Established Modern Negligence Law

Class 1

Donoghue and Stevenson

 established modern negligence law.

 Trespass on the case, plaintiff had to prove that the loss suffered was the direct result of some sort of careless conduct. You couldn’t bring an action unless you had a writ

 Stevenson, who is the producer of the drink, is responsible, should compensate her for the harm caused. Donoghue tries to sue Stevenson who owed a duty of reasonable care that the ginger beer he produced and marketed did not contain substances that could cause consumers harm.

 There are contractual duties to the people who buy the products directly from them (cafe owner) and maybe indirectly (the friend), but no general duty of care.

 Lord Akin argues that the fact there was not a specific, pre-existing contractual relationship between D and S should not prevent D from recovering. Instead, he argues that Stephenson owes Donahue a duty of care as her “neighbour.”

Neighbour Principle

 Akin: rule to “love your neighbour” becomes “must not injure your neighbour” in law and “who is the neighbour.” Must not commit actions that will likely injure your neighbour.

 Neighbours are persons so closely and directly affected by my act that I will reasonably have them in contemplation when I do the actions that could lead to the loss, the person I should foresee or reasonably be thinking of when doing the thing that leads to the loss.

 If you produce something that people don’t have the ability to investigate and it causes them some injury, you are responsible.

 Was an attempt to consolidate the existing law, saying that within each of these writs that he looks at, they look different on the surface, but find a common principle to all of them, which is this notion of “neighbourhood.” He says writs are just examples, containers, for this

Two major dissents

 Buckmaster: floodgates argument, massive number of possible negligence cases. “When wouldn’t you find a duty of care?”

 Tomlin: where do you end the liability for the axle producer? Are they responsible to the train company, the injured passengers, the relatives of the passengers? What is the scope of liability? Asking where the liability would end, where on the causal chain would you stop? 2

 Tomlin is talking about problems of remoteness, proximity, while Buckmaster is talking about the scope of liability/negligence.

Elements of negligence that must be established:

1. Duty of care 2. Standard of care required 3. Causation (did the loss come due to breach of standard of care?) 4. Remoteness/proximity? 5. Actual loss? 6. Defences? (voluntary assumption of risk)

Class 2

Donoghue

 Distils all the writs down to one principle: neighbour principle.

 Akin makes it so that a pre-existing relationship is not necessary, don’t have to know each other before the act in question in order for their to be liability. Plaintiff must merely be foreseeable on the part of the defendant.

 Stages of negligence are interrelated, when one expands or contracts, the others respond in kind. For instance, if a court decides that a case is going to have a narrow reading of duty of care, one of the other items is going to be expanded, otherwise overall liability is narrowed

Duty of Care

 asks whether a legal relationship could exist between the parties.

 Is the plaintiff foreseeable? Some cases ask if plaintiff’s harm foreseeable, but it’s the plaintiff

 Look at duty of care as the basis of liability. It provides basis for the finding of liability, that there’s a legal connection between the two people, if you don’t have that, nothing else follows.

 also helps to determine the nature and scope of liability, or the limit.

 Third thing duty of care does: allocated risk. My level of risk as manufacturer depends upon how many people are caught in sphere if duty of care, my exposure. When court changes duty of care, they are changing the allocation of risk. Changes a defendant’s risk profile; before, they would not be liable, but now that duty of care has been extended, they have this risk allocated to them.

Duty to Rescue

 doesn’t exist in Canada. 3

 principle in common law that the role of the law is to STOP you from being bad and NOT to make you good. When you make someone do something good, they’re not actually being good, they’re just doing what they’re supposed to do.

Proximity (who is the neighbour?)

 person has to be reasonably foreseeable and should be closely and directly affected by the act.

 Proximity is a limiting principle, the person has to be reasonably within your contemplation when you’re doing the act, BUT they must be closely and directly affected by the act.

 Proximity: who am I liable to, remoteness: what am I liable for?

 Akin: need for neighbourhood principle with limiting principle of proximity.

 Sometimes, the courts collapse the two, saying that things that are foreseeable are reasonably proximate.

Hedley/Byrne

 question whether a duty of care was owed despite no contractual obligation, Byrne gave bad financial advice and it got to the plaintiff. Court says yes, because Byrne should’ve anticipated that the information would be communicated to the plaintiff.

