negligent in supervision, then P has a direct negligence claim and not VL. But this is very hard because you have children giving evidence, they don’t know what the tasks of the employee were supposed to be. Only the employer has evidence about what the job tasks were so negligent supervision is challenging in terms of proving the supervision. - Binne took issue with the findings of facts of the trial judge since he made statements which were not findings of fact. - Applies Bazley and Currie “Enterprise Risk Test” o (1) PRECEDENTS: doesn’t find any precedents directly on point. But enough cases have been determined that he can say there is VL without having to go the principles of fair recovery and deterrence. o He applies the five factors (para 48) . Opportunity: he finds that the employer provided some opportunity for abuser to have contact with children. But he was not permitted or required to be with the children so limited opportunity to his power. . Clearly the acts didn’t further the employers aim . There is some degree of intimacy in any residential setting, but that intimacy didn’t involve Saxey, his duties didn’t require any contact with the children and his quarters where the assault took place were not permitted to have children . Saxeys position was not one that required power over children, even though he was an adult with some power, did not make the D responsible for all the adults. Have to create more than just an opportunity, must increase the risk . The victim was vulnerable and required protection; it was the school setting not the tasks that created the vulnerability. His employment tasks didn’t create any vulnerability. o Applying all of these factors the P didn’t establish a strong connection between what the employee was asking them to do and the wrongful act. - Dissent (Abella): Takes issue with the facts and points out that children do not draw distinction between adults and their job descriptions. They were told they had to do what the adults say, didn’t matter what their job description was. o (1) The opportunity was there because he lived amongst the children. Permitted the students to form causal relationship with the workers. The staff were permitted to play with the children and they were not strictly supervised and they were allowed to roam the school. During free time, no supervisors so a strong opportunity for Saxey to abuse his power and was aware of the lax supervision o (2) Act isn’t furthering employers aim o (3) The power structure was that order was maintained though fear and violence. They were repeatedly told that they had to obey all of the staff and so the wrongful act is related to that atmosphere. o (4) The employer argued that tasks were limited, but she finds that there was an ambiguity in these tasks. There wasn’t a clear delineation as Binnie finds. His job as a baker required him to directly supervise children in the kitchen; his power was second to the principle when in the kitchen. The duties that were allocated gave him actual and perceived power o (5) The children there were very vulnerable and isolated. She takes the TJ facts and being finding of facts - She found a strong connection with the powers given by the employer and the job enterprise. Therefore the employer was VL - Binnie criticizes the TJ for focusing on the atmosphere of the school, whereas Abella says that this is essential to the enterprise. Negligence – Introduction - No single nominate tort of negligence, trespass on the case grew into negligence. Had a special duty under trespass on the case - Trespass stayed as trespass and includes negligent trespass. - Negligence has its roots earlier then the 18th and 19th century. - Mitchell v. Allestry: earliest record of modern negligence, 1676 o Issue: action against a master and servant for bringing their horses to train in a public field. o They did this in a London square and injured the Plaintiff. The Ds lawyer says no legal cause of action. In order to bring an action it had to fit into one of the categories. . It wasn’t on a highway, rather on a public field . Not a case about dangerous animals, because nothing about the horses that suggests that they were dangerous . The D has not been careless in the control of the horses o The wrongdoing was trying to train the horses in an unsuitable place so the merits of the case were undeniable but no legal basis for case o But the court ruled in her favour because by 1700s lawyers were starting to be comfortable with the notion that a person would be responsible for actions arising out of their neglect. . They had opened up a new category of “trespass on the case” which would eventually develop into modern negligence - Legal development of negligence law, went hand in hand with the social changes Modern Negligence - Contemporary law doesn’t refer to a state of mind, or what you are thinking when the negligent act or omission happens. Rather it is conduct that falls below a certain standard, that is regarded as normal, or reasonable or desirable - It is about accident, didn’t intend the thing to happen, but your conduct is negligent because it fell below a certain acceptable standard - It also interferes with the Ps legitimate interests. - Whether a D is at fault will be determined by how a reasonable person ought to have conducted themselves in those circumstances. Not about what they were thinking at the time. - They are trying to balance competing interests, need to protect legitimate activities that benefit society. But these