A Brief History of Tort Law

OVERVIEW OF A TORTS CASE

• Begins with separation of public and private wrongs • After Norman Conquest --> William the Conqueror sought to impose a set of uniform laws throughout England = common law • Central feature was writ system --> standardized pleadings that D had committed certain unlawful acts • Torts were grouped into a family of writs called trespass • Before 19th C most actions in torts were not frequently litigated --> most resolved extra-legally • Not until end of 19th C was tort viewed as distinct branch of law • Torts = crime against person • Criminal = crime against state

Overview of a Tort Case

1. Offence 2. Consultation = see lawyer --> issues of limitation period (generally two years), case viable with significant damages, which court to proceed in 3. Statement of claim --> notice to all involved that are going to go through with an action ** now defendants usually hire lawyers ** 4. Statement of defence --> sets out their version of events 5. Settlement discussions --> most tort lawsuits are settled out of court 6. Stages of trial process 1. Chambers --> court meets, lawyers, but no witnesses --> ask for certain remedy before the trial (ex/ suing wrong person ∴ D could be removed from case) 2. Discovery process --> each side finds out about the other’s case so at trial they can argue the main issues 3. Witness discovery --> get to question witnesses under oath an get their dispositions 4. Trial --> P will call evidence with regard to harm they suffered, D can raise defence 5. Damages --> compensation, usually through money

INTENTIONAL TORTS

Intentional Interference with the Person

• Intentional torts --> protect an individual’s physical integrity Generally D will be held liable for an intentional tort only if their conduct is voluntary and intentional • • Look for two things: 1.1. Did they do the prohibited conduct? 1.2. Was it done intentionally --> with subjective foresight?

Volition

• Volition = requisite element is the D having exercise control over their physical actions --> D’s act is voluntary if it is directed by their conscious mind • Involuntary includes reflex reactions, convulsive movements, and movements during sleep or uncon- sciousness

Smith v Stone (1647)

Facts: • D was carried upon P’s land by force and violence of others --> was not there voluntarily Issue: 2

• Did D commit a voluntary trespass? Ratio: • Act must be done voluntarily to constitute trespass Analysis: • D was not there voluntarily --> was carried by force and violence of others • It is the trespass of the party that carried the D upon the land --> not the trespass of the D • Ex/ Person that drives cattle onto another’s land is the trespasser not the one who owns the cattle Conclusion: • For D --> no

Intent

• Intent = actor’s desire to bring about the results or consequences of their act, rather than their desire to do the physical act itself The essential issue is whether the D desired to bring abut the specific consequence that gave rise to • the tort in question --> intent does not need to be hostile or blameworthy • Presence of intention not always = to liability, need to look at other substantive elements and defences too • Look at behaviour during and after the act for circumstantial evidence of intent Imputed (constructive) intent = situations where D did not desire the consequences to occur, but they • were certain or substantially certain to result from actions • Ex/ plant bomb in office of former boss and injure staff even though intent was not to injure staff Transferred intent = D intends to commit an intentional tort against one party, but unintentionally com- • mits an intentional tort against the P --> also applies if D intends to commit one type of intentional tort against the P and ends up unintentionally committing another D’s wrongful intent regarding the first tort is transferred to the sec on tort to permit recover •

Motive

Motive = motive or reason for wanting a result to occur --> generally not an element of tort action • • Duress --> will neither negate volition or intent, nor serve as a defence but may be considered in assessing damages • Provocation --> may reduce damages • Objective test = whether P’s conduct caused the D, as a reasonable person, to lose power of self-control

Duress - Gilbert v Stone (1648)

Facts: P brought action for trespass to land, and taking of a gelding against D • D plead that feared for his life because twelve armed men threatening to kill him went into P’s house and took • ∴ gelding Issue: Was there a defence of duress to the trespass? • Ratio: Duress is an irrelevant motive in intentional torts cannot be used as a defence • ∴ Threats from one party are no excuse to commit an intention tort against another because it would prevent the • party injury from claiming for damages Conclusion: 3

For P --> was trespass •

Provocation - Miska v Sivec (1959)

Facts: • P sued for injuries that he sustained when D intentionally shot him • D argued self-defence • Claimed that P had cut him off and blocked his car on the road, P then emerged from the car and threatened him with a knife and an iron bar • D fled to his own house with P in pursuit, fired two warning shots after reaching house, and P was injured after he moved into the line of fire • Evidence of previous bad blood between the parties Issue: • Should provocation provide a mitigation of damages? Ratio: • Provocation must have occurred at the time or shortly before the tort was committed • Can only bring in evidence of past encounters if D is claiming that the current incident was enhanced but the re- calling of previous incidents ∴ provoking him more • Provocation must have been such as to cause D to lose power of self-control Analysis: • Where there is provocation the jury should be instructed to consider it in assessing damages for assault • Prior interactions between parties should not be considered provocation because they were not immediate • After initial confrontation that night, D retreated to house, wife called police and he loaded shotgun and fired • Did not say at that time he was annoyed or provoked Conclusion: • For P --> no provocation

Mistake

• Mistake = when D intends consequences of act but those consequences have a different factual or legal significance than contemplated • Neither a mistake of fact nor a mistake of law is recognized per se as a defence to intentional tort liability

Hodgkinson v Martin

Facts: • D removed P from office without using more force than necessary --> had sincerely mistaken belief that he was justified in his actions in the protection of the interests of the Crown Issue: • Should the honest mistake provide a mitigation of damages? Ratio: • Mistake ≠ defence • Mistake can = reason to mitigate liability for damages Analysis: • Sincere yet mistaken belief of D in the propriety of his illegal action is no excuse but it is a mitigation of his liability which must be taken into consideration --> no injury to P Conclusion • For D --> only nominal damages awarded

BATTERY

Battery = intentionally violating the physical integrity of another person --> must be something reasonable person would consider harmful or offensive • Three elements to battery: 4

1. Violation of physical integrity 2. Intentional 3. Reasonable person would find it harmful/offensive

Bettel v Yim (1978)

Facts: • Infant P seeks damages for assault --> case more properly formulated in battery • Events took place in D’s store, P with a group of youths went into store and were causing ruckus --> D asked them to leave • P went outside with half, started lighting matches and throwing them into store, eventually bag of char- coal caught fire • D shook P trying to get confession out of him before called the police --> accidentally hit him in the nose with head • Hit was accidental --> helped P up, got him kleenex and called police Issue: • Can an intentional wrongdoer be held liable for consequences he did not intend? • Does doctrine of foreseeability apply to law of intentional torts? Ratio: • With intentional torts there is no requirement that resulting injury be reasonably foreseeable • If physical contact was intended, the fact that its magnitude exceeded all reasonable or intended expecta - tions should make no difference Analysis: • D’s act of grabbing and shaking = battery --> desired to bring about an offensive or harmful conduct with P for purpose of obtaining a confession ∴ liable for unintended injury because all part of same chain of events • Purpose of battery is to protect individual not only against bodily harm but also against any interference with his person which is offensive to a reasonable sense of honour and dignity Conclusion: • For P --> D must bear responsibility for injury suffered

Notes: • While D must intend to bring about a physical conduct --> need not intend that conduct be harmful or socially offensive • Not actually necessary to inflict bodily harm to recover for battery • Need not be aware of contact at the time it happens

Burden of Proof in Sexual Abuse Cases

• Generally accepted in Canada that one P established that they were subject to direct and intentional physical contact, the burden of proof is on D to establish consent or some other defence • Two requirements for reasonable but mistaken belief in consent: 2. D honestly believed the P was consenting 3. A reasonable person in the place of the D would have believed the P was consenting

Non-Marine Underwriters, Lloyd’s of London v Scalera

Facts: • D had insurance policy with P --> included coverage for “compensatory damage because of bodily injury” arising from the insured’ personal actions, excepting “bodily injury and property damage caused by any intentional or criminal act” • P looking for declaration that it didn’t have to defence D against claims of sexual battery Issue: • Does a P have to prove lack of consent wither regards to tort of sexual battery? Ratio: • No justification in cases of sexual battery for departing from the traditional rule that P must prove the direct contact and then onus shift to D to prove consent Analysis: 5

• Law of battery protects the inviolability of the body --> it is for those who violate the physical integrity of others to justify their actions • P who alleges sexual battery must show force applied directly --> force = physical contact of sexual nature, neu- tral in the sense of not necessarily connoting lack of consent • If D does not dispute the contact took place, must show that P consented or that a reasonable person would have thought she consented • Reasons to keep traditional approach --> D must defend act, re-victimization, sexual contact not inherently consensual ≠ what is generally accepted/expected in course of ordinary activities, do not want to shift focus from D’s behaviour to P’s character, shift would differ from Parliament’s view in criminal context, no floodgates Conclusion: • For P --> policy does not apply

ASSAULT

Assault = intentional creation in the mind of another of a reasonable apprehension of immediate physical contact • Two elements to assault: 1. Intention --> don’t have to show D was actually intending to harm person, just intending to create the perception of harm 2. Apprehension of an imminent harmful or offensive contact • Threats in the future are not necessarily imminent • Reasonableness is usually a mixture of subjective and objective

Krawczyk v Peter Kiewit Sons Co.

Facts: • P alleges assault by D • P = protester, protesting at Eagle Ridge Bluffs where D was construction company • P claims that a truck backed up towards her with murderous intent only to slam on breaks when driver realized being filmed • D claims has operated heavy machinery safely for many years --> had no accidents and caused no injuries • Operates around other construction workers all day • Had to back up in order to negotiate a tight turn • Saw P in mirrors the entire time and never felt for a second she was in danger • Backed up slowly with warning alarm sounding • Had no intention of harming/threatening P Issue: • Was the backing up the of the truck assault? Ratio: • Must show that the D intended the assault in order to be found liable Analysis: • Would not have been possible for D to make turn without backing up truck to position it --> P moved towards the truck while it was backing up • Assault = intentional creation of the apprehension of imminent harmful or offensive contact • Frightening/threatening ≠ assault unless the event feared is imminent • Apprehends = ‘expects’ rather than ‘fearful of’ • P was never in any danger from the truck --> could have moved out of the way Conclusion: • For D --> P did not prove that D had requisite intention for assault Obiter: • Judge considered if there was intent did P consent • Disobedience of a court order ≠ acquiescence to the commission of an intentional tort

FALSE IMPRISONMENT

• Originally designed as remedy for wrongful incarceration 6

• Encompasses situations where movement is intentionally restrained: 1. Restraint must be total even if only momentary 2. Restraint may be imposed by barrier, other physical means, an implicit or explicit threat of force, or an implicit or explicit assertion of legal authority • Issue of whether imprisonment is lawful is treated as a defence ∴ D must raise and prove

Bird v Jones

Facts: • P on public highway bridge blocked by D + hired police officers --> prevented from crossing in direction he wished Issue: • Is this false imprisonment? Ratio: • False imprisonment requires a total restraint of liberty, not a partial obstruction of will • Complete confinement with tangible boundary Analysis: • P at liberty to move and go any other direction but across bridge --> only partial obstruction of will, and freedom to go wherever want to • Prison must have some sort of boundary --> party must be prevented from leaving boundary • False imprisonment requires more than loss of power to go wherever one pleases --> includes notion of restraint within some limits defined by will or power exterior to our own • Intent not an issue --> clearly wanted to prevent P from proceeding Conclusion: • For D --> no false imprisonment

False Arrest

• Refers to only one category of false imprisonment actions --> where restraint is imposed by an assertion of legal authority • Can be brought against peace officers or private citizens who implicitly or explicitly assert legal authority in detaining others • May inadvertently commit false imprisonment when stopping/questioning person, even if they have no intention of arresting them

Campbell v S.S. Kresge Co.

