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The Nature and Function of Extra-contractual Liability

We can draw a distinction between criminal and civil liability: 1. Criminal liability involves punishment by the society and confronts the collectivity with the individual. 2. Civil liability involves compensation driven by individual interests and confronts individuals with each other.

Pappadatos (appellant) v. Sutherland (respondent)/ Court of Appeal (1987) Facts: the appellant is appealing a decision condemning him to pay $18,000 in compensation to the respondent (exemplary damages) after also having been sentenced to a 10-year imprisonment. Issue: Should appellant pay exemplary damages over and above the prison sentence? Held: No. Monetary compensation reduced to $7000. Ratio: Exemplary damages, which are stipulated in the Quebec charter of rights, are intended to deter the wrongdoer for his acts and deter others from committing a similar act. Exemplary damages in this case would involve punishing the appellant twice for the same acts.

Posner, Economic Analysis of Law:

Descriptive theories simply describe what is going on. They are positive theories in which economics can only explain matters in civil liability. Prescriptive theories seek to tell us what should be going on. They are normative theories in which economics can direct us to a future course of action. They test current events then fashion law to achieve a certain goal. Posner tries to balance the explanatory power of economics with its descriptive power but leans in neither of the two directions.

Abel, A Critique of Torts:

Criticizes tort law for several reasons: 1. Compensation: Tort law does a poor job since many damages and injuries can simply not be compensated. 2. Safety: Again tort law fails since it induces companies to seek ways of reducing their liability rather than make their industries safer.

Abel suggests we either impose strict liability (where you don’t have to show fault. A behavior causing an accident is sanctioned, whether it involved fault or not) and better schemes of compensation.

Injury to Persons 

A. Injury can be classified into: - Bodily/physical…moral/non-pecuniary - Material/property…economic/pecuniary

The cases in this section reflect both types of injuries. When law compensates injury, a lot of factors come into play, i.e.: was the victim rich or poor? How much

1 psychological/material damage did they suffer? Ex: Is an Olympic athlete entitled to higher compensation for the loss of an arm than a homeless person? The difficulty of quantifying moral damages does not result in denying compensation altogether.

Principle: Restitutio in integrum restore to original state

Ouelette v. Tardif/ 2000 CLL Facts: Pere Tardif, while swimming in a lake north of Montreal is hit by a boat, driven by Olivier Ouellet (14), pulling his father who was water-skiing. Pere Tardif is gravely injured (having enjoyed perfect health before) and can no longer work as missionary in Africa. Issue: Earning no salary before the incident, is plaintiff entitled to pecuniary damages? Should compensation include social benefits and work abroad? Held: plaintiff wins. Awarded compensation for pecuniary AND non-pecuniary damages. Ratio: pl. has right to be compensated for the loss of his future earning capacity, even if he doesn’t earn any salary at present. He holds the right to direct his future labor anywhere, whether for charity work or a paid occupation and this is how his future loss must be calculated.

ter Neuzen v. Korn/ (1995) CML Facts: The plaintiff participated from 1981 to 1985 in the defendant’s artificial insemination AI program, as a result of which she was infected with HIV. There was expert evidence that the respondent’s AI practice accorded with standards of practice across Canada. As of Jan. 1985, there was no test available for the detection of HIV in semen or blood in Canada. It was impossible to test the semen of donors for HIV at the time pl. was infected. The defendant was unaware that HIV could be transmitted by AI until July 1985. None of the medical publications available nor the medical meetings suggested the link. Issue: Whether the defendant physician was negligent or that the prevailing standard of practice was itself negligent. Held: Plaintiff loses. No compensation. Ratio: medical community is referred to on technical questions. Doctor did not have to inform of risk of HIV as experts testified that doctor could not have known (held to the standard of the medical community).

Jim Russel Racing v. Hite/(1986) CLL Facts: Hite, while trying a racing car on a course owned by Mme Paradis, hits a fence erected by the latter and the Russel Racing drivers (who rent the premises). The respondent, who was 25 and in perfect health, suffers great physical damage, mainly to his face. Issue: Does compensation correspond to the degree of harm inflicted on the plaintiff? Held: Respondent wins. Compensation, however, is reduced. Ratio: Even if the accident didn’t cause physical disability to the plaintiff, it still fundamentally changed his life and personality. Such damage reduces his ability to deal with the public and thus, bars him from certain types of employment. As a result, his capacity to earn future revenue is also reduced.

Page v. Smith (1995) CML Facts: The plaintiff was involved in a car accident where the defendant was driving his car in the opposite direction and cut across to a side road. No one was injured. However, the plaintiff suffered from chronic fatigue syndrome long after the accident. He claims that his CFS resulted from the accident and will prevent him from ever working again. Issue: In a case of injury resulting solely from nervous shock, must the plaintiff show that the injury was foreseeable or is it sufficient to show that any injury was foreseeable? Should the court concern itself with different kinds of injury? In the absence of physical injury, is psychiatric injury alone sufficient to allow for compensation? Held: Yes. The approach in all cases should be that, if the defendant can reasonably foresee that his conduct will cause the plaintiff a personal injury, whether physical or psychiatric, then he is held liable

2 for compensation. Ratio: It would not be sensible to commit the law to a distinction between physical and psychiatric injury. The test in every case ought to be whether the defendant can reasonably foresee that his conduct will expose the plaintiff to a risk of personal injury. If so, then plaintiff has duty to care. Comment: Ordinary emotions of anxiety, fear or grief have no recourse in law.

This judgment, however, will lead to two detrimental consequences: a. Bogus claims. b. Floodgates: Other people witnessing the accident (secondary victims) and suing for injuries caused by psychiatric illnesses.

Answer: a. This type of injury requires extensive evidence supported by experts’ testimony. Besides, it must be proved that the defendant could have foreseen the risk of physical injury. b. The courts have insisted on a number of control mechanisms with regards to secondary victims, such as proximity of time and space to the event and proximity of relationship with the primary victim.

Gloria Augustus v. Communaute Urbaine de Montreal/(1996) CLL Facts: The victim, the plaintiff’s son (who had an arrest warrant against him), was mistakenly shot in the head by a police officer, to die a few hours later. The mother is claiming damages for interference with right of parenthood. Issue: Whether solatium doloris (a moral damage) is compensable under Quebec law. Whether Charter of Human Rights and Freedoms or Canadian Charter of Rights and Freedoms protects right to maintain and continue parent-child relationship, whether to recognize compensatory damages for the loss of life and life expectancy. Held: Appeal allowed in part. - No compensation for interference with son’s right to life – Compensation for loss of support - No compensation for loss of life expectancy (victim died and can no longer feel a shortened life – No compensation for pain and suffering (victim died instantaneously). Ratio: solatium doloris is a compensable moral prejudice in Quebec civil law. In assessing it, the court must take into consideration factors such as circumstances of death, age of deceased and parent, effect of death on parent’s life, etc…/ Neither Canadian Charter of Rights and Freedoms nor the Quebec Charter protects the right to maintain and continue a parent-child relationship/ Right of life extinguishes when victim dies and cannot become part of a victim’s patrimony nor be transferred to his heirs + it is extremely difficult to quantify life after death + victim will not benefit from compensation.

Who can call action to be compensated for DEATH? Estate of the victim: What is left after his death. Transmission of patrimony. Secondary (Ricochet): Family of the victim: Can sue for moral damages or loss of financial support. Employer.

Nature of claim Claimant Defendant Unhealthy child Mother/father Doctor Wrongful pregnancy Mother ONLY Doctor Wrongful birth Mother/father Doctor Wrongful life Child Doctor

NB: Courts ruled that a child CANNOT make a claim for wrongful entry to life.

3 To claim for compensation, there must be a “protected interest” that has been interfered with through the defendant’s neglect. - In the claim for “wrongful life”, there was no interest to be interfered with, as in this case, it would be death. - In the claim for “wrongful birth”, however, the interest interfered with was the decision to family planning and the extra burden entailed with child rearing.

McKay v. Essex Area Health Authority/(1982) CML Facts: The infant plaintiff was born disabled as a result of a rubella infection suffered by mother while still in womb. Claims damages for doctor’s failure to treat rubella and for “entry into a life full of distress”. Issue: Are defendants liable for allowing entry of the plaintiff into a “wrongful life”? Held: No. Defendants were not under any duty to the child to terminate her life. Ratio: First, defendants were not found responsible for the rubella infection. Second, to impose such a duty towards the child would be contrary to public policy as it would mean that the life of a handicapped child is not worth preserving. Calculating damages in this case would require valuing the life of a handicapped child against not being born at all (death), which is impossible.

Kealy v. Berezowski/ (1996) CML Facts: Defendant performed a sterilization procedure on plaintiff who had two children and wanted no more. Process failed. Plaintiff is suing the doctor for negligence and claims for the cost of child- rearing. Issue: Can wrongful pregnancy be considered an injury when it brings happiness to parents? To what extent did defendant’s negligence impair parents’ ability to meet responsibilities of an unplanned child? Held: Damages awarded to plaintiff for cost of child-bearing (pregnancy) and NOT child-rearing. Ratio: The birth of a healthy child cannot be characterized as an injury. The responsibilities and rewards cancel each other out + the child’s birth did not prevent her affluent parents from fulfilling their responsibilities toward her.

Suite v. Cooke/ (1995) CLL Facts: The respondent, after the birth of her third child, informed appellant of her desire not to have any more children. Sterilization was wrongfully performed (cutting a vein), which resulted in a 4th pregnancy. Respondent was awarded damages in the superior court. Issue: Is compensating parents for the wrongful birth of a healthy child contrary to public order? (Should plaintiff be compensated for a wrongful birth resulting from a medical error?) Held: No. Appeal rejected. (yes) Ratio: The undesired pregnancy was due to the appellant’s negligent behavior. Quebec law recognizes the right of couples to plan and determine the future size of their family. Since that behavior altered their ability, respondents are entitled for compensation. Comment: Contrary to the above reasoning, the judges here saw that the balance between the advantages and the inconveniences of the birth of a healthy child cannot negate the doctor’s responsibility in damaging the specific and basic interest in voluntary sterilization (family planning). Injury to Persons  Hopital Notre Dame de L’Esperance and Theoret v. Laurent/ (1978) CLL Facts: Following an accident, the plaintiff was taken to the emergency room of the hospital to be examined by Theoret who, without x-rays, diagnosed injury as a simple bruise. 3 months later, plaintiff saw another doctor who diagnosed injury as fracture intensified by delay of diagnosis and eventually causing a partial permanent disability. Husband suing for loss of consortium and medical expenses. Issue: Extent of hospital’s liability and right of the husband for compensation for loss of consortium. Held: Dismiss action against the hospital and allow action against the doctor.

4 Ratio: The word “autrui” in art.1053 of the C.C. does not apply only to the person who suffered bodily injury. The courts have accepted that a 3rd party who has paid the medical expenses incurred by the victim was entitled to recover such an amount. As for compensation for the loss of consortium, a husband who is deprived from the assistance his spouse owes him under art. 173 C.C. has the right to claim it. Comment: In civil law, the notion of “autrui” is broad and includes both primary and secondary victims. Alcock v. Chief Constable/(1991) CML Facts: The South Yorkshire police (England) was responsible for the crowd control at a football match and allowed an excessively large number of spectators to enter the ground, resulting in the crushing death of 95 people. Actions are brought by persons none of whom was in the area of the disaster and all claim damages for nervous shock resulting in psychiatric illness. Issue: Are secondary victims entitled to a compensation? Held: No. All claims fail. Ratio: There are 3 elements that must be considered when suing for psychiatric illness resulting from shock: 1.class of persons whose claim should be recognized: close family, but there are also other relations involving intimate associations, why shouldn’t other relatives and friends be compensated as well? 2.proximity of plaintiff to the accident: Must be close in both time and space. None of the actions brought could qualify as “immediate” aftermath, including an 8-hour post-accident identification of bodies 3.means by which shock was caused: in this case, by television which, by code of ethics, would not be expected to show suffering by recognizable individuals, eliminating foreseeability on the part of the constable. Comment: There is very little room for non-physical damages in the common law.

Categories of claimants: a. Mother solatium doloris (moral damages) Ex: Augustus. b. Relative psychiatric illness resulting from moral shock Ex: Alcock

While both suffered similar consequences and both can claim for damages they suffered for loss of the victim, we saw in the cases above that the mother was partially compensated while the relatives were not. Common Law Civil Law Provides a much narrower scope for those persons who can make Gives a much broader definition for a claim (mainly primary victims). the notion of “autrui” to include both primary and secondary victims. The type of claim is very limited. No compensation just for grief The type of claim is broader (moral or sadness. There must be a shock followed by damages, loss of psychiatric illness (Page v. Smith). Has to conform support, etc…). to the 3 elements cited in Alcock (close relationship, proximity, foreseeability). Difficult entry, high probability of success. Easy entry, low probability of success. At the end of the day, most cases would receive similar judgments in both systems Injury to Property

How do CML and CLL both reduce the scope of recovery for economic loss? (loss not accompanying harm to the person of the plaintiff, no harm to their bodily integrity)

Injuries to Economic Interest; (1) Damage to property; (2) loss of services of employee; (3) loss of profit; (4) damage to others’ property; (5) Damage to property + consequential loss (ex: loss of profit caused by loss of property)

5 Common Law Weller v. Foot & Mouth Disease Research Institute/(1965)/ CML Facts: The defendants imported a virus to experiment on foot and mouth disease. The virus escaped, infecting cattle in the vicinity of their premises. An official order closed the cattle market. The defendants, who were auctioneers in the market could no longer carry their business and suffered a loss as a result. Issue: Can plaintiffs (here, secondary victims) be compensated for their loss? Held: No. Action fails. Ratio: It is a CML principle that duty of care is owed only to those whose persons or property may foreseeably be injured by a failure to take care (in this case cattle owners and NOT the auctioneers). A plaintiff must show that he was within the defendant’s duty of care. As a result, a plaintiff cannot recover unless the act has directly injured his person or property. Consequential loss (such as loss of business relations with a 3rd party) is not recoverable.

CML extrapolates its treatment of primary and secondary victims in injury to persons to primary and secondary victims in injury to property. It denies recovery for relational losses using the “floodgates” argument , i.e: there would be too many victims if we open the door for recovery (for ex., everyone else who works in the cattle market and thinks they lost their business because of closure, say, someone selling candy in the mkt and wants to recover because there are no more buyers!)

Canadian National Railway v. Norsk Pacific/ (1992)/CML Facts: Tug owned and operated by Norsk negligently struck a railway bridge owned by PWC. CN has a contract with PWC for use of the bridge. The contract relieved PWC from any liability in case of an accident. CN was primary user of the bridge, which proved essential for its operations. CN is suing Norsk for the additional cost incurred as a result of the bridge closure. Issue: Whether a person who contracts for the use of the property of another can sue a person who damages that property for losses resulting from his inability to use the property during period of repair (i.e. a relational economic loss). Held: Yes. CNR can be compensated. The necessary duty and proximity have both been established. Parties to the contract are so closely linked that the bridge is viewed as a joint venture of PWC and CN. Ratio: Pure economic loss is recoverable where, in addition to negligence and foreseeable loss, there is sufficient proximity between the negligent act and the loss. Proximity is the main criteria for recovery. Comment: CML actually compensating a pure economic loss to a secondary victim. Economic loss is not always excluded in CML. HOWEVER, the decision doesn’t make it clear how we should treat the other 4 railway companies involved.