Dorset

 young offenders allowed to roam free on island, two of the boys steal a yacht and run it into something. The yacht club sue the govn’t saying they should’ve foreseen this.

 Gov says don’t owe duty of care to yacht club. Court disagreed, said it’s entirely foreseeable. Court applied Donoghue faithfully, as this was a novel duty of care. Public authorities responsibility for people in their charge.

 builder submitted plans to build buildings. All plans are to be submitted to local council, who sign off on them before building can begin. 8 yrs later, building starts to fall down, the tenants sue the council in negligence, say they hadn’t done investigation properly

 Council argues duty of care: no duty of care, proximity. Investigation was performed for the builder, not for the tenants, statute requires them to do it for the builder, and they’re only doing it because of the statute, not because they owe a duty of care. Didn’t owe duty to investigate to plaintiffs, only doing it because of statute, looking at builder. 4

 Court rejects this: whole point of the statute is to protect the tenants. Can’t say you’re only duty is to the statute and not the tenants, when the statute’s purpose is to protect the tenants. There is thus a duty of care for the tenants.

Anns Test for Duty of Care

1. Proximity based on foreseeability?

2. Policy consideration to negate duty?

 Anns is talking about novel situations, where there is no pre-existing categories, lack of precedent.

 Criticism: Ann’s test did the opposite of what Akin wanted to do, that foreseeability and proximity are different. Anns test collapses the two. Akins says they’re doing different things and shouldn’t be conflated, as foreseeability is establishing liability while proximity is limiting it. When you fold the two into each other, proximity doesn’t survive and gets lost.

 To rectify this, many courts have changed Anns into three steps, separating foreseeability and proximity into two separate steps.

 Without the proximity restraint, courts will almost always find foreseeability, as in hindsight, almost anything is foreseeable. It’s overly plaintiff friendly.

 Other problem is the burden of proof for the second step would be shifted to the defendant. Plaintiff stays silent. It’s always more onerous to prove something than not prove something, so again, this makes it plaintiff friendly.

 courts have since been clear that you need to separate out proximity and make it 3 steps

Class 3

Caparo v Dickman

 This case marks a retreat from Anns in the UK and establishes a different test for establishing a duty of care. 1. Reasonably Foreseeable. 2. Proximate 3. Fair, just, and reasonable.

 This new test breaks apart foreseeability and proximity into two separate steps

 Step 3 shows an abandonment of Anns’ 3rd step of putting the onus on the defendant for showing why the court shouldn’t find a duty of care. This flips the emphasis and makes it more defendant friendly – unless it would be fair, just or reasonable to impose this duty on the defendant, you shouldn’t do it.

 only engaging in Caparo/Anns tests when you’re dealing with a novel case 5

 In practice, courts in the wake of Caparo haven’t been overly defendant friendly, they’ve interpreted it as “think of the policy results if you find a duty of care,” not favouring the defendant necessarily.

Kamloops

 confirms the Anns test. Is it foreseeably proximate and are their considerations that negate the scope of the duty or the people it applies to or the damages?

 determine the scope of the duty = the class of persons who can be in it. Damages = The types of damages for people who are within that duty, what kind of damages they can recover.

Cooper

 Show that risk of injury to plaintiff was reasonably foreseeable, that the plaintiff was sufficiently proximate, and then you need to consider any policy concerns that way against or in favour of finding a duty.

 In many ways the policy concerns in step 3 look more like Caparo than Kamloops.

 Courts have taken Cooper as just a clarification of Kamloops.

 Reasonably foreseeable: subjective or objective? This is a reasonable person in a particular area of expertise. It’s not the person on the street. It’s always contextual.

 Proximity in duty of care: close and direct relationship , it’s within the range of people you might think of as foreseeable. Courts have said that it’s almost about common sense and common sense notions of causation. Is the fact that I can foresee them adhere to common sense notions and the common sense limitations of what I can foresee?

 Limits of proximity, they’re so causally removed from me, so that even I can technically foresee them, it’s so causally unusual that I can’t be expected to take it into consideration.

 just because somebody is not proximate doesn’t mean they’re not reasonably foreseeable (Haley).