Facts: • Informant told security guard P had put something in her purse • SG followed P outside and asked her to come inside to avoid embarrassment • SG = off duty cop and identified himself as police officer • P protested while waking back to office --> offered purse to be searched • SG couldn’t see informant, said he just wanted facts and let P go Issue: • Is this false imprisonment? Ratio: • The assertion of legal authority can create false imprisonment when compliance is due to a perceived obligation that may be thought to have consequences if refused Analysis: • P was imprisoned --> from time confronted until told free to go • SG used force of position of police officer to take her in a direction she did not want to go --> P not consenting but merely complying because she feared consequences if she didn’t (implied there may be embarrassment) • SG had a history of confining people in back room --> court found he had intention to arrest • Wasn't the talking to her that was confinement, it was the perceived threat of consequences for non-compliance + her feeling that she was not free to go Conclusion: 7

• For P --> false imprisonment

Consensual Restraint

• Powers of arrest in Canada = reasonable and probable grounds that someone has committed an offence or is about to • Not absolute proof but not merely suspicion • Subjective + objective test • Subjective = police officer needs to say that they thought they had reasonable and probable grounds • Objective = need to show that a reasonable police officer would also believe they have reasonable and probable grounds for an arrest in those circumstances • Can also arrest for public/officer safety • Can temporarily stop for investigative detention • Two defences --> grounds for arrest, grounds for investigative detention

Herd v Weardale Steel, Coal and Coke Co. Ltd.

Facts: • P worked in coal mine • Alleged that he was prevented from using the cage to exit at time he wanted = false imprisonment • Refused to do dangerous work --> was allowed up at end of shift Issue: • Is it false imprisonment? Ratio: • Maxim --> volenti non fit injuria --> to a willing person injury is not done • When voluntarily enter facilities, only entitled to use them on the terms which entered upon • Not false imprisonment to hold someone to accepted conditions --> must abide by terms to which he accepted Analysis: • No refusal to bring up at ordinary time --> motive to delay probably punitive but doesn’t matter • Right in K was to come up at end of shift --> agreed to this when went down • Major factor is reasonable expectations going into it --> had consented to going down ∴ voluntary Conclusion: • For D --> no false imprisonment

Ward v City of Vancouver

Facts: • Report someone will throw a pie in face of PM + bad description of man running down street • Ward detained --> claims acting calmly, didn’t raise voice until being moved away • Three officers testify he was not acting calmly • Arrested for breach of peace --> taken to city jail Issue: • Was there false imprisonment? Ratio: • There is a time limit on detentions for breach of peace and investigative detentions that are based on the standard of reasonable and probable suspicion Analysis: • Initial arrest OK --> detained for investigative purposes --> related to possible assault of PM • Was not arbitrary because had reasonable suspicion to assume he could be involved (clothing matched description, etc.) • No assault or battery when handcuffed because had reasonable grounds to believe that P might try and es- cape or assault him • Arrest of P • Arrested for breach of peace --> yelling at crowd + drawing attention away from ceremony • Entitled to make arrest 8

• Arrest for attempted assault --> no objective basis for police to believe Ward was about to commit an indictable offence, too far away from PM and no pie • Not entitled to arrest without warrant for attempted assault • Imprisonment of P • Lawful arrest for breach of peace ∴ police entitled to initially detain him in custody (should be until PM left area) • Once PM left detention no longer justified • Courts reluctant to put a time limit on investigative detentions because it’s relevant to the circumstances • Two potential justifications: • Being held on investigative detention --> should have been resealed because it must be brief • Under arrest for assault/attempted assault --> reasonable and probable grounds did not exist • Continued detention after PM left = de facto arrest ∴ falsely imprinted for the 3.5 - 4 hours after PM left the ceremony Conclusion: • For P --> false imprisonment

MALICIOUS PROSECUTION

• Provides redress for unjustified interference with individuals’ freedom and embarrassment, injury to reputation and other losses that flow from it • P must establish suffered some loss or harm • Three important contexts: 1. Incredible reputational/financial consequences of criminal charge that proceeds to courts 2. Unique circumstances of crown prosecutor --> have additional duties over regular lawyer (repre- senting society + quasi-judicial role of whether or not to drop charge) 3. Series of wrongful convictions in Canada • D cannot be held liable for merely providing evidence to police or testifying in court --> must have been driving force in the initiation of the prosecution

Nelles v Ontario

Facts: • P charged with first degree murder in deaths of four babies at a hospital • After well-publicized preliminary hearing, all charges were dropped due to lack of evidence ∴ sued Issue: • Are the AG and Crown immune from actions for malicious prosecution? Ratio: • Four necessary elements needed to succeed in action for malicious prosecution: 1. The proceedings must have been initiated by the D 2. The proceedings must have terminated in favour of P 3. The absence of reasonable and probable cause 4. Malice, or a primary purpose other than that of carrying the law into effect • AG and Crown prosecutors can be held liable for malicious prosecution --> the Crown generally has statutory immunity from liability Analysis: • Reasonable and probable cause = subjective + objective element • Actual belief on part of prosecutor • Belief must be reasonable in circumstances • Element of malice = improper purpose --> wider meaning than spite/vengeance • AG or Crown must have perpetrated a fraud on the process of criminal justice • Policy considerations --> no flood gates (hard to prove), regard for victim of malicious prosecution, principle of equality under the law, malice is good threshold to provide some immunity but still hold accountable Conclusion: • For P --> can be held liable

Miazga v Kvello Estate 9

Facts: • Children made allegations of sexual assault against caregivers • Charges ultimately resolved in their favour --> after committal but before trial Crown entered a stay of proceedings • Child complainants later recanted all allegations ∴ respondents commenced action for malicious prosecution Issue: • Should the Crown Attorney be held liable for malicious prosecution? Ratio: • Reasonable and probable cause inquiry should only have objective element in an action for malicious prosecution against Crown counsel • Not concerned with prosecutor’s personal views, just the professional assessment of legal strength of case • Duty to act in public interest --> may not coincide with personal view of case • Malice requires an improper purpose • Need a purpose inconsistent with role as “minister of justice” • Lack of subjective belief in reasonable and probable cause ≠ improper purpose Analysis: • Objectively could have been reasonable and probable grounds for the prosecution • Previous trial judges had believed statements of children --> some even convicted • Judicial decisions in criminal context may support a finding by civil court that reasonable and probably grounds for prosecution existed • Lack of malice • Requires proof of improper purpose --> Miazga’s lack of subjective belief in guilt not enough for malice • Lack of subjective belief is relevant but does not dispense of the requirement for proof of an improper purpose Conclusion: • For Miazga --> no malicious prosecution Tort of Abuse of Process

• Tort action for abuse of civil process --> focuses on misuse of civil proceedings for a collateral or illicit purpose other than resolution of claim • Elements: 1. The D brought a civil action 2. The D did so for some extrinsic purpose 3. The D undertook, or threatened to undertake, some overt act, other than the litigation itself, in order to further the improper purpose • Proof of overt act is difficult 4. The P does not have to prove that the earlier proceedings terminated in his/her favour, or that the D lacked reasonable and probable gourds for engaging in the proceedings

INVASION OF PRIVACY

• In Canada privacy interests are protected by myriad of civil actions and statutory provisions --> should there be a tort to protect from invasion of privacy • Tort of private nuisance usually about reasonable use and enjoyment of property

A Common Law Tort Action for the Invasion of Privacy?

Motherwell v Motherwell

Facts: • D suffered from paranoid condition and was mentally unstable --> continually harassed P’s (brother, sis- ter-in-law, mother) making false accusations by phone/mail 10

• D refused repeated requests to cease --> P’s brought action for invasion of privacy and nuisance • D claimed no action lies with P’s to restrict the lawful communications --> invasion of privacy does not come within principle of private nuisance ∴ activity not recognized by common law Issue: • Is there a valid common law claim in private nuisance for the invasion of privacy through the abuse of the telephone system? Ratio: • A tort in private nuisance for the invasion of privacy through the abuse of telephone system exists • A likewise tort does not exist for mail Analysis: • Approached invasion for privacy by abuse of telephone system as new category of private nuisance • Matters of complaint arise within the premises through the phone • Telephone = necessity to daily life • System provides for rational and reasonable communication between people and its abuse by invasion of privacy is a matter of general interest • A nuisance, to be actionable, must be such as to be a real interference with the comfort or convenience of living according to the standards of the average man --> applicable to invasion of privacy in this case Conclusion: • For P --> nominal damages and injunction awarded • Offensive mail not nuisance because it did not result in the same kind of substantial and unreasonable in- terferon with P’s use and enjoyment of property

Subsequent Common Law Developments

• Courts seem to be moving toward recognizing a common law right of privacy • Have accepted that unwanted media attention may constitute an actionable invasion of privacy The Statutory Protection of Privacy

• Federal (some CC provisions) and provincial legislation can protect privacy • BC Privacy Act --> intentional tort actionable without proof of damage for a person wilfully and without claim of right to violate the privacy of another • Nature and degree of privacy --> reasonable in circumstances • Look at nature, incidence and occasion to determine if there was a violation of privacy • Violation to a reasonable expectation of privacy --> not just was privacy violated but was it an unreasonable violation

Hollinsworth v BCTV

Facts: • P going bald so had a surgery to attach hairpiece --> signed release/consent that allowed procedure to be filmed for instructional purposes • Cameraman for D filmed it on freelance basis • Seven years later, D decided to do a feature on baldness on news --> D mentioned video, went to Dr to get it • Reporter concerned about confidentiality but told patient consented • Video used on news and P was identifiable --> sued D for breach for defamation, breach of confidentiality, and breach of provincial Privacy Act Issue: • Could D be held liable for breach of the Privacy Act? Ratio: • To breach Privacy Act the intentional act must be wilful ∴ must have intent to do an act that know or should know will violate the privacy of another person Analysis: • Privacy claim based on allegation of a statutory tort under Privacy Act • Violation of privacy actionable --> tort actionable without proof of damage, for a person, wilfully and without a claim of right, to violate the privacy of another 11

• Nature and degree of privacy right is dependent on circumstances giving regard to lawful interests of others --> will take into account any domestic or other relationships between the parties Wilfully --> applies narrowly to an intention to do an act which the person doing it knew or should have known • would violate privacy of another • Two step test: 4.1. Intentional act that has effect of violating privacy 4.2. Intention do act that person knew or ought to have know would violate privacy (reasonable person) Without claim of right = an honest belief in the state of facts which, if it existed, would be a legal justification/ex- • cuse Conclusion: • For D --> not liable