In this case, there was a dissenting opinion by judge LaForest, who argued the “bright line rule”: persons cannot sue a tortfeasor for suffering losses to their contractual right with the owner of the property by reason of damage caused to that property by the tortfeasor. His view is that this loss is contractual relational economic loss. LaForest wants to make a general exclusion, then a case by case analysis. Floodgates argument emerges again. McLauchlin : wants to ignore the exclusionary bright line rule. Economic and relational loss can be recovered once certain criteria are met.

Civil Law: Regent Taxi & Transport Co. v. Congregation des Petits Freres de Marie/ (1929) Facts: plaintiff is a religious community and defendant is a transportation carrier. A member of the plaintiff community sustained serious injury while traveling in a defendant’s vehicle. The community is

6 suing for damages caused by injury to brother H-G, such as medical expenses and loss of the brother’s services. Issue: Does plaintiff have a right for action? Is its claim within the scope of “autrui” under art. 1053? Held: yes. Plaintiff has a right for action. Ratio: To narrow the scope of art. 1053 is highly dangerous and would result in most meritorious claims being rejected. It is enough for those who did not suffer a direct injury by the fault (secondary victims) to have an actual moral or material interest in the fault not being committed to entitle them to bring action against the wrongdoer. Art 1053 CCLC is not restricted to damages claim by the immediate victim (the person physically hurt). Other victims who suffer damage directly attributable to the fault also have rights to take action Comment: Regent Taxi stands as the authority to confer to "others" the right to claim damages, but "loss of service" is normally not accepted as subject for remedy (reparation), see many later cases.

Elliott v. Entreprises Cote-Nord/(1976) CLLp Facts: An employee of ECN was injured when struck by Elliott’s automobile due to fault and negligence of the latter. During period of injury, ECN had to hire two foremen to replace the employee and is suing for the difference between their salary and that of its employee. Issue: Under art. 1053 of the code (1457 CCQ), is ECN included under the definition of “autrui”. Held: No. No compensation. Engagement of 2 foremen was not due to incapacity of employer but to an increase in the volume of work. Ratio: Plaintiff must prove that damages were a direct and immediate consequence of the defendant’s fault. 1056 states that only certain persons can recover, it puts a restriction on 1053. Comment: Any damage caused to another is recoverable, as long as it is an immediate and direct consequence of the act (maybe plaintiff could have succeeded if it had failed to replace its employee as a result of the accident.

The situation here is similar to that in CNR v. Norsk. The two immediate parties are clearly ECN’s employee and Elliott. The question is: Can the secondary victim (the employer) be compensated for its financial loss? The CLL says it cannot, not because there is an exclusionary rule (like CML) but because the loss was not a direct consequence of the wrongful act.

CLL is a lot more generous to secondary victims than CML

J.E. Construction def. v. GM du Canada/ (1985) Facts: While doing sewage repairs for the town, JE Construction workers broke an acqeduct. Water was cut off a General Motors factory nearby, resulting in factory workers being idle for several hours while their payment was still secured. GM is suing for the salary it had to pay its idle workers. Issue: Did GM suffer a direct and immediate damage as a result of fault? Held: Yes. GM is a victim by ricochet but still deserves compensation. Ratio: As long as damage is direct, there is compensation and there is no distinction between primary and secondary victims. In this case, it is only the employer, as a result of labor laws, who is damaged by the interruption of productivity.

General Comparison for Treatment of Injury

CML CLL Same treatment, whether person or property Same treatment, whether person or property Seeks proximity and excludes secondary victims Includes both primary and secondary victims Notion Rare particular exceptions such as CNR v. Norsk of “autrui.” Any damage caused to another is recoverable as long as it meets conditions set below

7 Reduces scope of recovery through insisting on: Reduces scope of recovery (through art. 1056 Proximity, Foreseeability, Close relationship, CCLC) by restricting an action to victims of a: Exclusion of secondary victims Direct effect of fault or Immediate effect of fault Does not compensate pure economic loss. Starts Does NOT differentiate material/corporeal damages with particular situation (pigeon hole approach), (i.e. the nature of the damage). Civil law starts with tries to fit claims to established categories, rarely a broad coverage of liability and narrows down to attempts to enlarge and generalize new categories. particular situations.

Act or Omission Giving Rise to Liability Van Gerven:

English law French Law German Law A series of specific heads (trespass, One general clause A mix of the two systems. 3 broad nuisance, negligence) while some applicable to all situations clauses applicable to a large but cases do not fall within any tort… (art. 1053 CCLC, art.1457 limited set of situations. Enumerates pigeon hole approach CCQ) types of protective interests The most general tort (negligence) No limitation of protected The most general heading protects requires proof of duty of care owed interests only the legal rights listed in the by defendant to plaintiff code

Baker: An introduction to English Legal Theory

Traditionally, so long as there was a foreseeable act causing harm, the defendant’s state of mind was irrelevant. Any injury was considered as deliberate, even when it resulted from negligence. A man who had caused harm could not offer as a defense that he had not meant it. Traditional torts such as battery (spitting in someone’s face), assault (attempt to spit in someone’s face), false imprisonment or malicious prosecution required the plaintiffs to prove that they were accompanied by intention and directness while a resulting damage was not necessary (ex: you could trespass someone’s property without causing any harm). Later on, negligence rose as the main type of recoverable tort. Whereas negligence requires neither intention nor directness, it nevertheless has to be accompanied by damage.

Common Law duty of care

Donoghue v. Stevenson/(1932) CML Facts: Appellant drank a bottle in ginger beer manufactured by the respondent; friend bought it from the retailer; bottle contained decomposed remains of a snail that could not be seen through an opaque bottle; she suffered from shock and severe gastro-enteritis. Issue: Is the manufacturer of an article of drink sold by him to a distributor, in circumstances which prevent the distributor or ultimate purchaser or consumer from discovering by inspection any defect, under any legal duty to the ultimate purchaser or consumer to take reasonable care that the article is free from defect? Held: Yes, manufacturer owes duty of care to consumer. A manufacturer of products (intended to reach the consumer and for which the consumer cannot discover any defect by inspection ) is under a legal duty to the consumer to take reasonable care that the article is free from defect likely to cause injury. Ratio: The neighbour principle: You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor. Neighbour: persons who are so closely and directly affected by my acts 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.

Buckmaster (d) Atkin (m)

8 There is no k. The only cases where manufacturer is held Neighbor Principle. If manufacturer and liable: when there is a k, when the product is dangerous, consumer fit in the category of neighbors, there when the manufacturer is aware of a danger might be a duty of care. No claim Duty of care probably exists. Does not order compensation for the plaintiff BUT opens the door for the appeal Precedent and floodgates argument both preclude any Precedent (if seen in a broader perspective) and liability on the part of manufacturer common sense can both allow action

The reasoning in this case is closely linked to its time of a boom in consumer products on the market. The decision, however, does not only cover manufacturer/consumer relationships but has far-reaching implications as it sets a clear principle (the neighbor principle) applicable in many future cases. This approach is very uncommon to Common Law, which usually sticks to a case-by-case approach.

Articulating the general duty of care:

Home Office v. Dorset Yacht Co./ (1970) CML Facts: A group of young offenders were detained on an island under the control of Borstal officers. Detainees escape, ride a yacht found nearby and collide with the plaintiff’s yacht moored in vicinity. Owner of yacht, short of suing the detainees or the officers, sues the home office and wins at trial. Issue: Does the home office (the gov’t) or its officers owe any duty of care to the owner of the yacht or persons whose property may be damaged in case of a trainees’ escape? Held: Yes. The appeal is dismissed. Ratio: L.Reid :Cites Donoghue v. Stevenson as providing the general principle applicable in this case. If a person performs a statutory duty (duty to control the trainees) carelessly so that he causes damage to a member of the public which would not have happened if he had performed his duty properly, he may be liable. He also refuted the argument that this would negatively affect public policy (as gov’t may choose to avoid any responsibility in relation to the young offenders) because he trusts her majesty’s servants! L.Diplock: Rejects the universal application of the neighbor principle in Donoghue v. Stevenson. The neighbor principle is only a guide and not a rule. Therefore, we have to go into a specific case-by-case analysis. He finally defines duty of care very narrowly: It is owed only to people who are in the vicinity and whose boats are likely to be used for the escape. His final judgment is also in favor of yacht owner.

How does CML determine duty of care?

Anns v. Merton London Borough (1977) and City of kamloops v. Nielsen

In order to decide whether or not a law duty of care exists, 2 questions must be asked: (1) is there a sufficiently close relationship of proximity or neighbourhood between the parties so that, in the reasonable contemplation of the wrongdoer, carelessness on its part might cause damage to the other person. If so, (2) are there any circumstances which ought to negative or limit: a. the scope of duty b. the class of persons to whom it is owed c. the damages to which a breach thereof may give rise to liability

Consider the following examples: Omissions in Action 1. A doctor/patient relationship where doctor fails to disclose certain side-effects liability A landlord/tenant relationship where landlord fails to warn about dangerous elevator liability

Mere Omissions 2. A law student failing to warn a medical student before a car hits the latter no liability your failure to rescue another student beaten up after coffee house no liability

9 Palsgraf v. Long Island Rail Co./(1928) CML Facts: Plaintiff standing on the platform waiting for her train. Another train is about to leave when a man carrying a package wrapped in newspaper tries to catch it. A guard in the car is pulling him while another pushes him from behind. The package - containing fireworks - falls, explodes and injures plaintiff at other end of platform. Issue: Is there duty of care on the part of the railway company to the plaintiff? Where there is an act which unreasonably threatens the safety of others, is the doer liable for all its proximate consequences? Does he owe duty of care to one who would generally be thought to be outside the radius of danger? Held: No. Appeal dismissed. Ratio: Cardozo (m): The conduct of the defendant’s guard, if wrong in its relation to the holder of the package, was not wrong in its relation to the plaintiff. There is duty of care but not owed to Mrs. Palsgraf. Andrews (d): There is a direct connection between the negligent act and the damages suffered (causality). “Everyone owes the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others. Not only is he wronged to whom harm might reasonably be expected to result but also who is in fact injured, even if he be outside what would generally be thought the danger zone.”

Acts and Omissions

Crocker v. Sundance Northwest Resort /(1988) CML Facts: the plaintiff, after signing a waiver, participates in a competition organized by Sundance to promote its resort. At a certain point, Crocker is too drunk to stay in competition. The manager points it out and advises him to withdraw. Crocker insists, falls off his tube and is seriously injured. Issue: Did Sundance owe Crocker a duty of care? Did the resort have a positive duty at law to take certain steps to prevent a visibly intoxicated person from participating in the dangerous competition? Held: Yes. Relationship between Crocker and Sundance gives rise to such a duty. Ratio: Duty of care: The resort set up the dangerous competition, it controlled the competition, it served the alcohol, and it was making money from the competition. The resort knew Crocker was drunk and already injured in a previous heat. Therefore, the resort had a duty of care to make sure Crocker didn’t compete in a drunken state. Standard of care: There were numerous things that the resort could have done to stop Crocker from competing. It could have disqualified him when it realized he was drunk. It could have forcefully told Crocker the risk of serious injury in competing drunk. None of these preventive measures imposed a serious burden on the resort. The fact that Crocker was an irresponsible person and was drunk is the very reason why the resort was legally obliged to take all reasonable steps to prevent Crocker from competing. Principle: One is under a duty not to place another person in a position where it is foreseeable that that other person could suffer injury. The plaintiff’s inability to handle the situation in which s/he has been placed, either through youth, intoxication or other incapacity, helps determine how foreseeable the injury is. In CML, the existence of a relationship between plaintiff and defendant gives rise to a duty of care.

Murphy v. Little Memphis Cabaret/ (1996) CML Facts: Murphy and his friend were drinking at defendant’s tavern when a fight erupted between them and a group of 4 people. The bouncer broke the fight up, ejecting Murphy through front door and the other group through back door at the same time. Murphy and his friend were later beaten up and seriously injured. Issue: Did tavern owner owe plaintiff any duty? What was the scope of that duty? Did the tavern fail to use reasonable care in the discharge of that duty? Held: The tavern is liable for the damages suffered. Ratio: Duty of care: There is an invitor-invitee relationship between the parties. Therefore, the tavern owed Murphy a duty not to expose him to unreasonable harm. Standard of care: The tavern owner had an obligation to exercise reasonable care in expelling Murphy in view of the imminent danger awaiting him outside. The tavern breached its duty of care towards Murphy. The owner could have kept Murphy inside till danger subsided or till he could call a taxi, at no extra burden to the tavern.

10 Eaton Co. of Canada v. Moore/(1951) CLL Facts: Respondent came to store, slipped and fell at exit on a patch of liquid substance; half a minute before, a woman had dropped a small bottle that broke spilling the liquid. Salesperson noticed the dropping of the bottle and called care-taking who took care of it (all within 3 minutes). Respondent was unable to resume her duties and thus suffered a reduction in pension. Issue: Was Eaton negligent? Did they have a duty to act if an accident was foreseeable by a man of ordinary and reasonable prudence? Held: No. They had a complete and elaborate system of cleaning the floors under such circumstances. Salesperson did not have responsibility of cleaning it up himself; breaking of bottle and fall of respondent so close in time; liquid not inherently dangerous; no probability of accident; no one can be found negligent. Ratio: There is no fault on the part of the employee. Comment: To succeed in tort under CLL, you have to prove: 1.The existence of fault 2.That the defendant did not do what a reasonable person in his place would have done in a similar situation. How does the CLL treat acts and omissions? (this also includes a summary of Van Gerven Scope of protection )

A1457 The general clause: A person basically owes a duty of care to the whole community (autrui) and not only to his/her neighbor, like in CML. S.II of the Quebec charter actually stipulates that every citizen is under a duty to rescue another in a life-threatening situation and the Act To Promote Good Citizenship even provides compensation to an injured rescuer. So, a duty to act can arise from: i)The existence of a special relationship with the plaintiff ii)The creation to one’s own economic benefit of a source of danger (ex: ensuring safety of guests who get drunk) iii)The imposition of duties, contract or ethical rules However, the CLL also limits the scope of this responsibility through fault and causation: Were you negligent? Did your negligent actions or failure to act directly cause damages to the plaintiff? Did you take the precautions a reasonable person in the same situation would have taken?

General Comparison for Acts and Omissions

CML CLL Neighbour Principle: You must take reasonable care Art. 1457 CCQ: The notion of “autrui”. No to avoid acts or omissions which you can reasonably definition of neighbor, no relational aspect. Every foresee would be likely to injure your neighbor. person has a pre-existing duty not to cause harm to Neighbour: persons who are so closely and directly the community at large. ANYBODY falls in this affected by my acts that I ought reasonably to have category. There are no limitations, subject to them in contemplation. answering the 2 questions below. Was there a close relationship of proximity between Was there fault on the part of the defendant that was the parties to make the defendant owe plaintiff a the direct and immediate cause of the injury? duty of care? What is the standard of care? Define the limits of Was the fault due to defendant’s negligence? Did the duty of care (ex: would it add any burden to the he/she take the precautions of a reasonable person? defendant? Does it come at any cost?)

B-Liability for One’s Own Wrongdoing: i) The reasonable person

CLL (Viney les conditions de la Responsabilite): The standard of the reasonable person or le Bon Pere de Famille varies according to the difficulty of the situation , i.e: when the judge is evaluating the conduct of a doctor, he does so in light of the behavior of the average person in his profession rather than compare it to the behavior of the most able person in the profession. This notion also includes the important element of

11 foreseeability. Here, we have a pretty good distinction in our minds between what is probable (very likely to happen) and what is possible (but unlikely to happen).

