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Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway DUTY Palsgraf ◁ Negligent actors are only responsible for what can be 1928 foreseen by the ordinarily prudent eye Donaghu ◁ When do you have a new duty? The neighbour principle. e 1932: o You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour – persons who are so closely directly affected by my act that I ought reasonable to have them in contemplation o Duty of care = proximity + reasonably foreseeability

Dorset ◁ HELD: liability Yacht ◁ Presumptively, D+S (neighbour principle) applies, unless 1970: there’s good reason for it not to apply. Public policy reasons are relevant o There are clear cut cases where someone will be foreseeably be hurt by your actions, and yet you are not liable. What are these cases? . If someone suffers economic losses due to my actions . Not liable for providing others a positive benefit o What are reasons for NOT holding the prison officers for the harm done? . How can an autonomous person be held directly liable for the autonomous acts of another person? . Potentially we could think of vicarious liability – but not this way . Prison officers owe a duty to prisoners to protect them from other prisoners, and therefore have responsibility since they’ve taken control over the prisoners’ lives and control what they can/ cannot do (Q. How does this fit in – it seems contradictory) o The danger of risk adverse decision making - prison officers need to make decisions and have discretion to do their best at their jobs, by imposing tort liability they will become risk adverse and then have worse political decisions made . Lord Reid: in NY, this is accepted. But it’s not accepted in England – the court is not deterred from the idea of tort liability . Not willing to immunize prison officers from tort liability, just because it interferes with their jobs . NOTE: in the UK, however, immunized the police from tort liability and did not hold them liable for negligently failing to solve a crime 1 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway  In Canada, have not gone that route! Jordan ◁ HELD: duty House ◁ (Laskin) 1973 o Discusses factors for determining whether there’s a duty, but doesn’t create a rule (very reluctant – can’t articulate a general principle) . 1. If someone’s on your land for a commercial purpose and you’re engaged in a mutually beneficial project (ex. invitor-invitee) . 2. Knowledge/ awareness (ex. that the person is inebriate) . 3. Contrary to statute (ex. a public duty not to supply alcohol to drunk people) . 4. Familiarity with the particular person . 5. Instructions within the institution (ex. that no one should give more alcohol unless there’s someone to take care) . 6. Foreseeability (ex. bar is close to highway and establishment knew he would have to cross it) . 7. No big burden for establishment to provide care (ex. could put him in a taxi, allow him to sleep in a room until her sobers up) . 8. But supplying alcohol is not enough o Characterized the case as misfeasance, not nonfeasance o Therefore saying that alcohol serving establishments owe a duty to take care of drunk patrons, not just not throwing them out ◁ Car key cases: where a drunk or child asks you for the keys and you give them, if the person hurts themselves you HAVE breached a duty! o Not nonfeasance – it’s misfeasance o No explanation why o There are cases where someone leaves keys in the car and someone else steals it, gets hurt and sues car owner successfully o If you control a dangerous object, you have an obligation to be cognizant of the potential harm that may occur! ◁ Intuitively: what factors matter in considering where we have a duty to provide a benefit? o 1. Where you create a legit expectation that you will provide a benefit and the person relies on you . Issue: when is an expectation legitimate? o 2. Where you have undertaken to provide the benefit even though there’s no reliance . We agree that when you start something and take on a responsibility, you have to finish it. But it’s not because of the undertaking – it’s because you’ve created a negative consequence for them! No one else will help now! 2 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway o 3. If there’s a dangerous situation you create/ control and allow people to enter the picture . Why?! ◁ Why are we wary of nonfeasance? o We want people to be self sufficient and take precaution o Benefits should be governed by K (less convincing - could be struck down by duress) (unconvincing) o Too onerous to be on the looking for situations in which you must provide a benefit (unconvincing)

Kamloops The person building ◁ Adopts Anns as the proper way to adopt D+S v. Neilson the house is a o 1. ANNS 1: is there a neighbour relationship (D+S)? 1984: member of the city o 2. ANNS 2: is there a reason for limiting liability in council. The this case (policy reasons)? building inspector ◁ ISSUE: can a plaintiff hold a government official issues a stop work (building inspector) liable for not ensuring that housing order because the foundation was dug to municipal/ provincial standards? building foundation o DIGRESSION: building inspector issues are tricky. is problematic. The o Two possible issues: owner of the 1) Statutory duty: Statute/ by law gives an officer building goes to city (building inspector) the duty to ensure that a council and tells building is done according to code = a public them to stop duty to do their job interfering since he  If a badly built building causes personal wants to be left to industry, do we hold the building inspector build the building liable to a PRIVATE duty in tort law when he wants on his own they owe a public duty to do their job property. The o YES – there’s a foreseeability and NO foundation is REASON not to recognize a private sagging, they sell duty the house to Neilson Prima facie we hold people to statutory who finds the house o is largely worthless duties and sues the city. 2) Statutory power: There’s a discretion given in the statute, the building inspector CAN inspect the foundation. They have a statutory choice to examine foundations  In Kamloops: building gets built, building falls down, personal injury. Is the inspector liable?  The inspector may legitimately inspecting only some cases, but not every case o Ex. too expensive, taking too long o Since no statutory duty, likely no private law duty ◁ Why do we separate these?  There’s GOOD FAITH and BAD FAITH use of discretion  Therefore prima facie, we hold someone with a 3 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway statutory duty AND power to a private duty under part 1) of the Anns test  BUT under part 2) we may excuse people form the private duty if there are good policy reasons (ex. cost efficiency) that can trump duty if discretion is exercised in bad faith

◁ HELD: Kamloops did not act in good faith, since they just let it happened. No one was personally injured, but there was an economic loss. o Recognized that bad faith act of political power means they should be privately liable.

◁ UK rejects the Anns test o It’s about economic losses, and there are too many good policy reasons to keep out economic losses (often rebutted) o The purpose of government officials (building inspectors) is to protect people from harm and injury, NOT TO PROTECT AGAINST ECONOMIC LOSSES! o Capitalism requires people to take risks, and (re: Dorset Yacht) will not hold other people accountable for your economic losses! Not even government officials! o There are so many cases that fall into stage 2 (the economic losses etc.) that we have to throw out the two part test – not a good prima facie test because it’s often rebutted! Ends up just being a balance o In Canada – Cooper v. Hobart Crocker The defendant is in ◁ (Wilson) v. charge of the o Commercial hosts have a positive duty to prevent an Sundance danger, the activity injury where there is a relationship of economic 1988 is inherently benefit dangerous, the D . Creating a risk a failing to guard against it feeds alcohol to the . In this case, could have discharged duty by injured person disqualifying him, physically preventing him (although not a vital from participating, cancelling the race – this is element). Race is the standard of care (separate from a duty) for profit reasons . Duty = questions of law: is your relationship (seems if no money close enough that we find a duty passed, it’d be . Standard = questions of fact: whether you acted harder to find reasonably to discharge the duty liability but doesn’t o Moving away from the recognized categories of duty, explain why). towards whether it’s “just and fair” to hold someone Knowledge here is a to a duty necessary factor! o Differentiates between misfeasance and nonfeasance . Wilson: we are becoming more collectivist, recognizing we’re not just coexisting islands! We have social bonds – recognizing nonfeasance? 4 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway ◁ Note: you can K out of tort liability, but must be done in CLEAR terms ◁ JUDGEMENT o Court finds a duty o Causation: lawyers of Sundance argue the intoxication didn’t cause the accident o This is a terrible argument! We’re not saying it did – we’re saying they created a risk and failed to guard against it o ONE ISSUE: Wilson discusses “placing” another in a position, but Galloway says there’s a difference between placing someone vs. admitting someone to a dangerous situation (in which there’s personal autonomy)

Stewart v. Commercial ◁ (Major) Pettie establishments ◁ HELD: no duty – the establishment showed they met their 1995 serving alcohol have responsibilities a duty of care to o There were sober people at the table – therefore have their patrons no reason to believe the drunk would be driving Nothing more than (subjective knowledge) the invitor-invitee o It’s not foreseeable that the drunk would drive relationships o Galloway: it’s bizarre that the establishment can be left off the hook by assuming the world would operate in a certain way (wife would drive) . Major: accepts this as the standard of care ◁ Galloway: o Not good authority! Go to Childs o Just because you recognize a duty between a commercial establishment and a patron doesn’t mean you can extend it to 3rd parties out in the world o Erroneously recognizes a reliance from 3rd party users of roads o Pays much more attention to reasonable foreseeability and less to proximity (problematic) ◁ Re: voluntary assumption of risks – did Stewart waive her right by getting into the car with someone she knew had consumed a lot? o NO! although likely contributorily negligent

Cooper v. Like Scalera – a ◁ (MacLachlin and Major) – economic harm Hobart clean up! o (1) For a neighbour relationship, there must be 2001 (taking over ANNS 1): ISSUE: whether . 1. Proximity (a limiting factor) AND investors can sue a . Certain established categories that put you in public official the realm of duty/ can you analogize to one? 5 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway (registrar of  Unlikely Anns 2 will be applicable if yes mortgage brokers) . If not, determine if the relationship gives rise to for not investigating a duty based on (non-exhaustive factors): a fraudulent broker  1) Expectations quickly enough  2) Representations  3) Reliance (ex. if P vulnerable) The registrar of  4) Property or other interests involved mortgage brokers (ex. personal injury vs. had a duty to inform emotional/economic harms) the public when  = essentially asking, is it fair to impose a they suspect fraud duty of care on the defendant (policy and an investigation reasons relating to the relationship in is underway question) Involves 1) . When will proximity be recognized? Is it related economic loss AND to reasonable foreseeability or are the two 2) government separate? It depends: liability  Personal injury damages, creation of risk (misfeasance)  collapsed into one (ex. the language of injury!)  Pure economic/ psychiatric harms, allowing risks to exist (non feasance)  separate . 2. Foreseeability o (2) Policy factors relating to matters beyond the relationship (ANNS 2) . Indeterminate liability . Constraining government policy . Interfering with judicial decision making ◁ SCC: CJ Mac completely reinterprets D + S, to be completely different than Dorset Yacht! She says that according to p. 162 in the notes (of D + S), there must be foreseeability AND proximity! ◁ HELD: no liability - nothing in the statute under which the Registrar is appointed to state that he would provide investors certain information or had their interests in mind – his duty it to the public o Galloway: govt should be held liable for their mistakes in tort Odhavji v. The Defendant is ◁ (Iacobucci) psychiatric harm Woodhou chief of police. o Treats reasonable foreseeability and proximity as se 2003 Plaintiff are family independent of boy shot by o Identified 3 factors when it’s “just and fair” to policy. Police recognize a proximate relationship, retrospectively officers involved did . 1. Immediacy not cooperate with . 2. Reasonable expectation and reliance by the the investigation public into the death. . 3. Whether the expectation is constituted with 6 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway Under s. 451(1) of the statutory duty of police the statute the Chief ◁ HELD: Chief of police is held liable for the psychiatric is required to harm suffered due to a failure of police to investigate in ensure that police the accidental shooting of the Odhavji’s son officers carry out ◁ Judgement: their duties. o Treats the overlap proximity and reasonable Plaintiffs allege they foreseeability as independent since this is a case of suffered psychiatric psychiatric harm consequences o Is there a cause of action? following on the ANNS PART 1 investigation and o Flips the test and goes foreseeability  proximity, sued the Chief because foreseeability is harder to show in this case o Articulates 3 factors that suggest it’s “just and fair” Case brought to recognize a proximate relationship: against a chief of . 1. Immediacy (close causal connection between police as owing a negligent supervision and injury) duty to the family of . 2. Reasonable reliance (since vulnerable people a victim of an are reliant) accidental shooting  Issue: why wouldn’t the registrar of by police. Police mortgage brokers in Cooper fall here? have a duty to the . 3. Expectation (since statutory duty) public (for many o McLachlin’s was about justness and fairness like reasons) to follow Cardozo their responsibilities o Iaco’s is more like Andrews: looking back, can we – the question is discern a close enough relationship? whether they owe a much more specific ANNS PART 2 duty to the Odhavji o Two reasons to not recognize duty suggest, both family rejected: . a) it would interfere with independence of investigation (Iaco: no direct connection between chief doing hob and independence of investigation) . b) there are other avenues of remedy available

Childs v. ◁ (McLachlin) Leading case and social hosts and alcohol Desorme o Public establishments owe a duty to 3rd party drivers on the road because aux they expect it 2006 . Galloway: this is not true - just an application of Stewart, which is bad law and ex post factos reasoning and legal fiction! ◁ HELD: no duty in this case ANNS TEST PART 1 ◁ 1. No established duty of care since alcohol at a private party o Different than commercial hosts: o 1. Capacity to monitor consumption . Keeping a tab to charge you, employees trained to recognize . Issue: clients may drink in several places, social parties are smaller and easier to monitor 7 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway o 2. Government regulation shapes public’s expectations . Issue: don’t we still take care of ourselves at commercial establishments? Don’t we feel like we have social expectations that our friends wil take care of us? o 3. Profit and K change the nature of the relationship . Incentive to oversell . Galloway: likely the strongest, but assumes instrumentalist view of tort law! That torts are needed to prevent K from being antisocial . Also, social host may want guests to drink and be merry ◁ 2. Should we recognize a new duty (proximity/ foreseeability)? o NOTE: addressing foreseeability first is problematic – how can you ask what’s foreseeable if you haven’t established the relationship? o 1. Foreseeability . Trial judge: social host had knowledge – knew this person had driven drunk the past, therefore ought to have foreseen this . SCC: NO! Just because someone’s done something wrong in the past doesn’t mean they’ll do something wrong in the future . Also, non-feasance – no duty to act o 2. Proximity . Is it just and fair? Cases in the past that gave rise to duty of care (not established categories, just relevant factors): . 1. Intentionally inviting a person to an inherent risk that you create/control (like in Cooper) . 2. Paternalistic relationships: parent/ child, teacher/ student, captain/ guests. One party is vulnerable – position of dependency  Must be balanced with personal autonomy . 3. Public function/ commercial enterprise that includes implied responsibilities to the public at large  Due to reasonable reliance (Stewart)  ISSUE: public function doesn’t give rise to a tort just because people rely (Cooper) ◁ There are 2 things going on in the Childs proximity analysis: o 1. Asking when you owe a duty to provide a benefit to another person (Crocker, Childs) . Ex. when you owe a duty to a guest as a private host? o 2. When are you implicated in the wrongdoing of another person? . It’s not really about nonfeasance/ providing benefits . It’s about how much you have to do to implicate yourself in the wrongdoing of another person: like Cook v. Lewis! . If you JUST give a party – there’s no reason to hold you liable for the wrongful consequences . BUT if you wilfully supply alcohol to a guest knowing they’re going to drive/ failing to monitor their actions, that’s different!  If you’re more involved though, you might be liable! o Proximity shouldn’t be based on reliance by the world, should be based on the involvement and complicity of the host . = complicity of wrongdoing 8 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway

9 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway DUTY TO WARN Defective Products  1. The shoddy deficient (not functional, bad) product o Should tort law be involved when the harm is purely economic?Nno  2. The dangerously defective product that causes harm o Tort is clearly involved (Donoghue)  3a. A defective product which is dangerous because people rely on it to provide some form of protection/ safety o Tort is involved  3b. The product that is discovered to be dangerously defective after sale o Getting into realm of knowledge and information . Tort law imposes a “continuing” duty to warn people about the danger (Rivtow Marine cite on page 224) . After you warn people, your product ceases to be a dangerous product, and is now just a shoddy product! Repairing/ replacing is pure economic loss which isn’t covered by tort . Product is so dangerous you have a duty not to market it  4. A product that is not dangerously defective, but may cause harm unless used properly o Duty to warn consumers about how to avoid the harm, how to use something properly so that it’s not dangerous to them . This is VERY different than 3b because it’s not dangerously defective . Although you may discover only after putting something on the market that people are using it wrongly/ that there’s a harm of improper use  At this stage, have a continuing duty to those who’ve already purchased it to warn them and a duty to warn future consumers  Some items are inherently dangerous, but not sufficiently so to justify a duty to not market it (since they’re not defective) o You just have a duty to warn about hidden (non-obvious) dangers o But not a duty to warn about every possible danger that could happen o What do we have to tell consumers? How much is enough information? . Need to tell consumer the dangers that the manufacturers know and that the consumers likely won’t know (imbalance in knowledge) o Ex. Breast implants

Lamber v. A case of a product ◁ The duty to warn of the inherent danger should specify Lastoplex that carries dangers the attendant dangers when used ◁ It’s clarity and content will vary in accord with the improperly seriousness of dangers Floor sealant, used o This is a HIGH level of danger in basements, very ◁ Manufacturer has expertise (knows level of flammability), highly flammable! regular user has know expertise ◁ ◁ HELD: Given this is being used in basements, it’s not good enough for manufacturers to say that it’s flammable o Need to say “remember your furnace” AND “remember your pilot light”! ◁

10 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway ◁ The Learned Intermediary  Via learned intermediary devices, duty can be discharged by warning an intermediary o In Stewart and Pettie – this is leaving the drunk driver with sober people  The learned intermediary rule is only applicable where: o Product is highly technical in nature and is intended for use under supervision of experts or o Where it is unrealistic to expect a direct warning (28) o This is a very narrow construction given by the court  This means you can only delegate to someone who approximates your own level of expertise (between manufacturer and Dr) o In Stewart – does the alcohol server and the alcohol consumer have the same level of expertise? No!  Consumer has primary reliance on the judgment of the learned intermediary  This suggests that the manufacturer can discharge all their duties by contacting all the Drs that have implanted/ will implant their products  But Dr can’t be used as a learned intermediary if they can’t answer all the questions (have the same level of knowledge at the manufacturer) o Ex. Obligations re: contraceptives are different than obligations re: implants . Questions about contraceptives are not just questions of health – include questions of reproductive freedom, etc. . In this case, cannot rely on the Dr to provide all the advice o Therefore, pharmaceutical companies have an obligation to communicate directly with the consumer Hollis v. the duty is to ◁ Dow aware of unexplained ruptures to breast implants Dow SCC protect the ◁ We’re not saying that they can’t manufacturer this (risky 1995 consumer by product but hasn’t reached a level of danger to be taken alerting them to the off the market – consumers can choose) inherent risks o Not so many ruptures that product needs to be discontinued o But manufacturer has duty to tell consumer about risks inherent to the product ◁ According to Childs, this respects their autonomy to choose whether or not to take the risks and allows risk avoidance o We don’t impose strict liability in realm of consumer protection – we can protect consumers sufficiently by letting them know the full level of risk in cases of risky products ◁ Medical products have special duties o Extra high standard of care attaches to duty to warn about dangers attached to medical products (because ingested or implanted in body, so serious level of danger) o BUT is it proper to single out medical products for diff treatment? o With medical products, must include “clear complete