 Reasonably foreseeable = the act to the harm, while proximate = the plaintiff to the defendant

Questions to ask in policy/third stage (Cooper)

 “is there already a remedy?” (is there a statute that already covers this, could it be done through contract law? Don’t want negligence creating parallel actions).

 Would the recognized duty of care create a spectre of unlimited liability owed to an unlimited class? Would it be possible to impose restrictions on this duty if we recognized it?

 Finally, broad policy considerations, which is a catch-all for all other policy concerns. 6

 Operational decisions are juxtaposed to policy decisions. Rule of law is that courts don’t interfere in the policy decisions of government agencies. When these decisions become operational decisions, then courts can speak about it.

Just v BC (Policy vs. Operational decisions)

 Sue BC for lack of highway maintenance. BC says the timing of the implementation of the inspection is entirely a matter of policy, can’t bring action.

 Court disagreed, said distinction between policy, which are govn’t decisions, and operational, which are actions undertaken to implement policy. The latter can be found negligence, though the former can’t.

 Clearly foreseeable, clearly proximate, But BC is trying to negate on third step of Cooper, that it’s policy, but court says it’s operational and you failed.

Class 4

 Court talks about the unusual height that he climbed, the cleets, the fact that he accidently stepped on a rotten branch, the sequence of events is so fortuitous that it wasn’t foreseeable by a reasonable man. They have a duty care about the wires and making the tree unclimbable. But the sequence of events that allowed the kid to get past those precautions were so fortuitous that it could not reasonably be foreseeable.

 Duty of care is an allocation of risk. They could’ve struck this out on policy grounds, as putting an electric company under such constraints to make it SO impossible and the duty of care so extensive would make it impossible for them to function.

 Courts generally accept that children are very resourceful in terms of ability to injure themselves. Courts say yes you took precautions, but children are resourceful. The duty of care/standard of care is very high, have to make it impossible to get in.

Haley v London

 mere fact that something is improbable doesn’t mean it’s unforeseeable. The question is would a reasonable person have foreseen them as a plaintiff.

 Could argue that if you think about children, more things are reasonably foreseeable.

Edwards v Law Society of Canada

 case suggests that when you go through Anns test, it’s wrong to simply relegate policy to the third question. Policy matters even in the first part of the test, foreseeability is really a policy 7

question. “someone a reasonable person in your position should’ve seen” has a normative dimension and is thus in many ways a dressed up policy question.

 This suggests that these aren’t real, factual questions about what a reasonable person would’ve foreseen, but normative questions about what the court expects that a person would foresee.

 Power line is in a fast growing tree, power company has to trim it regularly. But how regularly?

 Opposite of Moule, as here court determines that it is reasonably foreseeable. Weren’t trimming it enough and it was reasonably foreseeable that people would climb it.

Nova Mink v Trans-Canada Airlines

 low flying aircraft flew over a mink farm, mink do things when they’re stressed: eat their young. Farmer sued the Airlines claiming negligence.

 Court rejects this, says no duty of care, not foreseeable.

 Academics take this as meaning tort liability not merely be imposed to compensate. Mere fact of a loss shouldn’t change the way we look at foreseeability. It’s not about compensation for losses, it’s also about responsibility for the harm.

 Responsibility/foresight is the driving element here, not merely the need for compensation.

Misfeasance (positive acts) vs. Nonfeasance (not acting)

 Courts are hesitant about nonfeasance.

 Liability rests with misfeasance and not nonfeasance, a ccording to common law, barring any pre-existing duty of care or relationship where there’s an obligation to act.

 when you require someone to act in a particular way, it offends against personal autonomy, you’re telling someone to do something rather than not to do something, which is a lesser infringement on personal autonomy

 nonfeasance interferes with capitalist notions of choice and minimal interference with individual choice, put as few impositions on people so they can go about their lives

 positive obligations are necessarily more intrusive than negative obligations. If i say “you must rescue” you can do nothing but x. Whereas if I say “you cannot rescue” that just means you can’t do x, but you can do anything else.

Class 5

Duty to Rescue (despite discussion above) 8

Maclaren/Matthews/Horsley (voluntary assumption of responsibility)

 must establish that Maclaren, who was operating the boat, has a duty of care.