CML (Holmes The common Law): Agrees mostly with CLL. Common Law considers what would be blameworthy in the average man, the man of ordinary intelligence and prudence i.e.: An child is only bound to take precautions of which a child is capable. CML also uses foreseeability: It sets what is possible against what is probable.

Subjective Approach Objective Approach Putting yourself in the shoes of the Applying the reasonable man standard to all defendants defendant and asking: What would I regardless of the circumstances. What would the reasonable have done under these circumstances? person have done?

Ouellet v. Cloutier/ (1947) CLL Facts: boy of 10 years injured at the farm of Ouellet while working at his farm (voluntarily and without invitation); he tried to stop a machine with his hands though an employee told him not to Issue: Was there a duty to the boy? Held: no – impossible that a reasonably prudent man would have done anything else as the boy was surrounded with care and foresight. It happened in such a short time that there is no obligation on the defendant to have previously warned the boy or have sent him away from the premises. Machine itself was not inherently dangerous Ratio: since it was only possible that this action could happen and not probable, there is no duty. The accident was not reasonably foresseable. Principle: The law does not require a prudent man to foresee everything possible that might happen . Caution must be exercised against a danger only if such danger is sufficiently probable.

Oeuvre des terrains de jeux du Quebec v. Cannon/ (1940) CLL Facts: Cannon girls are sent by their mother to play on an ice rink managed by defendant. One girl slides down a slope, hits her head and requires stitches. Father sues as tutor for damages. Issue: Is the injury of the girl due to the imprudence, negligence or incompetence of the defendant or its employees? Held: No. Appeal dismissed. Ratio: The criterion of a fault is the conduct of “bon pere de famille”. There is no fault in maintaining a skating rink, a skating rink must have an alley (walk way leading to it, where the girl fell). Is it true that the “thing” is really dangerous? No, it is not. It is the sort of thing that a “bon pere de famille” may even make for his own children. A “bon pere de famille”, like the defendant’s employees, would not have stopped the girls from skating. The severity of the accident could not have been foreseen.

Brisson v. Potvin / (1948) CLL Facts: The defendant parked his truck on the side-walk, forcing “les pietons” to go around the truck in order to cross the street. A 6-year old girl, attempting to go to the other side, is struck by a car which was trying to overtake the truck from the left side. The girl is seriously injured and loses eyesight. The girl’s father is suing both the truck driver and owner of the other car. Issue: Should Potvin, the truck driver, be held liable for the damages? Held: No. Appeal dismissed. No causal relationship between the defendant’s fault and the actual accident. Ratio: In order for the plaintiff to succeed, he had to prove the existence of fault by demonstrating that the defendant’s act was the direct and immediate cause of the accident (remember the general CLL view of liability, whether in injury to persons or in acts and omissions). Between the act of Potvin and the damage, there was a series of occurrences that were totally independent of his fault: - fault of a third party – imprudence of the girl. Consequently, Potvin could not have reasonably foreseen the accident. St-Germain (d): How can we possibly expect a 6-year old to act like a prudent adult? Having parked his truck the way he did, Potvin was not acting like a “bon pere de famille” who would have at least assigned

12 someone to warn people of that dangerous situation. He could have certainly foreseen that elderly people and children in this populated area would have to go around his truck to cross the street.

Labelle v. Corporation Municipale de la Ville de Gatineau/(1960) CLL Facts: An 8-year old boy falls into a hidden fire while playing on the defendant’s garbage dump. He is seriously injured. The dump was near a railway and was surrounded by a fence as well as signs prohibiting entry. There had been a fire at the dump earlier that had not been completely extinguished. Issue: Is the defendant liable for the damages caused to the boy? Held: Yes. Ratio: Since there was a fire in the dump prior to the accident, the defendant should have foreseen the possibility of an accident and should have taken reasonable steps to discourage children from playing there by maintaining a safer fence around it. Comment: Taschereau J. thought that the children were trespassers who should have never penetrated the defendant’s premises in the first place. The latter had taken all possible precautions.

Bolton v. Stone/ (1951) CML Facts: Stone was injured by a cricket ball hit by a player on a cricket ground adjacent to a side road. The ground was enclosed by a fence well above the level of the pitch. Issue: Is the cricket ground liable? What is the extent of its duty? Held: not liable, whether on the ground of negligence or nuisance. Ratio: Although the possibility of the ball being hit on the road might reasonably have been foreseen, this was not sufficient to establish negligence (in other words, it was very improbable). The risk of injury to anyone in such a case was so remote that a reasonable person would not have anticipated it. Principles: (1) Statements of the law must be read in light of the facts of the particular case. (2) Negligence is the omission to do something that a reasonable person would do or doing something that a reasonable and prudent person would not do. (3) One only has to guard against probabilities, not possibilities (4) The test to apply is whether the risk of injury to a person is so small that a reasonable man, considering safety, would not have thought to take steps to prevent the danger. Negligence can only be charged if a reasonable person can foresee the occurrence that might cause the injury

Overseas Tankship (UK) Ltd v. Miller Steamship Co./ (1966) CML Facts: The plaintiff’s two vessels were undergoing repairs in Sidney harbour. The defendant (Wagon Mound) was filling oil at a nearby wharf but carelessly spilt oil into water which flowed to the other wharf. The oil was ignited and set on fire, causing damage to the plaintiff’s vessels. Issue: Would a reasonable man having the experience and knowledge expected of the chief engineer (remember average doctor and average child standards) of the Wagon Mound have known that there was a real risk of the oil on the water catching fire in some way? Held: Yes. Ratio: Engineer ought to have known that it is possible to ignite this kind of oil on water. If in the mind of a reasonable man in the position of the defendant’s servant, that risk could not be brushed aside as far-fetched, then he should have taken action to eliminate it, especially that the action presented no difficulty and involved no disadvantage to the plaintiff. Principle: Bolton v. Stone did not alter the general principle that a person must be regarded as negligent if he does not take steps to eliminate a risk which he knows or ought to know is a real risk and not a mere possibility which would never influence the mind of a reasonable man. What the decision did was to recognize and give effect to the qualification that it is justifiable not to take steps to eliminate a real risk if the risk is small and if the circumstances are such that a reasonable man, careful of the safety of his neighbour, would think it right to neglect it.

The Learned Hand Formula P probability of accident occurring L Gravity of injury B burden of precaution (how much would it have cost to avoid the accident?)

If PxL > B Liability (a reasonable person should have taken precaution)

13 If PxL < B No liability (a reasonable person would not have taken precaution)

This formula can explain decisions in certain cases but cannot be used as a standard in all cases. It cannot be used to measure the cost of human life. Learned hand himself never intended to use it in this way. ii) Consideration of the Defendant’s Abilities

A 1457 CCQ: Only those “endowed with reason” can be liable for actions. In the case of children or the mentally ill, how can the standard of the “reasonable person” apply?

CLL Quebec: Asks the question: “Is the defendant – children and other – capable of discerning right from wrong?” CML: Children should be held to the standard of their age and not to the standard of the reasonable man unless they engage in an adult activity.

McHale v. Watson/ (1966) CML Facts: Plaintiff suffered serious injury in right eye. The defendant (a 12-year old boy) aimed a sharpened object at a post when, apparently, the object hit the post and went off towards plaintiff (a 9-year old girl), causing her loss of an eye. Issue: by what standard of care should the defendant be judged? Is it right to take his age into account when determining whether he did foresee or ought to have foreseen the danger? Held: Yes. Children are not held to the same standard of care as adults. Ratio: the age of the def. is a crucial element in considering whether he can be considered a responsible agent upon whom the ordinary duty of care rests  while reasonable care is to be expected and it cannot be proposed that a 12-yr old boy can never be held liable in negligence, in this case the behavior displayed by the def. was consistent with what is to be expected of an ordinary boy his age It is absurd to speak of normality in relation to persons of all ages taken together. In those things normality is, for children, something different from what normality is for adults.

McErlean v. Sarel/ (1987) CML Principle: there is a general rule that “children are not required to conform to the standard of conduct which may reasonably be expected of adults”. However, there are exceptions: “when a child engages in what may be classified as an adult activity, he or she will not be accorded special treatment, and no allowance will be made for his or her immaturity. In those circumstances, the minor will be held to the same standard of care as an adult engaged in the same activity,” the reason being that “one cannot know whether the operator of an approaching automobile…is a minor or adult, and usually cannot protect himself against youthful imprudence even if warned”.

Ginn v. Sisson/ (1969) CLL Facts: The plaintiff’s daughter, while waiting for her school bus, was hit by a stone thrown by Howard, the defendant’s son (6 yrs & 9 months). Howard was throwing stones earlier at a group of girls and wouldn’t stop even when told to do so. Issue: Was Howard, in view of his age, capable of discerning right from wrong so that he can be declared responsible under A1053 CCLC? Held: Yes. Compensation for the plaintiff to be paid by the defendant in his capacity as tutor. He was not found at fault since he behaved like a reasonable parent. Ratio: In civil law the line between imputation and non-imputation is the ability to discern right from wrong. Throwing stones at the girls is an objectively wrongful act. Young Howard was sufficiently developed to know that the act of throwing stones at another is wrongful and punishable. He admitted that, had his father known about it, he would have severely punished him. iii) Setting of standards in reference to the defendant’s community :

14 Standards in the defendant’s community are there to be considered as evidence but cannot be treated as decisive, unless the court feels it does not have the expertise (such as in medical cases)

Waldick v. Malcolm/ (1991) CML Facts: Waldick seriously injured when he fell on the icy parking area of the Malcolms’ farm. Parking area was not salted or sanded. This was the custom in that rural region, though. Defendants argue they took reasonable care according to standards in their community. Issue: Did the Malcolms fail to meet the statutory duty of care imposed by the Occupiers’ liability Act? Did Waldick willingly assume the risk of injury? (he saw and knew the area wasn’t salted) Can Malcolm be held liable even though no one in the community salted or sanded their driveways? Held: Yes. Customary practices which are unreasonable cannot eliminate duty of care. Ratio: No degree of general community compliance will render negligent conduct reasonable. Principles: (1) Where an alleged custom is raised, the party who raises it (either to say that custom was not followed or to say that custom exonerates) bears the burden of proof of proving that the custom is in effect. Therefore, expert evidence needs to be introduced to support custom. (2) Proof of local custom is not necessarily decisive against a determination of negligence. (3) No amount of general community compliance to custom will render negligent conduct reasonable. (4) The existence of customary practices wh/are unreasonable in themselves, or wh/are not otherwise acceptable to the court, in no way ousts the duty of care owed.

Roberge v. Bolduc / (1991) CLL Facts: The respondents, who had agreed to purchase property, instructed the appellant notary to verify that the vendor had good title to the property. The notary advised them the title was not good, which was confirmed by a second notary. Respondents accordingly notified vendor that they would not purchase the property and instructed their attorney to take action against him. However, in analyzing the chain of title the notaries ignored the legal principle of res judicata, and in fact the vendor did have title. Issue: Was the appellant notary in error? Did the notary’s error constitute a fault engaging his liability? Held: Yes. Appeal dismissed. Notary is liable for damages suffered by respondents. Ratio: The fact that a professional followed the common professional practice at the relevant time is not sufficient to avoid liability. Such practice must be reasonable. The notary’s opinion was the direct and immediate cause of the respondent’s decision not to purchase the property.

ter Neuzen v. korn/ (1995) CML Facts: Appellant participated in respondent’s artificial insemination program and became infected with HIV. Respondent had not warned her of the risk of infection because he was not aware of it. Issue: Should the doctor have warned the appellant of the risk of HIV infection, even though an average doctor of his specialty in his position (according to expert testimony) could not be aware of the danger at that time? Held: No. Judgement in favor of doctor. Ratio: The medical community is referred to on technical questions. According to his community the doctor acted reasonably. Comment: The court allowed itself to set social standards of behavior in Waldick because the case related to an event which judges could afford to give an opinion about. However, the court failed to do the same in this case because setting specific professional standards were beyond the judges’ ability and knowledge. iv) Statutory Norms: The breach of a statute is relevant but NOT determinant. It just helps to set a certain level of reasonableness but sets no bounds for the court in a civil action.

Canada v. Saskatchewan Wheat Pool/ (1983) CML

15 Facts: The Canadian Wheat Board is seeking to recover damages from the pool –a grain dealer acting as an agent for the board- for delivery of infested grain out of one of its terminal elevators contrary to s. 86(c) of the Canada Grain Act. Statutory breach, and not negligence, was pleaded by the board. Issue: Where A has breached a statutory duty causing injury to B, does B have a civil cause of action against A? If so, is A’s liability absolute, in the sense that it exists independently of fault? Held: No. statutory breach alone does not amount to negligence. Ratio: Breach of the CGA in discharging infested grain does not give rise in and of itself to an independent action in tort. There is no evidence of any negligence on the part of the Pool. It had demonstrated that it operated its terminal up to the accepted standards of the trade; it made regular checks, etc. Principles: Proof of statutory breach may be evidence of negligence, but again it does not give rise to a notion of a “nominate tort of statutory breach”.

Morin v. Blais/ (1977) CLL Facts: B traveling in tractor; M traveling in the same direction; L coming in opposite direction. M could not see tractor soon enough, swerves to the other side and collides with L. Wife of L is killed and M is injured. Red light on B’s tractor was not working (in breach of driving regulation) and other light barely visible. Tractor, however, was equipped with the required fluorescent triangle. Issue: Is breach of a statutory duty enough to establish civil liability? Held: Statute designed to prevent accidents. Here, there is fault and there is a causal link between fault and accident. M succeeds BUT there is common fault because he also had not been driving with care and prudence. Ratio: The absence of a red light constitutes a breach of regulation. While in the absence of injury, a mere breach of a regulation does not give rise to civil liability, this statutory provision does lay out elementary standards of care and in the case of injury can constitute civil fault. The absence of a red light is: (1) breach of a statutory regulation (2) direct and immediate cause of accident (3) fault and gives rise to civil liability Comment: This decision is almost in contrast to Sask. Wheat Pool (notice it’s also an earlier decision). The two dissenting judges thought that the determining cause of the accident was M’s failure to see something that was clearly visible and that he did not take the precautions of a reasonable man. The breach of the statutory regulation in itself provides no causal link in this case.

General Comparison of Liability for One’s Own Wrongdoing

Category CML CLL The Reasonable The “reasonable man” is the standard, a Le “bon Pere de Famille” is the Person man of ordinary intelligence and prudence. standard. Defendant’s Behavior (determining Defendant’s behavior compared to average compared to that of the average person whether or not the person in his/her profession. Presumption in his/her profession. Presumption that defendant’s that the reasonable man can foresee and the Bon Pere de Famille can foresee behavior was distinguish what is possible (unlikely to and distinguish what is possible negligent) happen) from what is probable (likely to (unlikely to happen) from what is happen) probable (likely to happen) Consideration of Children should be held to the standard of Ask the question: Is the defendant- the Defendant’s their age and not to the standard of the child or other- capable of “discerning Abilities reasonable man unless they engage in an right from wrong”? If yes, there is adult activity. liability, regardless of age Standards in Standards in the defendant’s community are SAME Reference to there to be considered as evidence but Defendant’s cannot be treated as decisive, unless the Community court feels it does not have the expertise Statutory Norms A breach of statute is relevant but NOT Breach of statute can give rise to determinant of negligence. Cannot give rise liability if immediately followed by an to liability of and on its own accident it was designed to prevent

16 (i.e: where the breach was the direct and immediate cause of the accident)

C-Liability for Others: Things and People (A1053-4-5 can be found on p.52 of the 2nd casebook) i) liability for injury caused by a thing a) Generally: CLL

The 3 cases below introduced something new: presumption of fault on the defendant under A1054(1) and 1054(6), unless he can prove the contrary. They shifted the burden of proof from the plaintiff to the defendant Birth of A1465 CCQ {only the autonomous act of a thing can be discussed under this article, i.e.: If a building collapses, it’s the act of a thing, but if you hit someone while driving your car, it’s your act}.