Watts v Klaemt

Facts: • P employed by Ministry of Social Services, daughter and son-in-law were neighbours with D • D recorded conversations P had with daughter where confidential information from Ministry concerning an investigation into daughter’s welfare fraud was shared • D reported this to Ministry • P fired --> filed action for damages Issues: • Did D’s actions constitute a breach of privacy at common law or were they contrary to s. 1 of Privacy Act? • Does D have a defence (ex/ lack of intention to harm P)? • If P has proven D’s conduct constitutes an actionable tort or reach of Privacy Act, what are her damages and has she properly mitigated? Ratio: • Intercepting of cordless phone conversations constituted breach of privacy • P could receive damages even though she was committing an immoral activity herself Analysis: • P had reasonable expectation of privacy • D acted intentionally --> made no effort to only listen/record conversations that concerned him or his wife + knew was intercepting extremely personal conversations + no evidence he was operating under honest belief that state of facts would have provided him with justification • D breach Privacy Act when listened, intercepted, and recorded conversations without consent and published them to the Ministry • Does D have a defence? • Ex turpi causa defence --> D argues court should not assist P whose action arrises out of illegal or immoral act • P’s claim is not designed to obtain award for wrongdoing --> compensatory damages for breach of privacy • Not giving P damages would absolve D of actions • P’s disclosing of confidential information was to an extent a voluntary assumption of risk that she would be caught ∴ P must assume any damages resulting directly from her dismissal Conclusion: • For P --> privacy was breached

TRESPASS TO LAND

Trespass to land = the direct and intentional physical intrusion onto the land in the possession of another Land = surface area, houses, other structures, trees, anything affixed to it, etc. Trespass may be committed by --> entering land, propelling object onto land, failing to leave after per- • mission terminated, bringing an object onto land and failing to remove it

Entick v Carrington (1765) 12

Facts: • D claiming authority under a warrant from the Secretary of State, broke into P’s house and carried away some papers • P sued D in trespass Analysis: • Right to secure property is sacred and incommunicable in all instances where it has not been taken away by some public law for the good of the whole • Do not have right to set foot on another’s property without licence --> no matter how minute, still = trespass • If admit to trespass must show justification that some positive law has empowered or excused

Turner v Thorne

Facts: • D operated delivery service --> D delivered parcel to wrong area and put them in garage of P’s property (D had delivered there for the business before) • P came home and tripped on boxes, sustaining serious injuries Issue: • Is the D liable in damages? Ratio: • A trespasser is liable for any harm to the possessor if the harm is caused by the actor’s presence on the land, ir- respective of whether ti was caused by conduct which, were the actor not a trespasser, would have subjected him to liability Analysis: • Liability for the incidental damage resulting from trespass --> trespass may be committed by continued presence on land of a structure, chattel or other thing which the actor has tortiously placed there • Fact that trespass results from innocent mistake and is not deliberate/wilful ≠ defence • Trespasser is liable for personal injuries directly and indirectly resulting from trespass Conclusion: • For P --> damages awarded

Harrison v Carswell

Facts: • P owns mall that D was picketing --> P requested D not enter upon the premises • Distribution of pamphlets/leaflets and carrying of placards had always been prohibited • D claims that rights of person to picket peacefully in support of lawful strike is of greater social significance than the proprietary rights of an owner of mall Issue: • Did owner of mall have sufficient control/possession of the common areas to enable the invocation of remedy of trespass? Ratio: • Property owner has an absolute right to deny entry to anyone under the common law --> even if there is an unre- stricted invitation to the public to enter on the premises Conclusion: • For P

CONSENT

General Principles of Consent • Treated as a defence that D must plead and prove • Can be given explicitly --> in writing, verbally or by gesture • Can be given implicitly --> through participation, demeanour, or other behaviour • When a person consents to an act they are generally viewed as consenting to the risks nor- mally inherent in that act • P’s failure to physically resist D’s conduct falls short of affirmative conduct, behaviour, etc. to establish consent 13

Implied Consent

Wright v McLean

Facts: • Four boys throwing mud balls/lumps of clay • D passing on bicycle and joined in after some thrown at him • D hit P with a lump, had a stone in it, was unintentional --> D did not look at what picked up because was focusing on dodging Issue: • Did the P consent? Ratio: • In a sport, players consent to the ordinary risks involved in the sport as long as there is no malice, anger or ill will Analysis: • Harm suffered by consent is, within limits, not a cause of civil action --> as long as no anger, malice, ill will • Combatants consented to the ordinary risks of sport in which they were engaged --> ordinary risks involve possible injuries that may occur when play is fair, according to rules, and the blows are given in sport • All agreed there was no ill will Conclusion • For D --> not liable

Exceeding Consent

• R v Jobidon --> SCC ruled that a consensual fight between adults the combatants’ consent is vitiated if they intentionally apply force causing serious hurt or non-trivial bodily harm to each other • R v Paice --> SCC clarifies that consent only will be negated if accused both intends and causes serious bodily harm

Agar v Canning

Facts: • During hockey game D body-checked P, took possession of puck and started to skate with it • To impede D, P hooked him and in doing so hit D on back of neck • D retaliated by holding stick with both hands and bringing it down on P’s face, hitting blade between nose and eye Issue: • Was there consent by P? Ratio: • Scope of implied consent does not include injuries inflicted in circumstances that show a definitive resolve to cause injury to another Analysis: • Hockey involves violent bodily contact --> this went over and above what could be expected in the game • Only must assume risk of accidental harm from play within rules/expected conduct of game Conclusion: • For P --> no consent

Competency to Consent

• In order for consent to be valid, must be capable of appreciating the nature and consequences of the act to which it applies • If cannot make determination due to age, physical or mental illness, intoxication, or other incapacitat- ing factors --> consent is invalid

Factors Vitiating Consent: Fraud, Mistake, Duress, and Public Policy 14

• Once D establishes that P consented --> P may raise factors that vitiate consent • If consent is vitiated D held liable like there was no consent

Fraud • Fact that P’s consent was based on fraudulently induced belief will not necessarily vitiate the consent Must establish : • 1. D was aware of, or responsible for, the P’s misapprehension 2. The fraud will only negate consent if it relates to the nature and quality of the act, as opposed to a “collateral” matter Broad view of collateral matter --> rarely vitiate P’s consent • Includes situations where knowingly deceive or act in total disregard of the truth •

Mistake Fact that P’s consent was induced by mistaken belief will vitiate consent only if D was responsible for • creating the P’s misapprehension • If D mistakenly believes P has consented --> provides no defence because P has not consented

Norberg v Wynrib

Facts: • Civil liability of doctor who gave drugs to chemically dependent female patient in exchange for sexual contact • D = elderly doctor in seventies, P = in late teens • D discovered she was addicted and instead of stopping, took advantage of her to give her more painkiller sub- scriptions • Incidences occurred 10 to 12 times Issue: • Whether defence of consent can be raised against the intuitional tort of battery in such circumstances? Ratio: • A position of relative weakness can, in some circumstances, interfere with the freedom of a person’s will ∴ notion of consent must be modified to appreciate the power relationship between the parties Analysis: • Consent must be genuine, not obtained by force or threat of force or be given under the influence of drugs • Cannot be said to be willing unless in position to choose freely • Coercion = illegitimate use of peer or unlawful pressure which vitiates a person’s freedom of choice Conclusion: • For P --> no consent

CONSENT TO TREATMENT, COUNSELLING AND CARE

• General rule --> health, counselling and care professionals must obtain consent to initiate any physical examination, test, procedure, surgery or counselling • Consent should be obtained in advance and cover the proposed intervention • If patient is competent to give valid consent that is all that’s required --> otherwise go to next-of-kin, but limits to validity of substitute consent • To valid consent must = voluntary • Patient’s decision must be product of conscious mind • Patient must be aware of what consenting to, in context of risks and benefits, but don’t need to understand technicalities • Can consent implicitly by participation or demeanour, explicitly, orally or in writing • Patients can seek treatment and limit scope of consent --> express prohibitions cannot be ignored or overwritten Operating without consent = battery • 15

Exceptions to the General Principles of Consent

Relaxed requirements of consent in three situations: • 1. Unforeseen medical emergency --> if impossible to obtain consent can intervene to save life 2. Patients who have given a general consent to a course of counselling, a treatment program or op - eration --> will be viewed as implicitly consenting to any subsequent counselling sessions/subordi- nate tests and procedures, etc. 3. Historically --> therapeutic privilege to withhold information --> has been either rejected or nar- rowed in scope in recent cases

Marshall v Curry

Facts: • D surgeon, P wanted hernia repaired • During operation D found that hernia was worse than expected and had to remove P’s testicle --> could have be- come gangrenous and poisoned P’s blood Issue: • Was there consent? Ratio: • Principles of consent: • Where there is opportunity to obtain consent it must be had • Consent must be express or implied • Where there is a medical emergency healthcare professional’s duty is to act in order to save the life or preserve the health of the patient Analysis: • D acted in interest of P for the protection of P’s health life --> would have been unreasonable to postpone removal to later date Conclusion: • For D --> removal okay despite absence of express and possible implied consent on part of P

Malette v Shulman

Facts: • P = Jehovah’s Witness • D was doctor, gave P blood to save life, only stopped when P stabilized • D was not satisfied care constituted an adequate instruction because no evidence that --> represented P’s current intent, applied to life-threatening circumstances, P was fully informed of risks Issue: • Can the written car constitute a refusal of treatment? Ratio: • Right to refuse treatment is not premised on an understanding of risks of refusal • The doctrine of informed consent does not extend to informed refusal Analysis: • Card stated as a JH I refuse blood = unqualified statement ∴ no evidence to indicate card didn’t cover current situation • Principle underlying the doctrine of informed consent = patient’s right to self determination of body --> refusal of treatment is an essential part of this + doesn’t need to be informed Conclusion: • For P --> there was no consent

The Burden of Proof and Consent Forms

• Health professionals must prove consent on balance of probabilities --> signed form only evidence, not conclusive proof of consent 16

• Key issue = whether patient understood nature of the proposed procedures and their associated risks and consented to them, not whether piece of paper was signed

Competency to Consent

• To be valid, consent must be given by patient who is legally competent • Test --> focuses on patient’s ability to understand the nature of the proposed treatment and its risks (not ability to make reasoned or prudent decision) • Defining competency broadly safeguard autonomy of individual --> may still be competent if intoxicated, young, developmentally delayed, etc. • Test must be applied on case-by-case basis, may be competent to consent at one point in time but not others • If competent, patient’s consent is all that is needed • Illness itself can prevent making informed decisions even though intellectually understand the life- threatening risks of refusing treatment • Ex/ anorexic refused to be tube-fed --> non-compliance was relevant to capacity in psychiatric disorders where intellectually cable of understanding the medical risks of refusing treatment • Minors: • No recognized age of consent at common law for medical treatment/counselling --> use same test of competency • If minor is competent --> parental consent not required/relevant • Provincial statutes or child welfare legislation may impose age of consent