11 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway and current informational disclosure” concerning the risks inherent in use and instructions on proper use (Hollis Para 26) – onus is heavy ◁ Dow: okay, maybe we failed to warn the Dr about risks in this case, but failing to treat someone autonomously is not a wrong in itself in tort law o P has to prove that the Dr would actually have passed on the warning o Dow: this Dr is a poor Dr, and we have no reason to believe he would’ve passed it on ◁ Court: NO! IF you rely on the Dr being a learned intermediary to discharge your duty, then you are relying on their expertise! o Therefore you cannot demand that causation be shown! ◁ Court: there are some cases where the P doesn’t have to show a causal link between the harm suffered and the failure to inform – this is exceptional

Why is there a duty to warn?  1. Knowledge imbalance between manufacturer and consumer o Inequality, dependency o Allows consumers to make “informed decisions”  2. Is it “reasonable and just” to require a complete warning about risks (26) o These are policy factors like in Ann’s test o These are social expectations  3. Promotes public health by facilitation a more meaningful doctor-patient relationship (26) o This is SUPER policy factor related – this is for public health reasons o Why should tort law be involved in this?!  4. Does not impose an onerous burden (26) o Like Jordan House – could easily get a taxi, put the person up for the night  There’s something more missing from this analysis that makes it sufficient to justify a duty to inform: Childs got it

◁ Childs (para 35): These cases are akin to those in which someone invites another person to a danger which they control. Where you are materially implicated in the creation of a risk you owe a duty to others “to protect against the risk materializing” (Childs 38) o You can protect people by warning them how to avoid the risk ◁ Galloway: it’s NOT just due to the knowledge imbalance – that’s not enough

12 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway MEDICAL MALPRACTICE ◁ In Hollis, courts compare manufacturer’s duty to warn with Drs duty to inform patients about risks ◁ Galloway: neither is really about the inequality in the relationship (the knowledge imbalance) ◁ DR’S DUTY ARISES BCUS Drs are in control of your body – they perform the procedure, have a hand in creating the risk! o They’re not just giving medical advice – they’re talking about risks in a procedure that they’ll be performing – THIS is key

◁ DOCTOR’S DUTY TO WARN (Reibl) 1. Duty to warn patient of all material risks a. Compacting probability of the risk with seriousness of the consequence a.i. Explained in Brito as the “low risk – bad consequences” approach b. Mere possibilities don’t have to be disclosed c. But serious consequences (death, paralysis), the risk is always material 2. Duty to disclose the nature of the operation 3. Duty to disclose the gravity of the proposed operation 4. Duty to disclose special or unusual risk 5. Duty to answer any specific questions posed by the patient = Duty to tell you the risk they know pertain to you and also the risks they ought to know pertain to you ◁ Is the duty a question of law or fact? o Brito: doesn’t differentiate duty and standard – question of law . Creates an objective Dr o Videto, Reibl: question of fact ◁ Therapeutic privilege: if a Dr can justify on medical grounds not letting a patient know the consequences of an operation because it’s medically appropriate to do so, they have therapeutic privilege ◁ ISSUE: can you ask the Dr about their experience? Success rate? Can you request a new or different Dr? Issue of patient autonomy!

RESCUERS AND GOOD SAMARITANS

◁ If a person exposes another to danger and a third party tries to rescue him, there will be a finding of a duty of care owned to the rescuer o We often this of contributory negligent: original creator of danger is negligent. The third party may be contributorily negligent however (apportionment of damages) o The only qualification is if the rescuer was “foolhardy” (Videan pg 249, 250-1) ◁ The duty the rescuer owes is quite different than the duty the original wrongdoer owes

Horsley Operator of a ship ◁ HELD: not the best rescue possible, but not negligent (next owes a duty to ◁ Captain has a legal duty (not a good samaritan) friend of) passengers falling ◁ Van Valkenburg - lower courts ruled that ship operators v. into the water, no don’t have to come to the aid of people who’ve gone MacLaren matter what the overboard due to their own negligence danger is o Laskin (diss): No! Because of the necessary

13 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway dependency of the passengers on the ship operator to return to shore, the ship’s operator has an obligation to provide positive duty to the passengers! Ship operator must help anyone who's gone over board o The statutory duty is a relevant factor (like in Jordan House, also Laskin) and aids in supporting this view, but that’s not the basis of the duty! ◁ Laskin (diss): someone falls overboard and ship’s captain tries to fulfill the duty owned to passsengers o BUT he’s doing badly (error in the rescue procedures) o Laskin (diss): the error is falling below the measure of negligence ◁ If you elect to be the first rescuer and are terrible and someone else has to come rescue you, the first rescue may be liable to the second - all people who in their actions put other people in a situation where they take on a danger, may have an obligation! Videan Railway company ◁ Railway company’s argument: may have breach the duty did not put up against the child, but did not have a duty a to the father barriers to prevent o Court: Absolutely not! By failing in one respect, children from you’ve created another duty getting on the o Laskin: where people negligently imperil themselves, railway tracks. they will owe a duty to people who come to their Child walks onto rescue (the person creating the situation) railway tracks (clear ◁ breach of duty). Dad sees child, and runs into the danger, saves the kid but gets hit by the train and is killed

◁ Good Samaritan Act o A person who intercedes to render aid in an emergency will be held only to a standard of gross negligence o UNLESS it your job to provide aid (ex. paramedic, then you’re held to normal standards of negligence) o OR UNLESS you provide the person with a view to gain . If you ask, after the recovery, “well, what about giving me something?” we might hold you to a lower standard of negligence o This applies likely to the person you’re rescuing, but it doesn’t really say anything about a second rescuer

14 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway STANDARD OF CARE ◁ Duty v. standard is often an artificial difference – sometimes we collapse the two together or just assume duty so we can move onto standard (like in Bolton o Duty = question of law o Standard = question of fact – “reasonable care” . 1) Was it justifiable to expose the plaintiff to this level of risk? . 2) If it was unjustifiable, how do we deal with the claim that the D did not appreciate the risk/ was unable to meet the standard? AKA that there’s an objective standard but no fault ◁ Corrective justice theorists: we give the trier of fact the opportunity to determine what kinds of dangers are okay Bolton v. ◁ (Reid) Stone ◁ Primarily we think about the rights of individuals (what are Mrs. Stone’s expectations) HL 1951 ◁ Secondarily we think about the social context (what are the social reasons we should allow the cricket club to continue) ◁ And we balance them – how important is this social relationship in the context in which we place it? ◁ In this case: o Corrective justice model can’t work because the Mts. Stone has rights but cricket is a socially valuable entity! o In cricket, you want to hit the ball outside the pitch o Cricket ground was there first, but sold part of the land where Stone’s house was and didn’t recentre it (found not a bit difference) o Very few balls hit out in the firs plat o We will only hold those liable who show breach the “standard of substantial risk” o Difficulty of remedial measures is not something we should take into account! Ex. if we require them to put up a big net ◁ ISSUE: is tort creating rules of public or private law?! EMPLOYER/ EMPLOYEE STANDARDS Paris v. Appellant employed ◁ HELD: employer liable – should have provided goggles Stevne as a fitter in the ◁ Higher standard of care to those who are vulnerable garage. At the time ◁ Facts: worker has one eye, so the consequences are HL 1951 he was employed, particularly grievous had the use of only o Does the fact that employer doesn’t give goggles to one eye. Using a other workers mean employer has no duty to give hammer to remove goggles to this particular worker? a bolt on a vehicle, o Don’t think of this as social utility (are we better off chip of metal flew as a society) into his good eye, o The question is: what is the meaning of this and he became relationship totally blind. 15 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway Respondent . Corrective justice model: let’s let a jury figure employer did not this out provide goggles for ◁ Court: there’s a relationship of dependence by the the appellant to worker on the employer wear. ◁ ISSUES: employers are not going to employ one eyed people! Costs of goggles will start to add up! ◁ Instrumentalist: ◁ Post 1952: legislatures get involved, now companies can’t discriminate ◁ Instrumentalist view of tort law: learned hand formula o If the costs of taking precautions are less than the cost you’re imposing, the you should take precautions o Ie. cheaper cost avoider must avoid the harm o Worker should bear the cost of the goggles. Socially, it’s much more expensive to have a system of work discrimination than a requirement that the worker provides for their own needs greater than their own o Bolton should have worn a helmet! ◁ Corrective justice view of tort law (Reid in Bolton) o When you’re looking at the level of risk that you can/ can’t take, you need to take into consideration the number of people you’re affecting: social consequences, not just the relationship between the parties o The likelihood of people getting hurt matters – a person’s interest in safety is more basic (and more important) than a cricket player’s interest in playing! o This can be about cost avoidance too – that we treat people with disrespect if we can avoid harm to people that are no cost to us ◁ McLachlin in Cooper o Rejects BOTH the corrective justice and instrumentalist views o The relationship between the parties is primary! But sometimes we’re willing to discount the relationship based on social reasons Rentway Facts: truck has a ◁ (Granger) Canada v. blowout, at night, a ◁ ISSUE: shouldn’t the designers have thought about Laidlaw bit of the tire hits putting the headlights on different circuits due to this Transport the headlight of the risk? truck, impact ◁ HELD: yes! They should! Because the cost of creating a OCA 1989 causes light to short separate circuit for each headlight is so small in relation (these are all to the whole truck – we’re going to hold that they were normal occurrence), negligent in design - instrumentalist both headlights are ◁ ISSUE (Lord Reid): in some circumstances, this means on the same circuit you can justify your risk by the fact that you cost too much! Means social utility can trump individ rights ◁ Galloway: retrospectively this seems an easy fix …

Watt Volunteer ◁ HELD: no liability, volunteer firefighters have high utility firefighter ◁ Balancing the risk against the end to be achieved – it’s a reasonable risk to injury firefighting employees in an effort to save lives 16 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway INDICES OF REASONABLENESS: CUSTOMARY PRACTICE ◁ Over time, customs develop that are more than just practices or habits ◁ It’s people trying to work out what people want to do, and how they do behave. This makes sense because we want juries to make these anyway – to impose values reasonable to the community in which they belong ◁ Customs can “crystallize” the vague standard of reasonableness

Waldick v. Someone slips on ◁ HELD: liable – unable to show that his practice was Malcolm another person’s a customary practice property and injures ◁ How can we determine if conduct based on a community SCC 1991 themselves. standard is sufficient to meet a standard of care? Property owner: in ◁ SCC: just stating that something is standard practice will these parts, no one not suffice shovels their snow ◁ 1. There must be expert evidence of the custom or salt or sands! I’m o Courts shouldn’t take judicial notice of custom (34) just living by normal o Some obvious facts we don’t have to prove community

standards (Alberta) o But experts will be required, especially when it’s a little known or contentious issue . Especially because customary evidence is so probative that it will often decide the case – it should be rigorous evidence . Therefore instead of asking juries to decide, we’re asking them to look at how people actually behave o This means this tort action is hugely expensive . Sociologists involved – crts say this is important! o ISSUE 1 – the court doesn’t give a standard of prevalence that has to be shown to establish a practice . How prevalent must the custom be to count as a custom? How long in duration must it be? We leave these questions open. ◁ 2. Not all practices will be accepted as custom o A whole community might be negligent . Perhaps the implied principle is that only a custom that reflects considered judgment about safety should be relevant ◁ 3. Courts will give different weight to custom depending on the situation o Depends: Warren = lots, Brown = little

Warren v. Plaintiff made an ◁ Municipality found 40% liable, appeals Camrose injuring dive into ◁ HELD – appeal allowed, no causation –customary the swimming pool practice established/ accepted as reasonable due to ACA 1989 marker – the lane expert evidence marker was much ◁ Applying common practice/ customs to indicate closer to his 17 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway launching point reasonableness than on earlier o Customary standard is very strong evidence in this visits. Experts case to indicate reasonable behaviour! testified that the o If you’ve lived up to the normal conduct in your standard of sphere, when you can’t be found negligent swimming pool ◁ P relied on pool experts (water purity engineers) = operation changed people who’ve never seen the pool in question before … in the 1970s away ◁ Normally we don’t expect courts to override expert from the use of opinion (DEFERENCE to expert standards) warning signs to ◁ Galloway: but the COA has missed something the trial encourage people to judge picked up on be safer on their o Experts thinking about pools in general may not have own given sufficient consideration to THIS pool and THIS user o Maybe social benefits of training people to use their own judgment is not relevant in this case! ◁ Overall: experts cause courts to adopt more public models of tort law! Brown v. Employee’s hands ◁ HELD: not at fault for not providing hand cream (low Rolls constantly in deference to common practice) (high deference to Royce contact with oil in common practice) the course of his ◁ Failing to follow customs does not prima facie establish employment, and negligence – although it may indicate it contracted ◁ Onus does not shift onto defendant just because there’s a dermatitis. customary practice – it’s still on the plaintiff to show Respondent didn’t negligence apply barrier cream, o In this case, P only has evidence that the practice is which was a common common practice. o Drs are divided about the value of the cream o This is not sufficient evidence ◁ NOTE: this is very different in Warren – in that case judges deferred to expert evidence which showed the necessary standard o At this early time in tort law, courts were very confident in the power of torts and the triers of fact. Later on much more deferential INDICES OF REASONABLENESS: STATUTORY STANDARDS

◁ Statutory breach doesn’t necessarily confer a right to civil action, unless there’s an intentional/ negligent failure to meet the statutory provisions ◁ Courts show much more reluctance to rely on statutory standards than on professional or customary standards! Ex. Ryan v. Victoria

Canada v. Wheat provider ◁ (Dickson) Saskatche breaches statute by ◁ ISSUE: wheat provider breaches statute by sending wan sending beetle beetle infested wheat. Liable to buyers? Wheat infested wheat to 18 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway Pool buyer. Is the seller ◁ HELD: no statutory breach of tort law liable in tort to the ◁ Does a statutory breach confer a right to civil action? SCC 1983 buyer? ◁ NO - not prima facie (Odavji), only if intentional/ negligent failure to meet statutory provisions o No tort of breach of statutory duty o The statutory breach is an absolute liability offence – so there’s no fault involved and fault is central to tort! o Historically in Canada and UK – if the leg intends to create a tort via legislature, then it could be the tort of Breach of Statutory duty . Galloway: this is made up. There might be an exception for only industrial statutes – we don’t know if they exist . Dickson – let’s just use the tort of negligence ◁ The statutory standard may just be useful as evidence of breach ◁ No onus shift in breach of statutory standard!

Gorris v. Sheep shipper loses ◁ HELD: no liability Scott sheep, which are ◁ The purpose of the statute was for disease control, not washed overboard. for preventing the sheep being washed overboard, EQ 1874 Defendant didn’t therefore the purpose of the statute was not to protect comply with the plaintiff against this issue, and e statutory standard Contagious Diseases doesn’t apply (Animal) Act, which ◁ In order for a statutory standard to apply requires sheep to be o D’s conduct must be in violation of the statute attached to prevent o The purpose of the statute must be to protect persons them being like the P against the loss suffered overcrowded. ◁ ISSUE: this can lead to bizarre arguments of statutory Complying with this interpretation re: purpose may have saved the o People may rely on statutory standards even where sheep being washed the statute is created for other reasons overboard o In Odavji, you can rely on statutory standards even when they creat public expectations Ryan v. Flanges on railways ◁ Most authoritative case on statutory standards in tort Victoria wide, meet statutory ◁ HELD: negligence – meeting statutory duty was standards, but a insufficient to meet CL duty. Statutes do not overrule CL, SCC 1999 Motorcyclist gets a but may be surrogate in some instances wheel caught in it ◁ There’s a floating level of weight that statutory standards and is thrown off may have – there are times when some may have much and injured. Is there more weight than others depending on the situation and tort liability despite the wording on the statute the fact that the ◁ PARA 28: we usually determining whether someone’s met railway met the a standard a care based on values not facts: statutory standard? o 1. Likelihood of known or foreseeable harm Standard was for 90 19 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway deg highway crossing whereas in o 2. Gravity of Harm (Bolton and Stone) this case the railways were o 3. Burden or cost which would be incurred by parallel with the preventing the injury road o 4. External indicators of reasonable conduct Action was brought . a. Custom against the railway and also against the . b. Industry practice city of Victoria (for failing to warn) . 3. Statutory/ regulatory standards

◁ PARA 39-40 are very important

o 3 elements are identified as being relevant to the weight that statutes warrant:

o 1. Ordinary v. Unusual

. Statutory compliance will have more relevance in “ordinary” cases (ex. cases clearly within the intended scope of the statute) than in cases involving special or unusual circumstances

 Ex. Gorris v. Scott!