Doucet v. Shawinigan Carbide/ (1910) CLL *** Facts: Doucet was put in charge of a coal furnace. Furnace later exploded blinding Doucet who is now suing his employer. There is no proof of fault. Issue: Is there grounds to sue the employer for damage caused by a thing in his custody, even when the facts did not show any fault on his part? Held: yes. A1054 CCLC is interpreted differently by the court. The company is liable. Principle: Act of a thing used to be argued under 1053 – the burden of proof of the existence of fault was on the plaintiff which made it very difficult for victims to get compensation. So, in this landmark case, the judges used the preamble to 1054 and argued that in fact, there is a presumption of fault. On this basis, the company was liable. Today, we have 1465. Comments: A1053 CCLC—general proposition A1054 CCLC—subparagraph dealing with other “things” under your care A1055 CCLC—specifies those other things as only animals and buildings for which there is strict liability (liability without fault) To succeed, the plaintiff would normally have had to prove fault on the part of the defendant. Plaintiff will not succeed under the above articles (no fault, no causality and furnace is neither an animal nor a building!). However, the SCC allows the argument that liability under A1054 can extend beyond the two “things” listed in the code. It bases its argument on the fact that the French as well as many scholars have interpreted A1054 to mean that there can be strict liability (liability without fault) or autonomous liability for an act by a thing itself, independently of fault. The court shifted the burden of proof from the plaintiff to the defendant who would now have to try to establish that there was no fault on his part.

Autonomous Act of a thing – 1465 & 1468

Burden of Proof Plaintiff must establish (a) existence of a 'thing' as defined in A. 899 CCQ (b) who is the guardian of the thing using the distinction between "gardien du comportment" and "gardien de la structure" or "garde juridique" and "garde materielle" (c) that the autonomous act of the thing caused the injury (regardless of fault)

for a plaintiff to benefit from the presumption of fault in A. 1465 s/he must prove: (a) wh/thing caused the damage (b) that the thing is under the control of the defendant

Presumption of Fault

17 Once the above is proved the guardian is presumed to be at fault, regardless of the owner's potential liability under A.1457. A.1465 is more favorable towards the victim than is A. 1467 b/c of the presumption of fault. B/c of the presumption of fault the guardian, often more easily identifiable than the owner, can be held liable even though the victim has not proved he was at fault.

Exoneration (the exculpatory clause…presumption of fault on the defendant disappears if he proves he took all reasonable steps to prevent the accident from happening)

The guardian can be exonerated if he proves: (a) he committed no fault (i.e. rebutted presumption of fault by proving he acted reasonably) (b) he used reasonable means in his use and custody of the thing (c) he acted as a reasonable person (d) fault of a third party (e) victim's own fault (wh/apportions liability unless the victim committed a gross fault wh/severs the other person's fault) (f) force majeure ***

Quebec Railway, Light, Heat and Power Co. v. Vandry/1920 CLL Facts: Company generates and distributes electricity in City of Quebec; erected poles carrying 2 overhead cables; storm caused a tree to fall against cables, setting the plaintiff’s house on fire. Issue: Does plaintiff have to show negligence or fault against the company? Would plaintiff succeed if company can prove it could not foresee and therefore could not prevent the fire? (exculpatory clause “responsibility attaches only when the person subject to it fails to establish that he was unable to prevent the act which caused the damage.” Held: plaintiff succeeds, company fails. Ratio: the meaning of the words is plain and the code must be read as a whole. A1054 introduces a new liability element independent of the personal element of fault. Absolute liability arose with the growth of scientific inventions and their industrial exploitation. Comment: the presumption of fault here was so harsh that the court didn’t even allow the defendant to argue he was not at fault.

City of Montreal v. Watt & Scott/ (1922) CLL Facts: The city of Montreal constructed a sewerage system connected to the plaintiffs’ cellar. As a result of a very heavy rain storm, the sewer was filled with water and flooded the cellar, causing damage to plaintiffs’ property. Issue: Can the city be held liable under A1054? Held: Yes. Watt succeeds. Ratio: Exculpatory clause (defendant is presumed liable unless he can establish that he could not prevent the act of someone or something in his care) applies to all paragraphs of A1054 (ie: persons and things). Therefore, if appellants can show that the storm could be described as a force majeure and if they show that they had constructed sewage to meet all reasonable expectations, the exculpatory clause would apply. However, the company failed to do so and thus was held liable. Comment: unlike the above case, the defendant here was allowed to try to show that he was not at fault.

Lacombe v. Power/ (1928) CLL Facts: Tremblay was working on a car in the defendant’s garage when the car suddenly moved, broke the elevator and killed him. His widow is suing the garage under A1054, her argument being that it was the act of the car (the thing) which was under the care of the defendant that caused the accident. Issue: Was the accident caused by the autonomous act of the car (A1054) or by the negligent act of the deceased mechanic? Held: Mechanic was the author of his own misfortune. A1054 does not apply. Ratio: Before the plaintiff could invoke presumption of fault under A1054, she had to prove: (1) that the damage was in fact caused by the thing in question within the meaning of that article; (2) That that thing

18 was at the time under the care of the defendant. Since the plaintiff could prove neither, her action failed.

Anastasia Rubis v. Gray Rocks Inn Ltd/ (1982) CLL Facts: The 4-year old appellant injured by falling off the hotel’s window. She apparently climbed the radiator and leaned on the loose screen which gave way. Issue: Is the hotel liable under A1054? Was it the autonomous act of the thing that caused the accident. Held: No. A1054 does not apply. Action fails. Ratio: A1054 does not apply when the damage results not from the act of the thing itself but from the act of the person who has control over it (the hotel which installed the screen). Invoking this article in this case is an error. Moreover, the danger was apparent and it was the victim’s parents who had a duty to protect her. With regards to A1055 (where any wrongful act by an animal or a building automatically presumes fault on the part of the owner), the only purpose of the screen is to prevent mosquitoes and birds from getting into the room, not to protect its occupants from a possible fall.

CML Rylands v. Fletcher/ (1868) CML Facts: the defendant employed independent contractors to construct a reservoir on his land. Due to the existence of disused mine shafts on the site, of whose existence the defendant did not and could not have reasonably known, the reservoir flooded the plaintiff’s adjoining mines. Issue: Is the defendant liable? (even when there is no fault). What is the liability which the law casts upon a person who lawfully brings on his land something which, though harmless while it remains there, will naturally do mischief if it escapes out of his land? Held: yes. Plaintiff wins. Principle: One has the absolute duty to keep the thing in at his peril and if he does not, he is prima facie answerable for all damage which is the natural consequence of its escape – he can excuse himself if he can show that the escape was owing to the plaintiff’s fault, or perhaps that the escape was the consequence of vis major or the act of god. In this case neither exception is applicable therefore the defendant is liable Comment: This case is important because there is liability without actual fault. Today it could be deemed nuisance but not then because it had to be a continuous nuisance – so at that time they dealt with it through expressing the rule of law as stated above. They created a new particular box.

Since the decision in the case above, the tendency in CML has been to narrow down the scope of its principle in order to avoid a regime of strict liability (liability without fault). How can this be done? Make the principle applicable only in exceptional cases, those of unusual risk i.e: an unnatural use of the land (such as building a nuclear plant) NUISANCE. Otherwise, the natural use of the land causing damage (ex: chemicals on a farm) would not result in strict liability if chemicals escape. Use community utility (using land to benefit both plaintiff and defendant) as an effective defense. b) Product liability

European Council Directive:

The European Council Directive sheds some light on the manufacturer’s liability for a defective product. It establishes a regime of strict liability, under which it is sufficient for the consumer to show that the product did not meet his/her expectations in order to hold the manufacturer liable. Proof of fault is not required. Saumier, however, says that strict liability is undermined by provision 7(e) of the directive, which allows the manufacturer to escape liability if he can demonstrate that, at the time of production, he could not have

19 possibly been aware of the product’s defect. NB: Absolute liability refers to liability even in the absence of both fault and defect. It is much more strict than strict liability (ex: you get injured while trying to open a tuna can)

Buchan v. Ortho Pharmaceutical/ (1986) CML Facts: The plaintiff suffered a stroke, leaving her partially paralyzed, after she started taking contraceptives manufactured by defendant. The oral contraceptives were prescribed by plaintiff’s doctor and there is evidence that the manufacturer was aware of the risk of stroke. Issue: Was the manufacturer in breach of its duty to the defendant? Was it under obligation to directly warn consumers of side-effects of its drug? Held: yes. Decision in favor of plaintiff. Ratio: The defendant failed to warn of the danger of stroke inherent in the use of the oral contraceptive and this failure caused the plaintiff’s injuries. A manufacturer of a product has a duty to warn consumers of dangers inherent in the use of its product of which it knows or has reason to know (in this case, the defendant’s US sister company had warned physicians in the US of the dangers of product). The duty is a continuous one requiring that the manufacturer warn, not only of dangers known at the time of sale, but also of dangers discovered after product had been sold and delivered. Principle: When a manufacturer’s breach of the duty to warn is found to have influenced a physician’s opinion as to the safety of a drug thereby contributing to the physician’s non-disclosure of a material risk and the consumer’s ingestion of the drug, the manufacturer is not entitled to require the injured consumer to prove that a reasonable consumer in her position would not habve taken the drug if properly warned. So long as the court is satisfied that the plaintiff herself would not have used the drug if properly informed of the risks, the causation issue is decided in her favour regardless of what other women might have done. Comment: The defect related to the product’s instructions. The court found negligence specifically related to this point. The drug company failed to warn plaintiff against the specific risk of stroke. Lambert v. Lastoplex Chemicals/(1972) CLL Facts: The plaintiff purchased 2 cans of a drying lacquer sealer manufactured by defendant. While applying the product to a parquet floor of a room in his home connected to another utility room (where there was a natural gas furnace), a fire erupted causing an explosion and injuries to plaintiff. Plaintiff had read caution labels on the product before he started application. Issue: Is the manufacturer liable to the user of a product for damages caused by it even when the user is aware of certain caution notices on labels of the product? Held: Yes. Judgment in favor of plaintiff. Principle: Where the manufactured products are put on the market for ultimate purchase and use by the general public and carry danger, although put to the use for which they are intended, the manufacturer, knowing of their hazardous nature, has a duty to specify the attendant dangers, which it must be taken to appreciate in a detail not known to the ordinary consumer or user. A general warning will not be sufficient. Comment: manufacturer here did not take all reasonable precautions as it was proved that there was another manufacturer on the market who warned specifically against the risk of turning on pilot lights while using the product.

General Comparison of Liability for Injury Caused by a Thing CML CLL Narrows down the scope of its principle in 1st question to ask: Does the damage fall under A.1465 CCQ order to avoid a regime of strict liability. (1054 CCLC)? The plaintiff has to prove the following: (1) It admits liability without fault only if there Damage was caused by the “thing” (2) The thing was under is an unusual risk i.e: an unnatural use of the care of the defendant (3) If proved (there is presumption the land (such as building a nuclear plant) of fault on the defendant), ask 2nd question: Can the TORT OF NUISANCE defendant be exonerated? (4) How? By proving there was: Natural use of the land causing damage (a) Force majeure; (b) Plaintiff’s fault; (c) Fault of 3rd party; (ex: chemicals on a farm) would not result (d) he took all reasonable precautions. If defendant cannot in strict liability if chemicals escape. exonerate himself, then there is liability without fault

20 Burden of proof is on the plaintiff who has Burden of proof shifts to the defendant who has to show he to show: fault, duty of care and its standard was not at fault and can be exonerated Product liability: If there is a contract Product Liability: If there is a contract between the between the manufacturer and the manufacturer and the consumer, the latter can only sue under consumer, the latter can sue for product contract (Art.1458) liability under either breach of contract or tort (negligence) Donoghue v. Stevenson NUISANCE

Miller and another v. Jackson and another/ (1977) CML Facts: The plaintiffs bought a house built at the edge of a cricket ground. Several balls landed in the house and caused damage. The club erected a fence separating the two properties. Balls kept landing in the house, causing the Millers to leave their property whenever cricket was played. The club offered to supply a safety net over the plaintiff’s garden and remedy any damage but those offers were rejected. Issue: Was there an unreasonable interference with the plaintiffs’ right to enjoy their property? Held: Grudgingly yes. Appeal dismissed. Judgment in favour of plaintiffs, upholding the injunction to restrain the club from committing nuisance (while allowing the club 12 months to move elsewhere) Ratio: Geoffrey Lane (m): - The club is liable in negligence because there was a foreseeable risk of injury to the plaintiffs and their property from the cricket balls - There is no excuse which exonerates the defendants from liability in nuisance for what they have done or what they threaten to do – It is no answer to a claim in nuisance for the defendant to show that the plaintiff brought the trouble on his own head by building or coming to live in a house so close to the defendant’s premises that he would inevitably be affected by the defendant’s activities (as per the decision in Sturges v. Bridgman). L. Denning(d) : If the plaintiff seeks a remedy in damages done to him or his property, he can lay his claim either in negligence or in nuisance but if he seeks an injunction to stop playing cricket altogether, then he must make his claim in nuisance . The next question is: is the use by the cricket club of this ground for playing cricket a reasonable use of it? Yes. Does it suddenly become a nuisance because one of the neighbours chooses to build a house on the very edge of the ground? No. The building of the house does not convert the playing of cricket into a nuisance when it was not so before. L. Denning sees the case as a contest between the interest of the public at large and the interest of a private individual. Comment: Can we flip this argument to say that cricket is a private good while low income housing is the real public interest? Even when they have the law backing their case, the Millers’ claim is still seen by the judges as unjust and it is the def. Who’s victim and who risks to suffer if the law has its way.

Drysdale v. Dugas/ (1896) CLL Facts: Dugas owns 2 houses; Drysdale erected stable adjoining one of the houses; Dugas claiming damages for offensive and unhealthy odours causing a depreciation in the value of property. Stable complied to latest approved methods of ventilation and drainage and was erected before the house was inhabited. Issue: Tort of Nuisance. Held: There was nuisance. It interfered with the personal comfort and enjoyment of Dugas; Drysdale has right to erect stable but not to emit odours. Ratio: We must take into account the conditions and surroundings of the property. In this case, it was a residential area. Comment: Compensation for damages caused by nuisance even though defendant has exercised extreme care and complied with the highest standards. Nuisance is appropriate in this case based on the locality.

Appleby v. Erie Tobacco Co./ (1910) CML Facts: Appleby looking for damages because of noxious odours coming from Tobacco factory and interfering with his enjoyment of premises and hurting his business. Issue: Should an injunction be issued?