C v Wren

Facts: • P was 16 year-old girl who became pregnant and wanted abortion • D = parents who object Issue: • Could P give informed consent to the medical procedure? Ratio: • Parental right to determine whether or no child will have medical treatment terminates when the child achieves sufficient intelligence so as to understand fully what is proposed Analysis: • Surgeon can proceed with consent --> child was found to have given valid consent • Courts will exercise increasing restraint as a child grows to and through adolescence with regard to listening to parent’s wishes Conclusion: • For P --> consent was valid

SELF-DEFENCE

In order to invoke the defence of self-defence, D must establish on balance of probabilities that : • 1. He/she honestly and reasonably believed that an assault was imminent • Honestly + reasonable = subjective + objective 2. The amount of force that he/she used to avert the risk was reasonable in all of the circumstances • Right to invoke self-defence ends once danger has passed • Self-defence = complete defence --> if successful will be absolved of liability • Do not have to wait for other party to strike first blow --> P’s violent history can be raised by D to justify decision to strike first

Wackett v Calder

Facts: • Encounter between P and D in beer parlour 17

• P, drunk, tried to punch D and brother • P struck D, D struck back and knocked P to ground, P got up went for D again, D hit again and broke bone in P’s cheek Issue: • Can D claim self-defence for the force used against P? • Were blows more than reasonable necessary under all the attendant circumstances? Ratio: • The person who is being attacked does not have to use the exact (measure with complete nicety) amount of force necessary to repel the attack • Not bound to passive defence --> can reject force with force Analysis: • What constitutes excessive course is determined on a case-by-case basis • First blow insufficient to stop attack --> second blow well justified to end it Conclusion: • For D --> self-defence

Pollard v Simon

Facts: • Assault at Bowen Island Ferry Terminal --> dispute about order of ferry lineup • D told P that you have to alternate --> P responded angrily ∴ D claims though P was going to attack so struck first blow in self defence Issue: • Whose story more credible? • Did D’s punch constitute self-defence? Ratio: • Do not need to establish that other party struck first in self-defence --> anticipated force may be repelled with equivalent force • Guilt on criminal charge is not determinative of rest of civil action • Self-defence is available where harm is actually threatened or person reasonably believes they are about to be attacked Analysis: • Plea of guilty on criminal charge is sometimes to just get lesser sentence/plea bargain • Right to repel force with force is not confined to warding off blow • Believed D’s story because corroborating evidence Conclusion: • For D --> was self-defence

DEFAMATION

• To protect reputation from unjustified attacks --> damages to compensate P for damage to reputation and to vindicate P’s reputation and deter future defamatory publications • Balance reputation protection with free speech • Canadian jurisdictions have removed distinction between slander and libel --> now just defamation • Once P proves that D’s statements are defamatory, they are presumed to be false --> burden on D to prove otherwise • Look at publication as a whole rather than focusing on isolated passages --> need to be aware of context

Elements of a Defamation Action

P must prove on the balance of probabilities that statements : • 1. Were defamatory --> legal threshold = lowers estimation of P in the eyes of right-thinking members of society 2. Made reference to the P 18

3. Were published or disseminated

Defamatory Material

Relatively easy to establish that statements are defamatory: • Can be defamatory in plain and ordinary sense (“literal meaning” • Two other ways: • 3.1. “Legal innuendo” or “true innuendo” --> if there are facts or circumstances extraneous to the publication that are known to those receiving the publication and would give the publication a defamatory meaning 3.2. “False innuendo” or “popular innuendo” --> if can establish that an ordinary person would infer something defamatory from apparently innocent remarks, even without special knowledge of the P or the circumstances

Sim v Stretch

Facts: • Housemaid worked for D, then for P, later returned to D • D sent telegram to P asking to send her possessions, money borrowed and wages • Money borrowed was a small sum to settle bill when P away • P claimed words in telegram were defamatory Issue: • Were the statements defamatory? Ratio: • Test --> would the words tend to lower the P in the estimation of right-thinking members of society? • Must take words at reasonable meaning --> cannot invent a state of facts to create a defamatory meaning Analysis: • Sting is said to be the borrowing --> words were substantially true • Unreasonable when a lot of good interpretations to seize on the bad one to give defamatory sense to comment Conclusion: • For D --> not defamatory

Reference to the Plaintiff

• P has burden of showing that defamatory statement made reference to the P --> simple if refers by name

Knupper v London Express Newspaper, Ltd.

Facts: • D published article about group known as “Young Russia” --> claimed members were pro-Hitler and one would be a puppet fuehrer to lead a fascist Russian state • P leader of YR in Britain • No names in article but claimed that people would think of him Issue: • Did article make reference to P? Ratio: • Two questions to determine if person is identified: 1. Question of law = can article be regard as being capable of referring to the person? 2. Question of fact = does article lead reasonable people who know the person to conclusion that it does re- fer to him? Analysis: 19

• Second question only arises when first question answered to affirmative --> in this case first question answered in the negative • Article referenced a group of people who belong to a society whose members are in many countries, did not mention Britain specifically Conclusion: • For D --> not defamatory

Publication

• Defamatory remarks are not actionable unless they are communicated to someone other than the P • Requirement satisfied as long as communicated to third-party who understands the statement ∴ no liability if D made comment to empty room, etc. • General rule --> every repetition of statement = new publication that is independently actionable • Originator of defamatory remarks will not be liable for their repetition unless: 1. Had given express or implied authority for remarks to be published 2. Had made the remarks to someone who had a moral, legal or social duty to republish the remarks 3. The republication was a natural and probable consequence o the original publication

DEFENCES TO DEFAMATION

Justification

Justification = proving that statements were true --> complete defence • • Truth ≠ defamation • Belief in truth not sufficient, must actually be true • The sting of the statement that comprised defamation must be true, every single fact in allegation does not need to be true

Williams v Reason

Facts: • P = amateur rugby player, D = sports correspondent for newspaper • D wrote articles accusing P of “shamateurism” (playing amateur rugby while accepting money from outside sources) • Money for writing a book about career & boot money from Adidas Issue: • Were statements defamatory? Ratio: • Can introduce new evidence related to the “sting” of the defamatory statements Analysis: • Scope of defence of justification should not depend upon way in which P pleads case but on the meaning which words are found to bear Conclusion: • For D --> evidence is relevant to determine if there is evidence of justification

Absolute Privilege

• Absolute privilege = complete immunity in tort for statements falling within the privilege • Three categories: 1. Statements by executive officers relating to affairs of the state 2. Statements made during Parliamentary proceedings 3. Statements made in the course of judicial or quasi-judicial proceedings

Judicial Proceedings - Hung v Gardiner 20

Facts: • P member of Law Society of BC and Certified General Accountants Association of BC • Actions taken by her while employed in a firm of accountants led to an investigation and reprimanded by her supervisor by the Professional Conduct Enquiry Committee of the D (Institute of Chartered Accountants of BC) • D informed the Law Society and CGAA --> no further actions were taken by the two bodies Issue: • Whether a person who provides information to a professional disciplinary body about conduct of one of its members is liable for action brought by that member? Ratio: • Difference between administrative or quasi-judicial functions • Quasi-judicial bodies have power to determine the legal rights and to affect the status of members • Complaints to quasi-judicial bodies are covered under absolute privilege Analysis: • Two bodies are quasi-judicial Conclusion: • For D --> complaints covered under absolute privilege

Qualified Privilege

• Protects defamatory materials that are communicated on certain occasions --> generally applies in situations where the speaker has an interest or duty (legal, social or moral) to make the statement and the recipient has a reciprocal interest to receive the statement • Statements need not be true • Does not apply if P can show statements made maliciously • Due to reciprocity requirements defence will usually fail if comments made to the world

Hill v Church of Scientology

Facts: • P = Crown attorney, D = Church • D intended to initiate contempt of court proceedings against P --> alleging he misled judge and opened sealed documents pertaining to D • Before filing motion had press conference and read out notice of motion including the accusations and desired punishment • P was exonerated Issue: • Were D’s statements covered by qualified privilege --> did they constitute a report on court proceedings? • Was the privilege exceed and ∴ defeated? Ratio: • Qualified privilege attaches to the occasion upon which the communication is made and the communication itself • Information communicated must be reasonably appropriate in the context of the circumstances existing on the occasion when the information was given Analysis: • General rule --> fair and accurate reporting of judicial proceedings is protected • Attached to communication because D had intent to file documents • Conduct far exceeded the legitimate purpose of occasion --> circumstances called for great restraint, should have taken steps to confirm allegations, comments exceeded an legislative purpose the press conference may have seres Conclusion: • For P --> defence of qualified privilege defeated

Fair Comment

• Provides a defence to those who comment fairly on matters of public interest 21

• D must show that material in question was: 1. Comment must be on a matter of public interest 2. Must be based on fact 3. Must be recognizable as comment, though may include inferences of fact 4. Must satisfy objective test --> could any man honestly express that opinion on the proved facts? 5. Even though comment satisfies objective test, defence will be defeated if D was actuated by express malice Reasonable man = broad test, any man however prejudiced he may be, however exaggerated and ob- • stinate his views Comments = subjective opinions that cannot be proved/disproved • Facts = statements that are susceptible to proof truth/falsity can be determined • ∴ • Facts do not need to be provided if sufficiently notorious that they are public knowledge • If facts are not notorious need to explicitly or implicitly indicate, at least in general terms, the facts on which the comment is based --> required so the audience can understand what has led the com- mentator to make the comment

WIC Radio Ltd v Simpson

Facts: • Raife Mair interviewed Simpson --> Simpson = social activist against portrayal of homosexual lifestyle, promoting inclusion of materials teaching tolerance in schools • Mair compared Simpson’s public persona to Hitler, skinheads, and the KKK --> in showing hostility towards mi- nority • Imputed innuendo that she might condone violence against homosexuals Issue: • Does the defence of fair comment apply? Ratio: Defence of fair comment requires: • 1. Comment must be on a matter of public interest 2. Must be based on fact 3. Must be recognizable as comment, though may include inferences of fact 4. Must satisfy objective test --> could any man honestly express that opinion on the proved facts? 5. Even though comment satisfies objective test, defence will be defeated if D was actuated by express malice Analysis: • Comment = a deduction, inference, conclusion, criticism, judgment, remark, or observation which is generally incapable of proof • Malice does not provide an adequate substitute for the honest belief component of the fair comment defence Conclusion: • For Mair --> defence of fair comment applies

Responsible Communication on Matters of Public Interest

Grant v Torstar Corp Facts: • D published an article about golf course development on P’s estate --> aired views of local residents who were critical of environmental impact and suspicious P was exercising political influence to secure approval for golf course • D attempted to verify allegations in article, including asking P for comment Issue: • Should the common law be modified to recognize a defence of responsible communication on matters of public interest? Ratio: 22

• Two main elements to the defence: 1. The publication must be on a matter of public interest 2. Must show that the publication was responsible • To determine whether D acted responsible court should consider (not exhaustive): • The seriousness of allegation • The public importance of matter • The urgency of matter • The status and reliability of source • Whether the P’s side of the story was sought and accurately reported • Whether inclusion of the defamatory statement was justifiable • Whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth (“reportage”) Analysis: • Core rationales for freedom of expression = democratic discourse, truth-finding, self-fulfillment --> first two apply in this type of case Public interest what interests the public --> it is what some segment of the community would have a genuine in - • ≠ terest in receiving information about • Reportage = exception to repetition rule Conclusion: • For D --> new trial ordered to apply new defence