 This is an “unusual” case

o 2. Specific v. General standards

. Specific standards stronger than general standards

 If legislature has involved itself to a high degree of detail, the situation is different than general standards

o 3. Required v. Authorized

. The closer you are to statutory duty and the farther you are away from authorization, the greater the weight that will be allocated to the legislation

. Also, the less discretion the state permits, the greater the weight will be allocated to the legislation

20 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway

. Overall, where statute strictly defines the precautions, it is ore likely that compliance constitutes reasonable care

◁ NOTE: Courts are MUCH LESS deferential to statutory standards than they are to common practices are articulated by professionals in a field – even though both have public policy implications

o Courts defer strongly to technocrats/ experts

o Courts want to hold onto the ability to assess whether statutes are appropriate

◁ WHY is this?

o Perhaps because legislatures decide what they think would be a good idea

o While the customs reflect what people actually do ◁ PROFESSIONAL STANDARDS Brenner at FACTS: Lawyer ◁ HELD: not negligent, there was an error in judgment but al. v. sued for failing to not negligence Gregory et conduct certain ◁ Lawyers are held to the standard of an ordinary and al. practices (ex. a competent solicitor (reasonableness standard) survey of land) ◁ The standard requires “effort, knowledge and insight of HC On the reasonable competent lawyer” 1973 ◁ What about where a professional works with limited facilities? Does this reduce our expectations? o Arguably, yes ◁ Ordinary approved practices will determine the appropriate standard – unless the practice is inconsistent with prudent precautions (ie. there are special considerations) ◁ ◁ Negligence is not an error of judgment for professionals, it’s saying that someone is not competent to do their work ◁ NOTE: what about NOVICE DRs? INNOVATION? ◁ Courts have not explicitly lowered standards for novices o Claim there’s a single standard across the board o But they have tended to fudge the issue in application ◁ It takes time to gain competency ◁ Expertise: if you hold yourself out as a specialist, you will be held to the standard of the

21 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway ordinary specialist (ter Neuzen) ◁ This should apply in law as well as in medicine o In the past, lawyers were immune from tort liability due the “challenging nature” of their work o Now holding lawyers to the same standards as other professionals ◁ Does this create issues re: innovation? o What if a Dr is trying something new … if you abandon an established medical procedure, do you have to be held negligent? o Perhaps you can be acting as a prudent or diligent Dr, and creatures of intelligence instead of habit . In any case, as triers of fact, courts and juries shouldn’t be wholly divested from these situations! Because all Drs are novices every time there’s a new innovation o There’s a lot of conflicting values – perhaps it involves: safety, deference to expertise

Ter Dr was not aware ◁ HELD: Dr not liable for allowing patient to contract HIV Neuzen that HIV was via AI transmitted sexually o Practices can be found negligent “only where the SCC 1995 and that it was an standard practice is ‘fraught with obvious risk’ such STD, but unaware that anyone is capable of finding it negligent, without what the process of necessity of judging matters requiring diagnostic or spreading involved. clinical expertise …” There was some . Where there’s divergent opinion by physicians preliminary medical and there’s controversial questions of diagnosis/ evidence in treatment, the courts do not have jurisdiction to journals, but it was settle the dispute! unconclusive. ◁ In retrospect that should have realized, but this was an error in judgement, medical profession didn’t realize ◁ SCC: you can’t ask more than the standard of the branch of medicine being accepted, even though the could have known o PARA 33 “It is well settled that physicians have a duty to conduct their practice in accordance with the conduct of a prudent and diligent Dr in the same circumstances” o Galloway: which circumstances are relevant or irrelevant?! This allows differentiation on a case by case basis! o But Sopinka is talking about the ordinary Dr – not a technical notion of average ◁ “In the case of a specialist, the Dr’s behavior must be assessed in light of the conduct of other ordinary specialists, who possess a reasonable level of knowledge, competence, and skill expected of professionals in Canada, in that field ◁ DETERMINING REASONABLE BEHAVIOUR 22 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway Vaughan Def constructed a ◁ The law is deaf to defendant’s excuses: I did my best, I v. Menlove hay rick, warned used my bets judgment, you cannot demand any more about its from me ER 1837 flammability, said ◁ The law is also deaf to his argument: judging me he would chance it. according to the standard of “a man of ordinary prudence He made a chimney test” is to judge me according to a totally uncertain rule – through the rick, therefore OBJECTIVE standard but then the rick ◁ WHY IS THIS? Incompetent people should take burst into flames, responsibility for their lack of competence! spread to his ◁ Negligence is a fault standard – you can escape it by property and then acting like a reasonable person on an objective standard to the plaintiff’s ◁ EXCEPTIONS that we see later on – physical/ mental property (cottages). disability, childhood Def acted to the best of his judgment – is he liable for the plaintiff’s losses? SPECIAL STANDARDS: CHILDREN ◁ There are some people who are incapable of meeting the standard of care o They can’t do what we are expecting, we can’t blame people if they don’t have the ability o Is this the issue of the novice? There’s a general problem: as a society, we each have different intellectual and physical skills ◁ “I used my best judgment, you cannot expect anything more than that”. Courts usually say “we don’t care” and hold you to the objective standard o Only gradually do the courts waiver . 1. If you’re a child, we’ll hold you to a lower standard . 2. If you have a physical disability . 3. If you are temporarily/ permanently mentally incompetent

INFANTS ◁ Child Stage 1: “infant” ◁ Children are given a grace period during which they are subject to reduced standards ◁ In the first part of the grace period, they are held to be “incapable of being found negligent” because of (lack of) age, intelligence, experience general knowledge and alertness. A very subjective test (Addy J. in Heisler at p. 48) o No specific age that marks off this period ◁ Why? Because they don’t have the ability to self regulate ◁ Child Stage 2: “child” ◁ Addy J: Judging (1) this particular child (2) based on what we could expect from a child of the same age (comparative group) = “the reasonable child of that age” ◁ However, the SCC has held a different and more subjective standard: child should be judged by the care to be expected from a child of like age, intelligence and experience (Heisler v. Moke) o Is this like saying that this child is a beginner, and we hold them to the standard of a beginner? Yes o The argument “I didn’t know better, and I couldn’t have known better as a child of my 23 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway age/ experience” . We take this to be a good argument in this case, even though it was deficient in Menlove ◁ EXCEPTION – ADULT ACTIVITIES (Nespolen) o The adult activity exception – applies only to the Child Stage 2 . Children who engage in adult activities should be given no special privileges! o Two related questions (Pope): . 1) What is an adult activity? A number of answers given (as a lawyer, would want to argue all of these):  A) An adult activity is one where the public expects the individual to be an adult  B) Where the activity is very dangerous (guns, snowmobiles, cars, motor boats)  C) Where the activity is regarded as a “right of adulthood” – like golf  As a judge – is there one that appears more acceptable than the others? . 2) Why is the child held to the adult standard?  ISSUE: if we’re willing to get rid of fault – how far are we willing to go?  Cannot know if a driver is a child and cannot take precautions to avoid it  Dangerous to the public to hold them to a lesser standard with dangerous activities  If you are given the rights when you assume the responsibilities  But is it fair? o Is the law relating to the liability of children coherent or does it reflect a haphazard compromise of policies?

Heilser v. Child warned ◁ “Reasonable child of that age, intelligence and Moke against jumping. experience” – no specific age Child by jumping OSC 1971 causes 2nd injury to plaintiff. Pope v. 12 year old boy hits ◁ Golf is an adult activity (AKA things other than motor RGC woman on a vehicle driving or insured activities with licences and Mgmt Inc backswing using a reasonable expectation can be considered an adult golf club at a golf activity) AQB 2002 club. ◁ Held: child not liable because the woman walked into the golf club o There was a duty but child did not breach it Nespolon Two kids are in ◁ Held: no liability – not an adult activity therefore v. Alford charge of one drunk standard of a child kid (Snider). Trying ◁ Abella: When deciding whether the activity is an adult to drive him home, one we need to characterize the wrongful action let him out at a narrowly: house he o The activity in question is not driving but is dropping recognizes. Snider the friend at the side of the highway stumbles around, . Not characterized as getting drunk – an adult and gets hit by a activity car. Driver of the o In this case, allowing this kid out of the car without 24 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway car (innocent) helping them into the house suffers from o ISSUE: is letting a drunk kid be by themselves extreme post outside where they may be in danger an adult traumatic stress activity? No it’s not – so let’s hold them to the child from hitting the kid, standard. sues the friends

SPECIAL STANDARD: THE MENTALLY ILL Fiala v. ◁ Creating a much more nuanced conception of fault than Vaughan v. Menlove Cechmane ◁ Instead of comparing a person with a physical disability with someone with k ACA without that disability as a template, should routinely look into the personal 2001 situation of the person without a disability ◁ What does this mean? Wrongdoe o Just because you have a disability, doesn’t mean you’re absolved of r responsibility of your physical disability experience o You have to bear some of the costs of being disabled s a manic o BUT it’s not irrelevant that you were disabled – we want to take it into attack due account to ensure we’re being fair to you to bipolar . Ex. if you suddenly go blind while driving, we assess your ability to disorder have done otherwise – whether you would have known before hand type 1, that that would have happened attacks a . If you had no idea you’d go blind, then we don’t hold you responsible person’s for this car, ◁ Strict liability (liability without fault) is a notion that should have the narrowest causes it application in the law to move o We should apply it when you’re engaging in profit and selfish conduct and forward to exposing other people to risks while doing this – if you’re going to engage hit another for your own benefit in activities that expose other people to excessive car, costs, THEN you should bear those costs! attacks the This is why we should only hold children to the adult standard if we have first car’s o driver. reason to think that they can meet that adult standard, and in the same way First car’s we should only hold disabled people to the objective person standard if they driver can meet that sues. . THE ISSUE THOUGH: were you on alert that you would be disabled and did you prepare to account for it? . Have you taken adequate notice of your dysfunction? If you’ve taken charge of your situation adequately, then we can ask nothing more for you? . This is a subjective and personal inquiry o Holding mentally ill to the strict objective standard would essential create a no-fault regime ◁ Also – CAVEAT. We don’t want to relieve from responsibility those who have minor difficulties only! Must be a complete mental incapacity! . This is obiter . You have an obligation to show that you did do enough (what the reasonable person with that deficiency would have done) – showing responsibility for your own weakness, not imposing your costs on 25 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway somebody else ◁ It comes down to our expectations from the person

◁ A) The modern law of negligence is founded on the principle of fault and therefore must take account of the incapacities and (maybe) the diminished capacities of the defendant ◁ B) Such a view may lead to some infelicitous consequences but we should deal with these consequences through some other means o Wittman J in Fiala: dimished capacity is in itself not enough, need a complete mental incapacity o This means that we might be applying our standards of fault to people we shouldn’t apply it to (where it isn’t really fair) o Linden (instrumentalist) – fault can be dispensed with sometimes where it’s worthwhile to dispense with it: para 22 – “Persons suffering from mental illness may not have to comply with the reasonable person standard, the theory being that it is unfair to hold people liable for accidents they are incapable of avoiding” ◁ C) Some argue: Where two innocent people are involved in an accident the person who caused it should pay (24) o Wittman: This doesn’t accord with how the law has dealt with children and the physically disabled (32) (nicely summarizes how physically disabled have been dealt with)! ◁ D) Some argue that there are practical difficulties with distinguishing people who feign mental illness. (25) o Wittman: But practical difficulties plague most law suits. (34) ◁ E) Some argue holding mentally ill liable would encourage caregivers to take better precautions (26) o Wittman: But this will be ineffective (35) – this social benefit would only occur if we held care givers liable ◁ F) Some argue that allowing mentally ill a lower standard will reinforce the stereotype of mentally ill as dangerous (36) o Wittman: Don’t pander to fears “mired in ignorance” (36) ◁ Strict Liability v. Negligence (revisited – and v. different than in Vaughan v. Menlove) o Liability in Negligence is based on a fully developed modern notion of fault o Fault is MORE than failing to live up to an ordinary standard ◁ NOW WHAT ABOUT THE NOVICE DOCTOR? o This is a difficult case to deal with! Because why don’t we hold novice doctors at a lower standard and have more sympathy for them o They’re engaging on this long and arduous road ahead to success … not motivated by subsistence, but motivated by profit making and success o Perhaps we’re saying that if you’re down this path going down this ambitious role, that we’re responsible for all the costs of going down it down . Does strict liability apply? . Maybe, because you voluntarily accept the costs of going that role o We know why it’s hard … because “I couldn’t do better” is a different claim from a Dr

26 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway than from a blind person o In this situation, if a novice Dr asks an expert Dr to say “can you come watch me perform surgery in case I do something wrong”, then perhaps we take that they did take the reasonable precautions ◁ Overall, we want to be an inclusive society. But we just want to allocated risk to compensate for that.

27 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway CAUSATION CASE FACTS DECISION Athey v. Leonati Appellant suffered back ◁ BUT FOR TEST injuries in 2 successive motor ◁ A factor is a cause of a SCC 1996 vehicle accidents, went to the result of the result gym after, and then would not have experienced disc herniation happened but for that factor o AKA that factor is a cause if it is a necessary pre- condition ◁ Tortious acts: car accidents – caused back injury (causation established) o But for can still be used for multiple wrongdoers ◁ Non-tortious act: stretching exercises – worsened back injury ◁ BOTH contribute to the harm ◁ HELD: but for the tortious acts, there wouldn’t be the harm. Causation found, liability ◁ BUT there can be more than one cause – the negligence doesn’t have to be the SOLE cause of the injury! ◁ As long as the D is part of the cause, then the D is liable, even though his act alone was not enough to create the injury ◁ Although held contributorily

◁ ISSUE: the BUT FOR TEST is sometimes unworkable (Athey) ◁ WHAT DOES “NOT WORKABLE MEAN? o 1) a test that points in the wrong direction (ie we know the right answer but the test 28 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway doesn’t provide it – and therefore there’s a way to get to the right answer) OR o 2) a test that doesn’t provide an answer OR o 3) a test that provides an unfair answer (not that the answer is wrong – but we don’t like it because it’s unfair)?

◁ SITUATIONS IN WHICH CAUSATION IS TRICKY o Ordinarily we attribute causality in circumstances where the event would still have happened. Examples: . 1) Three people independently pull ropes that open a floodgate. Only two were needed . 2) Two people shoot a victim through the heart at the same time . 3) I dig a hole that you fall into; if I hadn’t dug it someone else would have dug it and you would still have fallen in (pre-emption) o 1) and 2) are examples of “over-determination” where >1 factor contributes . Belt + suspenders . In the first case, the extra person eases the effort of the other people, but is otherwise redundant o 3) is one where the defendant’s act pre-empts the operation of another element . If no belt, then suspenders

◁ PROBLEM 1 OF THE BFT: it can extend to an indeterminate number of things! o It’s excessively inclusive: the gunman who shot the victim is a cause, the person who sold the gunman the gun, the person who made the gun, the parents of the person who made the gun … (at the end of Athey) o SOLUTION: . 1. When we use the but for test, we don’t use it in the ordinary sense of the words  We distinguish between background factors (taken as given) and causes  Causes are unusual interventions that operate against the background, that help to explain the occurrence of an event or the non-occurrence of an event that should have happened . 2. In tort we differentiate between factual cause and proximate cause (in crim, legal cause)  FIRST we look at factual cause: is there a causation?  THEN we look at proximate cause. Proximate cause is more normative and value laden … given the factual cause, is it fair to hold proximate cause? ◁ PROBLEM 2 OF THE BFT: there may be several chains of causation! o Courts have been seduced by the metaphor of a “chain” of causation o Each link is a necessary precondition - if you remove a link you break the chain o If you reject the metaphor, you reject the reason for the BFT o ISSUES: what if your chain is not linear? What if you have several chains feeding into the main one – if you break one chain, it would still happen ◁ PROBLEM 3 OF THE BFT: (the first major problem) o It is a test of INCLUSION . Yes - if the BFT is met, the factor is a cause 29 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway o It is NOT a test of EXCLUSION . Just because a factor FAILS the BFT doesn’t mean it isn’t a cause! o That is to say: it does not allow us to determine when the factor is not a cause (it can give rise to false negatives) o For THIS REASON, it is sometimes not workable! ◁ Note on MATERIAL CONTRIBUTION o Law saying we need to supplement the inclusive part of the BFT with the MC test o Supplementing the BFT with a MC test does address cases where we would commonly identify causality, but it doesn’t address the pre-emption case unless we say that in that case the factor is MATERIALLY CONTRIBUTING . Just because if I didn’t do it someone else would – does that attribute material contribution? o But if that is the case why don’t we just dispense with the BFT? ◁ ISSUE: o Material contribution SOUNDS like a great supplemental test because we use it in ordinary life o We use the word CONTRIBUTE rather than CAUSE to indicate that many factors were operational o But what stops the MC test from SUPPLANTING the BFT? Then we’re just supplementing a problematic test with another problematic test. . According to Athey there are always multiple factors (the fire is caused by the match, O2, waste paper) so every case is a case of contribution o The BUT FOR TEST tells us that a cause is a necessary precondition (a synonym), AS WELL AS a method for defining when something contributes o The MATERIALLY CONTRIBUTION test provides a synonym, BUT does not show us when something is contributing or not o The idea of material contribution fits best where we take background conditions as given and have two interventions that combine to bring about a result: . Ex: where 10 drops of poison kill, A gives one drop and B independently gives 9 drops. A has materially contributed to the death . Same where A gives a drop to someone who has already taken 10 drops but is not yet dead (they’re gonna die anyways, but you give one more for luck – adding to the mess) . Is A responsible? Factually, we accept they’ve contributed (requirement 1) ◁ Once we introduce material contribution as a test, it threatens to supplant the BFT rather than supplement it o So why does the SCC hold onto the BUT FOR test at the primary test? o Every BF factor is a contributing factor, some contributing factors that will count as causes are not BF factors o If all count as causes then we have a contribution test of causality rather than a BFT ◁ In fact, BFT is a factor which we can use to help us determine if something is MC o But once we use the MC test to supplement the BFT, then the BFT is no longer the test, the MC test is o What we really want is a valuation of the extent of something’s cause . It’s a FAIRNESS test then, not a factual test