21 Held: There was nuisance. Judgment in favour of plaintiff but operation of injunction postponed for 6 months to allow Erie to abate nuisance if possible or to make arrangements for the removal of that part of the business causing the odour. Ratio: There are 2 classes of nuisance: i) Those which interfere with the comfort and enjoyment of property ii) Those which interfere with the value of property. Occupant can sue in respect of the former. No one should have to put up w/the inconvenience and annoyance of noxious and sickening odour. (2) “What makes life less comfortable and causes sensible discomfort and annoyance is a proper subject of injunction. Principles 1. Sensitivity Rule - in deciding if something is a nuisance the standard wh/ is used is the reaction of normal persons in the particular locality, not the sensitivity of the particular plaintiff. 2. Material Discomfort - the nuisance must interfere with the ordinary comfort of human existence. The discomfort must be substantial and material. 3. Local Standard Rule - argument that the defendant is just acting like other companies in the area will only go so far. Adding to the noise or the smell of the neighborhood may be the last straw, if so the defendant will be held liable. 4. Character of the Defendants Action - even though Erie Tabacco was trying to be reasonable and not hurt the plaintiff this did not matter b/c nuisance is a strict liability tort. Therefore, once it is shown that the defendant is liable (i.e. using local standard, material discomfort, sensitivity rule) it doesn’t matter what the character of the defendant is. (Note: Sometimes the defendant’s character does matter; see Hollywood Silver Fox) 5. Injunction - in nuisance cases normally an injunction is issued rather than damages. This is b/c (a) once liability is shown the plaintiff should not have to put up w/the nuisance and (b) b/c inconvenience and annoyance cannot be adequately estimated in money.

Canada Paper v. Brown/ (1922) CLL Facts: Odours and fumes from pulp mill caused intolerable inconvenience to occupants. Issue: Should there be an injunction, when municipal authorities did not interfere. Held: yes -injunction. Odours are a public nuisance, not a private one. Ratio: court will consider the customs of the people, the characteristics of their business, the common uses of property and the particular circumstances of the place. Principle: Courts are not restricted to awarding damages but may grant perpetual injunction to restrain a manufacturer from continuation or repetition of a nuisance. Even if the plaintiff is the only objecting person while his neighbors and the municipality did not complain, his case is still legitimate.

Although nuisance can on occasion benefit the environment, it’s not always the case that it does so or that it does so exclusively. On the whole, nuisance has historically been an ineffective weapon against pollution of the Industrial Revolution. Nuisance law has never really reflected a concern for environmental protection as such. Its primary focus has been to define the rights and limitations attaching to enjoyment of private property. Environmental; damage is only relevant in so far as it poses a threat of harm to someone’s proprietary interests. The wrong lies in the violation of property rights not in the destruction of the environment. n injection of a pure economic cost/benefit analysis (as, for instance granting an injunction to close a factory where thousands of workers are employed) into the test of resonableness shows that private law (including nuisance) is not a particularly efficient means of controlling pollution.

Liability for the Act of Another

Why do we have a rule saying that a victim can sue the employer for an act, resulting in harm, by an employee?

1. b/c the employer benefits from the employee’s actions and, therefore, should also bear the costs. 2. The employer is the guarantor. 3. Compensation: only the employer is in a good enough position to bear the loss. 4. Safety: Employer would be prompted to take higher safety standards in the workplace.

22 5. Provides an incentive for employers to closely supervise their employees’ activities.

1459 – Parental liability Is there liability of parent for act of a minor?

Plaintiff must prove: (1) person who injured him/her was under 18; (2) minor was under parental authority at the time he/she committed the fault; (3) minor endowed with reason committed a fault; or (4) minor not endowed with reason committed wrongful act

Once the above is proved: presumption of fault of parent

Exoneration & Factors: (1) educated child properly; (2) supervised child properly; (3) child’s age and experience; (4) adequate custody (control); (5) family context; (6) allowing use of dangerous objects; (7) foreseeability of occurrence; (8) physical distance; (9) obligation of means

1463: Principle/Agent Is there liability of principle for fault of agent?

Plaintiff must prove: (1) “employee”: defendant is the principal who had authority upon agent who injured plaintiff (ex: contract of employment as opposed to an independent contractor); (2) “fault” : causality and injury by the agent who, assumingly, can discern right from wrong; (3) “performance of duties”: agent caused the injury while in performance of his/her duties

Once the above is proved = presumption of liability

Exoneration: (1) at the time of fault, agent was not acting in performance of his duties; (2) at the time of fault, agent was not under the authority of the principle but of someone else; (3) there was no causal link b/w fault of agent and injury of plaintiff; (4) Force majeure; (5) victim’s own fault; (6) fault of a third party

Ira s. Bushey v. United States/ (1968) CML Facts: Drunken sailor comes back from a night out and turns a few valves, causing ship in drydock to sink. He muttered to officers about the valve but they didn’t pay attention to him because he was soooo drunk. Issue: Is the government vicariously liable for sailor’s actions? Held: Yes. Government responsible for the damage. Ratio: Businesses cannot disclaim responsibility for accidents which can be said to be characteristic of their activities; sailor’s conduct was not so unforeseeable so as to make it unfair to hold the government liable; the risk that seamen may cause damage to drydock is enough to make the enterprise pay.

Dube v. Havre des Femmes inc./(1998) CLL Facts: Dube is an acoholic divorcee staying at Le Havre. Le Havre interventionist (counselor) knew about it and sought Dube’s financial situation. She invited Dube to stay at her house where she could drink, then extorted money from Dube; Dube wanted money back when she regained control over herself. She sued both the interventionist and Le Havre. Issue: Did Le Havre commit a fault that requires to share in Dube’s liability? Held: No. Le Havre is not liable. Ratio: Adequate hiring procedure; Dube had instructions not to bring people to her home; she did not adopt proper code of ethics; she acted outside sphere of responsibility. Le Havre would have been liable if wrongful action took place: (1) during normal exercise of employee’s functions; (2) while in the benefit of the community. It is unjust to make charitable organizations guarantors for all acts of their employees.

Quebec Asbestos Corporation v. Gedeon Couture/ (1928) CLL

23 Facts: the plaintiff, an independent contractor, was working in the company’s mine (and was in no way subordinate to it). The latter supplied the dynamite, tools and accessories. While performing one of the routine operations drilling a rock, the plaintiff was seriously injured by an explosion of dynamite, which was place in the rock earlier by the plaintiff or one of his employees. Issue: Can the company be held liable for the injury? Held: No. Ratio: The plaintiff was an independent contractor. He was not an employee of the company. The accident was also due to the fault or negligence of the plaintiff himself. Principles:Someone is a contractor and not an employee (i.e. not principal/agent relationship) if: (1) they receive a profit; (2) they control their own employees; (3) they are in charge of their own work; (4) the company cannot give instructions or orders to the person; (5) there is no relation of subordination. Someone is an employee if: (1) they receive a fixed salary; (2) their work is controlled by the company; (3) the company gives the person instructions of orders; (4) there is a relationship of subordination Exoneration: The principal can escape liability by proving: (1) that, at the time of the event, the agent was not acting in the performance of her/his duties; (2) that at the time of the event, the agent was not under the authority of the principal but that of someone else; (3) that the agent committed no fault; (4) force majeure; (5) victim's own fault; (6) fault of a third party i.e. the person who committed the fault is not the agent

Questions asked in seminar: How does McLachlin J. refer to precedent? How does her judgment influence subsequent cases? How does the principle arrived at by the SCC in Bazley explain past cases? How persuasive is the “policy” argument of compensation used by McLachlin J. and by Binnie J. to arrive at their respective decisions?

Bazley v. Curry/(1999) CML Facts: The Children’s Foundation is a non-profit organization, operating as a subsitute parent for emotionally troubled children. Its employees were to do everything a parent would do. The foundation hired Curry after it checked he was a suitable employee. It turns out he is a pedophile and sexually abuses Bazley, a resident child, who is now bringing this action. Issue: 1) may employers be held vicariously liable for their employees’ sexual assaults on clients or persons within their care? 2) If so, should non-profit employers be exempted from liability? Held: 1) Yes. 2) No. Foundation is liable. Ratio: McLachlin J.: First, a court should determine whether there are precedents which unambiguously determine on which side of the line between vicarious liability and no liability the case falls. If prior cases do not clearly suggest a solution, the next step is to determine whether vicarious liability should be imposed in light of the broader policy rationales behind strict liability. Since precedent lent little help, McLachlin moves to policy considerations. These are the following: (1) Social interest in furnishing an innocent victim with recourse against a financially responsible defendant (compensation + deterrence); (2) Concern not to impose undue burdens on business enterprises. A wrong that is only coincidentally linked to the activity of the employer and duties of the employee cannot justify the impositions of vicarious liability on the employer. This is not the situation in our case. Principles: In rendering this judgment, it is vital that courts attempt to articulate general legal principles to lend certainty to the law and guide future applications. The test for vicarious liability for an employee’s sexual abuse of a client should focus on whether the employer’s enterprise and empowerment of the employee materially increased the risk of sexual assault and hence the harm. This test must not be applied mechanically, but with a sensitive view to the policy considerations that justify the imposition of vicarious liability, i.e.: compensation and deterrence. The following factors should be considered: (1) Opportunity that the enterprise afforded the employee to abuse his/her power; (2) Extent to which the wrongful act may have furthered the employer’s aim; (3) Extent to which the wrongful act was related to friction, inherent in the employer’s enterprise; (4) Extent of power conferred on the employee in relation to the victim; (5) Vulnerability of potential victims to wrongful exercise of the employee’s power.

24 Jacobi v. Griffiths/ (1999) CML Facts: The boys’ and girls’ club employed Griffiths as program director. During his employment, griffiths was encouraged to cultivate positions of trust and respect with youngsters. His relationship with the 2 plaintiffs (then 10 and 11) resulted in sexual assault against the male and repeated assaults against the female, culminating in an incident of sexual intercourse. Issue: Was Griffiths’ wrongdoing sufficiently linked to his employment duties to justify imposition of vicarious liability? Did the club’s operation of its business create or enhance the risk of sexual assault? Held: No. Ratio: Binnie J. (m): No fault liability here would be of some benefit to some victims. Fairness to the non-profit organizations is entirely compatible with vicarious liability provided that a strong connection be established between the enterprise risk and the sexual assault. Since policy considerations are too weak to hold the club vicariously liable (compensation: employer does not operate in mkt environment and has little ability to absorb cost of such fault + deterrence: rational response of non-profit organizations may be to exit the mkt of child recreation altogether AND if severe punishment under the criminal code is not deterring enough, do you honestly think that any other remedies in torts would be?), the defendant organization is entitled to insist that the strong connection test be applied with appropriate firmness. McLachlin J. (d): In considering the 5 factors she set out in Bazley, she concludes that all the relevant factors suggest that Griffiths’ torts were linked to his employment. She held the club liable for his conduct. Principle: In order to find a strong connection, there must be a material increase in the risk of harm occurring in the sense that the employment significantly contributed to the occurrence of the harm. Applying the 5 factors set out by McLachlin in Bazley, he finds the club not liable. Policy Considerations: Compensation can fairly be viewed as a cost of the club’s operations, where fair compensation involves internalizing the cost of a risk on the appropriate party, judged not by ability to pay but by introduction of the risk that led to the tort. Ultimate goal is a rule of vicarious liability that is fair to plaintiff, defendant, and society. Even in the case of a charitable organization like the boys’ and girls’ club, goals of compensation and deterrence are still adequately served.

Gaudet v. Lagace/(1998) CLL Facts: Young Gaudet, Lagace and Gauthier (11, 12 and 13) decide to go to the residence of the Legaces, while the latter are outside greeting their guests. They sneak into the house and steal a bottle of beer and some gasoline. They later go into the woods and start a fire. An explosion occurs and Gaudet is very seriously burned. Issue: Are the parents of the two other children liable? Held: No. Gaudet gets almost $140,000 in compensation from the two other children. Ratio: First, the 3 children committed an equal and “contributory” fault. They were warned by their parents that it was dangerous to start a fire. There is a link of causality b/w fault and damage and the damage was foreseeable. Second, as regards presumption of fault on the part of the parents: (1) there was no lack of supervision the day of the accident. In modern days, parents are not expected to supervise their children round the hour. (2) the parents did not tolerate the use of dangerous objects. They could not have locked gasoline and barbecue tools away from a 12-year old + they had no knowledge that their son participated in such dangerous activities prior to the accident.

Specific Wrongs: Medical Liability

Malette v. Shulman/(1990) CML Facts: After being rushed to the hospital, plaintiff received blood transfusion after defendant (doctor) concluded that transfusion was necessary. Defendant administered blood transfusion even though plaintiff – a Jehovah’s witness – had a card clearly indicating she did not want to receive a blood transfusion. Issue: Is the doctor liable in battery? Held: Yes. Ratio: In this case, it was an emergency, but patient had given explicit instructions that she did not want

25 blood transfusions. So, the doctor was not entitled to give her transfusions.

Norberg v. Wynrib/(1992) CLL Facts: A doctor had engaged in a sex-for-drugs transaction with his patitent. Issue: Is the doctor liable in battery? Held: Yes Ratio: : La Forest (m): His message to doctors is that if you exchange drug for sex, you’re exploiting your patient and this vitiates her consent. However, when there is an exchange of sex without any other coercive factors, there would be no problem. McLauchlin (d): moves away from consent and calls it a fiduciary relationship, where the doctor always has to work in the best interest of the patient. Her message is that doctors and patients should NEVER engage in sexual relationships.

Battery is unwanted touching with or without injury. It has traditionally protected the interest in bodily security from unwanted physical interference. A person may waive this protection. No special exceptions made for medical care, other than emergency situations. At common law, a medical intervention in which a doctor touches the body of a patient would constitute a battery if the patient did not consent to the intervention. The doctrine of INFORMED CONSENT has developed as the primary means of protecting a patient’s right to control medical treatment. By imposing civil liability on those who perform medical treatment without consent even though the treatment may be beneficial, the law maximizes individual choice. After vicarious liability (liability for fault of employee) and indirect liability (liability for the act of a child), medical liability represents a further departure from the regime of fault-based liability.

Doctor-Patient Relationship: (1) has a fiduciary, non-contractual character; (2) paternalistic : doctor must behave in the patient’s best interest; (3) doctor’s violation of a patient’s interest (in self-determination) = wrong

Riley and Simmonds “Informed Consent in Modern Medical Practice”:

Patients have the decisive role in the medical decision-making process. Valid consent requires: 1. Competence: very dynamic, may change in the long or short term. Patient may be competent to decide on one level but wholly unable to deliberate on another. 2. Information: for consent to be autonomous, patient must sufficiently comprehend material issues. There must have been appropriate disclosure of all relevant information. There is today more and more emphasis on the quality of understanding of that information and the genuiness of the consent obtained. 3. Freedom from coercion: there is inherent powerlessness in patienthood (fear, suspence, pain, etc…). So, at best, we can hope not for a total but for a substantial autonomy.

Not only should there be a shift from institutional consent to a genuinely autonomous and intentional act of authorization, there should also be a shift toward validation of the chooser. We have to maximize the patient’s autonomy. Respect for the patient’s autonomy is the best way to practice medicine. As way of analogy, a client may instruct a lawyer to pursue a course of action which might not seem the best from the lawyer’s standpoint, but which the client has rationally determined upon. The response to concerns about informed consent is then a better dialogue between patient and carer. Doctors should maintain a genuine and straightforward “conversation” with their patients.

Battery v. Negligence Battery: (1) does not require proof of fault; (2) a violation of the patient’s “general consent” to operation. Negligence: (1) requires fault; (2) involves the objective reasonable person test (the reasonable patient).

Reibl v. Hughes/ CML Facts: plaintiff underwent an operation performed by the defendant. Operation was completely performed by the doctor. During or after surgery, plaintiff suffered massive stroke leaving him paralyzed.