 In determining this, first question is to see whether there’s a statute here that pertains or governs the relationship between the parties. Here, there’s a shipping statute that applies, statutory duty of care that says captain has a duty to rescue.

 voluntary assumption of responsibility. moment Maclaren starts to reverse boat to rescue Matthews initially, he has assumed responsibility, which gives rise to a duty of care.

 Once you embark upon a rescue, you effectively give rise to a duty of care that may not have been present before. Duty of care is thus made out.

 Maclaren fails the standard of care because he didn’t follow proper rescue procedure for.

 couldn’t show that his breach caused the loss, that his negligence caused the harm, so failed causation.

Maclaren (duty to rescuers)

 Judge says it’s about whether his crappy attempt to rescue Matthews is what caused Horseley to attempt the ill-fated rescue. Did Maclaren’s botched rescue put Horsley in a situation where he felt compelled to attempt a rescue? (Causation)

 Denning does say that if you create a situation where other people feel obliged to attempt a rescue, you are responsible for the rescuers, liable if they are injured.

 in creating a situation of peril by his negligence, if it can be shown that he induced Maclaren to act the way that he did, it can lead to negligence.

 Professional competencies may make people better placed to rescue people – off-duty EMTs for example. However, courts hold them only to the same standard as anyone because they’re off- duty, same as anyone else. Unless start to rescue somebody, they do not have a duty to rescue.

Stevenson

 off-duty ambulance worker found not liable, despite standing by watching people deliver very bad careleading to person dying. He does not have duty of care, he’s the same as anyone else, only has duty of care upon voluntary assumption of risk, if he starts rescuing.

 Difficulty here is our strong intuitive moral sense that rescuing is a good thing, but we feel very uncomfortable about turning that into a legal responsibility.

 law can’t fix every problem and make everyone do the right thing because when it starts to try to do that, there are significant costs to individuals. 9

Jordan House

 Other affirmative action: duty to control actions of others. Liability for people who you know to be intoxicated, particularly where you may have been part of the reason they are drunk.

 as a general principle, you are not liable.

 Where there is a pre-existing relationship, pre-existing statutory duty, or where the intoxication has been allowed to take place and you have induced the situation and you can foresee a harm may arise, you may be liable and have a duty of care.

Crocker

 for waivers to be effective, they must provide the notice intended, person who signs it has to understand what it’s saying, you can’t just shove the terms under their nose, you have know that they understood it

 Where the provision of alcohol is part of a profit-making activity, they are more likely to find a duty of care, because they are seeking to benefit. They were setting up situation for their own benefit, can’t say “not my fault,” can’t get all benefit without any of the risk.

 Courts are more likely to find liability in public profit-making setting than a social one, where there was no attempt to profit or exploit.

 At some point in the series of facts, there is a voluntary assumption of responsibility, the point they become aware that they are intoxicated but allow them to continue in the event anyway, to the court, amounts to a voluntary assumption of responsibility, and thus find them liable.

 It’s creation of the situation and voluntary assumption of risk piggy-backing on one another in this case.

Prior fault (Crocker – probable argument of the defendant)

 if you’re the author of your own harm or to some extent have created a situation where you end up injured, there’s prior fault. This comes up often in intoxication.

 Court says unless you can show that you were so intoxicated that it was literally involuntary you’re liable, as it’s your fault you were drunk and have to bear consequences of what happens.

Class 6

Intoxication Cont’d (Crocker)

 not the same duty of care for getting someone intoxicated in someone’s house, alcohol provided in a social context. Idea is that commercial hosts are better able to monitor alcohol 10

 Profit motive: if you’re doing something for profit, you are more likely to be found liable. Commercial context is pursuing for their own benefit a nd we’re not comfortable with idea of people pursuing something for their own benefit that causes others harm.