30 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway Snell v. Farrell Respondent consented to have ◁ INFERENCE OF a cataract surgically removed. CAUSATION SCC 1990 Surgery was performed ◁ Tortious act: Dr negligently (Dr should have ◁ Non-tortious act: realized bleeding and stopped) stroke? Diabetes? – lead to blindness in right eye ◁ Causation was not due to atrophied optic nerve proven – do not know but unsure whether it was the that but for the Dr’s surgery, a stroke (due to negligence the plaintiff diabetes) or glaucoma would not be blind ◁ P: we should move away from the but for test! o McGhee . Brick kiln worker, had to cycle home to shower . Contracts dermatitis, argues Coal Board responsible for not providing showers . Coal Board: showers don’t remove every grain of dust – you even if we had supplied a shower we don’t know if you would’ve gotten dermatitis anyways! . SOLUTION 1 – reverse the onus (Wilberforc e)

31 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway . SOLUTION 2 – material contributio n is material increase (Lord Reid) – P just has to show material increase!  ISSU E: mate rial incre ase in risk and mate rial cont ribut ion are colla psed into one here and they’ re not the same !  Only the later chan ges the state of the 32 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway worl d! . SOLUTION 3 – cook v. lewis: both plaintiffs equally liable, onus reversed  In this case, one neg and one non neg caus e!  Ther e P hasn ’t esta blish ed they’ re a victi m of tort! Cann ot reve rse onus ◁ Spokina does not accept any of these – if we did insurance for Drs would go through the roof ◁ SOLUTION: ◁ All the knowledge is with the defendant (Dr) therefore inf of causation ◁ If you’ve established

33 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway there’s a tortious and non-tortious cause but don’t know which one caused the harm – assume Dr is liable, and Dr can show evidence to rebut ◁ Note: “not shifting the burden”, and keeping the “robust and pragmatic approach” to causation using the but for test ◁ Galloway: this “non shift” is problematic – what if D doesn’t have extra info? Does this only apply to Drs? Why are we focussing on the integrity of evid? Cook v. Lewis ◁ ALTERNATIVE LIABILITY THEORY SCC 1951 (SUBSET OF MATERIAL CONTRIBUTION) ◁ Two tortious act ◁ Only one act causes the harm (two bullets, one bullet hole) but it’s not know which one caused the harm ◁ Since they’re both tortious, they should sort it out among themselves: presumption that both are liable, onus of proof shifts to wrongdoer to show each is not the sole wrongdoer ◁ HELD: Liability was split! Liability BM v. BCAG RCMP at Prince George failed ◁ MATERIALLY to investigate complaint of CONTRIBUTION TEST BCCA 2004 domestic violence (reoccurring ◁ DISS (Donald) – it’s time incidents in which RCMP were for change! involved, F was forgiving of M) o Found duty, – 7 weeks later he shot his. M breach and 34 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway shoots friend and daughter, causation kills friend. M suing RCMP o This case is like McGhee o Just and fairness: RCMP should’ve investigated and didn’t (policy reasons – right to police protection high) o P: if I am unable to show causation and am not compensated, there’s something wrong with the legal system! Donald agrees o If material contribution above de minimis range, then it’s a cause o 4 part Haag formulation re: when we should apply a relaxed notion of causation: . 1. Where a breach of duty has occurred, . 2. The damage has arisen within the area of risk which brought the duty into being . 3. The breach of duty materially increased the risk 35 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway that damage of that type would occur (contentiou s) . 4. It’s impossible, in a practical sense, for either party to lead evidence which would establish either that the breach of duty caused the loss or that it did not o All we know here is that police intervention = effective deterrent, and that there was a breach of a duty in this case (tortious cause) ◁ MAJ o HELD: No causation – no evidence that RCMP intervention would have lead to a different outcome, there were already disincentives in place Walker HIV + man, not asked HIV ◁ ISSUE (Major): screening question (Canadian o Breach of 36 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway Red Cross Society failed its duty – did the RC duty to implement adequate ask enough Qs in donor screening measures ex. screening people? pamphlets), donates tainted o Causation – blood. if the individual had been given the proper warning would he have gone ahead and donated? ◁ Finds BFT unworkable (seems to have overdetermination in mind) because multiple independent factors are contributing – but (Athey) there are ALWAYS multiple causes! Multiple causes creating independent series of events adding together is what overdetermination is really about ◁ So this us a fairness issue! 3rd type of unworkability! ◁ The question is – was the failure a sufficient condition. Is this the right Q?! o Galloway: NO! Sufficiency is the wrong notion to introduce – you really don’t know what the donor would’ve done ◁ Major finds: we use MC when but for doesn’t work – but for doesn’t work in situations like this where you can’t be sure – and yet Major concludes the but for test works!! Claims to adopt Snell reasoning?! 37 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway Nonsensical … ◁ HELD: CRCS/ hospital liable Resurfice v. Hanke Hanke placed water hose into ◁ Whatever Donald gasoline tank of ice J said, prima facie we SCC 2007 resurfacing machine rather use the but for test than water tank. Hot water (even for multiple overfilled gas tank, vaporize wrongdoers), material gas, released into air, ignited contribution is only for by overhead heater, causing cases when it’s explosion and fire. Breach of impossible for the P to duty due to mislabelling of the prove that the D’s tank – caused a burn. negligence cause the injury using but for ◁ Causation is showing breach of duty exposed plaintiff to suffer that form of injury ◁ The SCC ends up saying the same thing as Donald J (the 4 factors as being a situation when MC is appropriate) –they characterize it broadly but then read it as leading to a NARROW number of cases that apply! ◁ 2 situations in which MC is appropriate: o Cook v. Lewis type = MC instead of causality . ISSU E – this is actually an onus reversal, not MC at all! o Impossible to prove what a person in the causal chain

38 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway would have done had the D not committed the negligent act (Walker type) . ISSU E – Walker is incoherent! (Galloway) ◁ And just because you fail at but for doesn’t mean you can move onto MC! ◁ But for causation is appropriate in this case ◁ HELD: no but for causation, no liability Clements v. Clements Joan severely injured while ◁ Issue; would the riding as passenger on accident still have BCCA2010 motorcycle driven by husband happened if the D had – 1) overloaded, 2) pulled out been careful about to pass another vehicle weight and speed? (speeding), 3) hit a sharp ◁ Mr. Clement object and punctured rear tire, liable for all 5 factors 4) unevenly loaded 5) excess except #3 (tire speed considering weather puncture) (pouring rain). Mr. Clements ◁ Material Felt it weave, unable to regain contribution test is not control, flipped over causing a test for determining serious injury. factual causation – rather it provides a basis for finding legal causation when there’s a possibility that the D’s negligence could have been the factual cause ◁ Therefore use of MC is not a test of causation – it’s a policy- driven rule of law to allow P to recover in cases despite their failure to prove

39 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway causation ◁ BCCA: no – if MC applies every time but for fails, then but for isn’t even a rule! If you fail but for it means you fail causation – not than you can move onto MC ◁ 2 situations in which MC is appropriate: o Circular causation: Cook v. Lewis o Dependenc y causation: Walker ◁ This is just a case where we don’t know and it’s not unfair to left the D off the hook – BFT should operate! Are we convinced? Are we just turning causation into a fairness test? ◁ HELD: applies but for causation - no causation, no liability o Hypothetic ally: o P: but for the overloading/speed ing in the rain etc. (4 factors that were Joe’s fault) the accident would not have happened, therefore Joe’s at fault o D: no – we don’t know that but for those things the accident would know have

40 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway happened because there’s still the issue of the rock! Even without those things the rock could still have caused it – so we can’t prove that Joe caused it o P: FINE, MC, so Joe’s at fault ◁ Just because but for doesn’t produce the wanted result (you fail on it) doesn’t mean you can ditch it - it means you've failed causation! Can’t move onto MC! o Need to decide whether or not to apply but for FIRST and THEN apply if. If it shows no causation, then that’s the end! ◁ Tort is only where lack of care causes harm – there must be FAULT and we don’t ascribed fault unless we can prove causation on but for ◁ What should the decision of Clements say? ◁ FIRST PRINCIPLE . If plaintiff can show that the BFT is met on the balance of probabilities, then P has proved causation  Therefore the BFT is a strategic device that P can use to meet the burden of proof but there are other ways to meet it as well . But if P cannot, P can turn to other strategies! Failing to meet BFT doesn’t necessarily show that the P fails. ◁ SECOND PRINCIPLE: Cook v. Lewis . If P can show that he was the victim of a negligent act but there were more than one negligent actors that might have done it, P can rely on a reverse onus. Each of the negligent actors is deemed the cause unless they can show on the balance of

41 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway probabilities that they were not  Ex. Each defendant trying to find THEIR bullet is somewhere else, to prove their actions are uninvolved  ISSUE: does this apply to more than 2 wrongdoers? We don’t know.  This is about FAIRNESS of BURDEN OF PROOF, not causality ◁ THIRD PRINCIPLE: overdetermination . Two independent series of events may combine or come together  2 independent shots hit the mark . Although redundant, a factor may sometimes be cited as a cause . A full explanation would note the combine operation of two independent factors . ISSUE: can this also be applied to reasons?  1. If you give someone an incentive to do something that they probably would have done anyways you still contribute to their decision (you “seal the deal”) o Although some things count as incentive, though, and others don’t  2. Likewise if you fail to provide a disincentive, you contribute to the decision (reversing the first point) o This move would allow us to explain Donald J in B.M. and maybe even Walker o Donald (BM) and Major (Walker): in B.M. – if the police are under a duty to change the assailant’s reasoning, it doesn’t matter what the assailant would have done! The negligence is so big that by doing nothing, they’ve contributed to that person’s decision EVEN IF the assailant has made their mind up o BM Majority judge: the assailant had his mind made up! He already had disincentives in place! And they didn’t stop him, so the police couldn’t have stopped him! ◁ Galloway’s hypothesis: PART ONE  Plaintiff must provide an explanation of how we got from past to present  The plaintiff will cite factors and must show that there are serious reasons for believing these factors played a role o Galloway: We usually talk about proof and a bop – but really we have a flexible notion of proof operation here o Plaintiff, we will allow you to succeed if there are serious reasons for believing any of the elements they played a role in the result o Therefore in the case of causation, we’re asking for less than a balance of probabilities. We’re asking for a serious belief  Ex. If you failed an exam but there was an ear splitting whistle in the exam room at the time o Would I have to prove that this jeopardized my performance on a bop? o Or would you say that I was a terrible student and would’ve failed anyways? o Despite the fact that I may have failed anyways, we’re not going to ask if I had done better without the whistle. We ask if there’s a serious reason for believing the whistle would affect my exam results  If the plaintiff will succeed unless the defendant can show (on a bop) that the factor didn’t play a role 42 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway o If there are serious reasons for believing the factor played a role, then the plaintiff will succeed o The defendant’s job is to say that their behavior didn’t play a role!  Merely showing that it probably would still have happened is not enough for the D to succeed o Saying “on a balance of probabilities it would have happened anyways” is not sufficient Summary ◁ What we have done is reduce the plaintiff’s onus: if P can show that there are serious reasons for believing that a factor played a role then it is a cause unless D can show otherwise ◁ Saying “I have a serious reason for believing the Dr’s negligence did it” will be enough for the plaintiff. So the Doctor in Snell would be liable unless he can show that negligence was unrelated or trivially related to physical deterioration. ◁ Plaintiff met the burden of proof in this case! ◁ The police are liable in B.M. unless they can show that their failure played a trivial role

Clements: ◁ P has a responsibility to show there are serious reasons the factors played a role ◁ P cites factors: overloading and speed ◁ P now has a good explanation for what happened – there are serious reasons to believe that these elements has a bearing on the outcome because these factors tent to produce accidents like this one ◁ Now to the D ◁ Evidence from the defendant that there is no bearing of the overloading and speed on the crash, that they played no role ◁ That they did not in the circumstances make it more difficult to control the bike ◁ Because they had an effect on the chain of events leading to the difficulty in controlling the bike ◁ Evidence from the D that the accident would have happened anyway is not enough to defeat the claim!

◁ Therefore, we’re dealing with FAIRNESS, RISK ALLOCATION, and using language that meets our intuition. It’s not about reversing the onus or proof or using 2 tests. It’s just about REDUCING the burden of proof and seeing what happens …  Material contribution test is only really at home in the over determination cases  Instead of asking “would dermatitis have happened even if they had the shower?” under material contribution, ask “is there a serious reason for believing that not having a shower is related to dermatitis?” and then the defendant’s responsibility to prove otherwise, under the reduced onus version of the causality test

43 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway FAILURE TO WARN ◁ USUALLY: subjective test ◁ DRs: standards are much higher, personalized, therefore policy reasons to use modified objective ◁ MANUFACTURER OF MEDICAL GOODS: information imbalance, Reibl v. Underwent serious ◁ Duty of Drs: to warn of all material risks (via Hughes surgery, suffered a BC Health Care Consent Act) massive stroke, ◁ 1. Severity – SCC 1980 found that the o Objective ex. death and plaintiff did not o Subjective standard ex. scarring (ex. have informed Videto), if the Dr is made aware consent because he ◁ 2. Likelihood wasn’t warned. ◁ After Dr found to have breached failure to warn of Suing for damages a procedure, issue is whether, if informed of all of the in battery and risks, if they would have gone through with the negligence. treatment anyways Pension would vest ◁ Instead of normal causation: modified objective in 1.5 years. based on all the circumstances (reasonable person in all the circumstances of the accused), including gender, age, beliefs etc. – a reasonable patient in that decision, of but for test ◁ No one in hind sight would say they would have had a procedure that went so badly ◁ 10% chance poor outcome ◁ HELD: reasonable person would’ve opted against the surgery, liability ◁ Note: if there’s no causation of harm, there’s no negligence – so if nothing bad happened to you but your Dr failed in his duty to warn, still no neg ◁ The court is telling us there’s an objective test of causation for medical cases and that this is coherent with the current test of causation. HOW DO RE RECONCILE THIS? o SOLUTION 1: the but for test itself is bad – because the objective test is NOT even a test of causation! It’s actually an argument about fairness. Because it’s not fair to hold a Dr liable in certain situations . Ex. if the reasonable person would have gone through the operation . This isn’t about the world anymore, it’s about what’s fair etc. o This allows us to distinguish this case from Hollis, in which case you aren’t dealing with Drs! . When the manufacturer of a product fails to warn the consumer, we use the normal subjective test – would this person have taken the product if she had been warned? . Therefore, this is not an issue of causality between what happens, it’s actually about a favouritism towards Drs that doesn’t apply to manufacturers . ISSUE: In this case, there are situations in which plaintiff can show causality, and yet the plaintiff is losing. Is this saying that the but for test isn’t working

44 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway for plaintiffs anymore? o SOLUTION 2: The test is good! We are really using the subjective test in both! The problem with the but for test in Reibl v. Hughes though is not the BFT itself – it’s that the subjective test is not the way to go . Relying on the plaintiffs evidence of what would have happened had they been given the information is unreliable . The best we can rely on is what the reasonable person would have done, to replace what you would have done . This means we don’t have to change the test of causation or have two different test (one in the manufacturing cases, one in the doctor’s cases) . We have ONE SUBJECTIVE TEST – what would this person have done? It’s just supplemented by a rule of evidence – can’t reply on plaintiff’s words so go to what a reasonable person would’ve done . Therefore Laskin: maintaining the subjective test, but just changing rules of evidence  ISSUE: the concerns of a plaintiff must be reasonable based  Galloway: you don’t want the objective test because of bitterness and hindsight – that’s the only evidence you want to exclude. This has nothing to do with the reasonableness of a plaintiff’s concerns. The idea of autonomy means you can decide the weight of your fears yourself. Therefore Laskin overstepped and went too far.  Galloway: if you were really consistent though, you should be avoiding the bitter hindsight evidence in Hollis as well

Hollis v. Plaintiff isn’t ◁ The fact that there are two factors (1 – whether Dow informed of the Hollis would’ve elected otherwise, 2 – whether Dr. Birch Corning risk of breast would’ve warned Hollis had they known) is found to be implants. Implant irrelevant SCC 1995 rupture, causing ◁ Poor policy to allows manufacturers who breach harm their duty to escape causation by questioning what the Dr would have done ◁ The ultimate duty of manufacture is to warn the plaintiff adequately – for practical reasons the law permits it to acquit itself that duty by warning an informed intermediary. Having failed to warn the intermediary, the manufacturer has failed in its duty to warn the plaintiff who ultimately suffered injury ◁ Perhaps: learned intermediary is already the courts going halfway, so really unforgiving when the manufacturers fail to come back the other half! ◁ HELD: causation found on the but for test, manufacturer liable for failing to disclose the dangers to the P ◁ ISSUE 1: Arndt v. Smith (2 years later in 1997) o Dissent (CJMac) – you can’t have different tests for doctors and manufacturers! The subjective test should be used in all cases 45 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway o This shows how unsure this area of law is ◁ ISSUE 2: the causation test in the learned intermediary rule o Court abandons any notion of causality in this issue o An argument by the manufacturer (when it fails to inform doctors) that even if they had passed onto the information onto a Dr the Dr wouldn’t have passed it on will not stand . Court: if manufacturers are going to make it easier for themselves by using a learned intermediary, then they cannot rely on the normal rules of causation! . “The ultimate duty of the manufacturer is to warn the plaintiff adequately … having failed to warn the intermediary, the manufacturer has failed in its duty to warn the plaintiff who ultimately suffers …” ◁ Brito v. Plaintiff vaginally ◁ Professional women, (therefore had respect for Woolley delivers twins, other professionals?), had 2 children vaginally second twin’s cord previously with no complications BCJ 2003 prolapses causing o Suggests that she would have followed the severe mental Dr’s advice and the lower likelihood of risk, rather disability to the than the emotional response she claims after child. Plaintiff o Received medical advice from more than claims that the one Dr who concurred doctors failed to ◁ <1% poor outcome (although dire consequence, present her with so material risk) the material risk of ◁ HELD: no causation – would have opted for a prolapse and vaginal delivery even if she had been informed of present her with the risk, and a reasonable Fr would have the option of recommended vaginal delivery, no liability having a caesarean ◁ ISSUE: just because a doctor recommends section something doesn’t mean it would be unreasonable to not follow those directions: Laskin is very wary of this ◁ Donald in this case though, holds to the idea that if a doctor recommends something the plaintiff (and a reasonable person, a “loving mother”) would have always followed the doctor’s recommendation regardless of what kinds of warnings/ information was given o This is exactly of the antithesis of Laskin’s judgement! o Laskin wanted to allow patients to reject doctors and make up their own minds! o Galloway: goodbye autonomy? Can only win 46 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway legal action if you follow doctor’s recommendations? This is the issue with the objective test! o Laskin’s method of using the subjective test but excluding certain information is much better

Martin Martin needed ◁ Duty of Drs: to inform of all material risks in surgery, but not a manner that the patient would understand ABQC immediately. Dr ◁ Dr knew that Martin was looking forward 2007 warned of bleeding ◁ In this case, high risk of harm, disclosed, but not in the brain, but disclosed adequately – used language that was too not sufficiently medical (‘bleeding in the brain’ not ‘stroke’) using the proper ◁ P: you owe me damages for the rest of my life for language. He made this surgery: care, remodelling of the home etc it clear to the Dr he o The surgery would have occurred later, and was looking at the later surgery date, there would still be the forward to his same chance of the harm occurring! retirement and o Causation test is the mixed subjective/ dancing with his objective but for daughter at her o Therefore if something’s going to happen wedding. P claims anyway, you’re only responsible for the amount if he had been you sped it up (crumbling skull) warned, he ◁ would’ve had the D: no – we only owe the addition costs in between surgery after his the two dates daughter’s ◁ COURT: because we don’t know what would have wedding. happened at the surgery on the later date (unwilling to predict), they awarded the entire period (whole life!). Rejects the crumbling skull type analysis ◁ HELD: but for causation, liability ◁ ISSUE: how can you hold THIS Dr liable if the next Dr would have done the exact same thing?!