26 The plaintiff had consented to the operation. He alleged that this was not ‘an informed consent”. Principles: The tort of battery is an intentional one, consisting of non-consensual invasion of one’s bodily security. It has some advantages over an action in negligence because it does not require causation. The Supreme Court said actions in battery in respect of medical treatment should be confined to cases where treatment has been given to which there was no consent or where, emergency situations aside, surgery or treatment has been performed or given beyond that to which there was consent. Unless there has been misrepresentation or fraud to secure consent to the treatment, a failure to disclose the attendant risks, however serious, should go to negligence rather than to battery.

White v. Turner/CML Principles: Looks to Reibl v. Hughes to discern the following principles: (1) Canadian doctors are obliged to disclose to their patients “the nature of the operation, its gravity and any special or unusual risks attendant upon its performance”; (2) These problems (involving the adequacy of information about risks) are to be analyzed with negligence law theory rather than with battery; (3) The law of battery can only be used where there is no consent to the operation to start with, where the treatment given goes beyond the consent or where the consent is obtained by fraud or misrepresentation; (4) Disclosure of risks by a doctor resembles a manufacturer’s duty to warn consumers about the dangerous properties of a certain product. Test (Reibl v. Hughes): (1) no longer the professional medical standard but rather the reasonable patient standard; (2) The court has a say in determining the appropriate level of information that must be conveyed to a patient; (3) Material risks pose a real threat to a patient’s life, health or comfort and should be disclosed; (4) Unusual (special) risks should be disclosed; (5) Common, everyday risks (an incision causes bleeding) need not be disclosed; (6) Unlike battery, negligence law furnishes compensation only if the act has caused some injury; (7) To recover in negligence, plaintiff must prove that he would have refused to undergo the surgery if he had been told about the risk; (8) As this can open floodgates (every patient can say “I wouldn’t have consented only had I known”), the court must be satisfied that a reasonable patient , in the same situation, would have done so.

Drolet v. Parenteaul/(1994) CLL Facts: Def. performed plastic surgery on the eyes of the pl. The latter lost sight in one eye following the operation. Doctor had not mentioned any risks involved in this operation, even though he knew there was a minute probability of blindness. Issue: What is the responsibility of the defendant? Held: Def. loses. Plaintiff gets compensation. Ratio: Tyndale (m): (1) informed consent is not an important issue in this unusual case. Rather, it is the lack of information on the events after the operation which is important; (2) Duty to warn of risk varies inversely with its rarity but directly with its severity. The duty to warn and inform is also heightened in cases where the surgery is purely aesthetic. Defendant was under legal obligation to inform plaintiff on the risk of blindness. By failing to perform this obligation, he is liable in fault for any resulting damage. Baudouin (m): Focuses on information prior to the operation. Doctor has duty to inform patients prior to the operation about the potential risks of operation. 2 factors must be considered: 1)probability of such a risk 2)severity of the potential harm. In this case, the doctor has the duty to inform the patient about the potential risks involved. However, civil liability is not automatically imposed by the lack of information. One has to apply: 1.a subjective test : consider if the patient would have accepted intervention if all the information was given to her prior to the operation 2.an objective test: would a reasonable person in the same situation, with the same information, have consented to the operation?

Liability of Public Authorities Why would we shield the government from liability? (1) The government must be able to make “true policy” decisions without being subject to liability. (2) We don’t want tort liability to interfere with political decisions.(3) The government is never seen as a normal person. (4) Today, the scope of immunity of the government has decreased considerably.

27 Osborne (p.191-193): There is no apparent pattern in the judgments or any way to predict whether a court will decide that a specific governmental activity is a matter of policy or operations. The policy/operational dichotomy does not offer a “bright line” to between those activities of government which are justiciable in a negligent action and those which are not. This leaves a great deal of room for the exercise of judicial discretion according to the circumstances of the individual case.

Jane Doe v. Toronto Metropolitan Commissioners of Police/(1998) CML Facts: Jane Doe was raped by a stranger later identified as Paul Callow. Jane was his fifth known victim. No warning has been issued by the police. She is suing the Metro Toronto Police Force on 2 bases: The MTPF conducted a negligent investigation and failed to warn women whom they knew would be at risk. This denied her the opportunity to take specific measures to protect herself from the attack. The MTPF being a public body has the statutory duty to protect the public from criminal activity. Held: MTPF is negligent. Plaintiff gets $220,364 in compensation. Ratio: Negligence: Existence of a duty of care: to establish a private law duty of care, foreseeability of risk must coexist with a special relationship of proximity (Anns v. Merton, Kamloops v. Nielsen). In this case, there was: a- foreseeability of risk b/c the police knew of the existence of a serial rapist b- there was a special relationship of proximity b/c by the time of the rape, she had become part of a distinct group of potential victims. This is enough to establish a private duty of care. Breach of the duty: the law is clear, that in certain circumstances, the police have a duty to warn citizens of the existence of foreseeable harm. In some circumstances, the police might decide not to give a warning, but they still have a duty to protect. In this case, they failed to warn her or to adequately protect her. Conclusion: the judge is satisfied that Jane would have taken steps to protect herself, had she been aware that the serial rapist was in her neighborhood.

Laurentide Motels v. Beauport/(1989) CLL Facts: The municipality being sued for failing to put off fire. Issue: does civil law apply to a municipality to determine its responsibility for damages caused by a fire? Held: Yes. Ratio: According to art. 356 CCLC, 2 bodies of law apply to municipal corporations: public law and civil law (the code). Municipal corporations are governed by public law except “in their relations, in certain respects, to individual members of society”. How to determine when the civil law applies to those corporations: This is a question of public law and not of private law: hence, any plaintiff claiming damages against the city pursuant to 1503 CCLC, must demonstrate that as a matter of public law, art. 1503 applies to his action. The public law of Quebec contains statute and common law. Based on Anns and City of Kamloops: once the authority moves into the OPERATIONAL SPHERE of its power (the practical execution of its policy decision),it is liable for damages caused to an individual by its negligence. The difference is that, in Quebec, the standard of conduct is set out in art.1053 (the common law rules of duty of care do not apply). The acts and omissions in this case fall into 2 categories: a- failure to keep hydrants clear and functioning b- the acts and omissions of the municipality’s firefighters. These 2 acts are definitely within the operational sphere of the municipality’s activities. Hence, the city was at fault.

Articles 300 & 1376: The common law is the public law of Quebec (proximity, duty of care, etc…); the civil code is the private law of Quebec

Once you decide that the authority may be liable (in tort), you move directly from the public law to the private law sphere, governed by A.1457 CCQ.

28 Causation (Establishment of a causal link and the “but for” test) The hardest part in proving the existence of a causal link between action A and injury C is that, more often than not, events do not happen separately, i.e: there is usually another action B which might have intervened between A and C. It is often quite hard to discern from the facts of the case which action exactly (between A and B) caused the injury.

Gburek c. Cohen/(1988) CLL Facts: Gburek – a paralyzed 22 year old – has serious fever and is admitted to the hospital. His condition requires the use of a powerful anti-biotic prescribed by Dr. Cohen. The drug, which has serious side- effects- is administered over a lengthy period, without doing the specific tests required to monitor its effects. Gburek suffers a 30% deafness. Issue: Was the plaintiff’s injury caused by fault of the doctor? Held: Yes. Plaintiff gets $143,000 in compensation. Ratio: Chouinard (maj. BUT not important!!): 1. Dr. Cohen did not fulfill his obligation to inform his patient of the risks involved. The latter never had the choice to refuse the medicine 2. Dr. Cohen is at fault for not doing the required tests to monitor the effect of the drug on the plaintiff 3. The burden of proof shifts to the doctor who had to exonerate himself from fault, which he failed to do. Beauregard (minority BUT important): Orders same damages but for different reasons. The real issue is to determine whether there is a causal link between the fault of the defendant and the damage: Principle (selon Beauregard): In order to succeed, the pl. has to prove: 1) negligence of the defendant 2) causal link between the defendant’s fault and the injury. Here, the plaintiff failed to establish the link, as it is impossible to determine from the hospital records whether the deafness was caused by the direct failure of the doctor to conduct the required tests or whether deafness would have occurred anyway, due to the drug’s normal side-effects. It is precisely because the doctor made it impossible for the plaintiff (with the limited information provided) to prove this causal relation that the onus of proof shifts to the doctor.

Barnett v. Chelsea/(1967) CML Facts: Three watchmen drink tea and start vomiting shortly thereafter. They walk into the casualty dept. of the defendant hospital looking ill. The nurse calls doctor on duty. He discharged them without examination. Barnett later died of arsenic poisoning, very hard to detect. Issue: Did the defendants’ omission cause the plaintiff’s death? Held: No. plaintiff’s action fails. Ratio: The doctor owed the defendant a duty of care, which he failed to meet. Therefore, he is found negligent. However, the plaintiff failed to establish that death was caused by the defendant’s negligence (remember that onus of proof of existence of the causal link is on the plaintiff). Even if the onus of proof had shifted to the defendant, he would have been discharged of it on the basis that the deceased couldn’t have been saved, even if the doctor had conducted a proper examination (due to the nature of the poison and difficulty to counter-effect it). Comment: The court realizes the gross negligence of the doctor on call but cannot punish it because it does not satisfy requirements of causality and, therefore, does not amount into a tort. The possibility of a link is not enough. The causal link must be established in fact.

Morin v. Blais/ (1977) CLL Facts: B traveling in tractor; M traveling in the same direction; L coming in opposite direction. M could not see tractor soon enough, swerves to the other side and collides with L. Wife of L is killed and M is injured. Red light on B’s tractor was not working (in breach of driving regulation) and other light barely visible. Tractor, however, was equipped with the required fluorescent triangle. Issue: Is breach of a statutory duty enough to establish civil liability? Held: there is fault and there is a causal link between fault and accident. M succeeds BUT there is common fault because he also had not been driving with care and prudence.

29 Ratio: The absence of a red light constitutes a breach of regulation. While in the absence of injury, a mere breach of a regulation does not give rise to civil liability, this statutory provision does lay out elementary standards of care and in the case of injury can constitute civil fault. So, in brief, the absence of the red light is: (1) breach of a statutory regulation; (2) direct and immediate cause of accident (what concerns us in causation); (3) Constitutes fault and gives rise to civil liability Comment:. The two dissenting judges thought that the determining cause of the accident was M’s failure to see something that was clearly visible and that he did not take the precautions of a reasonable man. The breach of the statutory regulation in itself provides no causal link in this case.

Saint-Jean v. Mercier/(1999) CLL Facts: The plaintiff is hit by a car and is admitted to emergency. The doctor (Couture) suspects a fracture in the vertebral column but X-rays don’t confirm it. Dr. Mercier is informed of the patient’s condition and decides to operate. Following operation, the plaintiff is paralyzed. Upon consulting another doctor, he finds out paralysis is due to the fracture which should have been detected by the X-ray. Def. wins at trial. Issue: Was the paralysis caused by the accident or by the doctor’s fault? Held: Paralysis was caused by accident. Defendant wins. Ratio: Experts are divided on whether paralysis due to the fracture was caused by the accident or by the doctor’s failure to diagnose the fracture. Principle: It is not enough to show that the defendant has created a risk of injury by his actions (or omissions) to prove the causal link between the action and the actual damage. The only instance when the burden of proof shifts to the defendant is when he renders it impossible for the plaintiff to prove or even try to find the causal link.

McGhee v. National Coal Board/(1972) CML*** Facts: The plaintiff was employed by the respondents as a labourer. He was transferred for a day from his usual line of work to another, where conditions were much harder (heat and dust) and there were no washing facilities. He was later diagnosed with dermatitis. Issue: Did exposure to new conditions along with lack of washing facilities cause the dermatitis? Held: Plaintiff wins. Ratio: L. Reid : “a plaintiff can succeed if he shows that the fault of the defendant caused or materially contributed to his injury”. In cases like this, we have to use a broader view of causation. Since the medical evidence is inconclusive and can’t tell us when exactly the disease developed (when sweating at work or when sweating on the way home), then it must inferred that exposure to dust + lack of washing facilities have contributed to the risk of injury. “The legal concept of causation is not based on logic or philosophy. It is based on the practical way in which the ordinary man’s mind works in the every day affairs of life. L.Wilberforce: The plaintiff need not prove that the increase of risk caused or materially contributed to the disease while his employers cannot prove the contrary. There many other more important considerations: (1) it is a sound principle that where a person has by breach of a duty of care created a risk and injury occurs within the area of the risk, the loss should be borne by him unless he showed that it had some other cause; (2) The plaintiff should not be required to show anything more than the fact that the defendant has breached a duty owed to him, in the absence of which there is risk of a certain injury and the injury occurs (proving more than that is impossible due to medical knowledge); (3) It is the creator of the risk who should bear the consequences. Comment: Note difference from the CLL approach outlined in the above case. McGhee is a landmark case, which shifted the ordinary burden of proof with respect to causation to the defendant, once his negligence is confirmed. Some commentators argued that, by doing so, L. Wilberforce has effectively eliminated causation altogether as only the negligent conduct would have to be proved but nothing more.

Farrel v. Snell/(1990) CML (rejects the McGhee theory of reversal of burden of proof) Facts: Pl. consulted def. about problems with her vision. Def. operated on her. Mrs. Snell later lost vision in her left eye. Neither of the expert witnesses could say whether the operation had caused the injury.

30 There were several other causes that might have caused it. The trial judge is satisfied that the facts brought the case within an emerging branch of the law of causation whereby the onus to disprove causation shifts to the defendant in certain circumstances {as in McGhee}. Issue: Does the plaintiff in a malpractice suit have to prove causation in accordance with traditional principles (onus of proof on pl.) or do recent developments in the law justify a finding of liability on the basis of some less onerous, less rigid standard? Held: plaintiff wins. Causation established BUT not on a reversal of the burden of proof to the def. It is established by inference. Ratio: Sopinka J.: There are 2 broad principles in causation: (1) that the onus is on the plaintiff; (2) that where the subject matter of the allegation lies particularly within the knowledge of one party, that party may be required to prove it. These principles are adequate. The ultimate burden remains with the plaintiff, but in the absence of any evidence to help him carry that burden, an inference of causation may be drawn, even if there is no positive or scientific proof of causation. Principle: “It is not essential to have a positive medical opinion to support a finding of causation. It is not speculation but the application of common sense to draw such an inference where the circumstances permit.” Comment: Here, there’s too much uncertainty to apply the “but for test”. However, the law does not stand idle to let the defendant get away with it. Sopinka gets around it by arguing that causation is not about certainty but the possibility of the injury happening, this is all the pl. has to prove. Do not forget that Sopinka insists that the burden of proof should rest with the plaintiff. He therefore rejects L. Wilberforce’s method of shifting the burden of proof to the defendant, introducing more flexibility with this type of cases but also more confusion.