• Reportage = exception to repetition rule • Publisher should incur no liability even if some of the statements made may be defamatory and untrue provided: 1. The report attributes the statement to a person preferably identified, thereby avoiding total unaccountability 2. The report indicates, expressly or implicitly, that its truth has not been verified 3. The report sets out both sides of the dispute fairly 4. The report provides the context in which the statements were made

Crookes v Newton

Facts: • P brought series of lawsuits against people he claimed were responsible for allegedly defamatory articles published on websites • Did not allege anything on D’s website was defamatory --> just hyperlinks to defamatory material + argued that that should be presumed the content to which it connects has been republished • D argued hyperlinks = footnotes analogy Issue: • Whether hyperlinks that connect to allegedly defamatory material can be said to “publish” that material? Ratio: • Hyperlinks = references --> communicate something exists but not content ∴ do not constitute publication • Exception where hyperlinks, in context, expresses something defamatory Analysis: • Some acts are so passive they should not give rise to publication --> departure from general rule that any transmission of information to a third party is publication • Like references --> point you in the direction to go Conclusion: • For D --> no defamatory content on website and hyperlinks did not convey defamatory meaning

THE BURDEN OF PROOF

FH v McDougall

Facts: 23

• H resident of residential school --> claimed was sexually assaulted by M when approximately 10 years old • Despite inconsistencies in testimony trial judge found H credible and concluded he had been raped on four occasions Issue: • What is the proper standard of proof civil cases where allegations are particularly grave? • Can a ruling on credibility of witnesses be overturned on appeal? Ratio: Proper standard of proof in common law is balance of probabilities regardless of serious of allegations --> evi- • dence is always required to be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test • Credibility is a finding of fact --> can only over rule if there is a palpable and overriding error Analysis: • Hard to question assessments of credibility because only trial judge actually gets to see witnesses --> no legal requirement for corroborating evidence • Adequate reasons should reveal the path the judge took to reach a conclusion • Justify and explain the result --> credibility determinations may be hard to verbalize because not a com- pletely intellectual process but does not mean that reasons are inadequate • Tell the losing party why they lost • Provide for informed consideration of the grounds of appeal • Satisfy the public that justice has been done • Keep balance of probabilities as standard of proof --> criminal standard not appropriate (linked to pre- sumption of innocence + increased resources of state), intermediate standard presents problem of definition (if not 50-50, how do you define 70-30, etc.), evidence must always be sufficiently clear, convincing and cogent • W(D) requirements from criminal law do not apply Conclusion: • For P --> trial decision upheld

INTRODUCTION TO NEGLIGENCE

• Negligence used in two distinct ways: 1. Broader sense --> cause of action that constitutes a branch of tort law conceded with liability for careless conduct 2. Narrower sense --> one particular element within that cause of action (whether the D’s conduct met the standard of care - use carelessness for this) • Threshold for every negligence case is whether the D was subject to a legal obligation, or “duty” to exercise care with respect to P’s interests • Donoghue v Stevenson = seminal case in modern negligence law --> you must take reasonable care to avoid acts or omission which you can reasonably foresee would be likely to injury your neighbour Six parts to a negligence claim: • 1. Duty of care • Twofold test for duty of care: 1.1.1. Reasonable foreseeability --> could the club reasonably foresee someone getting injured in that manner? • If you know there is possibility of drunk people walking around with steins outside club could you foresee someone getting injured --> probably 1.1.2. Proximity --> speaks to a closeness • How close is the relationship? • Ex/ person hits person outside the club, one with injured eye decides to drive and hurts someone else • May be a string of events but at some point must say that the relationship is not close enough • Can prove every other element of negligence but if you can’t prove proximity ≠ negligence 2. The standard of care and its breach 24

• Two parts: • Establish the standard of care --> ordinarily the D is expected to meet the standard of care that would be exercised by a reasonable person in all the circumstances of the case • Establish whether there was a breach of the standard 3. Causation • Traditional test is but for 4. Remoteness of damages • Liability is generally limited to those losses that were foreseeable consequence of the D’s negligent act 5. Actual loss • Negligence not actionable per se --> P must establish they suffered legally recognized injuries/losses and extent 6. Defences • Once P has established a prima facie claim the court can address issue of defences • D can raise general defences that are not peculiar to negligence

Dunsmore v Deshield

Facts: • Hardex lenses case --> thought lenses were Hardex but weren’t • D (optometrist) nor manufacturer checked lenses • P argued if Hardex wouldn’t have broken Issue: • Is either D liable? Ratio: • Demonstrates how causation established --> must be on BoP Analysis: • No problem with duty of care • Standard of care definitely broken for manufacturer • Causation issue --> two ways: Hardex wouldn’t have broken or would have broken in safer way • Used steel ball test to show impact Conclusion: • For P --> D’s liable

Duty of Care

Donoghue v Stevenson ****general duty of care test****

Facts: • D had bottle of ginger beer with partly decomposed snail • D complained of gastroenteritis and severe shock Issue: • Is there liability in negligence for injury caused by another in the absence of a K? Ratio: Neighbour principle --> you must take reasonable care when proceeding with actions/omissions that you can rea- • sonably foresee harming your neighbour Neighbours are persons who are reasonably foreseeable as being affected by your actions or omissions • Duty of care not owed to world at large --> only neighbours • Two part test on BoP: • Reasonable foreseeability • If reasonable foreseeability --> is there proximity between the parties? • Analysis: Manufacturer owed duty of care to eventual customers --> having no K no duty of care • ≠ 25

Conclusion: For P •

Modern Duty of Care - Anns

• Anns v Merton London Borough Council - DUTY OF CARE • Do not have to establish duty of care if it has been previously determined to be situation where duty exists Two questions: • 1. Was there sufficient proximity to make carelessness cause reasonably foreseeable damage? • Foreseeability/proximity establish a prima facie duty of care • To D to show policy considerations • Policy considered at both proximity and then dealing with the bigger question of #2 2. Are there any considerations that would negative/reduce the scope of the duty of care?

**Anns adopted by SCC in Kamploops (City) v Nielsen**

Cooper v Hobart ***clarifies the Anns test***

Facts: • P invested money with Enron --> D worked under Mortgage Brokers Act and suspended licence of Enron • P argued D negligent --> if D acted earlier would not have suffered same amount of loss • D knew about complaints for a while before acting Issue: • Is there a duty of care? Ratio: • Clarifies Anns 1. Foreseeability and proximity (broadly about policy) • Clarification = reasonable foreseeability of harm must be supplemented by proximity --> it is about the relationship between the parties • With proximity look for representations, expectations, reliance, etc. • Factors that allow for evaluation of closeness of relationship and termini whether it is just and fair to impose a duty of care for that relationship (just and fair = policy element that relates to proximity) 2. Residual policy considerations • Clarification = this stage is not concerned with the relationship between the parties, but with the effect of recognizing duty of care on other legal obligations, legal system, society, etc. Analysis: • Fails proximity • Would have also failed broader policy stage Conclusion: • For D --> no duty of care

Hill v Hamilton-Wentworth Regional Police Services Board

Facts: • 10 robberies, P was suspect and arrested --> convicted and served time before being acquitted • P alleges police investigation was negligent --> methods used in photo lineup, witnesses interviewed together, did- n’t look at new evidence, etc. Issue: • Is there a tort of negligence investigation in Canada? --> does it apply in this case? Ratio: • There is a tort of negligent investigation • Police owe a duty of care in negligence to suspects being investigated --> their conduct during course of investigation should be measured against standard of reasonable officer in like circumstances (including time period) Analysis: • Applies Anns from Cooper • Does relationship establish prima facie duty of care? 26

• Foreseeability --> reasonable forgeability that actions would case harm to victim • Proximity --> sufficiently close relationship to give rise to duty (police and suspect identified for investigation = close and direct) • Policy issues regarding duty --> duty of care consistent with Charter; potential for negative repercussions dubi- ous, etc. • Residual policy considerations? • Flood of litigation; discretion; etc. Conclusion: • For D --> police were not negligent

Special Duties of Care

• CL distinguishes between misfeasance (positive acts) and nonfeasance (failures to act) • Generally only willing to impose liability for misfeasance • Only duty to act if there is “special” relationship General rule --> no liability in negligence for nonfeasance • Expansion of positive duties in three areas: • 2.1. Duty to rescue 2.2. Duty to control the conduct of third parties 2.3. Duty to fulfill gratuitous undertakings

Duty to Rescue

Osterlind v Hill

Facts: • P (adminstrator of estate) argued that D allowed the intestate to rent a canoe when so intoxicated that he was unfit to go on lake • D heard calls for help but didn’t respond • Intestate died Issue: • Duty to rescue? Rato: • No duty to rescue • No violation of legal duty in renting canoe Analysis: • Argument that D was so intoxicated that it was negligent to rent canoe balanced against fact that obviously not helpless if able to hold onto canoe and call for help for half-hour Conclusion • For D --> no duty

Mathews v Maclaren; Horsley v Maclaren

Facts: • D piloting boat and consumed alcohol • M fell overboard --> D reversed boat to get closer, H jumped in • Boat swing around and H was picked up but was already dead • Didn’t find M’s body • H died from shock from cold water Issue: • Duty to rescue? • Was D negligent? Ratio: • Possible CL duty to rescue • Duty is that of reasonable boat operator in circumstances • Even after establishing duty must show that the negligence in rescue was cause of death Conclusion: • D not liable because no evidence that D’s negligence caused the deaths 27

• Good Samaritan Act --> protection from liability unless gross negligence for acting or failing to act

Duty to Control Conduct of Others - Liability for Intoxicated

Crocker v Sundance Northwest Resorts Ltd

Facts: • P to participate in tubing competition --> signed waiver but didn’t read • P injured on first run but did second --> ended up breaking neck • Obviously drunk but D continued to let him participate Issue: • Was there a duty? Was D negligent? Ratio: • Uphold same principles as Jordan House --> duty not to place another person in a position where it is reasonable foreseeable that that person could suffer injury Analysis: • D set up inherently dangerous competition --> D must take responsibility as promoter of dangerous sport to take reasonable steps to prevent a visibly incapacitated person from participating • Financial incentive for D important Conclusion: • For P --> D 75% liable

Jordan House Ltd v Menow

Facts: • Tavern owner ejected intoxicated patron • Patron struck by car as he stumbled home on busy highway Issue: • Duty? Ratio: • Recognized a duty to take positive action to protect another • Special invotor-invitee relationship at play Duty not to place another person in a position where it is foreseeable that that person could suffer injury • Conclusion: For P --> D had duty and was negligent •