47 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway Chester v. Woman goes to ◁ Deprivation of choice held sufficient for Afsher (H doctor for medical liability! of L) treatment. Not ◁ Although not followed in Canada (Galloway – this explained by doctor case is shocking) the possibility of ◁ But for test is met by plaintiff, but still not going nerve damage, and to find causality! she suffers nerve ◁ HELD: the but for test is easily satisfied … but the damage. Plaintiff is doctor isn’t going to be liable because the doctor’s duty a witness who is to warn didn’t cause the injury. The risk was the same absolutely honest, irrespective of when or at whose hands she had the and says she operation doesn’t know if she ◁ Galloway: this is revolutionary! It’s not who would have had the caused the injury – it’s whether the doctor’s breach of operation – BUT duty INCREASED the risk of injury! We should only hold she says she knows the Dr liable when we say yes. Since the plaintiff could that she wouldn’t have had the operation later and would have been have at the subject to the same risk then, we shouldn’t hold the Dr operation then liable for ANYTHING ◁ US and UK trying to put less weight on causality and willing to recognize lost opportunity/ chances, since the traditional tort rules don’t always lead to fair results ◁ Canada is really resistant to this! o In personal injury the question is who caused the injury, NOT who increased the risks! ◁ In Canada, can you sue the doctor who took the opportunity to decrease the risk of cancer? ◁ No! That’s not enough! There has to be harm! CAUSATION IN INDUSTRIAL SETTINGS Sindell v. Generic drug on ◁ Normal solution would say that plaintiffs would Abbott US the market, for not meet their case pregnant women to ◁ Issue is vast majority of plaintiffs unable to prevent morning identify 12 years later the specific company which sicknesses. 12 manufactured the pills years later, finds ◁ Solution: should hold each company liable for the that the drug proportion of the injury that reflects their market share causes increase in (how much of the drug they marketed during a risk to cancer to particular period) daughters o This means we don’t expect the plaintiff to tie the harm they’ve suffered to a specific wrongdoing – we treat the companies as risk creators o Instead of joint and several liability for the whole harm, we divide the harm and allocate responsibility by market share ◁ This is a rethinking of the tort law of negligence! It’s all about holding people liable for losses suffered

48 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway ◁

UK: References the ◁ House of Lords: Both should be liable. In reaching Barker v. Fairchild case: this decision, there are 6 factors (pg 126) Corus Suffering from o Doesn’t say why these 6 factors count asbestos related (court hasn’t figured it out) disease o When you satisfy all these factors, there Working at two will be liability workplaces over ◁ the time where it could be contracted – and evidence suggests no other source. Two negligent activities, happening one after the other (not contemporaneously ) but either one or both brought it about even though we don’t know which

49 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway ◁ Hypotheticals o 1st employer has asbestos, but there’s no reason at that time for the employer to worry about asbestos because there’s no evidence of its harm o Employee might’ve contracted disease from first employer, but they weren’t negligent o Would the negligent party have to pay for anything?? ◁ House of Lords rethinking Fairchild case in Barker v. Corus ◁ It’s not just a Cook v. Lewis issue with 2 negligent parties – going back to McGee o Pg. 128: HOL – materially increasing the risk is not the same as materially contributing!! Unlike the SCC who made this mistake, we are avoiding it! o The employers have materially increased the risk of contracting mesothelioma so we should hold each liable to the degree they contributed to the illness – therefore liability is not for the harm but for the increasing of the risk o What if the plaintiff also worked with asbestos at home? HOL recognizing it’s still possible to apportion the risk based on the increase of risk by other parties . Therefore severally liable only ◁ UK leg didn’t like this solution so wrote a statute o Worried about the impact on the economy, since lots of mesothelioma cases o Compensation Act (2006) – returning to the familiar situation . If you’re pointing the finger, it must be done in relation to causing the harm, not increasing the risk . So you have to go after each  If there’s more than one, defendants can be jointly and severally liable . Contributory negligence won’t necessarily deny liability, but just decreases the amount that will be paid ◁ In BC, Workers Compensation schemes would deal with this o Is this the best way to deal with this? o Only 40% make workers comp claims – therefore something is preventing people from seeking insurance redress. Why? . Knowledge isn’t filtering to individuals ◁ This still raises causality problems - what’s the fairest way to solve a causality problem? Don’t know.

50 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway REMOTENESS ◁ There’s been a breach of duty, a causal link, but D is saying “I shouldn’t be liable for THIS” Wagon Another ship in the ◁ Re Polemis Mound 1 harbour releasing o 2 stevedores working on a boat unloading bunker oil in the planks of wood water – this was o Drop a plank into hold of the ship, hits negligent because bottom of boat, spark is caused, burned down ship it’s mucky to clean o Defendant: okay – we caused the loss of the (but no one boat but we shouldn’t be held liable because it’s recognized it was so bizarre and unforeseeable flammable). In o Court: you’re liable! For all the Vaughan v. consequences that directly fall from your Menlove – negligence – whether or not they’re reasonably haystacks are foreseeable recognizably easy . Initially we saw battery to be direct to light on fire, but and negligence to be indirect not bunker oil. On . Yet here, they want to say you’re docks, people are negligent for everything you directly cause! welding. Molten . For it to be indirect, there has to be metal gets on some element of intervention wood, a piece of ◁ Cameron v. Hamilton Auction Mart (Scotland) cotton on top of o Excited cow that went up the stairs into a that, bunk oil house, fell through floor, in its struggles, turned reaches this and a on a water tap, flooding the unit, cow thrashing fire’s created, and lost property the dock burns o Issue: too remote? Yes! down o Court: you can’t hold people liable for unforeseeable consequences just because they’re direct! ◁ Court: over-ruled Polemis. HELD: you should be liable for consequences that you should have foreseen as a reasonable man! Following Cameron v. Hamilton o Responsible only for the reasonably foreseeable consequences of one’s acts, and it was not reasonably foreseeable that dumping durance oil on water would cause conflagration ◁ This case is less bizarre, but the same conclusion being released ◁ PC: we use reasonable foreseeability – we hold you liable for only the probable consequences of your acts o ISSUE - Duty of care: you owe a duty to someone if it’s reasonably foreseeable you’ll harm them o For what harms are you liable? You’re only liable for reasonably foreseeable harms, in terms 51 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway of probability o So we’re using the same standard for duty of care and remoteness! o Hughes v. Post office ◁ Modified Wagon Mound Lord employees left ◁ COURT: You’ve created an allurement – we don’t Adcovate manhole open, so expect children to listen to their parents, we expect put lamps and a them to explore what you’ve created! tent around the ◁ Def: this is like wagonmound! Too improbable to hole. Kids find it foresee that explosion would result! alluring and ◁ HOL: no – this is within proximity, not too remote explore it. Kids o Relaxing the standard climb down, climb o Burns were reasonably foreseeable, these back up, knock kids suffered burns. They’re worse burns than lamp into hole, would’ve been foreseeable due to this strange there’s a gas leak unfolding – but that’s not relevant! (unbeknown to o Why not? Being able to foresee the precise anyone) and it way the world unfolds is too hard – BUT if the explodes causing eventual consequence (last chain) is injury generally foreseeable, then we should hold the defendant liable ◁ Lord Reid p143: I agree that we shouldn’t be too sensitive about how things unfold, BUT there could be a case where the intrusion of a new and unexpected factor could be considered the cause of the accident instead of the act of the defendant o But that’s not the case here. The fact that there were kids is not a new factor – it’s a normal concatenation of circumstances o OKAY so what would count as a new factor? Lord Reid is thinking about the excited cow case! The damage caused is the same sort of damage as if the cow just barged into a place. But in that case the circumstances got so bizarre that liability wouldn’t apply . What’s the difference between this situation and the cow story? It’s the difference between tragedy and farce – that some things are so strange that they are out of the world of drama and into the world of comedy ◁ Galloway: a reluctance to use foreseeability to describe the actual chain of events, and looking more towards the foreseeability of result! ◁ In the ensuing years, the compatibility of Hughes and Wagon Mound I has been questioned. ◁ 52 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway Assibinoin Dad rigs up ◁ Held: not too remote! e snowmobile for kid ◁ Dickson J: Polemis, Wagon Mound I, Hughes, to be able to start, Wagon Mound II (not the cow case) but it can’t stop. o Claims the force of WMI has been Kid loses control of dissipated by Hughes (which is more plaintiff the snowmobile, it friendly) – minor modification changing the hits the gas pipe of emphasis (although not overruling) a school, which o WMI says that if the unusual happens, then floats up into an that’s a categorical difference v. Hughes in which intake vent and we don’t recognize a categorical difference lights the school on o Don’t need to foresee the precise fire concatenation o Foreseeability doesn’t go to probabilities, it goes to possibilities ◁ Wagon Mound II (1966) o Plaintiff was another ship that burned down o What happened between 1961 (WMI) and 1966? . 1961: if plaintiff was contributorily negligence, def would get off the hook completely . In 1961 (WMI), that plaintiff argued Polemis – you’re liable for direct responses, plaintiff trying to underplay their own contributory negligence and trying to downplay the negligence of the bunker oil release . In 1966, this plaintiff was innocent, so claiming it’s negligent to release bunker oil! Evidence was therefore very different o Lord Reid: replay of Bolton and Stone! Very different than WMI! . The reasonable person would concede that discharging the oil is a bad idea primarily because it adheres to the dock, but secondarily because it would go on fire  Therefore even if it isn’t probable or foreseeable, it’s a possibility that a reasonable person would cite it as a reason for not discharging the oil  Therefore it counts as a reason not to do it! . In the cow case, a reasonable person wouldn’t cite the flooding as a reason for not caring for the cows

53 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway o Plaintiff friendly! Pltf only needs a reasonable possibility to win a case ◁ This is the test accepted by Hoffer: it is enough to fix liability if one could foresee in a general way the sort of thing that happened o WMII is the high water mark ◁ SCC: action can be successful if this is not impossible to expect. You lose liability only with the bizarre and far fetched ◁ Conclusion: recovery may be available provided the event giving rise to the damage is not regarded as “impossible” o When you rig up a snowmobile like this, this result is NOT bizarre and far-fetched! o It is enough to fix liability if one could foresee in a general way the sort of thing that happened ◁ The idea seems to be that if a reasonable person with his/her understanding of the circumstances would cite the consequence as a reason for not doing the act the defendant can be held liable ◁ But is the consequence to be understood as the type of harm, the way in which the harm occurred, or the story of the events? Lauritzen Two Albertans ◁ Held: not too remote – held liable driving from pub to ◁ Although the wife’s departure is seen as too pub, getting remote. This reveals that remoteness can be raised at severely drunk, one two junctures interferes with the o First, at the stage of determining liability driver, driver and objects, causing o Second, at the stage of assessing damages car to go off road, ◁ Lauritzen hypothetical lands in ditch in o Lets say driver walks out in the blizzard, middle of nowhere walks into refrigeration truck, truck driver locks in winter. Driver up drives off and driver gets frostbite! gets out to try and o Because frostbite is in the realm of possible go for help, gets circumstances (the final event is foreseeable), it frostbite, wife seems that the SCC would say that it doesn’t leaves him. matter how it happened o Galloway: but that’s not the law . Maybe the final event is foreseeable but the concatenation of events is so bizarre that you’re not in the world of reasonableness . So what are we applying foreseeability to? 54 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway  1. The eventual consequence; AND  2. The concatenation of events!! ◁ Pulling it all together 1. In some cases, the courts regard the defendant as acting against a set of stable circumstances. Where the defendant’s act produces a highly unusual type of harm because one of the pre-existing circumstances was unusual, the courts may see it as too remote and deny liability. (Dropping a plank - ship explodes) (Re Polemis) 2. On the other hand, if the harm is of the same type as could be reasonably expected, the court will be disinclined to deny liability. (Hughes: explosion and burns) 3. Where the defendant’s act modifies the pre-existing circumstances in a highly unusual way, the courts will be disinclined to deny liability. (You don’t have to foresee the precise concatenation of events) (Assiniboine, Lauritzen) 4. Only if the final result is farfetched or bizarre will the court find remoteness (Assiniboine, Lauritze )  Since 1961, courts trying to use the reasonably foreseeable standard for remoteness o But do you apply it to the result or chain of events? The former.

THE THIN SKULL RULE • Where you have breached a duty to someone and caused physical harm, you take your victim as you find them • Where the victim’s unusual pre-existing condition produces results that are more serious than you would ordinarily expect, you are still liable for the full extent of the injury • This goes beyond Hughes, since it suggests that an injury of a different type would also be covered! Questions • Why do we have this rule? • The general rule is not that you take pre-existing circumstances as you find them. • Does it have something to do with the idea that it is your duty to treat all individuals as unique? • It’s problematic to think that you hold someone accountable only for harms a reasonable person would suffer • Treating people as autonomous agents means treating them as people – we’re all special! The law does not want to work to deny the uniqueness of individuals and individuals’ bodies • Bodies are unlike houses • It’s something that defines us • The normal rule might create an incentive to treat others as means rather than ends • Does it apply beyond the body to the mind? • Does it apply to the “thin personality” rule? • Not really. Because fortitude is something you’re responsible for • If your body defines you, surely your personality defines you! • Consider a person with a pre-disposition to anxiety or depression who may become severely anxious or depressed after being exposed to danger (return to this) • Consider also the person who for religious reasons does not treat an injury negligently

55 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway caused by D and it becomes worse (see interventions) • If your personality defines you, surely your religious beliefs define you! • Would it also apply in a case where a person committed suicide? What if you’re negligent to someone, they suffer harm and they commit suicide – are you liable? (see interventions).