 Chilling effect: courts don’t want to discourage people from holding social functions

Jane Doe/Toronto Metro Police (Duty to Warn)

 police wanted to avoid hysteria, and wanted to coax the offender into reoffending in order to catch him. Jane Doe’s “bait argument”

 The cops said this was a policy Courts said no, this is an operational issue. The way you conduct an investigation is operational, you didn’t have a general policy that we never warn people about the prospect of rape to catch the criminal

 Courts went through Anns test, novel case, and said the risk and motive were foreseeable

 Court rules that the more general the plaintiff, the risk, the less likely there will be a duty to warn. The duty to warn will depend on the case, a case-by-case basis. Here, the at risk population was very specific

Duty to unborn Children

 divided into pre-conception wrongs, wrongful pregnancy, pre-natal injuries, and wrongful life.

 General duties of care: pre-conception wrongs are things that can affect your reproduction potential. Initial harm is caused to the parent before the pregnancy. is there any duty of care or link that exists to the child, even though he/she had not been conceived when the injury occurred. The harm to the parent, transfers to the conception, and ultimately affects the child.

Paxton v. Ramji (2008)

 Question is whether the doctor owed a duty of care to the unborn child. Court says no.

 To impose such a duty would create an irreconcilable conflict between the mother and her unborn child, undermining her autonomy. As doctor would have to advise a woman with any potential child in the background. That is seen as real infringement on woman’s autonomy.

 Also child is not yet a legal entity, the child literally does not yet exist

 There’s no material risk to the mother with giving this drug, the entire risk is to the non-existent child. He doesn’t owe a duty of care to this child, who is not a legal entity. Only owes duty to mother, who is at no risk herself from this drug, so no duty to warn. 11

 if duty was owed to child, it characterizes woman as always being at risk of being pregnant, lingering cloud over women, you could always get pregnant, affects women’s autonomy as it pre-supposes they have this duty to unborn children, these constant duties/restrictions

Winnipeg Child and Family Services:

 McLachlin says before birth the mother and unborn child are one in that life of fetus is intimately connected with life of woman, only after birth does it have separate personality.

 Law considers them as one. Where mother does something that injures the child, child can’t sue mother, as that is like a part of the women suing the rest of her. Doesn’t make sense.

 duty of care can never be owed to future children of female patients. And women do not owe duty of care to future children. While children are in utero there is no duty of care owed.

Wrongful pregnancy

 botched sterilization/abortion and the child ends up born, either healthy or with defects.

 Rule: if the child is born perfectly healthy, the child is deemed a blessing and the parents can’t recover. Child is deemed unequivocal blessing, regardless of the financial burden.

 This is traditional position, but courts are retreating slowly from it. (Joshi v Wooley and Suite v Cooke, both these cases suggest this traditional position is open to question and where the decision not to have children was predominantly driven by economic factors, then there might be an argument that they’ve suffered an economic harm and should be able to sue )

 typically more willing to award damages when child is disabled due to the greater expenses

Krangle (wrongful life)

 doctor failed to inform women that she had increased risk of giving birth to downes syndrome child. She insists that she’d’ve aborted. (duty to inform)

 Court said entitled to non-pecuniary damages for pain and suffering of raising a disabled child. Awarded not just the additional costs for raising disabled child, but also recognized an element of suffering in having to raise a disabled child

 polar opposite of “every child is a blessing” traditional rule.

 Costs are usually assessed up to age 18

Class 7

Negligent Misrepresentation 12

 A gets advice from B, A relies on advice from B, B must have reasonably foreseen A relying on the advice

 Usually doesn’t give rise to tort law: It gives rise to indeterminacy, freedom of speech, economic/psychological/non-physical loss have traditionally not been recognized

 Indeterminacy: indeterminate classes of persons, indeterminate time, and indeterminate amount. Essence of it is that if we allow people to claim, or admit the possibility of liability could give rise to a flood of claimants and no way of limiting the liability. Cardoza v Ultramarine

Hercules Asset Management

 judge talks about policy considerations of Anns. Usually floodgates or indeterminacy

 Problem with floodgates argument: there’s no reason why the consequences have to follow, it’s merely presumed. Just because I make an exception on this set of facts doesn’t mean I have to make exceptions for every other sets of facts.

 If you allow this tort to develop, people will keep coming trying to expand its ambit, you will not be able to resist the pressure on the court to expand, so Cardoza took the view better not to even open the box. Once you admit to possibility, it spirals out of control

Hedley Byrne

 why is there a waiver if you didn’t foresee the possibility of a tort of negligent misrepresentation? Argument is that these sorts of companies put waivers on everything, institutional practice.