Childs v Desormeaux

Facts: • BYOB party • D left significantly impaired Issue: • Do social hosts have a legal duty of care to third parties who may be injured by the intoxicated guests? Ratio: • No duty of care between social hosts at a party where alcohol is served and third-party highway users who may be injured by intoxicated guests • Lack of sufficient degree of proximity Analysis: • Different from commercial hosts --> no profit, legal restrictions, K nature • Common thread in duty to act = D’s implication in creation of risk or control of risk to which others have been invited • Social hosts do not fall within special category • No evidence of reasonable reliance --> no one relied on hosts to monitor alcohol consumption Conclusion: • For D --> no prima facie duty of care

Standard of Care

Arland v Taylor 28

Issue: • What is proper standard of care? Ratio: • Proper standard = reasonable and prudent man • Impersonal test (objective) • Legal standard of care always remains the same (always what a reasonably prudent man would have done in like circumstances) but the factual standard changes from time to time and place to place

Bolton v Stone

Facts: • P walking on road adjacent to cricket ground when she was struck and injured by a ball that had been hit out of the ground Issue: • What factors need to be taken into account when determining the breach of standard of care? Ratio: • When a risk is sufficiently small, a reasonable man can disregard it • Test not just foreseeability of harm --> take into account the probability of injury and potential severity • Test to be applied = whether the risk of damage to a person on the road was so small that a reasonable man in the position of the appellants, considering the matter front he point of view of safety, would have thought it right to re- frain from taking steps to prevent the danger

Matharu v Nam

Facts: • P and D playing golf --> weirdly aligned hole • D did not call fore Issue: • Was D negligent? • Was the golf course negligent? Ratio: • Standard of care for golfer = what a reasonable player, in his place would or would not do (assessment of foreseeability of injury to others takes into account skill, location, etc.) • Duty of care under Occupiers Liability Act to protect someone on a premises --> tried to do things like plant trees Conclusion: • Neither liable

Causation

• D’s negligence does not need to be the sole or most important cause of loss --> just need to establish that it is a cause Divisible loss = loss attributable to conduct of single tortfeasor • Indivisible loss = loss attributable to the conduct of more than one tortfeasor • • But-for test = if P’s injury would not have occurred but for the D’s negligent act, then that act is the cause of the injury

Kauffman v Toronto Transit Commission

Facts: • P on subway escalator --> people fall back and P sustained significant injuries • Argument that D was negligent because of hand rail design Issue: • Was the hand rail design a cause of the injury? Ratio: • The causal relation between the alleged negligence and the injury must be made out by the evidence and not left to conjecture Analysis: 29

• No evidence anyone tried to grab onto the railing as they were falling Conclusion: • For D --> no causation

Barnett v Chelsea & Kensington Hospital Management Committee

Facts: • Three men wen tot D hospital complaining about vomiting after drinking tea • Doctor sent them home • One died of arsenic poisoning Issue: • Was the doctor’s negligence a cause of the man’s death? Ratio: • The burden of proof is on P to prove that the negligent actions of D caused the outcome • Must establish that if the negligent act did not occur, then the damage would not have happened Analysis: • No evidence would have been given specific antidote in time Conclusion: • For D --> P failed to establish but for on BoP

Attempts to modify but for in three situations: 2. Material contribution 3. Materially increased risk 4. Proportionate cause and loss of chance

Walker Estate v York Finch General Hospital

Facts: • P contracted HIV from tainted blood products from Canadian Red Cross • P claimed negligent in screening potential blood donors • Pamphlet used by CRCS was vague Issue: • What is proper test of causation? Ratio: • Must use the material contribution test of causation for negligent donor cases • Whether conduct was a sufficient condition for the injuries suffered by the P, not a necessary condition “But-for” does not always work if there are multiple independent causes that bring about a single harm • Analysis: • May be difficult/impossible to prove what donor would have done with better pamphlet (but for) • Test should not be whether CRCS’s conduct was a necessary condition for P’s injuries using the “but-for” test but whether that conduct was a sufficient condition • Whether D’s negligence materially contributed to the injury Conclusion: • For P --> negligent

Clements v Clements

Facts: • Motor bike case where overloaded and flat tire • Wife suing husband for brain injury Issue: • Did Mr’s negligence cause Mrs’ injury? --> does usual “but for” test for causation in negligence apply or does material contribution approach suffice? Ratio: • Material contribution approach may be appropriate where it is “impossible” for the P to prove causation on the “but for” test and where it is clear that the D breached its duty of care (acted negligently in a way that exposed the P to an unreasonable risk of injury) • Impossibility = where there are a number of tortfeasors, all are at fault, and one or more has in fact cased the P’s injury --> the P would not have been injured “but for” their negligence, viewed globally, however because 30

they can point fingers at each other it is impossible for P to show on a BoP that any single one of them caused the injury • USE WHERE FAIRNESS AND JUSTICE DEAMND DEVIATION FROM THE “BUT FOR” TEST • In usual case of multiple actors the traditional “but for” test still applies Conclusion: • New trial using correct test

Aberdeen v Langley (Township) - Trial Decision

• Apportion of Loss Under the BC Negligence Act: • If P is found to be contributorily negligent, he will be able to recover from each defendant only to the extent that particular defendant was at fault • If P is not contributorily negligent, then D’s are jointly and severably liable, so that P can recover entire amount from one D, leaving that D to claim their money back from other D • Factors to Consider when Apportioning Liability: 1. The number of negligent acts 2. The timing of the negligent acts 3. Whether there was a deliberate or reckless disregard 4. The opportunities to prevent and avoid

Negligent Misrepresentation

Hercules Managements Ltd v Ernst & Young

Facts: • D = accountants who prepared audited financial statements for two companies • P = shareholders who relied on statements --> claimed that as a result of carelessness of D in preparing statements they lost money Issue: • Does D owe P a duty of care? Ratio: • Criteria for prima facie duty of care in first branch of Anns 1. The D ought reasonably to foresee that the P will rely on their representation 2. Reliance by the P would, in the particular circumstance of the case, be reasonable • Policy considerations --> concerned about D being exposed to indeterminate liability • Look at: • Knowledge of the P (or an identifiable class of P) on the part of D • Use of the statements at issue for the precise purpose or transaction for which they were prepared Analysis: • Five general indicia of reasonable reliance: 1. The D had a direct or indirect financial interest in the transaction in respect of which the representation was made 2. The D was a professional or someone who possessed special skill, judgment, or knowledge 3. The advice or information was provided in the course of the D’s business 4. The information or advice was given deliberately, and not on a social occasion 5. The information or advice was given in response to a specific enquiry or request Conclusion: • Negated by policy considerations --> not used for specific purpose they were made for

Liability of Public Authorities

• Public authorities = governments and elected officials as well as bodies to which many of the day- to-day functions of government are legislatively delegated • SCC has said that public authorities can generally not held liable when exercising a legislative, judicial or quasi-judicial function (Welbridge Hldg Ltd v Winnipeg) 31

• Remains true today that the Crown is subject to liability only to the extent that it voluntarily sub- mits itself to judicial authority through such legislation

Special Rules for Public Authorities

Bradley v Fisher

Facts: • P member of the bar of the Supreme Court in DC • D was criminal court judge • As a result of P’s conduct, D directed an order striking his name from the roll of attorneys practicing in the criminal court • D had no authority to do this Issue: • Is there judicial immunity from civil action? Ratio: • There is judicial immunity --> required to preserve judicial independence • General principle is that judicial officer, in exercising authority, shall be free to act upon own convictions without apprehension of personal consequence

Negligence Liability of Public Authorities

Two issues: 2. Doctrine of vicarious liability --> question is not whether public authority can be held vicariously liable on the basis of an employee’s tort, but rather whether it can be held directly liable for its own negligence 3. Whether public authority was exercising a statutory duty or discretionary power • Statutory duty --> public authority cannot be held liable for doing what it was required to do (liability maybe if performed carelessly) • Discretionary power --> where public authority had ability but not obligation to act in a certain way = discretionary power • Court must be conceded about substituting its choices for that of the legislature ∴ law has developed distinction between policy and operational matters

Just v British Columbia

Facts: • Hwy 99 boulder fell off mountain and landed on P’s car killing daughter • P wanted to sue BC claiming it was negligent in failing to maintain the highway properly Issue: • Was decision of the rock work section as to quantity and quality of inspections a “policy” decision expecting D from liability? Ratio: • Duty of care should apply to public authority unless there is a valid bases for its exclusion • Policy decisions = exempt from liability (decision about what acts to perform) • Indicators of pure policy decisions --> budgetary allotments, decision made in good faith, made by high authority • Operation decisions ≠ exempt from liability (decision how to perform acts) • Framework: 1. Is there sufficient proximity to impose a duty of care? • Exemption questions for government agencies: • Is there an explicit statutory exemption • Is the government agency making a pure policy decision 2. What is the standard of care required by the government agency? • Must take into account all the circumstances Conclusion: • Policy decision in current case was to inspect ∴ manifestations of the implementation of the policy decision to inspect were operational in nature so could be liability 32

• New trial ordered with finding that not immune from the suit

KLB v British Columbia

Facts: • Children in foster care suffered abuse • Social workers disregarded warnings that homes may not have been good Issue: • Can the government be held liable for tortious conduct of foster parents toward children whom the government has placed under their care? • Is there any legal basis on which the government could be held liable for the harm the appellants suffered in foster care? Ratio: • Duty of care should apply to a public authority unless there is a valid basis for exclusion • Policy decisions --> decision about government about what acts to perform under a given statute are exempt from liability • Operational decisions --> decision by government about how to perform those acts once they have been decided are not exempt from liability • There is a legal basis on which the government could be held liable for the harm suffered in foster care however limitation periods apply Analysis: • Direct liability --> act imposed duty of care (standard of care was “careful parent test”) • Reasonable foreseeable that some people may harm children ∴ should monitor • Government did not meet standard of care • Vicarious liability for torts of foster parents • Successful claim of vicarious liability requires: 2.1. P demonstrates that the relationship between the tortfeasor and the person against whom liability is sought is sufficiently close as to make a claim for vicarious liability appropriate 2.2. P demonstrates that the tort is sufficiently connected to the tortfeasor’s assigned tasks and that the tort can be regarded as a materialization of the risk created by the enterprise • Test for closeness of relationship = whether the person who has been engaged to perform the services is per- forming them as a person in business on his own account (acting on behalf of employer or as an independent contractor) • Foster families operate in independent manner --> own house, own equipment, etc. Conclusion: • Government would be directly liable but claims statute-barred • Not vicariously liable

British Columbia v Imperial Tobacco Ltd

Facts: • Government made legislation which made it easier for them to prove tobacco liability • Changed some burdens, etc. Issue: • Is it constitutionally valid? Ratio: • As long as it’s within the bourns of the Constitution legislatures can make laws how they see fit • Judicial independence requires courts to interpret and apply law as they see fit --> not only apply the law they like • Government can legislate to its own advantage • Rule of law does not require a fair civil trial or that government not have advantages • Legislation should be limited by express written Constitution and ballot box --> not unwritten principles