Bishop Man is expecting ◁ Thin skull applies resistance from ◁ One would in most circumstances expect (at most) opening door, a simple fracture and an uneventful recovery there is none, he ◁ Here “the congenital condition becomes grossly falls through. Sues exaggerated by trauma of any sort” for negligent o This isn’t a more serious injury of the same failure to warn sort, it’s the bringing of distinct consequences against the door. that fall within the realm of liability! Serious injury Athey v. Appellant suffered ◁ Crumbling skull doctrine: although D is held liable Leonati back injuries in 2 for the injury that is precipitated by the pre-existing successive motor condition, the level of compensation should discount any vehicle accidents, losses that would be suffered without D’s intervention went to the gym after, and then experienced disc herniation INTERVENING ACTS Stansbie Painter in the ◁ Offers one clear situation: if you undertake to v. Troman house, doesn’t lock protect a person from a third party intervention but are it. Burglar goes in negligent you may be liable for the result and robs it. o The issue at tort is not the intervention of the third party o It’s that the relationship that gives rise to any tort liability at all is the undertaking to prevent certain results from happening ◁ Held: liable ◁ Ex. why do you have locks in the house? To keep burglars out, vandals out o What about the person who goes into the house and burns it down? This is strange - you could’ve set the fire outside o Is the defendant liable for that? Unsure o There are some crimes are so bizarre that even the person who has undertaken to look after your interests is not held liable ◁ Therefore just because a third party has intervened, doesn’t mean the original wrongdoer won’t be held liable ◁ The negligent body guard, the negligent tradesman

56 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway Bradford Restaurant – ◁ The Supreme Court is divided on where to draw v. Kenellos grease fire because the line. the grill is poorly ◁ If we expect that a certain kind of cleaned. Causes intervention will occur through the ordinary course state of the art of events, then the original wrongdoer is not absolved sprinkler system to of liability put it out but ◁ The majority regard the intervention as someone at the “freakish”. The link between D’s negligence and the restaurant sees the result is broken by “hysterical” conduct that is not fire, hears a hiss within the risk created by D’s negligence and thinks there’s o You’re not liable for the strange a gas leak and conduct of a third party there’s going to be o Is it so far fetched that it’s unfair to hold an explosion. the original wrongdoer responsible for the Cause everyone to consequences? panic, someone ◁ In dissent Spence (citing Fleming), says that what gets trmpled. happened was “part of the ordinary course” of things o There’s no intervention of a third party! ◁ The court sees it as critical that the hissing sounds leading to harm is based on a remedial action trying to resolve the harm, as opposed to the harm itself o This seems to really ignore the fact that their negligence did cause the fire in the first place! ◁ MANUFACTURERS, DISTRIBUTORS, CONTRACTORS AND REMOTENESS Smith v. Everyone in a Nova ◁ Held: liable Inglis Scotian society ◁ The manufacturer of the fridge should have cuts off the third foreseen that someone would cut off the third prong of prong of a plug for the plug (Everyone in the business knew or should have the refrigerator. known that this happens). Again the ordinary course of The refrigerator events manufacturer uses o The intentional decision to cut off the third a cheap circuit, prong is within the ordinary course of events that is not safe to ◁ Can you rely on the argument that people weren’t cut off the third supposed to cut off the third prong? prong. Someone ◁ No. It’s not an intervention – you can trace it to gets shocked. the malfunctioning of a fridge. Anything anyone regularly does is not an intervention, it’s part of the ordinary realm o You have a duty to look out for the interests of other parties o You have to look out for how they’ll actually behave Good-wear Good-Wear sold ◁ Q1 Did Good-wear breach a duty to roadusers? Q2 Treaders retreaded tires to If so, did the breach cause the death? Pash that were not 57 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway dangerous in o Pash’s decision to use the tires is not themselves but regarded as an intervention. The matter is knew that Pash resolved at the duty/breach stage. A result like was going to use this is the very reason behind the duty them in a . There’s a duty to road users to make dangerous way. sure they’re not subjected to this kind of Pash is warned not harm to use them in that . Court: because it’s foreseeable that way. Pash uses someone will be hurt (at the duty stage), them and 3rd party then you have a duty to not sell a tire that is killed through you know will be used in a dangerous way! the use Remoteness isn’t an issue. ◁ The facts are described in para 17 as rare. Is this true? o Court claims that this issue will only come up in rare situations . Rarely would the seller know that the buyer would be using their products in a dangerous manner . Good-wear has an obligation to road users – so we hold them to normal negligence standards (normal tort principles) … in terms of “who do I have to think about” includes road users o Is this actually rare? This is a subjective standard – but is there a way of stopping from moving to an objective standard? ◁ Pash’s negligence doesn’t “block or isolate” any prior negligence ◁ Galloway: this is very intriguing! And much broader implications than what the court would suggest SUBSEQUENT MEDICAL ERRORS ◁ Def 1 hurts plaintiff ◁ Dr (Def 2) is negligent and makes it worse ◁ Is Def 1 responsible for the Dr’s negligence as well? ◁ 1970s: if a wrongdoer puts a person in the hospital, theyre responsible for the plaintiff having to be in the hospital, but not for Dr’s negligence o Dr negligence is so unusual and strange that it breaks the causal link o This is different than negligence by someone else (non Dr) because negligence by others can be expected ◁ Galloway and modern law: this is likely wrong (Katzman) o Dr’s negligence is fairly common now, we don’t se it as being so unusual that it’s freakish o At some stage, the Dr’s negligence may be seen as bizarre so at some stage we’re in the realm of the unexpected BUT this is not the usual case

58 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway DEFENCES?  There are some defences to negligence actions, but they’re limited o 1. Voluntary assumption of risk . We will only impose this in situations where it’s absolutely clear that the plaintiff knows there are risks, and are also aware of the legal risks (waiving legal rights) . And these factors must be clearly articulated to the plaintiff . If it’s unclear, then this defence will be limited o 2. Illegality (ex turpi causa) . Limited – if you’re a bank robber you can’t sue your fellow bank robber for not having shot the cop . BUT this is narrow – just because you’re doing something illegal doesn’t mean you can’t have an action in negligence o 3. Contributory negligence (partial defence) o 4. Inevitable accident? . No – this really isn’t a defence! . It’s a historical anachronism that hasn’t gone away yet – a car accident looks a lot like a battery and originally to defend against battery, had to argue inevitable accident (non intentional or negligent) . Later, car accidents were treated as two cars hitting each other (not just one party hitting the other), and may be non battery and non negligent as well

PURE PSYCHIATRIC HARM

A HISTORY (discussed in Devji)  Emotional disturbance itself will not be allowed as a tort action. Why not? o It’s more subjective than physical injury – it affects being vastly differently o We are responsible for our own wellbeing? o Compensating for the harm is very challenging, and there are perhaps evidentiary issues? What about the possibility of junk science? o Is creating an emotional disturbance really a wrong? Is it actually harmful? o Floodgate! We’ll have many claims and also, we won’t be able to distinguish between those that are worthwhile and those that aren’t – where would we draw the line?  Courts: there is such thing as psychiatric harm BUT we must be dealing with recognized illnesses. Just general emotional distress won’t be enough o Seriously, likely long lasting would be more convincing  Two questions re: the nature of this tort action: o 1) DUTY: when do you have a duty to look after someone else’s mental wellbeing? And to take measures to prevent a person from suffering psychiatric harm? Do you have the same duty to peoples’ mental wellbeing as their physical well-being? . Dorset Yacht: YEAH – there’s a different set of circumstances where you’d recognize a duty to physical harm as you would to psychological harm . Post Cooper: when will you be in a close enough relationship that you owe a duty to not harm someone? When are you in a sufficiently close relationship that is reasonable and just to hold someone to such a duty?  Is proximity for psychiatric harm issues the same as for physical harm? 59 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway o 2) REMOTENESS: If you breach a duty to a person and create the risk that they will suffer physical injury, should you be liable if they instead suffer psychiatric harm? Pre Cooper, duty is used in remoteness language as well  WARNING! The courts of OFTEN confused the two questions o In Mustapha, the issues is REMOTENESS. SCC emphasizes the need to keep them apart o Plaintiff has shown a negligent breach of duty – issue is whether the defendant should be liable  Another question: o What if you breach your duty and cause physical harm, and then as part of that also cause psychiatric harm (ex. depression?) . If you’re liable for a breach of duty, causing harm, including psychiatric harm, then courts have little problem holding individuals responsible for the psychiatric harm (psychiatric harm caused by or concomitant with the physical harm) o Courts will talk often about pure vs. impure (resulting from physical harm) psychiatric harm  There are 3 general types of cases we see commonly: . 1. Duty case – when do I have a duty to pure psychiatric harms? To look after someone else’s mental health? . 2. Remoteness case – I have breached my duty, but instead of causing physical harms it only caused psychiatric harms . 3. Impure case – I have breached my duty, caused physical harms, and also psychiatric harms  1. When do you owe a duty to look after someone else’s mental health? o Pre-Cooper: part 2 Anns test says that reasonable foreseeability to decide liability, but we need control mechanisms . There are some cases that are deserving, and some that are not o Courts seem to think that the suddenness of shock is more likely to lead to mental illness than a prolonged experience . Therefore the difference between a deserving and undeserving person is whether is someone’s been subject to a sudden impact on the mind (deserving)

Devji v. ◁ Devji v. Burnaby Burnaby . Victorian Rlwy Comrs. (para 18) P171: 1888 – negligence causing near collision, leading to shock but no physical harm Yasmin  Breach of duty, but the only thing suffered is nervous shock Devji is  Court: will not recognize the harms killed in a  IF she had also suffered physical injury, then we’d consider your car nervous shock accident,  Court: concerns due to 1) floodgates and 2) wide field for imaginary the family claims (father, . Dulieu (miscarriage case) mother,  Pregnant woman frightened when a carriage is negligently driven two through the window of the pub in which she is sisters) o HELD: there cannot be recovery for nervous shock without 60 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway are told by immediate fear of personal injury to plaintiff a police o This means that a defendant can be liable for psychiatric officer at harms IF there’s an immediate fear of bodily harm their home  Remoteness case: duty was breached and asked  No physical injury, but found liability for nervous shock! to go to . Hambrook the  Looks like a duty analysis hospital to  Mother suffers shock at the sight of an accident in which one of her identify children is injured due to defendant’s negligence the o Court: If you expose children to the dangers of the road, you deceased. don’t owe a duty to all witnesses, but you do owe a duty to the They go MOTHER in addition to the other road users almost o This is true even if the mothers are not exposed to physical immediate danger ly to the . Hay hospital,  Motor cyclist driving too fast, hits a vehicle. Hay looks at the carnage, view the and while she wasn’t in immediate danger herself, suffers from shock body, and  Miscarriage like Duliu then claim they  Court: Loses on the ground of reasonable foreseeability suffered  Court’s Duty refinement: the test of liability for shock is nervous reasonable foreseeability of injury by shock! shock  Held: no duty owed here – woman’s decision to look at the accident was injury her own . Chadwick  Rescuer, rescuing people during a train wreck  Traumatized by role, sues the train  Held: there’s a duty to rescuers, extends to post traumatic stress even if they aren’t exposed to original risk and haven’t suffered physical harms o There’s a duty to not only those who use trains, but also those who help save the train situation . McLoughlin v. O’Brian (Lord Wilberforce, HL)  Starting to use proximity to define the ambit of duty – introduces language of proximity when defining the ambit of the duty  FACTS: car accident, victims raced to hospital with serious injuries. Mother told about the accident, raced to the hospital, sees the kids in the aftermath of the accident. o This is a parasitical claim: injury is caused to kids, but extends to problems suffered by parents etc.  HELD: where physical injury has been caused negligently to someone else, a duty will be owed to a limited class of people in regards to their mental health o 1. Closeness of family tie (mother, not just witness) . Your connection doesn’t have to be mother: could be father, friend perhaps o 2. Proximity to accident (witnessing the accident or its immediate aftermath vs. hearing it on the telephone) 61 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway . Time and Space o 3. Means by which the shock is caused . Is there a difference between actually witnessing something first hand vs. through a medium (TV etc.) . In the UK: yes – there’s a dominant line between real and virtual experiences o But the less the relationship, then the close you’ll have to be to the accident . 2 BCCAs that buy into McLoughlin . 1) Beecham v. Hughes  Husband and wife in a car accident  Husband suffers no injury, wife suffers severe physical injury, husband has to take care of wife constantly, husband sinks into darkness and psychiatric care  Husband sues defendant and loses o Held: psychiatric harm is a result of sorrow as opposed to as a result of the accident . 2) Rhodes  Plaintiff heard about the accident on the radio, and thinks the son is on the train  Starts driving from Vancouver Island to the train wreck in Alberta  She’s not allowed to get close to the train, she’s diverted, she’s given false information, and eventually learns that son was killed on the train  Mother was sent the body parts by mail (although railway company was not responsible for that)  Held: she can’t recover because (unanimously) she didn’t experience fright, terror or horror at the scene at the time of the accident o She head a long time to get to the train and get control of her emotions o You must trace your psychiatric harm to fright/ terror/ horror to have a successful action  There lacks the immediacy of the horror  What is this immediacy all about? It’s about limiting claims (see below) JUDGMENT ◁ The law expects people to be of ordinary fortitude . We don’t all have the same resilience . But we want and expect people to take responsibility for their own mental health – if they’re overly sensitive, we expect them to take measures to protect themselves (get a thicker skin) ◁ The talk of ordinary fortitude suggests that we will recognize a duty to those people from whom you have taken away the opportunity to brace themselves against psychiatric impact . This arises from the shock, immediacy, close ties with the person 62 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway getting injured . These tend to be easy cases . There seems to be a sense about the impact of love on your mental health  We don’t expect you to brace yourself in a loving relationship – since it’s an unconditional relationship, we expect to throw yourself in  We do expect you to brace yourself for harms that you might see against a stranger though, for ex.  The more gruesome the case, the more we are willing to hear your claim though – is the familial and loving relationship required? o Unsure – but we have in the past been sympathetic to rescuers ◁ Where, however, a person has the opportunity to brace themselves, they will be held to be the single author of the psychiatric harm ◁ HELD: no liability

Mustapha ◁ Remoteness case v. Culligan ◁ Everyone expected that this would answer all our questions re: the differences between deserving and undeserving cases Mustapha ◁ Two issues emerging in this case: is a o 1) It seems that the court is saying that the thin skull rule does customer not apply when we are dealing with questions of liability – that it only of Culligan applies when we are dealing with damages water. o 2) Would the situation be different if Mustapha had consumed Sees flies the fly, suffered gastroenteritis, and then suffered some psychiatric in an damage? AKA if some physical harm was suffered unopened ◁ Common law countries are in complete disagreement re: how we deal delivered with these kinds of cases bottle of o In UK, the courts adopted an idea of primary vs. secondary water, and victims Mustapha . Primary victim = Mustapha, a duty of care is owed to them suffers and breached against them. He has suffered harm psychiatri . The position of primary victims is very different than the c harm position of secondary victims – ex. the mother seeing the dead from the son disgust he . If the primary victim suffers harm, we should apply experienc the “take your victim as you find them”, regardless if it’s es psychiatric illnesses or physical illnesses alone . It’s only with secondary victims that we expect victims to be able to brace themselves, have ordinary fortitude etc. o SCC: we’re not going to draw this line. We’re going to draw the normal principles of negligence liability and see where that gets us ◁ In Mustapha, they don’t even go into the Cooper analysis – they just state that duty of manufacturer to customer is just a duty 63 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway o This is quite radical! o SCC could have said that up until now, the manufacturer has had a duty only to guard against PHYSICAL harm! Not PSYCHIATRIC harm! o SCC accepts that physical and psychiatric harms are the same thing (any harm) ◁ The SCC also states (easily) that Culligan has a duty to prevent foreign objects from falling into the water o Galloway: this is a bit too quick – we’re worried about animals, body parts, feces, falling into the water but we’re less worried about food colouring etc. ◁ SCC states that, given there’s a breach and the suffering of recognized illness, the issue in this case is remoteness o The SCC could have dealt with this under the thin skull rule BUT they don’t want to go in that direction . Don’t think it’s fair for Mustapha to succeed o SCC finds that this is not the type of injury that Culligan risked by letting flies fall in the water . AKA defendant is not responsible for every consequence, just ones that occur in the ordinary course of events . This is not the ordinary course of events because we expect people to have an ordinary fortitude . Thin skill doesn’t get off the ground because the breach of duty has only caused one sort of injury, and that sort is one that we don’t think should be ordinarily compensable! This isn’t the kind of harm you risk by breaching your duty ◁ This case deals with psychiatric injury – and Mustapha passes that o The law does not recognize upset disgust or anxiety as injury ◁ Para 16: Tort imposes an obligation to compensate for harm done on a basis of reasonable foresight, not as insurance (Galloway: this is the turning point of the case) o Just like in Wagon Mound where you don’t associate bunker oil with large fire o Reading paragraph 16, do you get the idea that the thin skull rule is being rejected? . We ask whether a person of ordinary fortitude would suffer the psychiatric harm o Is it significant that Mustapha had not suffered any harm? Had he swallowed the fly, suffered gastro-enteritis and then depression, would he be able to recover? (Compare the person who swallows the fly suffers gastro-enteritis and then has kidney failure because of a weak kidney) ◁ In the “duty cases” we require people to brace themselves ◁ In the remoteness cases we expect the same - the failure of Mustapha to brace himself is seen as an intervening factor! We’re adopting the secondary claim analysis – and we’re treating Mustapha like a secondary victim! We expect you to brace yourself, and you can’t blame those who have wronged you for your failure to brace yourself! 64 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway o We’re telling Mustapha that he has a sensitivity, and that his opportunity to brace himself has not been taken away just by a fly o We identify Mustapha as the author of his problem ◁ We’re essentially saying that some claims are meritorious and some are not to restrict what will get through – but it’s not really fair to draw it this way ◁ SCC also says though that if the defendant knew the plaintiff had specific weaknesses (ex. if Culligan knew that Mustapha was sensitive to flies) then the ordinary fortitude requirement need not be applied strictly o = in situations where there’s knowledge o Galloway: how does that knowledge have an impact on the explanation?! If we’re telling Mustapha that his weakness is something that he alone is responsible for (ie he is the intervener), then how does the knowledge mater?? ◁ Thin skull only gets off the ground when we find that the defendant is liable for something – not in determining whether there was a tort ◁

65 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway PURE ECONOMIC LOSS ◁ DUTY issue ◁ Economic loss that is not derivative of any physical harm (personal injury or damages to one’s property) ◁ In Dorset Yacht we saw that Lord Reid note that if we based tort liability on the reasonable foreseeability of financial losses, competitive markets would cease to function o In the market, when someone wins, someone loses ◁ As with psychiatric harm, we can identify 2 questions: o 1. When do you owe a duty to take steps to prevent others from suffering economic loss? o 2. If you’ve breached a duty in relation to property damage but have only caused economic losses, when should you be liable? ◁ Recognized categories 1. D makes a negligent misstatement (= negligent misrepresentation). P relies on it and suffers loss; . When do you owe a duty not to make a negligent mis-statement? . Ex. Hedley Byrne. Someone trusts another for information, relies on it to their economic detriment . In these cases, courts may recognize liability for economic losses under tort liability . Hedley Byrne, Hercules 2. D provides that service for P’s benefit but does so negligently do that P does not benefit; . When do you owe a duty . In these cases, there may be liability even if the plaintiff has not relied on it to their detriment! . Ex. if a lawyer is working for someone drafting their will, if the lawyer negligently drafts the will so that their void, and the person who loses is the beneficiary under the will (not the testator)  Can the beneficiary sue the lawyer? Yes. And there need not be reliance in this situation until after the fact (after discovering the will is void)  Since the lawyer has undertaken to provide a service . Overlaps with the first, but this category is very slim 3. D markets a dangerous good. P must spend money in order to render it safe; . This is a remoteness case . If you have marketed a dangerous good but before the danger manifests itself the consumer discovers it and has to spend money to render the danger safe, there’s been no personal injury/ property damage  But given you’ve breached your duty, can you be liable for those expenses to render it safe? 4. D harms 3P’s prop. Relies on that property in order to make a profit. P alleges relational economic loss; . You don’t have a property interest, but you use someone else’s property . This is not normally a situation that gives rise to tort liability for your economic losses (this is quite clear now) . Ex. driver negligently hits hydro pole, knocks electricity out of homeowner’s 66 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway house, and unable to carry on their business and make money. Can they sue the person who damaged the hydro pole? Probably not.