 Courts were wary of compensating for pure economic loss because they were wary of interfering with free market. Perfectly good non-legal methods to indemnify yourself against loss, and risk management is a big part of business. There’s also ways of insuring yourself. Courts also are wary that where you interefere in the markets, your distort them.

 Hedley argues there’s no difference between physical and economic loss.

 Defendant argues the advice given by the bank wasn’t secret and it was open to Hedley to inspect the advice. Could have checked it. Not like opaque bottle in Donoghue. Hedley has time and doesn’t have to only rely on it or take it on face value, he could go and check the particular facts in that advice.

 The court doesn’t accept this argument.

Hedley/Byrne 3-stage Test for Duty of Care in Negligent Misrepresentation cont’d

 The defendant must possess a special skill, some skill in the thing they’re giving advice about. 13

 Then must be shown that the plaintiff relied on that advice/exercise of that skill

 Then show that the defendant knew, when giving the advice, that there was a chance that the person would take the advice seriously and rely on it. That there would be reliance

 Duty of care is largely a standing issue, whether I have standing to bring my losses to the court?

 These are all going to be objective tests, but imbued with that person’s circumstances. Would someone in Heller’s position reasonably expect that someone would rely on his statements?

 Court was more sympathetic about the waiver in this case because Heller had no expectation or anticipation of being held liable in this case. Would be unjust to say “you’re liable” when there’s a waiver

 The waiver saved them because court recognized they were being made an example of for sake of developing a tort.

Hercules

 Rolls the Hedley Byrne test into the first stage of the Annes test. It also makes the policy stage more explicit for negligent misrep

 Court fleshes out the test from Hedley. Framing question of if there is a prima facie duty. Makes this test, none of which are determinative, just a checklist that points to duty of care as more things are checked off 1) Foresee Reliance? 2) Reliance Reasonable? Checklist: direct/indirect financial interest? Special skill? Course of business? Deliberate? Response to specific inquiry?

 After establishing a prima facie duty of care through this rendition of the first stage of Anns, they go to policy considerations to see if there are policy considerations that negative the duty.

 The company is required by statutory duty to publish the accounts; the reports were prepared for that statutory purpose but Hercules used them for a purpose for which they were not intended. find people liable where they are relying on reports for the purpose for which they were intended. This policy concern is meant to limit liability for companies like this.

BC Checo International

 what happens when misrepresentation goes to a contractual term? Concurrent liability? Can you sue in both tort and contract on basis of same misrepresentation?

 Court says that unless the contract explicitly excludes tort liability, you can sue in both. However, the court does not allow double recovery, you can’t have parallel cases in tort and contract and recover damages in both. 14

Queen v. Cognos

 clear application of Hedley, court goes through five requirements: must be a special relationship between the parties (can be employer/employee, expanding this beyond financial advice), misrep must be untrue/inaccurate, must be reliance, detriment. (checklist).

Class 8

Hercules/Queen

 LaForest says that there isn’t a freestanding negligent misrep tort. Just apply certain criteria in administering the Annes/Cooper test

 Hercules puts Lord Reid’s test in the middle of the Annes Test, right after the first stage of determining reasonably foreseeable/proximate plaintiff.

 Queen case applies a 5-stage test. They are identical to Reid 3-stage test

 You can do 3-stage or 5-stage test, doesn’t matter, they’re the same.

 These are not determinate tests, courts can’t just tick boxes without thinking of overarching question of whether its reasonably foreseeable or proximate. You can possibly tick all the boxes and still not find it reasonably foreseeable or proximate

 In negligence, first thing to do is to establish that the case is novel or not, that there isn’t a similar case that hasn’t already recognized it. Do this before diving into an Annes test.

Pure Economic Loss

 Original position was that you could not recover for pure economic loss, now there’s more and more exceptions, court has a more flexible approach.

 Negligent misrep is almost always about pure economic loss.

 Five major categories in which pure economic loss is available: negligent misrep, independent liability to public authorities, negligent performance of a service, relational economic loss, negligent providing of shoddy goods. (not exhaustive, but courts generally unwilling to add)

Martel Building case

 hard bargaining, negotiations collapse, plaintiff sues for losses that result.