La Ferriere v. Lawson/(1990) CLL Facts: A woman has breast cancer. Defendant did not give her proper care. While defendant’s actions cannot be said to have caused her death because she would have died anyway, better care would have given her a better quality of life. +Held: Plaintiff loses. Nevertheless, she gets compensation for “psychological suffering”, due to the failure of the defendant to inform her of her condition. An earlier diagnosis could have also increased her quality of life before her death. Principles: (1) The rules of civil liability require proof of fault, causation and damage; (2) Causation in law is not identical to scientific causation; (3) In some cases, where a fault presents a clear danger and where the danger materializes, it may be reasonable to presume a causal link, unless there is an indication to the contrary; (4) Statistical evidence may be helpful as indicative but is not determinative. Causation in law may exist against statistical evidence; (5) Even when statistical and factual evidence do not support a finding of causation on the balance of probabilities with respect to a particular damage, such evidence may still justify a finding of causation with respect to lesser damage.

a-Uncertainty Concerning the Wrongdoer

Cook v. Lewis/(1951) CML Facts: The defendants were hunting together. They had agreed to divide their bag evenly. The 2 defendants fired almost simultaneously. Plaintiff, who was also hunting, received several shots, one of which caused the loss of an eye. The jury indicated that they were unable to find which of the two defendants did fire the shot which caused the damage. Issue: How do you deal with situations where it is uncertain who was the guilty agent? Held: the burden of proof should be shifted to the defendants. In the case at bar, if the jury finds itself unable to decide which of the 2 defendants shot the plaintiff because both shot negligently, both defendants should be found liable. Ratio: Cartwright J.(m) : the old general rule is “when it is certain that one of two individuals committed the offence charged, but it is uncertain who was guilty, neither of them can be convicted. This rule will apply, unless there are special circumstances which render the rule inapplicable. Principle (from Summers v. Tice): “if 2 defendants bring about a situation where the negligence of one of them injured the plaintiff, it should rest with them each to absolve himself if he can”. The injured party

31 has been placed by the defendants in the unfair position of pointing to which defendant caused the harm. If one can escape, the other may also and the defendant is remediless. Rand(m): if the jury finds one or both of the defendants negligent, and at the same time finds that the consequences of the 2 shots, whether from a confusion in time or in area, cannot be segregated, the onus on the guilty person arises. The culpable actor, as against innocence, must bear the burden of exculpation.

Massignani v. Veilleux/(1987) CLL Facts: At the beginning of hunting, one of the Massignanis claims to have received a shot from the Veilleux. A fight takes place between the Massignianis and one of the Veilleux. When the Veilleux go to complain to the authorities, they’re fired at from the back and one of them loses an eye. There’s confusion over who of the Massignanis fired the fatal shot. Issue: are both of the defendants liable for the damage? Held: Yes. Plaintiffs win and get compensation. Ratio: A.1106 CCLC (1526 CCQ):”the obligation to make reparation for injury caused to another through the fault of two or more persons is solidary where the obligation is extra contractual”. Even if we assume that only one of the 2 defendants fired the shot, their joint responsibility must still be upheld, in view of the circumstances. They both embarked on a common, illegal and dangerous adventure. Principle: Me Mayrand (doctrine): The fault which forms the basis of an action against the hunters is not the shot fired by each and injuring the victim but rather their common imprudence which created a dangerous situation. The shots are no more than a foreseen consequence of a wrong behaviour.”

Sindell v. Abbott/(1980) CML Facts: women brought class actions against drug companies seeking to recover for injuries sustained as a result of administration of drug DES to their mothers during pregnancy. Because of the lapse of time, no one can prove who made it. Issue: May a plaintiff, who knows the type of drug involved in the harm, but cannot identify the manufacturer of the precise product, hold liable for her injuries a maker of a drug produced from an identical formula? Held: Yes. Although specific manufacturer of DES could not be identified, plaintiff could hold the manufacturers of the drug which was produced from an identical formula liable for her injuries upon a showing that the manufacturers: (1) produced a substantial percentage of the drug in question, with each manufacturer being held liable for the proportion of the judgment represented by its share of the drug market (MARKET SHARE LIABILTY); (2) unless it demonstrated that it could not have made the product which caused the palintiff’s injuries. Ratio: Mosk J. (m): (1) as between an innocent plaintiff and negligent defendant, the latter should bear the cost of injury; (2) from a policy standpoint, defendants are better able to bear the cost of injury resulting from the manufacture of a defective product; (3) By joining in the action manufacturers of a SUBSTATIAL SHARE of the DES which a mother might have taken, the injustice of shifting the burden of proof to defendants is significantly diminished (while the defendants do not have means superior to plaintiff to identify the maker of the precise drug, they may in some instances be able to prove that they did not manufacture the injury-causing substance); (4) Under this approach, each manufacturer’s liability would approximate its responsibility for the injuries caused by its own products. Richardson J.(d): (1) in adopting a new rationale based on mere matching of plaintiffs and defendants, the majority has rejected tort principles which require that before tort liability is imposed, a “matching” of defendants’ conduct and plaintiff’s injury is essential; (2) Usually a mere possibility of causation is not enough, but under the new reasoning, a defendant is liable if it happens to engage in a similar business and causation is possible; (3) The new rationale is unfair: it is a “deep pockets” theory of liability, which is unrelated to fault; (4) The legislature is better able to deal with this problem. b-The Scope of the Risk

CML: The injury has to be proximate and foreseeable. What primarily has to be foreseeable is the type of the injury. What does NOT have to be foreseeable is the manner and extent of the injury. Problem: what if

32 there was an intervening event between the act of the tortfeasor and the injury? CML is not clear at all on that point and court decisions have been contradictory, to say the least (see Wrongs of Torts, p.71-72). Moreover, the type of injury is often very hard to determine. Question in class: Does this make the CLL directness test better than the CML foreseeability test?

CLL: The injury has to be the direct and immediate result of the wrongful act. However, this requirement has been constantly relaxed. In modern CLL cases (see Snell and Athey), as long as a defendant is part of the cause of an injury, he is liable even if his act alone was not enough to create the injury.

Comment: The foreseeability test is more in favor of the defendant than the directness test (rejected by CML) because it limits responsibility on the defendant Ex: A blind man causing the same injury to another as a non-blind man would be held to a different standard (what was foreseeable for him, even if his act was the direct cause of the other person’s injury.

Brisson v. Potvin / (1948) CLL Facts: The defendant parked his truck on the side-walk, forcing “les pietons” to go around the truck in order to cross the street. A 6-year old girl, attempting to go to the other side, is struck by a car which was trying to overtake the truck from the left side. The girl is seriously injured and loses eyesight. The girl’s father is suing both the truck driver and owner of the other car. Issue: Should Potvin, the truck driver, be held liable for the damages? Held: No. Appeal dismissed. Absence of a causal relationship between the defendant’s fault and injury. Comment: There are 4 possible causes for the accident: (1) The wrong parking of the truck; (2) Lack of precaution; (3) Fault of the plaintiff; (4) Fault of the driver who actually hit the girl Of these 4 reasons, the 4th is discarded and the issue was not appealed. The 1st and the 2nd are dismissed by the majority. Ratio: Pratte (m): In order for the plaintiff to succeed, he had to prove the existence of fault by demonstrating that the defendant’s act was the direct and immediate cause of the accident (remember the general CLL view of liability, whether in injury to persons or in acts and omissions). Between the act of Potvin and the damage, there was a series of occurrences that were totally independent of his fault: - fault of a third party – imprudence of the girl. Consequently, Potvin could not have reasonably foreseen the accident. So: (1) Foreseeability is dismissed; (2) there were intermediate events which were the direct cause of the accident: a) Plaintiff’s fault b) fault of third party c) all independent of Potvin’s actions; (3) Therefore, Potvin couldn’t have done anything to prevent this accident. BUT by arguing this way, Pratte is assessing Potvin’s conduct, which means we’re looking at fault rather than at causation. In the seminar, the “expert” said that this is a wrong technique because the two must be separated i.e: Regardless of fault, we should ask: Potvin’s conduct…was it or was it not not the cause of the accident. If the answer is yes, then he should be held liable. St-Germain (d): How can we possibly expect a 6-year old to act like a prudent adult? Having parked his truck the way he did, Potvin was not acting like a “bon pere de famille” who would have at least assigned someone to warn people of that dangerous situation. He could have certainly foreseen that elderly people and children in this populated area would have to go around his truck to cross the street. So, Foreseeability is affirmed…uses it not to establish causation but to say that Potvin didn’t use the required precautions Causation: “but for” test: this is what he’s really using to establish causation. Had Potvin assigned someone to warn people, the accident would have been avoided.

Palsgraf v. Long Island Rail Co./(1928) CML Facts: Plaintiff standing on the platform. Another train is about to leave when a man carrying a package wrapped in newspaper tries to catch it. A guard in the car is pulling him while another pushes him from behind. The package - containing fireworks - falls, explodes and injures plaintiff at other end of platform. Issue: Is there duty of care on the part of the railway company to the plaintiff? Where there is an act which unreasonably threatens the safety of others, is the doer liable for all its proximate consequences? Does he owe duty of care to one who would generally be thought to be outside the radius of danger? Held: No. Appeal dismissed. Ratio: Cardozo (m): The conduct of the defendant’s guard, if wrong in its relation to the holder of the package, was not wrong in its relation to the plaintiff. To her, it was not negligence at all. There is duty

33 of care but not owed to Mrs. Palsgraf. It was unreasonable for the guards to see the harm done to her. He doesn’t address the issue of causation at all. Andrews (d): There is a direct connection between the negligent act and the damages suffered (causality). “Everyone owes the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others. Not only is he wronged to whom harm might reasonably be expected to result but also who is in fact injured, even if he be outside what would generally be thought the danger zone.”

In Re Polemis/(1921) CML Facts: Defendants had rented the ship. While doing some work, the defendants’ servants negligently caused a plank to fall. The falling of the plank caused an unexpected result: a spark in an atmosphere of petrol vapour which caused the fire. Issue: Are the defendants liable for the fire even though it was an unexpected result? Held: Yes. Ratio: Bankes: The falling of the plank was due to the negligence of the defendant’s servants. Under these circumstances, it is immaterial that the causing of the spark by the falling of the plank could not have been reasonably anticipated. In other words, FORGET FORESEEABILITY. The anticipation of the person whose negligent act produced the damage is irrelevant. What matters is that there was negligence and that the negligence caused the damage. Warrington: Anticipation (later called foreseeability) determines whether the act is negligent or innocent. Liability, however, is determined by causality was the negligent act the cause of the damage? Scrutton: Foreseeability is used to determine negligence. Causality is the real determinant of liability. Anticipating the exact type of damage is immaterial. In this case, there was negligence in discharging cargo. The fact that it produced an unexpected result does not relieve the negligent person from liability because his act directly caused the damage. Principle: Once an act is found to be negligent and this negligence caused damage, the wrongdoer is responsible for any direct consequences. Foreseeability only determines fault.

Overseas Tankship v. Morts Dock (Wagon Mound I)/(1961) CML Facts: The defendants spilled oil in the harbour. The plaintiffs were working on fixing a boat using welding material. The oil caught fire when a molten metal fell from the wharf, igniting a piece of debris on which lay some smoldering cotton waste. Issue: are the defendants liable for the damage caused by the fire? Held: No. Ratio+ new principle: Viscount Simonds: Polemis is NOT good law: It does not seem consonant with current ideas of justice or morality that for an act of negligence, however slight or venial, which results in some trivial foreseeable damage, the actor should be liable for all consequences, however unforeseeable and however grave, so long as they can be said to be direct. “The essential factor in determining liability is whether the damage is of such a kind that the reasonable man should have foreseen” Comment: This is the high point for foreseeability in CML. VP says Simon’s test was later understood to mean foreseeability of only the type of damage, rather than its extent or manner. She disagrees and thinks he actually meant almost everything around foreseeability.

Hughes v. Lord Advocate/ CML Facts: Post office employees left a manhole open with a number of paraffin lamps around. Boys come to play and enter into manhole. On coming out, they drop one of the lamps. This causes an explosion which leads one of the boys to fall and burn himself. Lower courts found that the plaintiffs cannot recover because the injury was not foreseeable. Issue: Are the defendants liable? Held: Yes. The type of accident was foreseeable (the typical CML approach). Ratio: Lord Reid: 1. There was a duty of care owed by the workmen 2. ”But for” test: had the workmen done what they ought to, there would have been no accident 3. the type of injury is foreseeable. Lord Guest: In order to establish a coherent chain of causation, it is not necessary that the precise details should have been reasonably foreseeable: it is sufficient if the accident which occurred was of a type which should have been foreseeable by a reasonable careful person.

34 Principle (the main CML approach) : “It is sufficient for the accident which occurred to have been of a type which would have been foreseeable by a reasonable person to establish liability”. Comment: In order to establish foreseeability and consequently the defendant’s responsibility, the judges characterize the injury as a “burning” rather than an “explosion” injury, which wouldn’t have been foreseeable. Had the plaintiff lost his hearing ability instead, the injury wouldn’t have been foreseeable.

The closer you pull a case to normal circumstances, the easier you could label it as foreseeable which means that, even if we adopt foreseeability as the just test, it is still highly elastic. c-Multiple Wrongdoers and Multiple Causes

Q. v. Minto Management/(1985) CML Facts: Plaintiff was raped in her apartment by an employee of the landlord who had gained access through a master key. 3 months earlier, another woman in the same complex had also been raped. The landlord knew about the earlier rape and knew it was likely committed by someone with a master key but neither warned the tenants nor took any additional security steps. Issue: Was the rape a foreseeable consequence of the landlord’s negligence? Held: Yes. Ratio: The action of the rapist was not too remote. It was reasonably foreseeable. The risk of someone entering in the circumstances was a foreseeable risk. Principle: “If the intervening events were reasonably foreseeable, then the defendant is liable”. Since the def. could have easily prevented the risk, the 3rd party’s behaviour is NOT novus actus, rather falls within the scope of risk created by the defendant. Comment: Vicarious liability is not even discussed here because there may have been fault on the part of the employer himself + the employer wouldn’t be expected to know that one of his employees is a rapist. This in itself is a key difference between this case and Dorset Yacht. In the latter, there was a clear relationship of control between the home office and the boys while in Minto, there was not.

Deguire v. Adler/(1963) Facts: painters finished work in an apartment but omitted to reconnect gas pipe to stove. Janitor comes and opens gas valve. An explosion ensues. Fault on the part of painters for failing to reattach the stove. Fault on part of janitor for opening the gas without enquiring why it had been closed previously. Held: both jointly responsible, severally liable. Ratio: Both of the facts was an act of negligence that contributed to setting off the explosion. The acts of the painters leaving off the stove unconnected and the gas pipe open and the acts of the janitors turning on the gas to the apartment and doing nothing about the smell of gas combined with the unknown spark were all the cause of the explosion (3 causes: painters leaving gas pipes open, janitors turning on gas, and an unknown spark). Principles: Successive faults led to the solidarity liability of the defendants. Case stands for the principle that the damage must be the direct and immediate consequence of the fault.

Caneric Properties v. Allstate/(1995) CLL Facts: Caneric is the proprietor of several appt. blocks set for demolition. The neighbor notices water infiltration into his premises. He calls the last occupant of the appartments (Globensky) who contacts Caneric and the city of Montreal. The latter sends a team, which completes only part of the work required to cut water supply from the premises. The next day, another team arrives and, finding no one on sight, leaves without repairing anything. The water floods the neighbor’s premises, causing considerable damage. Issue: Which of the events caused the damage? Who can be held liable? Held: Both Caneric and the City of Montreal are liable and share compensation 50/50. Ratio: There are 3 clear faults: 1. Caneric: for abandoning the building set for demolition and not even cutting water supply from it. 2. Workers of the City of Montreal: for leaving site without repair and not even cutting water supply

35 from the street or trying to contact the proprietor whose name was posted on the door. 3. Caneric: for not reacting after being notified of the risk. They didn’t send any of their personnel to check. Problem: Which one of the above caused the damage? Principle: In CLL, to establish liability, the damage has to be the direct and immediate result of the wrongful act + that the damage was foreseeable on the part of the wrongdoer. “ If we have similar, simultaneous but independent faults resulting in one indivisible injury, there would be joined and solidary liability. One of the defendants or both would have to compensate the plaintiff 100%”. 1. If Caneric had taken the precaution to secure its closed building, the damage would not have happened. 2. If the second team of workmen were more careful and diligent, the damage would not have happened. 3. If Caneric was more careful to verify the state of the building after notification of risk, the damage would not have happened. The 1st fault is rather more remote than the second and the third. It is the 2nd and the 3rd faults that contributed directly to the damage.