NEGLIGENT MISREPRESENTATION Hedley ◁ Held: the bank is not liable – they covered themselves with a disclaimer Byrne v. ◁ However, it’s not problematic that D didn’t know who would be using Heller the info Lord Reid rejects out of hand the argument that the D is not liable because it did not know the ID of the P Easipower o D bank knew there was a client out there who would be relying wants to on the information, and for contractual purposes buy o Therefore Lord Reid treat it as a case of info directly given to advertisin the P g from P . Dismisses the bank as agent as an important element (on o Therefore leaves open the Q of “the degree of proximity” to credit), focus on the issue of economic loss due to negligent but P misrepresentation wants to ◁ 1. P’s first argument: rely on Donague (p188) ensure o Lord Reid rejects the Donaghue and Stevenson ruing in this case that . a. There is a difference between words and actions Easipower  is good for Ex. on social occasions people give opinions even its when they see that others are likely to rely on their obligation statements s. P’s bank  They don’t take the same level of care that they approache would on a business occasion d D bank  Therefore no duty of care on these occasions to get . b. A negligently made article will only cause on accident: credit the level of proximity is easy to determine. On the other hand, rating words can be broadcast without consent. K can’t cover all reference these third parties for o Therefore there’s good sense behind the generality that there’s Easipower no liability for economic losses caused by negligent misstatements . D gave ◁ 2. For liability something more is needed: the D must have references undertaken some responsibility (p. 189) or performed a gratuitous that were service (some authority that there can be liability there) not o The basic requirement is that a person, through their words in justified the context, is taking on responsibility and P ◁ 3. Lord Reid goes further to develop this legal principle: on its surface, relied to Derry v. Peek seems to suggest that there can be liability only for fraudulent their mistakes. detriment o However, the later cases indicate that courts have recognized innocent or negligent misrepresentation in cases of special relationships that give rise to liability for economic losses (p.190) o What are these special relationships? . All those relationship where the party seeking information was relying on the other where 1) one party trusts/ relies on the other to exercise due case 2) it’s reasonable to do so 67 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway because of the circumstances 3) where the party giving the information knew or ought to have known the other’s reliance . When all these elements are present, we conclude that the person has undertaken a responsibility! . Applying this to a professional setting: where D provides information to another who is relying and the circumstances make it reasonable to rely, D will be liable ◁ How well does the undertaking analysis work? o If someone comes into your office for advice (and you know you’re being trusted in your advice) you could: . 1. Keep silent . 2. Give an answer but make a statement that no responsibility is accepted . 3. Answer without qualification . Therefore the choice is up to the person giving the information, but if you choose step three then you’ve accepted responsibility! o Therefore this doesn’t cover a social situation! o Would it cover a situation where P2 passes on the information to P2? . If the test is just reasonable foreseeability, then this might be covered (where you get a professional opinion it is foreseeable that you will pass it on) . If you say the test is reasonable foreseeability plus reasonable reliance, then it may still be covered . BUT if the basis of the rule is that you have undertaken responsibility (“you may trust me on this”) then you have made no such statement to a 3P o So maybe there are 2: reasonable reliance + special relationship and undertaking ◁ Lord Morris o Voluntary undertaking can give rise to the duty to exercise reasonable care where another person relies o Where possessor of special skills undertakes to exercise those skills for the assistance of another who relies on them, a duty of care will arise (irrespective of contract) o Where it is reasonable for others to rely on skills of a person and that person takes it upon himself to give information or allow it to be passed on to a person who, as he should know, will rely, then there is a duty of care. ◁ What is the critical issue? o Is it the reliance and the reasonableness of reliance? Or is it the assumption of responsibility? o In Hedley Burne it doesn’t matter since either will decide the case o But in later cases, we find assumption of responsibility 68 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway without reliance ◁ Remember: there was on K between the banks BG Checo ◁ Can sue in both tort and K v. BC ◁ In Hedley there is no K – but what if there is a K? Hydro o Central Trust – like Hedley Byrne. Professional relationship, defined by K. Can party due in tort and K? Yes Tender for o Checo a K to . Tort liability and contractual liability can run concurrently erect . Where they do, P may select the action that is more transmissi advantageous, or sue in both on towers . Where D is under a tort duty to P, they may include that and to duty as part of a K string ◁ Three situations: transmissi o Iacobucci’s dissent on lines. . If parties specify a duty in L then whether or not it’s a tort BC Hydro duty, P can only sue in K claims . Tort liability will only apply if the K does not address the that land required behaviour will first o LaForest/ McLachlin (majority) be cleared . No that’s too narrow – we should allow concurrency to by a third allow the plaintiff to recover party. . 1) Where a contract stipulates that a party will live up to Checo his tort responsibilities, then the other party may sue either in bids and tort or contract. wins the K . 2) Where the contract requires a person to go further than – then he would have to in tort, the tort duty remains open but it is discovers likely that the party will sue in contract. the . 3) Where the contract allows a party to reduce or nullify clearing liability in tort. Must be in clear terms. hasn’t ◁ been done An interesting twist in Checo! The last line: a contractual limitation or has that limits tort liability (even clearly) may not apply where the tort is been done independent of the K poorly, o Therefore there’s a field that the K covers, but anything outside and that that field is fair tort game they’ll lose o A mysterious provision! On the same day the court decides money by Cognos: completin . FACTS: P is an IT specialist, who is hired to the operation g the K. in Ottawa (made to feel very wanted by Cognos). P agrees to BC Checo move from Calgary to Ottawa, and signs an employment K that wants to can terminate him without cause sue in tort . P is brought to Ottawa on the basis of negligent and K, representations about the nature of the work he will be doing. even Turns out that the project P is hired for is just a pipe dream though K (there’s no financing behind it), he is terminated and loses his job stipulates . HELD: The contract allowed him to be terminated without what the cause – this relates to the doing of the project standard  The representations made to make P leave 69 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway will be Calgary relate to something independent of the employment K  La Forest and Iacobucci see the tort to be independent of the contract! Iacobucci: the representations relate to the nature and the reality of the project not to the amount of involvement. . Galloway: this is ridiculous, and a much too narrow way to construe the K! Hercules ◁ Pre-Cooper case. During this time, McLachlin and (Laforest) REALLY Mgmt v. disagreed about the meaning of tort law, and what proximity in tort law meant Ernst and o LaForest: instrumentalist view of tort – it’s meant to achieve Young certain social ends. Therefore we need to exercise controls to prevent it leaking to areas where it doesn’t serve a social purpose SCC 1997 o McLachlin: tort is about private relationships between parties, the notion of proximity is first and foremost to negligence Is an ◁ LaForest’s decision (Maj) auditor o Adopts 2 part Anns Test liable to . Prima facie duty of care at first stage investors o But claims that in cases of negligent misrep, most of the work (sharehold will be done at the second stage ers) in a . Social/ policy reasons for limiting/ recognizing tort liability company o Acknowledges there’s some argument that the Anns test doesn’t who relied apply to negligent misrep cases, but he doesn’t accept this on its Analysis: negligentl ◁ The concept of proximity is seen to be key y prepared audits of ◁ Para 23 and first part of para 24 is consistent with but not as well the developed as the later statement in Cooper company ◁ But they key to understanding proximity is identified in para 24 that were as reliance prepared o The reliance in these circumstances is reasonable! for all o The D ought to reasonably foresee that P will rely on the sharehold representation; the plaintiff’s reliance is in the particular circumstances ers? reasonable Some o Therefore, since these two elements are met, there’s a sharehold special relationship ers are ◁ When is reliance reasonable? Para 43: 5 indicia claiming o 1) Def has direct financial interest that they o 2) Def was a professional or someone possessed of special relied on skill the o 3) Advice provided in course of business negligentl o 4) Given deliberately and not on a social occasion (old y prepared Hedley Byrne notion) document o 5) Given in response to a specific enquiry or request (fact in order to situation in Hedley Byrne) make o LaForest: Don’t need to meet all five (here only first four further are met) because it’s not a test of reasonableness, it’s just investmen 70 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway ts and that indicating where negligence is reasonable vs. where it is not if Ernst . Emphasizing not the relationship of the parties, but the and Young professionalness of the services had done ◁ How is this different from Hedley Byrne? their job o In Hedley: if you’re a professional – you have 3 choices as to properly, what you can do the . Don’t give info sharehold . Qualify the info ers would . Make unqualified statement have o Galloway: Hedley suggests that it’s easy for a person putting info withdrawn into the public to avoid tort liability just by adding a disclaimer (“this their info can only be used for limited purposes” ex. just for one client) money, . BUT it’s up to the person providing the information to preventing make the choice on what to do!! the o But there is nothing in the analysis about Ernst and Young personal undertaking or assuming responsibility for the individuals’ losses losses! they’ve  Usually when we think undertaking, we thing about suffered. someone asking “can I trust you” and you saying “yes” Therefore o LaForest: no! The burden shouldn’t be on the information given provider ! To meet Pt 1 of the Ann’s Test, just have to be in a there’s a situation where economic loss is reasonably forseeable and the duty to other party is reasonably relying sharehold . Primary basis on reasonable reliance ers . But now leaving it open for individuals to be liable for generally, general statements they release into the public, so then creating can the control mechanisms individuals  Therefore saying that there’s a limited amount of sue when people who can rely on Ernst and Young. Court must they create the limitations, via proximity experienc  Lord Reid would say different: he’d say that Ernst e personal and Young could limit their own liability with a disclaimer losses o So we move onto Pt 2 of the Anns Test . There are potentially enormous social costs – the number of tort actions will explode. So we introduce 2 control mechanisms:  1) Only owe duty of care to individuals for whom you made the statements o You know their identity or the class to which they belong  2) Only owe duty of care if the information is used for the very purpose for which it was created o For LaForest, this is the easy way to deal with the solution! But by emphasizing reasonable reliance as the key to the index of when there’s a duty of care, he may be causing problems for himself later on ◁ In this case, the audit wasn’t created for individuals to make investments although it’s reasonable for people to use it that way. It was 71 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway created so that shareholders as a group can make decisions re: the management of the company. ◁ HELD: therefore no liability in this case  Galloway: o This is a convoluted way of looking at a problem! That could’ve been dealt with easily under the Lord Reid method! o Instead adopts this: . 1) broad notion of proximity, take reasonable reliance loosely . 2) limit liability for social reasons o This might end up being a good answer but it creates TWO PROBLEMS: ◁ ISSUE 1 WITH HERCULES: if the basis of liability is the reasonable reliance of the plaintiffs, than can you ever (in a neg misrep case) have contributory negligence? o You should be able to determine that the defendant is still liable, but only so for a percentage or proportion of the losses . If we base it on the reasonable reliance of the plaintiff, though, this becomes no longer available o If the reliance was unreasonable then there would be no tort. The court in Avco tries to resolve the issue – says that contributory negligence should still be available . There can be reasonable reliance, and also responsibility for own downfall to some extent . Ex. Business owner, gets a reference letter giving a great reference to a worker, but the writer gives the reference negligently (ex. they think they’re writing about someone else) and business owner hires them, who turns out to be an embezeller  1) I was reasonable to rely on the reference writer  2) But I might be contributorily negligent for not protecting my business against embezellers o This isn’t too troubling Avco ◁ Contributory negligence is still available! Financial v. Norman NEGLIGENT PROVISION OF A SERVICE

◁ ISSUE 2 WITH HERCULES: what if the person harmed is not the person who relied (the person to who the statement is made) but the person about whom the statement is made??

Haskett Creditor wants to ◁ Hercules decision based on reliance can’t deal with this know the person’s case! Because plaintiff hasn’t relied but there should creditworthiness. still be liability nonetheless! Bank says they ◁ Court suggests that reliance is not necessary aren’t creditworthy Use the Cooper analysis instead: when they actually ◁ 1) is this case analogous to an established category of are, have to pay a case where we recognize liability? lot more to borrow, ◁ 2) if this isn’t a recognized level, the relationship here is and experience sufficiently proximate to fairly create a new category losses, due to the hold there’s liability (recognizing negligent negligence misrepresentation not based on reliance) 72 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway misstatement even o They’re saying reliance is not necessary – though they’re not that this is analogous even without reliance relying upon it o Monumental! Note the equivocation – the situation is analogous to the causes of action where liability for negligent misrepresentation has been recognized. o Court relies on Feldthusen in Cognos (who LaForest in Hercules relied on): Reliance not necessary – para 33 of Haskett o The key is a special relationship (not reliance) o Para 34 the representor has effectively assumed responsibility because of the potential harm. . Where assumed or imposed liability exists (para 39) . = ignore later precedent of the SCC and using a prior precedent ◁ 3) are there any social/ policy reasons to not recognize this new category in 2)? No – not in this case o Indeterminacy not a problem here. Knowledge and Control (para 45) o Are other legal remedies available, such that we don’t have to extend tort law into an area where it’s not necessary? . Can’t this be treated under the law of defamation? . Court: no – the law of defamation is insufficient (para 50), it’s too broad and has developed in a way that doesn’t sufficiently protect plaintiffs . Allows defences: politicians and judges have “qualified privilege” against defamation, doctrine of qualified privilege also allows employers to give references without being subject to tort liability for negligence o Para 55 recognition that it may be problematic to recognize a tort duty in commercial negotiations involving sophisticated parties. This seems to be the basis of 2008 decision in Design Services (materials p 261) . Court: this is not a situation in which the parties are in complex negotiations . This is different ◁ Galloways conclusion re: negligent provision of a service o Where a person has assumed responsibility for another person’s economic

73 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway well-being, they are responsible when they exercise that responsibility negligently. o The fact that the subject of a credit report is totally vulnerable and that “fairness is a clear legislative imperative” allow the court to hold that responsibility is assumed. o Same logic as in Cf. Childs! Implied responsibilities of those involved in a commercial or public venture. . If you’re engaged in a commercial/public activity on which other people are completely dependent, then you owe them a duty . We’re dealing with a situation in which one party has all the power and the other all the vulnerability = assumption of responsibility o The lawyer cases also back this up! . This seems to apply in the case of the lawyer and the disappointed beneficiary . The lawyer when undertaking to draft a will is assuming responsibility over the economic interests of the beneficiary . Even though it is not a negligent misrep case, the same principle should apply to the negligent provision of a service due not to reliance, but due to dependence . As in Hedley Byrne an analogy is drawn with fiduciary relationships . Plus the beneficiary is “wholly dependent” on the solicitor (para 39) ◁ = extraordinary counter strategy, against the LaForest decision in the SCC! o Negligent misrep vs. negligent provision of a service are competing now – perhaps two forms of tort law are emerging? o How are these treated in the future? How does BDC adopt it?

Wilhelm v. ◁ HELD: lawyers owe a duty of care to beneficiaries Hickson named in a will when drawing and executing a will, breach of which may render him/her liable to pay damages suffered by the beneficiaries as a result of the breach ◁ Even though the beneficiary did not rely BDC v. Government takes ◁ Government assures to take charge and offers to Hofstrand charge of a deliver the document Farms document, has o BDC takes responsibility to deliver the nothing to lose if document from the government, but don’t know the document is why it’s being delivered and why it has to be on late but if the time plaintiff has it ◁ HELD: no liability delivered late, then o 1) BDC has no knowledge or constructive the plaintiff’s knowledge that the party exists. Unless its being contracting partner told about a third party or has constructive can back out of the knowledge, can’t owe them a duty contract . Distinguished this from Haskett and Plaintiff needs the the lawyer cases (Wilhelm) contract o 2) There is no reliance. The person allowing the government to go to the courier company isn’t relying itself on the courier company 74 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway . Galloway: this is weak . And adds to the idea that these kinds of cases are not about reliance at all NEGLIGENT SUPPLY OF A SHODDY PRODUCT

◁ Where a manufacturer sells a shoddy good that doesn’t work, the consumer is out of pocket (must buy another or must get a repair). Tort law will not usually compensate leaving it to the law of contract. ◁ However where the product is dangerous (risk of personal injury/ property damage), and the consumer pays money to render it safe, Winnipeg Condo suggests that tort law may step in. o Galloway: we don’t know how broad a precedent Winnipeg Condo stands for though o This is the most general message that could come from Winnipeg Condo o Why? By producing/ marketing a dangerous product, you’ve breached a duty to your consumer. Will you be held liable if the damages are purely economic losses (different in kind than the losses you would have expected)? o Galloway: this may be a case about the construction industry and who should bear the risks in a construction industry – so is it about negligently built buildings or dangerous products? The judgment doesn’t say. ◁ Galloway: this is super problematic – an even deeper hole for us to fall into ◁ Laforest is attempting to deal with liability for economic losses by looking at torts from the instrumentalist point of view o This view should be doubted – and this is the prime example!!