activities are full of risks and so might interfere with other people’s interest. But cannot ignore the interest of the risk - What interests are worthy of protection, and balance the risk of harm with the utility of the Ds conduct o Liability on the D will be imposed when the D has exposed people, including plaintiff to an unreasonable risk of harm and an injury results. - In order to make a negligence analysis manageable, they have created a variety of ways to categorize this Requirements of Negligence - Always have to have damages beyond a de minimus range. Not always included in peoples analysis, but still very important. - Assuming you have damages beyond a de minimus range, you have to prove: - (1) Duty of Care - (2) Standard - (3) Causation - (4) Remoteness - The court will also look at the issue of contributory negligence - The courts intermingle the issues and language that they use. Will see the use of “reasonable foreseeability” this is normally in the duty or remoteness analysis. o Although the courts will not clearly lay each out, still need to know them and differences/application - Having to meet all the requirements does help limit the expansion and growth of negligence, keeps it within judicial control. - There are a number of elements that must be proven by D - The three core elements are (1) negligent act: applying the standard of care to facts (2) causation: show link between Ds act and Ps damages (3) Damage: vital element that triggers the claim and launches the litigation process - Two important control devices, duty of care (D must owe it to P) and remoteness of damage (a negligent act may have utterly improbable consequences that are entirely removed in time and place from the Ds act) - Once P has established these elements, the D may assert four defences (1) contributory negligence (partial defence), (2) voluntary assumption of risk (complete defence), (3) Illegality (denial of claim), and (4) inevitable accident (complete defence). - BG Checo v. BC Hydro and Power Authority: doesn’t matter if you can claim breach of contract (assumpsit), negligence can still be claimed. Donoghue v. Stevenson - The main case which articulates the neighbour principle and created the general principle. Also limits all the other elements and the scope of the duty - How does this concept of duty also limit the expansion of negligence? o General duty of care limits because if you didn’t owe a duty, but behaved negligently and caused the damages, you are not liable for that action. o The courts decide if the duty of care is owed. The decisions are really policy decisions and are a control mechanism to limit the consequences of a person’s negligence, by limiting the scope of people who can claim compensation from a negligent defendant . The courts are determining who is worthy of this protection, this requirement seeks to limit the freedom of action and the victims need for compensation. o No longer have set categories and they broaden the duty with the idea of the neighbour principle. o The courts are determining who your neighbour in law is. Persons who are so closely connected to the act, that you should have had them in your contemplation when you committed the act Palsgraf v. The Long Island Railroad Co. - Facts: The case explodes and it causes some scales to fall on her. She is about 25 feet away from the accident. So how unforeseeable is it? o Cardozo makes it sounds as though she is very far away when in fact it is not. o Dissent makes this distance distinction more clear. - No duty was found because it was not foreseeable - Issue: Whether the defendant (railway, VL) owed the P a duty of care. - The Railway is a common carrier, so other cases that could have been used. - Decision: At trial (jury) the court finds that the employee was negligent in pushing someone on to a moving train, but the verdict was set aside because the P was not foreseeable, beyond the range of foreseeable peril. Railway owed her no duty of care because she was not foreseeable - SCC (Majority): negligent actors are not necessarily responsible to everyone and not responsible for every injury they cause. Only responsible for injuries that are apparent to the eye of ordinary or reasonable vigilance. Wasn’t a tort because it was a wrong in reference to someone else. The duty was only to the people who were pushed, or close by and hit by the package or jostled by the action. Not in foreseeable range, so duty is limiter o The law of causation is not relevant. Also to remote but you have to have the duty of care met before you reach the issue of remoteness. - Dissent (Andrew): he takes a broader view, if you are negligent, then anyone injured by your conduct, has the right to bring an action. You are liable for the harm caused by your negligence unless it is too remote. o We need two limiters, the duty and the remoteness. o Did your negligence cause the damages, and if so were they in the reasonable contemplation of the person, broad duty o The control device that we will be using is to focus on the remoteness of damages. o Proximate cause = remoteness o “But for” is the causation issue. “But for the Ds negligence, the P would not have been injured, therefore should be able to recover o He wanted to get rid of the duty - Must be some sort of relationship to ground the duty of care. But still a live debate about the duty of care. Think about how they characterize the distance. Cordozo looking for a case to articulate the duty. Both judges are making policy decisions.