Third Parties and Motions to Strike

R v Imperial Tobacco Canada

Facts: 33

• D issued third party notice to government of Canada --> negligent misrepresentation, etc. Issue: • Should the third party claims be struck? • What is the test for striking out claims for failure to disclose a reasonable cause of action? Ratio: • Government will be immune from suit if actions complained of arose out of policy • Will not be held liable if liability is indeterminate --> third party needs to be in control of the extent of its potential liability • Test for striking out = plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action Analysis: • Negligent misrepresentation --> go through Anns and Canada has prima facie duty of care (Hercules Management) • Policy considerations --> policy considerations & indeterminate liability Conclusion: • Motion to strike successful

Abuse of Public Office

• Intentional tort • Historically involved malicious conduct by a public officer that was directly aimed at a particular individual • Public officer = those who discharge any duty in the discharge of which the public are interested, more clearly so if they are paid out of a fund provided by the public (possibly includes Crown corporations)

Roncarelli v Duplessis Facts: • P holder of liquor licence • D = AG and premier --> took away licence forever because P helped Jehovah’s witnesses Issue: • Was this a breach of implied public statutory duty? Ratio: • In public regulation discretion is limited by a good faith requirement in discharging the public duty • Good faith = following the intention and object of the statute • Malice = acting for a reason or purpose knowing foreign to the administration of the statute/regulation • The rule of law requires that no public officer can act above the law --> must act within the intent and purpose of the statute Conclusion: • For P --> abuse of public office

Odhavji Estate v Woodhouse

Facts: • O shot by Toronto police after bank robbery • Officers didn’t comply with the SIU investigation • P alleges that officers intentionally breached their statutory obligation to cooperate fully with SIU • Claim this caused lack of thorough investigation which lead to mental distress, anger, anxiety, etc. Issue: • Is this a misfeasance of public office? Ratio: • Elements of tort: • Public officer must have engaged in deliberate and unlawful conduct in their capacity as a public officer • The public officer must have been aware both that their conduct was unlawful and that it was likely to harm P • Can arise in two ways: • Conduct that is specifically intended to injure a person or class of persons • A public officer who acts with knowledge both that they have no power to do the act complained of and that the act is likely to injure the P Conclusion: • Enough evidence to proceed with case 34

Nuisance Law

• Not an intentional tort • Based on enjoyment/use of property --> often not physical intrusion

Antrim Truck Centre Ltd v Ontario (Transportation)

Facts: • Highway altered in Ontario which caused access to truck stop to be severely restricted • Expropriations Act provides a right to compensation for injurious affection, which occurs when D’s activities interfere with the claimant’s occupation or enjoyment of land if the claimant can meet three requirements: 1. Damage must result from action taken under statutory authority 2. The action would give rise to liability but for that statutory authority 3. The damage must result from the construction and not the use of the works Issue: • If highway construction had not been done under statutory authority, could the P have successfully sued for damages caused by the construction under the law of private nuisance? • How to decide whether an interference with private use and enjoyment of land is unreasonable when it results from construction which serves an important public purpose? Ratio: • Interference unreasonable when --> in all of the circumstances. the individual claimant has shouldered a greater share of the burden of construction than it would be reasonable to expect individuals to bear without compensation Nuisance = interference with claimant’s occupation or enjoyment of land that is both substantial and unreasonable • Substantial --> threshold that requires interference be non-trivial, amounting to more than a slight annoyance • or trifling interference (can be more than physical damage --> ex/ interference with health) Unreasonable --> focus of balancing exercise is on whether the interference is such that it would be unreason- • able in all of the circumstances to require the claimant to suffer it without compensation Not about whether D’s conduct is unreasonable but whether the interference suffered by P is unreasonable • Utility of D’s conduct is considered in light of other relevant factors but is not itself an answer --> question whether • ≠ broader public good outweighs the individual interference when the two are assigned equal weight Is interference greater than the individual should be expected to bear in the public interest without compensa- • tion Conclusion: For P --> gets compensation •

Product Liability

• Duty of care analysis not required for these case because it falls into category where duty of care is already established --> Donoghue v Stevenson

A Manufacturer’s and Supplier’s Duty to Warn

Hollis v Dow Corning Corp

Facts: • Exploding breast implants case • Literature warned of rupture during surgery but not after • P sued surgeon and manufacturer Issue: • If manufacturer does not adequately warn users of its products of the risks, is it liable for injuries caused by the materialization of those risks? • Was Dow liable for failing to adequately warn the surgeon (Dr. Birch) of the risk of a post-surgical rupture? Ratio: 35

Learned intermediary rule --> a manufacturer is held at a higher standard of care, and can only be said to have • discharged its duty to the consumer if it informs a “learned intermediary” who in turn informs the consumer, and the knowledge of the intermediary approximates that of the manufacturer • Causation in cases involving a failure to disclose medical risks --> modified objective test and ask if reasonable person in the patient’s shoes, with all of the proper information, would have decided to have the surgery • If they would have decided against it causation is established • In learned intermediary cases the patient does not need to prove that intermediary would have relayed the risks on to the patient if the manufacturer had properly informed them • If learned intermediary is informed and doesn’t inform the patient then manufacturer is no longer liable and intermediary is Analysis: • Manufacturer has duty to warn consumers of dangers inherent in the use of its product which it has knowledge or ought to know about • Duty to warn is a continuing duty • Corrects knowledge imbalance • Nature and scope of duty to warn varies with the level of danger entailed by ordinary use of product --> more dangerous, more detailed the warning, etc. • GENERAL RULE --> right from manufacturer to consumer • Dow should have known about possible rupture --> had received reports Conclusion: • For P --> Dow breach duty to warn Dr. ∴ because of failure is liable to P

Reid v Ford Motor Company

Facts: • P applying for class action proceeding • P alleges that TFI modules are defective and dangerous because vehicle can stall without warning • Defect caused by design choices of D • Financial burdens of claim would be too great to proceed separately Issue: • Should P be entitled to prosecute the action on behalf of the class? Ratio: • Three advantages to class proceedings: 1. Judicial economy resulting from unnecessary duplication 2. Improved access to justice --> economical prosecution of claims otherwise not economical 3. Modifying the behaviour of wrongdoers • Certification stage ≠ test of whether P’s claim will succeed ∴ construe requirements generously • Requirements of Class Proceedings Act Pleadings disclose a cause of action • Test for cause of action = is it plain and obvious that the pleadings cannot sustain a cause of action? • Assume pleadings are true • Identifiable class of two or more persons • Don’t need to know exact size --> just objective criteria to identify class • Claims of class members raise common issues • Common issue does not need to be only issue --> just one that it is required to be resolved to advance the • cases (ex/ duty of care, breach, etc) Answer does not need to be common, just the question • Class proceedings preferable for fair and efficient resolution of common issues • Test: • Common questions predominate • Class members do not have interest in separate actions • 36

Claims have not been subject of other proceedings • No other means of resolving claims • Administration of proceeding will not be too difficult • Representative P for the class • Policy reason to support certification --> cost-sharing decreases expense of legal recourse deters potential D’s • ∴ who might otherwise assume that minor wrongs will not result in litigation Conclusion: For P --> claims of individual P’s are not economically feasible (ex/ cost of experts, etc.) •

Defences in Negligence

Contributory Negligence

• Last clear chance rule --> permitted P to recover, despite contributory negligence, if D had the last clear chance to avoid the accident and negligently failed to take it

Walls v Mussens Ltd

Facts: • D repairing logging machine in P’s service station using propane gas torch • Caused fire --> P tried to help extinguish but failed to used extinguisher • D argued P contributorily negligent for failing to use extinguisher Issue: • Contributory negligence? Ratio: • Agony of the moment rule --> conduct in face of sudden emergency must be judged by what would have been a reasonable degree of judgment and presence of mind expected in that situation (cannot look to hindsight, etc.) • Test in emergency situation = whether what P did was something an ordinarily prudent man might reasonably have done under the stress of the emergency Analysis: • Failure of P to use extinguishers was not negligent even though would have mitigated loss • Fire created solely by D --> no portion of responsibility for starting fire on P • P merely did what others were doing with the snow

Gagnon v Beaulieu

Facts: • P injured as passenger in car accident • Wasn’t wearing seatbelt • D = driver Issue: • Contributory negligence? Ratio: • A person who does not exercise all precautions as a person of ordinary prudence would observe, in accordance with prevailing safety standards, is contributorily negligent • Injuries would be lessened by seatbelt ∴ negligence in not wearing seatbelt becomes contributory negligence Analysis: • Not wearing seatbelt only contributory negligence if show that injuries would have been reduced by seatbelt

Apportionment of Loss

Negligence Act --> allows apportionment for liability for negligence and contributory negligence • Some courts suggested upper limit of 25% for contributory neglgience of P • 37

Mortimer v Cameron

Facts: • P and D horseplay at party • Serious injuries falling through stairway wall • Owner of building argued contributory negligence Ratio: • D’s negligence is only actionable with respect to harm that is within the scope of the risk that makes the offending conduct actionable • Similarly, P’s contributory negligence will not limit recovery unless it is a proximate cause of his injury (and if the loss was within the ambit of risk created by his negligence) • A party who breaches an ongoing duty is more liable than a party breaching an intermittent or one-time duty • Where there are multiple liable parties, the party with more proximate cause will have a larger apportionment of liability Analysis: • Harm caused by D and P’s actions was unforeseeable Conclusion: • Only city and property owners liable

Voluntary Assumption of Risk

Dube v Labar Facts: • Coworkers drinking • End up driving • D raises defences of volenti non fit injuria and contributory negligence Ratio: • Volenti non fit injuria defence can only be used when it is shown that (express or implied): 1. P knows the risk 2. P has assumed risks voluntarily 3. P has bargained away his legal right to sue for injuries caused by the D's negligent action • Test = whether circumstances are such as necessarily to lead to the conclusion that the whole risk was voluntarily incurred by P Analysis: • Court prefers more flexible contributory negligence approach • Volenti generally inapplicable for highway negligence Conclusion: • For D --> judge disagreed with jury’s conclusion that P voluntarily assumed risk but would not overturn verdict because it was not unreasonable

Inevitable Accident

Rintoul v X-Ray and Radium Indust. Ltd.