Winnipeg ◁ 1) There is some question whether the damage suffered is pure Condo economic loss v. property damage (para 14-15) (Negligently installed ties caused damage to cladding) Company o Addressed via the complex structure argument builds o The argument put forward is that the damages in this case is condo so actual property damage, and not pure economic losses negligentl . Ex. cladding falls off the building because of the y that it negligently manufactured metal ties becomes . If it can be held that a latent defect of a specific part of the dangerous building, that problematic piece is a property damage issue, not pure economic loss . AKA dividing the building into its constituent harms o Laforest . No – this is one building, all part of the same thing that is one entity and has an identity  What makes the ties and cladding part of the building is that they’re interdependent – one is fully dependent on another and it forms one thing  A furnace, though, can be taken out – it’s new property. If a building burns down due to the furnace, then that’s property damage  Therefore economic losses 75 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway ◁ HELD: the individual can turn to the original builder and sue them for the economic losses incurred to negate the danger o Laforet seems to say often that there’s good reason to not extend liability to economic losses – try to box off and limit this area as much as possible o AND YET for reasons of social policy, more than willing to recognize economic losses in the Winnipeg condo case, and this does not open the door to indeterminacy

◁ RATIO - LaForest: Assuming the losses are economic, para 21 suggests that a person participating in the construction of a large and permanent structure that has the capacity to cause serious damage to other persons should be held to a reasonable standard of care ◁ Galloway: he does so for social/ policy reasons, hasn’t really thought through what the consequences are ◁ 1) The first argument seems to be based on social responsibility (undertaking to build a permanent building) that gives rise to liability to the public, rather than on any relationship with the future owners. o Buildings have a long life: duty not only to original inhabitant but to future inhabitants (there are the members of the public likely to be affected) too (para 35) . This is who bears the risk . Galloway: but I thought the duty was actually to the owners! . What if the owners of the building are not the inhabitants? The owners are not at risk of being hurt …  If the building falls apart, the owners are only suffering economic loss  Are the builders are liable for that?? . Laforest isn’t super helpful here ◁ 2) Rivtow Marine Argument (follows dissent – it’s efficient to allow people to sue original contractor) o FACTS: Crane is faulty (has a crack), manufacturer informs charter, costs money to repair o Dissent: there should be liability for repair . “It follows that the contractor should also be held liable where the damage is discovered and the owner wishes to mitigate the damages” (para 36) . Does it? o ISSUE WITH ANALOGIZING RIVTOW MARINE: there’s a difference between the owner (responsible for losses) and the inhabitants (liable to suffer the physical damage if we let it unfold . Therefore there’s a difference between allowing certain people to be hurt, and therefore owing a duty to an owner to compensate them . This doesn’t follow if these aren’t the same people . Consider: the owner is informed of the potential danger. 76 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway The owner is now responsible for preventing harms to third people (ex. those living there). If the owner does nothing, the third party people could go after (joint and severably) either the owner or the manufacturer of the building . Laforet: it follows as a matter of course that we should hold the contractor liable to the owner. If we didn’t, then the owner would have no incentive to fix the damages and prevent harm to third parties. We want that – the deterrence of disaster . BUT Galloway: if the owner can be jointly and severably liable to third party harms, then they do have greater incentive to repair, regardless of whether they get money back form the contractors . Laforet: consider a second owner (contractors build it, first owner, sell it to second owner). If second owner finds that the building will collapse and we won’t impose liability on the contractor, there will be no incentive to prevent danger occurring . BUT Galloway: there is incentive to repair! They could be liable! o Therefore there’s something weird going on . UK courts: People who buy products/ buildings that are defective, they have just lost out – they made a poor investment . If you’ve bought a dangerous product and you know it can cause harm, it’s your responsible for discarding it . Laforet: housing is different than this, because it would be terribly inefficient to require people to discard houses. We shouldn’t regard a dangerous building as a broken pen . Laforet: when people are in the largest investment of their life and it’s not a sophisticated commercial transaction, we should offer them protection from losses, through tort law ◁ ANNS TEST PART 2 o Laforet claims that there is no issue of indeterminancy, because we limit claims to those of “real and substantial danger” for the “useful life of a building” . What is a reason and substantial danger? Cladding falling off if clearly dangerous. But what about building leaks, mould, bad smells, poor air circulation …  Inhabitability is not just a lack of danger though, it involves a level of pleasant and healthy life!! . What is the “useful life of a building”?  This is actually an onus of proof issue  Liability on owner to show that at the time the building was being constructed, it was foreseeable the danger would occur o The longer the building exists, the harder it is to show that the defect is caused by design flaw, not

77 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway wear and tear  Laforet is not treating this as a time span issue (ex. 30 years) necessarily ◁ Problems with this judgment: o Laforet does equivocate between homeowners and building owners! . The reasons behind Laforet’s decision is protecting vulnerable people . Is the duty owed to a non-inhabiting investor though? o Is this a case about buildings or is it a case about dangerous products? o He creates a 2 tier system: original owner who buys it from builder may not be able to sue because there might be a limited liability clause in their contract . But, if this individual sells to someone else, then that second party may be able to sue! o This actually discourages people form making fast repairs! . Something may not be a real and substantial danger yet – but the contractors won’t be liable under it becomes a real and substantial danger . Therefore instead of fixing mould (at own cost), may wait until the mould takes over, when it becomes dangerous, to charge the contractor ◁ ◁ Galloway: pure economic losses in Canada have been shaped primarily by LaForet, but his view of tort liability and the purpose of tort is very different than McLachlin (who shaped the Cooper analysis) o We adopt the McLachlin template generally o So there seems to be a fight to get Laforet model into the law ◁ There in the negligent misrepresentation case, liability for repairs of dangerous problems, LaForet’s voice is very strong

Hasegawa ◁ HELD: v. Pepsi o There was not enough evidence here that the product was dangerous Pepsi o If the product was dangerous and not just impure (ex. if there bottles was poison in it) then Hasegawa might have an action against Pepsi water for o But in this case, action not available Aqua ◁ RATIO: for a manufacturer to be responsible for a product, it P buys must be dangerous, not just shoddy water ◁ Rejects Junior Books as an authority in BC law from Aqua o Galloway: this it unfortunate and very sad because the analysis in for sale in junior books is very much like Mclachlin’s take on tort in Cooper, and Japan, but worth looking at because of o RATIO: for a manufacturer to be responsible, there doesn’t have impurity it to be a contract, a close relationship will suffice is 78 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway unsellable o FACTS: JB enters into K with contractor to building factor (Pepsi has . Contractor gets into touch with Veitchi, the floor allowed specialist, because JB suggests they do so mould in  Therefore flooring is subcontracted to Veitchi the water,  Veitchi and JB are in contact during the building by and the contractor Japanese o There is no K between JB and Veitchi, but there is a health close relationship developing between commercial authority actors refuse to o Not negotiating rights/ obligations, but discussing allow it) and trying to resolve problems o Not done so in contractual terms though  Flooring turned out to be substandard – not dangerous but didn’t meet JB’s needs (defective) o No contract, but had been in a close relationship  When floor needs repairing, contractor is out of business o Argues that relationship between JB and Veitchi was not contractual, it was close enough to give rise to a duty of care  Accepted by House of Lords! And J. Wilson in Kamloops. ◁ Rivtow Martine o FACTS: M – D – Charter (Rivtow Marine) o Crane hired for the logging industry o Rivtow Marine in K with distributor, and they are contacting the manufacturer all the time for advice about use of the crane . Therefore there’s a very close non contractual business relationship between the M and Rivtow Marine . Therefor through conversations get to know a lot about the seasonal aspect of logging, of the nature of Rivtow Marine’s business o At the low season, manufacturer finds out that another one of their cranes has cracked causing great danger . Low season is a good time to warn . However, M is worried about liability so doesn’t warn . By the time M warns, it’s high season o Rivtow marine suffers great losses taking the crane out of service in the high season o Rivtow argues that they should recover the economic losses that they incurred due to losses in high season versus low season o HELD: YES – manufacturer is held liable for the losses . Manufacturers in a very close relationship with the user of the product – you can be held liable for the economic losses . This relationship is independent of K and it’s close enough that it can be acted on!  Therefore business people can take on obligations 79 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway in tort just by establishing a tort obligation!  = duty to other individuals in business where a close relationship has been undertaken! ◁ In Hasegawa though, the BCCA is saying that business is a hardline between having contractual rights or not – a relationship between business people will not lead to tort liability. Have to go back on relying on K o Galloway: it’s sad that we can’t rely on talking about our needs and products and communication between parties any more. Now, we do have to rely on negotiation and contracts.

RELATIONAL ECONOMIC LOSS

. The economic losses that third parties suffer when a second party has been injured (physically or property damage by defendant) but economic consequences borne by third party o UK: absolutely not!! o Canada: maybe

CNR v. ◁ ISSUE: can railway sue barge? The economic losses are suffered by a Norsk different party than the property losses are suffered by. If we recognize the economic losses, where will we stop in the future? We’re hoping to see a SCC 1992 judgment that will clear up the extend of liability for economic losses – instead we get 3+3+1 and no majority. Bridge, ◁ Note: if bridge and railway were owned by the same company, then barge, and property harm and the economic loss tied to the property harm would be no railway issue – tort liability would be found company. ◁ Laforest (+2): NO! Proximity is a hopeless concept with no K between meaning. Pragmatically, we need to look at social policy reasons bridge and o We need a clear and certain rule! We can’t allow property railway owners/ those who use another’s property to go about business not company. knowing whether they should insure themselves Barge o Certainty would be provided by a dominant exclusionary rule steerer is (not recognizing parasitic/ relationship economic losses) with precise drunk, hits exceptions the rd o We already have precise islands where economic loss to 3 bridge, parties have been recognized in the past – they’re technical, well bridge is defined: damaged. . Ex. 1) where P has a possessory interest, Railway  Issue: who is a stakeholder? loses a lot . 2) Where there’s a joint venture (individuals coming of money together and sharing the same objectives, out to achieve the because it same ends but rely on property owned by 1 party), can’t go  over the This is complicated, but it has gained traction in the bridge, law but it  If damage done to property of one, done to both doesn’t parties 80 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway own the . General averaging cases (Galloway – this is really arcane, bridge from maritime law): company  Ship owners and cargo owners own different property, but enter into commercial arrangements in which if there’s damage done to the boat, the cost of getting the boat (and cargo) would be split proportionally between boat owner and cargo owners  = proportionality of sharing losses, to get the result of safety  If one boat owners crashed into another causing damage, the damaging boat owner owes the damaged boat owner the money to be split among ship owner and cargo owners, even if no cargo is harmed . Transferred loss cases  Prior to ownership passing, non-owners are responsible for damage to the property, ex. construction steel . And that’s it! Certainty is our prime interest. ◁ McLachlin (+2): Yes. Outlines the prototype for Cooper. First let’s look at the relationship between the parties and deal with it using proximity. A flexible solution is needed (to avoid arbitrary delineations) o Let’s look into the notion of a joint venture, and take a realistic look at what a property interest means . There’s little difference between a user with property interest and an investor in the bridge . So let’s actually look at how merged the economic interests are . Liability for econ. Loss has been recognized in a joint venture situation. It is fair to extend that class of cases to cover this one:  CN supplied materials, inspection, consulting services and was recognized in the periodic negotiations surrounding the closure of the bridge  Bridge integral to railway system  For practical purposes, P’s position is indistinguishable from the P owner’s! . The pragmatic arguments: insurance cots, loss spreading and K allocation of risks – rests on questionable assumptions ◁ Stevens: yes, there is liability because the barge should have known about the train ◁ Laforest – we need to meet an amicable arrangement!! And wins the day through Bow Valley. Then loses the war through Cooper. ◁ Caltex oil case (Australia) o Similar to Norsk o Boat hits the pipeline, damaging it (property damage to the pipeline), oil going into the water o The company that owned the pipeline was not the company that 81 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway used it to transport oil o Can the oil company sue the pipeline? Bow Bow Valley and ◁ Allows LaForest and McLachlin the opportunity to Valley Husky Oil get form a compromise together and set up o It seems that McLachlin has turned her a 3rd company back on the idea of a flexible “just” solution – offshore (BV looks like a political compromise Bermuda) in order . She may have been persuaded that to get a govt grant her hope for a role for tort law in (a tax dodge). BVB sophisticated business relations is hires J to build an problematic oil rig. On oil rig, . There may have been a tradeoff – there’s a heat keeping the proximity approach in transferer, with a exchange for finding no liability lot of ◁ Galloway: the situation became worse. At the end manufacturer’s though, it seems that LaForest has won the day defects (J in K with ◁ ISSUE: does manufacturer of heat transferer owe heat transfer a duty to J to own a duty of fire? YES. Do they owe a builder). Rig goes duty to the rig (BVB) to warn it may go on fire? YES. Do on fire – property they have a duty to warn those that only have an damage. In K, economic interest in the rig (BV and HO) that it may go agreement that on fire? Majority: no even if BVB goes ◁ McLachlin out of commission, o Because it is foreseeable that people will BV and HO will still suffer financially as a result of any fire, you owe pay the expenses them a duty to warn about that danger . Proximity (looking at the relationship) is out the door – collapsing foreseeability and proximity into Anns test Part 1 (met) o However, this would lead to an indeterminate solution and floodgates issue under Anns test Part 2 o Accepts LaForest’s general rule of exclusion for economic losses, to stop indeterminate liability at Anns Part 2 o Why did we get here? When you are dealing with multi-billion dollar transactions and sophisticated parties setting up large corporate shells, you don’t need tort law as a back up for K law . The parties want certainty . Parties want K values to operate, and tort values to not interfere . Given that there’s no vulnerable parties here and only people who should know what they’re doing, we don’t need

82 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway tort law here o If we’re building a building and one party is homeowners, we may need tort law to protect homeowners . BUT once you’ve tied your economic interests to someone else’s property, you’re not longer a vulnerable person that tort wants to protect o True McLachlin (doesn’t come out here): we should recognize that there can be a source of obligation not tied to vulnerability but instead tied to honourable interactions and dealings and the relationships we form – that’s a very different decision than here ◁ NEW CATEGORIES! ◁ Design services case o FACTS: a building is about to be built by government . At tendering stage, party puts in a bid for themselves, even though it would involves lots of subcontractors . Awards contract to a party not entitled to be selected . Suit by all the subcontractors that were economically dependent on the bid being accepted  Claiming the government has not just wronged the bidder, has harmed the subcontracting individuals o HELD: no . Instead of being a dependent company, could have become a joint venture with a bidder, in a contractual relationship . Court says that in declining to create K rights – if you’re interested, you should have been formal about it o Court seems to be saying that we don’t want to make tort liability available to those who are in sophisticated commercial transactions – they can protect themselves through K o If a party in an economic relationship has the opportunity to become a contractual party in the cases, then they should do so because the consequences of not doing so would be unknown

WHEN SHOULD THE GOVERNMENT BE SUBJECT TO TORT LAW?  1) We have a regime of controlling government (the public law regime) which requires public officials to stay within the bounds of their legal authority o Where govt fails to respect an individual’s rights, dignity, humanity etc., can seek an order from the courts based upon a public wrong . Need not rely on the same notion of fault, if they move out of their public law power (have done something they have no legal authority to do) o = TORT LAW NOT NECESSARY – PUBLIC LAW MODEL OF WRONGDOING  2) However, government may provide goods and services like private actors, which may expose people/ their property to danger . Seems acceptable to ask whether there is a relationship of proximity in these 83 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway situations o = TORT LAW NECESSARY – TORT MODEL OF WRONGDOING

 In Cooper, even though McLachlin opens the notion of duty of care as being based on proximity, the court recognized this tension o Even at the first stage of the Anns test there is a tension between private and public duties . If the issue is a mix of 1) and 2), which model of wrongdoing should be used?!

84 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway

THE TORT OF GOVERNMENT LIABILITY Just ◁ Arguments: o Arg Driver: breach of duty of care giving rise to this injury, govt Governme should be liable nt has o Govt: we own no liability here because the decision is a political taken one about how we should inspect the cliffs that abut the road charge of . We act in a political capacity when we send people to inspecting inspect cliffs – as long as they stay within the boundaries of their highway legal powers, their decisions must be unassailable 99 and ◁ Do we apply private or public law model? trying to o Cory borrows concept from public law: we can distinguish negate the between good faith decisions and bad faith decisions by government danger of actors rock falls ◁ HELD: case sent back to determine standard of care on the ◁ Not focusing on proximity re: the government issue. Instead: road. Rock o 1) Is the standard of care we expect from government the same fall as it would be for private actors occurs, hit . No – the standard is different! a car, kill 2) Whether there are policy reasons not to recognize a duty one o person (Anns 2) and . Government status can be a reason to immunize a party injures the from tort liability other ◁ Therefore less of a focus on duty, and greater on standard and policy reasons ◁ Cites Barrat: roads inspected for potholes once every two weeks – day after checking, someone hits a pothole and has an accident. Court draws distinction between negligent inspection (grounds for liability) and a negligent regime of inspection (immune from liability – political decision). Not for the court to tell legislature how much the roads should be inspected o Cory: this is problematic! Surely a decision to inspect every 5 years would be subject to liability … o Tie this in with what he says later about bad faith – because a decision to inspect every 5 years would be a bad faith decision! . Bad faith is not about dishonesty, malice (what we usually think of) – it’s the idea that govt have acted for reasons that are way beyond the reasons it’s entitled to act for . If you set up a municipality and say the municipality has the right to inspect roads (taking it on and preventing private actors from coming in), you can’t say that there’s a duty only to inspect certain roads, or to inspect every 5 years – because then you’re not really taking on the power! . Kind of like the positive duty argument where you have no duty to rescue, but if you do decide to rescue, you have to follow through because you’ve deprived the person of help from other rescuers 85 Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway ◁ Cory: governments should be able to make policy decisions free from judicial interference o 1) BUT must be good faith decisions (can’t exercise policy or fail to exercise policy – Kamloops), o 3) AND not every government decision is a policy decision – some are operational – these are held to liability but lower standard . Challenge is distinguishing between policy and operational decisions . From Heyman: no duty of care in relation to decisions which involve or are dictacted by financial, economic, social or political factors or constraints (P. 273 at the bottom)  Trying to articulate where we want govt to be held responsible to the electorate vs. the courts? . But it may be otherwise where the crt is assessing action/inaction that is the product of administrative directive o Lighthouse example: economic decision that money formerly spent on lighthouse inspection should now be diverted elsewhere is political and unassailable . This would be a bona fide exercise of discretion . If the decision was not bona fide (abusing discretion, not based on appropriate reasons), the implication is that it can be subject to tort scrutiny Galloway: ◁ Two issues: o 1) Notion of bona fide is hard to define . How to you know when and administration is stepping out of its bounds? o 2) The introduction of a new policy may require some public announcement because of reliance issues . Galloway: giving far too much power to govt decision making . We may see governments making valid political decisions . But if govt hasn’t treated members of society well enough by informing them of political decisions, isn’t there a tort?  Ex. what if you’re in a boat when the government decides to cut the lighthouse, and you were relying on it? ◁ However, in Cooper and later in Hill, using proximity to address these tensions Kamloops ◁ Bad faith policy

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