Donoghue v Stevenson - Question who owes a duty of care? - Have the manufacturer who sells to store, from where the friend buys, and then she takes it. No contract with Stevenson only the first two relations. - Comes up with the neighbour duty, from transforming the religious duty into a legal one. - Doesn’t matter if a duty has been recognized in the past, sets the framework for recognizing a new duty. - Important because - (1) Creates an infinite possibility of relationships that could be covered under negligence. - (2) They did away with the contract requirement (sets the stage for products liability). o Creates the class of Ps who are reasonably foreseeable. o See the creation of a relationship and the care that is required for the parties. o The P can’t ground her claim in the duty owed to a different person, has to be owed to the P - Still leaves questions about “What is the scope?” o Is it the relationship or the foreseeability - This case was treated by lots of scepticism for being too wide or broad. o For policy reasons there were certain groups of people who were immune o Like government, didn’t owe a duty - Wasn’t until the 1960s and 1970s that the duty was expanded in relation to a kind of pure economic harm. The Ps injury is just economic, historically courts said you cannot use torts to recover this, but in Hedley Byrne the courts said no you can sue for economic loss. Home Office v. Dorset Yacht - Facts: There was an opening of government liability. Group of juvenile delinquents escaped and damaged some yachts. - Issue: Were the guards negligent and was the home office VL for the actions of the guards. Government said that we don’t owe a duty, but who is the duty to? Whether the prison guards owe a duty of care to the yacht owners and whether home office is liable or if it’s immune from tort action. - Decision: Should they adopt the general principle adopted in D and S? Lord Reid said that we adopt the neighbour principle as a general principle unless there is some reason that it should not apply. - Seems to be going towards Andrews, presumption that D owes duty to P unless some good policy reason or justification for not finding a duty. So prison guards are liable to yacht owners and therefore VL for the government - Rejects the policy reasons that were put forward. It is too expensive, why should the yacht owners be paid out by tax payer’s money. The government has to balance so many competing concerns, and they often have to make trade-offs, and so the people who are losers in public interest should not be allowed to bring pressure to the government via suing them. It will limit government from doing the work they are supposed to do. - This becomes articulated into a two stage test, the Anne’s test The Duty of Care - An essential element of liability in tort of negligence - Question of law – whether D is under legal obligation to exercise reasonable care in favour of P - In D and S there was no K, so she sued in negligence but the D argued lack of duty of care. - Judge said for duty of care need: o (1) a close or direct relationship o (2) idea of contemplation of foreseeability of damage to the P - Duty of care is primary instrument of control over the extent of negligent liability - In the past judges were reluctant to openly assess policy factors, rather they hid behind the foreseeability - Anns/Kamloops test o (1) requires no more than reasonable foreseeability of damage to the P o (2) invited a full and open debate about the societal costs and benefits of recgonizing a duty of care . Not only prima facie duty of care to be negated on policy grounds but also duty to be restricted or modified to meet policy concerns - New test formulated in Cooper v Hobart o (1) decide if the case falls within any recognized category of relationships where a duty of care has previously been recognized or if it is closely analogus to a recognized category o (2) falls outside an established category then . (1) foreseeability of damage to the P is essential but not sufficient to establish prima facie duty . (2) proximate relationship between the parties . (3) consideration of residual policy factors  Impact of proposed duty on other obligations, legal system and society in general. Components of negligence (1) D owes P a duty of care (2) D must have failed to accord the P, proper level or standard of care required by the duty (3) The Ds breach must have caused the harm suffered by the P (4) A breach of duty that is a casual antecedent will not ground liability if it is determined to be too remote a. In addition law may recognize that Ds of illegality and voluntary assumption of risk

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