Facts: • Employee of D driving truck --> brakes stopped working and accident ensued Ratio: • For inevitable accident to operate as a defence, the D must establish the damage was: 1. Caused by event in which the D had no control (inevitable) 2. That by exercising reasonable care that it could not be avoided (unavoidable) Analysis: • Driving with defective apparatus if the defect might reasonably have been discovered is a negligent act with ren- ders D liable for injuries of which they are the effective cause • D made no attempt to show defect could not be discovered Conclusion: • For P --> D failed to show inevitable accident

Apportionment of Negligence 38

Cempel v Harrison Hot Springs Hotel Ltd

Facts: • P climbed fence and fell into water and got burned Ratio: • Appeal court should only interfere with a finding of negligence if it was clearly and palpably wrong through a misun- derstanding of the law or a misapprehension of the evidence • Apportionment of liability must be on the degree of fault NOT degree of causation at time of incident • Fault = blameworthiness • In apportionment look at an assessment of the degree of risk created by each of the parties • Fault should be apportioned on the basis of the nature and extent of the departure from the respective standards of care of each of the parties Analysis: • Occupier’s Liability Act --> must make sure person using premises will be reasonably safe (but not duty when person willingly accepts own risks) • Negligence Act --> split damages based on degrees of fault Conclusion: • 60% D, 40%P

Damages

• Three types of damages: 1. Normal --> awarded to vindicate P’s rights in situations where no injuries suffered 2. Compensatory --> puts P in position that would have been in had the tort not been committed 3. Punitive --> may be awarded for four purposes (Whiten) • Punishment • Deterrence • Denunciation • Relieve wrongdoer of profits made from the wrong • Court reluctant to award in negligence because of carelessness instead of intention

Preliminary Issues

Burden of proof --> P has burden of proving that they suffered a type of loss that is recognized as re- • coverable in tort law (also bears burden of roving the quantum of damages that are claimed) Standard of proof (losses prior to trial) --> P must prove existence and quantum on BoP (if success- • ful gets 100%) Standard of proof (losses after trial) --> two approaches: • Earlier line of authorities used BoP --> if established future loses would occur on BoP would get • them Recent line of authorities based on reasonable or substantial possibility test --> once P establishes • that there is a substantial or reasonable possibility of injury, entitled to recover for the loss, but subject to the likelihood of it occurring Ex/ P establishes 35% chance of it occurring gets 35% of damages injury would cause • Mitigation of damages --> P under obligation to act reasonable in all of the circumstances to mitigate • the loss D has burden of proving failure to mitigate • Three principles: • P must take reasonable steps to minimize loss • 39

P may recover for losses occurred in taking the steps • P cannot recover for losses avoided even if wasn’t required to avoid them under rule #1 • Set-off parallel expenditures --> D can set-off parallel expenditures that the P would have incurred • had tort not been committed (only permitted if D can establish that the two items are truly parallel in nature and that their values are readily calculable) One-time lump sum --> at CL damages are award all at once • Roles of jureis, judges, appellate courts --> jury assesses damages • General damages = pre-trial non-pecuniary and all post-trial losses • Special damages = pre-trial pecuniary • Causation issues can make assessing damages difficult where two D will apportion liability between • ∴ them Gross-up = increase in award based on future tax liability to make sure fun will generate sufficient after • tax income to meet cost of care

Damages for Personal Injuries

Framework for damages: • Pecuniary loss • Future care • Lost earning capacity • Considerations relevant to both heads of pecuniary loss • Non-pecuniary loss •

Andrews v Grand & Toy Alberta Ltd

Facts: • P rendered quadriplegic in traffic accident Pecuniary loss --> future care • Amount which may reasonably be expected to be expended in putting the injured party in the position would have been if not sustained injury • No duty to mitigate --> compensation and not retribution is sought Life expectancy --> use for appropriate group (ex/ people with same injury) • Contingencies of life --> discount for contingencies and hazards of life --> relates not to decreased life expectancy • but to duration of expenses Pecuniary loss --> lost earning capacity Level of earnings --> reasonable estimate of future average level of earnings (not frozen at what it was at time of • accident) Length of working life --> use expected working lifespan before accident not shortened life expectancy • Contingencies --> what might have affected future earnings (ex/ employment, illness, accidents, etc.) • Not all adverse • Some are implicitly already contained in assessment of projected average level of earnings • Duplication with compensation for for loss of future earnings • P cannot recover for expense of providing basic necessities as part of cost of future care while recovering fully • for protective loss of earnings 40

Approach preferred is to take net future earnings rather than gross future earnings • Instead of taking money out of future care costs • Projected cost of future necessities should be included in future care and percentage attributable to it • should be reduced from future earnings Non-pecuniary loss Court adopts functional approach --> injury valued in loss of victim and attempts to assess the compensation re- • quired to provide the injured person with reasonable solace for his misfortune Solace = physical arrangements which make life more endurable • Logical that large amounts should not be awarded when future care, etc. already taken care of • Court established rough upper parameter of $100,000 --> increased due to inflation (now around $300,000) • No cap for defamation (Hill) •

Damages - Defamation

Hill v Church of Scientology

Facts: • Jury awarded $300,000 general damages against church and MM • $500,000 in aggravated damages against church • $800,000 in punitive damages against church Issue: • Is there a cap on damages for defamation? Ratio: • No cap for damages for defamation • Appellate court can only act where verdict is so inordinately large as obviously to exceed maximum limit of a reasonable range within which the jury may properly operate (whether verdict is so exorbitant or so grossly out of proportion to the libel as to shock the court’s conscience) General damages --> presumed from publication of the false statement and are awarded at large (non pre- • assessed in advance) • Jury to provide sum that will vindicate P’s reputation to community • No cap to damages • Defamation = intention publication vs personal injury (usually carelessness • No problem like with personal injury of having a lot of cases, etc. • In personal injury compensated for every aspect of injury suffered + non-pecuniary damages • Factors to take into account: • Conduct of P • Nature of libel • Mode/extent of publication • Absence of a policy • Whole conduct of D from time when published to moment of verdict • No need to compare to other libel cases --> unique circumstances Aggravated damages --> awarded in circumstances where the D’s conduct has been particularly high-handed or • oppressive, thereby increasing the P’s humiliation and anxiety arising from the libellous statement • Where D is guilty of insulting, high-handed, spiteful, malicious or oppressive conduct which increases the mental distress • Need to find D motivated by actual malice • Apology may show no malice, etc. Punitive damages --> awarded in situations where the D’s misconduct is so malicious, oppressive or high-handed • that it offends the court’s sense of decency • Not about compensation but about punishment • Meant to act as deterrent to D and others from acting this way Conclusion: 41

• All damages awarded were okay

Remoteness of Damages

• Close relationship between remoteness and causation • Remoteness --> legal connection between D’s breach and P’s loss • Causation --> factual connection between D’s breach and P’s loss

Directness Test

Re Polemis and Furness, Withy & Co --> directness test for remoteness • Test = P’s loss would not be too remote to be recoverable if it was a direct result of the D’s careless- • ness Directness --> close temporal and spatial connection between the D’s breach and the P’s loss • Criticized because does not relate degree of D’s fault to extent of liability •

Foreseeability Test

The Wagon Mound (No. 1); Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co

Facts: • P allowed oil from boat to spill into harbour • Oil under D’s wharf • Was welding --> ended up catching wharf on fire Issue: • Too remote? Ratio: • Overturns directness test • Institutes foreseeability test --> essential factor for determining liability is whether the damage is of such a kind as the reasonable man should have foreseen Conclusion: • Appeal to finding of liability allowed

• Funnel of foreseeability • Duty --> foresee possibility that carelessness of any kind could lead to damage of some kind • Breach --> foresee that the kind of carelessness charged might cause damage of some kind • Remoteness --> the kind of damage suffered was foreseeable as outcome of carelessness charged

Hughes v Lord Advocate

Facts: • D’s employees with paraffin lamp and manhole • Boy knocked lamp into manhole, explosion, got burned badly Issue: • Too remote? Ratio: • Where a P’s injury is foreseeable, but the injury is caused in a unique way or manner which could not have been foreseen, the result is within the chain of proximate causation and that element of negligence is satisfied • As long as general type of injury can be foreseen there will be proximate cause (ex/ burn either by flame or explosion) Conclusion: • For P --> D liable

The Thin-Skulled Plaintiff Rule 42

Smith v Leech Brain Co

Facts: • P’s husband galvanizer employed by D, molten metal burned lip and turned into cancer (aggravated a predisposi- tion) Issue: • Too remote? Ratio: • D are liable for damages when it is reasonably foreseeable that an injury would occur, regardless of what results from the injury • Thin skull rule applies --> take victim as you find them • Test not whether could reasonably foresee that burn would cause cancer but whether could reasonably foresee type of injury (burn) --> amount of damage suffered as result of injury depends on characteristics of victim

Marconato v Franklin

Facts: • P suffered minor injuries from car accident --> ended up triggering major personality change Issue: • Too remote? Ratio: • A finding of causation will follow when negligence aggravates a pre-existing condition, resulting in an injury • Thin skull rule --> had a susceptibility to suffer greater consequences from a moderate physical injury than the average person

• Thin skull rule = in for a buck, in for a bundle • If it was reasonably foreseeable that the D’s carelessness would cause some injury of a particular type, then the P can recover in full even if, because of a special vulnerability, he or she suffered to a greater extent than could have been reasonably foreseen • Distinguish between thin skull and crumbling skull • Crumbling skull = doomed to damage and D just responsible for hastening it (only liable for amount that it worsened condition)

The Possibility of Injury

The Wagon Mound (No. 2); Overseas Tankship (UK) Ltd v Miller Steamship Co Pty

Facts: • Same incident as No.1 • P = owners of boats damaged in fire Issue: • Too remote? Ratio: • If a party did nothing to prevent the injury, he is liable for the foreseeable consequences of his actions, even if the consequences are remote • Where there is a foreseeable risk of damage, D can only justify ignoring the risk if it can be shown the difficulty in eliminating it outweighed the possible damage it could cause • Tortfeasors are liable for injuries that are (from their own perspective) possible and therefore reasonably foreseeable consequences of their negligence • This is a modified objective test • The smaller the risk and higher the cost for mitigating risk, the less responsibility there is for the tortfeasor to mitigate the risk Analysis: • Harder case in no. 1 because P had to argue without admitting it knew oil could catch on fire because would have been contributorily negligent for welding and at time was complete defence • Inaction may have been because knew it was unlikely to ignite but does not mean that reasonable man would dis- miss such a risk and do nothing when easy to prevent it 43

Bolton v Stone

Facts: • Cricket game, ball hit person on road Ratio: • Recognize and give effect to the qualification that it is justifiable not to take steps to eliminate a real risk if it 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

Assiniboine South School Division, No. 3 v Greater Winnipeg Gas Co

Facts: • Auto toboggan hits gas pipe causes explosion at school • Gas company and driver found 50-50 liable Issue: • Reasonably foreseeable? Ratio: • The test of foreseeability of damage is a question of what is possible rather than what is probable • Duty to take protective measures increases in direct proportion to the risk Analysis: • Adopts test in Wagon Mound No 2 • Enough to fix liability if could see in a general way what happened --> extent of damage and manner of incidence need not be foreseeable if physical damage of the kind which ensued is foreseeable • Damage of type or kind was reasonably foreseeable • Gas-riser pipes common • Damage to pipe is not a kind that no one could anticipate • Must not define narrowly the outer limits of reasonableness Conclusion: • Both liable

Mustapha v Culligan of Canada Ltd

Facts: • P suing for psychiatric injury after seeing dead flies in bottle of water supplied by D • P developed major depressive disorder with associated phobia and anxiety Issue: • Too remote? Ratio: • In a duty of care analysis concerning nervous shock, damage caused by a breach in the standard of care must be reasonably foreseeable --> P must show that her or his mental injury would have occurred in a person of ordinary fortitude • If the defendant knew that the plaintiff had a particular vulnerability to psychiatric harm before the breach, then psychiatric harm is reasonably foreseeable • For psychological injury --> ordinary fortitude = threshold --> when assessing damages (use think skull) Analysis: • D owed duty of care as manufacturer of a consumable good • D breached standard • P suffered psychological injury Conclusion: • Too remote