Fitzgerald v. Lane/ (1988) CML Facts: The plaintiff crossed the street on a red light. He was hit by defendant 1 who was traveling south, knocked over to the other side to be hit by defendant 2 traveling north. The plaintiff sustained severe damage. The court of appeal found the three parties equally negligent but ordered the two defendants to share a large compensation 50/50. Issue: Who of the two defendants is responsible fore the injury? How should compensation be apportioned? Held: Compensation is reduced due to plaintiff’s culpability. If he had not ignored the traffic light, the accident would have never taken place. Ratio: In this type of cases, the reasoning should go as follows: (1) Determine whether the plaintiff has established liability against one or other or all of the defendants and whether this negligence (breach of a duty of care) caused or materially contributed to his injuries; (2) Once negligence is established, assess the total of the damage the plaintiff has sustained; (3) Did the defendants establish that the plaintiff, by his own negligence, contributed to the damage suffered; (4) If so, to what extent should the court reduce the damage recoverable by the plaintiff?

Coutellier v. Hervieux/ (1974) CLL Facts: The plaintiff was driving his car with his family when he was hit from the back by defendant 1. Falling unconscious and the car immobilized, it was hit again by defendant 2. The pl.’s wife suffered severe psychological problems following the accident and could no longer maintain her marital life. Issue: Who of the two defendants (who are both found at fault) is liable for damage and how should compensation be apportioned? Held: Both defendants are held liable 50/50. Ratio: The two successive shocks were equal in severity. Each of the two has caused half the damage. Principle: Two wrongs committed successively and independently by two different people cannot cause damage of the same nature to the same victim and, therefore, cannot render the 2 wrongdoers jointly responsible. This means if the plaintiff cannot prove the link of causality to each of the two faults, he will not be able to recover. Yet, the law cannot require proof which is impossible to establish. “Cutting the cause in two”, each defendant in this case would be responsible for half of the damage.

d- Subsequent Events and Aggravation of Injuries Athey v. Leonati/(1996) CML Facts: The appellant suffered back injuries in two successive motor vehicle accidents, and soon after experienced a disk herniation during a mild stretching exercise. The herniation was caused by a combination of the injuries sustained in the two motor vehicle accidents and a pre-existing disposition. Issue: Should the loss be apportioned between tortious and non-tortious causes where both were necessary to create the injury? Held: No. Once it is proven that the defendant’s negligence was a cause (one of the causes) of the injury,

36 there is no reduction of the award to reflect the existence of non-tortious background causes. Principle: “if the defendant’s conduct is found to be a cause of the injury, the presence of other non- tortious contributing causes does not reduce the extent of the defendant’s liability” Causation is established where a plaintiff proves on a balance of probabilities that the defendant caused or contributed to the injury. Since “but for” test is unworkable in some circumstances, causation is established where the defendant’s negligence “materially contributed” to the occurrence of the injury (from McGhee). Causation need not be determined by scientific precision (from Snell). In some circumstances, an inference of causation may be drawn from the evidence without positive scientific proof. It is no longer necessary for the plaintiff to establish that the defendant’s negligence was the sole cause of the injury. As long as the defendant is part of the cause of an injury, the defendant is liable, even if his act alone was not enough to create the injury.

Jobling v. Associated Diaries Ltd/(1981) CML Facts: The plaintiff, in the course of his employment with the defendants and as a result of their negligence, suffered a disc. 3 years later, the appellant suffered a medical condition, unrelated to the accident which –before the trial- resulted in a total incapacity for work. Issue: Which period should the liability of the defendants cover: period before total incapacity or period extending till after incapacity? Held: Def. compensate only for the period preceding the total incapacity. Ratio: The assessment of damages for personal injuries is a process of restutio in integrum. The object is to place the injured plaintiff in as good a position as he would have been in but for the accident. He is not to be placed in a better position. Principle: “In assessing damages, it is right to take into account events, such as illness, which not uncommonly occur in the ordinary course of human life. If such events are not taken into account, the damages may be greater than are required to compensate the plaintiff for the effects of the accident, which is unfair to the defendant”

Issues Relating to the Victim a- Victim’s Behavior

CLL: The first question to ask is “did the plaintiff do what was necessary to look after himself?” Art. 1478: The plaintiff is included in the apportionment of liability if the injury is partly the effect of his own fault. CML: Before, once a defendant was successful to argue contributory negligence, the plaintiff no longer had a claim. However, this has greatly changed today: In Fitzgerald, an apportionment of loss is introduced.

Gaudet v. Lagace/(1998) CLL Facts: Young Gaudet, Lagace and Gauthier (11, 12 and 13) decide to go to the residence of the Legaces, while the latter are outside greeting their guests. They sneak into the house and steal a bottle of beer and some gasoline. They later go into the woods and start a fire. An explosion occurs and Gaudet is very seriously burned. Issue: Are the parents of the two other children liable? Held: No. Gaudet gets almost $140,000 in compensation from the two other children. Ratio: First, the 3 children committed an equal and “contributory” fault. They were warned by their parents that it was dangerous to start a fire. There is a link of causality b/w fault and damage and the damage was foreseeable. Second, as regards presumption of fault on the part of the parents: (1) there was no lack of supervision the day of the accident. In modern days, parents are not expected to supervise their children round the hour; (2) the parents did not tolerate the use of dangerous objects. They could not have locked gasoline and barbecue tools away from a 12-year old + they had no knowledge that their son participated in such dangerous activities prior to the accident.

37 Crocker v. Sundance Northwest Resort /(1988) CML Facts: the plaintiff, after signing a waiver, participates in a competition organized by Sundance to promote its resort. At a certain point, Crocker is too drunk to stay in competition. The manager points it out and advises him to withdraw. Crocker insists, falls off his tube and is seriously injured. Issue: Did Sundance owe Crocker a duty of care? Did the resort have a positive duty at law to take certain steps to prevent a visibly intoxicated person from participating in the dangerous competition? Held: Yes. Relationship between Crocker and Sundance gives rise to such a duty. Ratio: Duty of care: The resort set up the dangerous competition, it controlled the competition, it served the alcohol, and it was making money from the competition. The resort knew Crocker was drunk and already injured in a previous heat. Therefore, the resort had a duty of care to make sure Crocker didn’t compete in a drunken state. Standard of care: There were numerous things that the resort could have done to stop Crocker from competing. It could have disqualified him when it realized he was drunk. It could have forcefully told Crocker the risk of serious injury in competing drunk. None of these preventive measures imposed a serious burden on the resort. The fact that Crocker was an irresponsible person and was drunk during the competition is the very reason why the resort was legally obliged to take all reasonable steps to prevent Crocker from competing. Principle: One is under a duty not to place another person in a position where it is foreseeable that that other person could suffer injury. The plaintiff’s inability to handle the situation in which s/he has been placed, either through youth, intoxication or other incapacity, is an element in determining how foreseeable the injury is. In CML, a relationship between plaintiff and defendant gives rise to duty of care.

Waldick v. Malcolm/ (1991) CML Facts: Waldick seriously injured when he fell on the icy parking area of the Malcolms’ farm. Parking area was not salted or sanded. This was the custom in that rural region, though. Defendants argue they took reasonable care according to standards in their community. Issue: Did Waldick willingly assume the risk of injury? (he saw and knew the area wasn’t salted) Held: Malcolms are liable. Customary practices which are unreasonable cannot eliminate duty of care. Ratio: No amount of general community compliance will render negligent conduct reasonable in all the circumstances. Principle: According to the court, it becomes almost impossible to establish a voluntary assumption of risk on the part of the plaintiff (and consequently exonerate the defendant). The bar they set for the defedant in such a case is too high to be reasonably met. In other words, the court is ending a message that it would almost never find a voluntary assumption of risk on the plaintiff.

Hydro v. Girard/ (1987) CLL Facts: Girard was on his way to a shop. He sees an electric wire (property of Hydro-Quebec) hanging low. He calls the co. and informs them. On his way back, he sees the wire hanging lower. He tries to fix it himself to warn other drivers but gets electrified. Shortly thereafter, HQ’s employees arrived to fix the wire. The trial judge held Hydro responsible for 25% of the damage. Held: plaintiff loses. There is no causation link between the fault of Hydro-Quebec and the accident (the plaintiff’s conduct is a novus actus breaking the chain of causality. The sole and effective cause of the accident is the gross imprudence of the plaintiff. Principles: To hold the defendant liable (even partially) for the injury, 2 things have to be established: (1) Fault of the defendant: No liability w/out fault; (2) The defendant’s fault was the cause of the accident. Since the 1st is proved, while the second is not, the action must be dismissed. “The presence of a danger per se cannot justify committing an inexcusable and imprudent fault on the part of the person trying to remedy that danger, except under conditions of emergency or absolute necessity”.

Contributory Negligence Act, 1924

In an action based on fault or negligence, if a plea of contributory negligence is found, the judge shall find: 1) The entire amount of damages to which the plaintiff would have been entitled had there been no

38 such contributory fault. 2) The degree in which each party was at fault and the manner in which the amount of damages found would be apportioned so that the plaintiff shall have judgment only for so much thereof as is appropriate to the degree of fault imputable to the defendant. Where it is not practicable to determine the respective degrees of fault, the defendant shall be liable for one half of the damages sustained. b- Predisposition of the Victim The Thin Skull Principle: if the victim has certain susceptibility, the defendant takes the plaintiff as he finds him and is fully responsible for the damage. Q: Can we reconcile this with the CML requirement of foreseeability? A: Yes. WM1 principle: what matters is the type of damage and not its manner or extent. In other words, a plaintiff will be responsible for the damage (no matter how drastic it is in exceptionally vulnerable victims), as long as the type of injury was foreseeable.

Athey v. Leonati/(1996) CML Facts: The appellant suffered back injuries in two successive motor vehicle accidents, and soon after experienced a disk herniation during a mild stretching exercise. The herniation was caused by a combination of the injuries sustained in the two motor vehicle accidents and a pre-existing disposition. Issue: Should the loss be apportioned between tortious and non-tortious causes where both were necessary to create the injury? Held: No. Once it is proven that the defendant’s negligence was a cause (one of the causes) of the injury, there is no reduction of the award to reflect the existence of non-tortious background causes. Principle: “if the defendant’s conduct is found to be a cause of the injury, the presence of other non- tortious contributing causes does not reduce the extent of the defendant’s liability” Causation is established where a plaintiff proves on a balance of probabilities that the defendant caused or contributed to the injury. Since “but for” test is unworkable in some circumstances, causation is established where the defendant’s negligence “materially contributed” to the occurrence of the injury (from Mcghee). Causation need not be determined by scientific precision (from Snell). In some circumstances, an inference of causation may be drawn from the evidence without positive scientific proof. It is no longer necessary for the plaintiff to establish that the defendant’s negligence was the sole cause of the injury. As long as the defendant is part of the cause of an injury, the defendant is liable, even if his act alone was not enough to create the injury.

Smith v. Leech Brain & Co./(1955) CML Facts: The pl’s husband was operating an overhead crane and dipping a large article when he got his head outside the protective shield and sustained a burn on his lip from the spitting molten metal. The burn was treated but didn’t heal and ulcerated. The pl’s husband later died of cancer. Held: For plaintiff. Ratio: - negligence is established on the part of the employer: (1) The injury is foreseeable; (2) The employer’s standards for protecting employees were below the industry’s standards Was the cancer and the death caused in whole or in part by the burn? Yes. It is clear that, but for the burn, the victim would not necessarily ever have developed cancer. Principle: A tortfeasor must take the victim as he finds him. The test is not whether the defendants could reasonably have foreseen that a burn would cause cancer and that the victim would die. The question is whether the def. could foresee the type of injury the victim suffered (the burn). Comment: The type of injury is enough to establish liability NOT the manner or the extent.

Marconato v. Franklin/(1970) CML Facts: Pl. suffered minor injuries from a car accident. Injury consisted of moderate strain of cervical spine and soft tissue damage. However, pl. later developed symptoms of pain and stiffness for which there was no physical explanation. She became depressed, hostile and anxious (very unusual consequences).

39 Held: For plaintiff. Principle: Applies Smith v. Leech Brain. A wrongdoer takes his victim as he finds him. He takes the victim with all the victim’s peculiar susceptibilities and vulnerabilities.

Q: What about a plaintiff who, commits suicide as a result of distress? Is this recoverable? A: I would say yes. If we apply the principle from the 2 cases above, the answer will probably be in the affirmative. You can argue that no one commits suicide just for the joy of it. It has to be caused by something and if that thing is attributed to the def.’s fault, then he should be held liable.

Viney “Les Conditions de la Responsabilite”: There is unanimous agreement in French law that the existence of a predisposition in the victim is no obstacle to proving the link of causality between the initial wrongdoing and the final damage. Once we know the defendant’s intervention had a serious influence on a pre-existing state, causality is established. Q: Can the existence of a victim’s predisposition (readiness to be harmed) result in partial exoneration? A: No. Viney agrees with the cour de cassation that a predisposition constitutes an objective element of the victim’s situation, analogous to the number of children the victim has or his the situation of his career. It would be dangerous to allow insurance companies to demonstrate the victim was abnormally fragile to reduce compensation. If we open the door for such discussion, we risk holding the weak responsible for their weakness, which runs exactly contrary to the objective sought by a modern system of compensation.

Fundamental Rights and Civil Liability Bhadauria v. Seneca College/(1981) CML Facts: Plaintiff highly educated woman of East Indian origin responded to an ad to teach at the defendant college. Although letters were sent to her by the college, she never was given an interview nor any reason for rejection. She claims damages for being deprived of teaching opportunities. Issue: Is a breach of the code of Human Rights itself sufficient to establish civil liability? Held: No. The code itself does not give a civil cause of action. It also excludes any common law action based on an invocation of the public policy expressed in the code. Ratio: It is one thing to apply a common law duty of care to standard of behavior under a statute, it is quite another to create by judicial fiat an obligation – which is not analogous to the duty of care in the law of negligence- to confer an economic benefit upon certain persons, with whom the alleged obligor has no connection, and solely on the basis of a statute which itself fully provides for remedies for its breach.

Beliveau St. Jacques c. Federation des Employes de Services Public/(1996) CLL Facts: Woman gets harassed at work. Files complaint under no-fault statute and gets compensation but no exemplary damages. S.49 of the Quebec Charter gives right to exemplary damages. The right not to be harassed at work is protected under S.10 of the Charter. However, under S.438 AIAOD, Superior Court had no jurisdiction to hear an action by a worker against her employer. Issue: Does the compensation system preclude the awarding of remedies under S.49 of the Charter because of the civil immunity clause in s.438 of the AIAOD? Held: Yes. A victim of harassment that has obtained a compensatory remedy under the AIAOD cannot obtain exemplary remedy available under s. 49(2) of the Quebec Charter. Ratio: In considering whether s.49 creates a civil liability remedy, it is important to consider not so much the formal autonomy resulting from the legislative source but the originality of principles underlying s.49 compared to those of general civil liability. In this case, the same principles are at play.

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