 First stage of Anns test is made out, they found a duty of care, reasonably foreseeable proximate plaintiff, they strike it down however based on policy considerations.

 Laissez-faire capitalism. Don’t want court to be influencing business transactions and thus affecting the market. This is just the nature of negotiation. There’s always a winner or a loser. 15

 chilling effect: imposing liability would lead to people being wary of entering negotiations, knowing that if they pull out, they could be found liable.

 Other argument is that it puts tort law in the role of insurance. People don’t have to be vigilant. If you suffer a loss, you come crying to court to get compensation.

 puts the court in too much of a regulatory role. It would involve them examining very detailed pre-contract negotiations which would take a lot of time.

 contract law already has a lot of doctrines to deal with these situations. Tools of contract are better here than tort’s.

 floodgates argument, don’t want tons of people litigating about losses due to negotiations.

Negligent performance of a service (BDC Ltd vs. Hofstrand Farms)

 courier not found liable for not delivering the package on time; they didn’t know its contents.

 plaintiff was not foreseeable because they didn’t know the nature of what they were delivering.

Class 9

Negligent performance of a service

 courts apply normal rules of negligence, Anns test, they’re interested in tests of proximity with reliance as an indication of that.

 In policy consideration, they’re most concerned about indeterminacy.

BDC v. Hofstrand (negligent performance of a service)

 Must argue that they are a reasonably foreseeable plaintiff and that they’re proximate.

 they’re not a reasonably foreseeable plaintiff or proximate. The key factor for the courier is that the courier had no idea what the document was, had no idea of knowing whether it was important or otherwise, so couldn’t foresee that particular plaintiff or the type of loss

 Also proximity, the courier did not create the terms of the contract between BDC and their business partner, along with not knowing about it.

 it’s not on the plaintiffs to prove detrimental reliance, as it’s too onerous.

 In absence of detrimental reliance, can be enough to show voluntary assumption of risk by the defendant. Mere fact that there is no detrimental reliance isn’t the end of the case, where you can show some sign of voluntary assumption, that may be enough to establish a duty of care. 16

Winnipeg (negligence for supply of shoddy goods)

 Usually arises in construction cases, where you don’t have privity. A supplies goods to B under a contract and B sells them to C and it turns out the goods are shoddy, can C sue A?

 Plaintiffs sue for pure economic loss and not physical damage. Had to take steps to repair the building, or it would’ve fallen down due to those shoddy goods, so they’re suing for future costs to repair the building. Court is fine with that.

 Bird should easily foresee that not just Tuxedo would be harmed by negligent shoddy goods, but must foresee that next person who buys those goods would also be affected by negligence, that Tuxedo was selling goods to people who’d use them. Foreseeable plaintiff and foreseeable loss

 Reasons to restrict: proximity and policy – some say these are separate, others that proximity is a kind of policy

 prima facie duty of care found and no problem of indeterminacy in the second stage because it was a specific building, not an unlimited class of plaintiffs, and not indeterminate time, because as the building gets older and more worn out, it would be harder to prove that any problems are because of the original shoddy goods. Not indeterminate cost, because it’s restricted to the reasonable cost of repairs.

 Caveat emptor – buyer beware – doesn’t apply here because the buyer, Tuxedo, isn’t in position to know about the defects. Aren’t in the position to do the indepth inspection necessary

 Mere existence of contractual duty doesn’t foreclose the possibility of tort liability

Hasegawa

 a court ruled that there were no physical injury or property damage or health risks, only business losses, and so the court said no duty of care.

 However, Winnipeg does not exclude the possibility of recovering based on business losses.

Relational economic loss (Norsk)

 A is damaging something that belongs to B which causes pure economic loss to C. Question is whether C can recover from A.

 Norsk: Canada says you generally cannot recover for situations like this. Indeterminacy problem. There are too many potential plaintiffs that could result.. So much ripple effect worries court.

 Court says the key is insurance should take care of these relationships. That’s why you have business insurance, life insurance, and all forms of indemnity, to protect yourself from losses due to personal injury. If court starts imposing liability, it interferes with insurance market. 17

 Norsk says we shouldn’t have a blanket prohibition. Should rather take each case on its merits and take it through Annes test, where indeterminacy can be considered in the policy stage

 LaForest dissent says no, puts a lot of work on the court and still result in explosion of liability.

Bow River

 takes LaForest’s dissent as its majority.

 when you go to second stage, policy question, says you should be reminded not to expand liability. Try to restrict it to pre-existing categories of duty of care.

 very difficult to recover from relational economic loss. If you try to establish it through Anne’s test, the court will take indeterminacy question very seriously unless you can fit yourself in three pre-existing categories

Alcock

 negligent infliction of nervous shock. Pre-Alcock, you could not recover

 The issue is proximity. Questions of relational, temporal, and locational.

 For relational proximity: plaintiff must show a close tie of love and affection to the victim. examples (wife, husband, child) or if you can prove a close relationship.

 Temporal: the shock has to occur in the immediate aftermath of the event. Not just aftermath, but the immediate aftermath. Don’t define “immediate.” Doesn’t matter if it isn’t till days later that the bodies are identified – time has passed.

 Locational proximity: you had to be there to see it with your own eyes, not mediated through something like television. What they’re worried about is that if you broadcast you it to millions, it’s indeterminate.

Page and Smith

 court draws distinction to primary and secondary victims. Incredibly complicated case. Mustapha explicitly rejects

Mustapha

 says that the decision in Alcock is relevant to the second stage of Anns. When you get negligent infliction of nervous shock case, you apply Anns test and the three conditions of Alcock are dealt with in the second stage.

Class 10

Standard of Care 18

 duty of care establishes the legal relationship between the plaintiff and defendant, standard of care details the behaviour required of the defendant to discharge the duty.

 “What do I need to do to prevent harm to the people detailed in the duty of care questions.”

 judge decides what it should be based on the law, and the jury or finder of fact decides whether or not it has been met.

Blythe (Uk), Arland (Canada)

 authorities for the standard of care being based on what’s expected of the reasonable person. Determining standard of care is done on an objective approach.

Nettleship

 learning drivers must accord to same standards as learned drivers. Driving is judged on an objective standard of the reasonable driver.

 Unfair: setting a standard that some of the people in that class cannot meet or certainly with much more difficulty.

 tension between public protection and the unfairness to the individual in being unable to meet that standard.

Standard of Care Modifiers

 Objective is not entirely objective, it considers the circumstances as well.

 If you impose reasonableness standards, there are always going to be some people that no matter how hard they try, they will fail, they cannot meet that standard.

 Standard: what would be expected of a reasonable person in the circumstances?

 Courts modify this reasonableness notion with three factors. The probability and severity of the harm. The cost of risk avoidance. The social utility of the conduct.

 What would reasonable person have done? But in addition to that, these three factors. Look at them as limits, curving the standard you would get by simply applying the reasonableness test.

Bolton

 Probability/severity of harm: As probability of the harm goes up, the standard goes up. Where the severity of harm goes up, the standard of care goes up

 where probability and severity go in different directions, , courts have to balance it. 19

 People in standard of care only to guard against reasonable possibility not fantastic possibility. Test is whether the risk of damage to a person is so small that it doesn’t make sense to take precautions against it. Where the risk of damage to a person is so small, that a reasonable person wouldn’t bother or think to take precautions against it.

 when court is trying to determine what constitutes a high or low cost, in the crowded conditions of modern life, risks are inevitable. You cannot mitigate all risks, though of course as the severity goes up, greater need to mitigate.

 where there’s very high probability of the risk, may be reason to stop the activity altogether.

Paris and Stepney (severity question)

 works in conditions that blind him in one eye. he was already blind in one eye

 Cost of precaution in this case was low, cost of goggles was low, not forced to retool the whole process. Court wasn’t sympathetic to defendant’s argument of how no one else got goggles – given the severity of the injury, the cost is low.

 May be excused based on the social utility of it.

 where the cost of precaution is low, you’re almost obliged to take it. If the probability is really low, but the severity is high and the cost of precaution is low, you’re obliged to take it

Class 11

Loss of Chance

 There is no loss of chance in Canadian tort law, can’t use loss of chance to fill “but for” test.

Special standards of care: children, disabled/mentally ill, and professionals/volunteers

 General rule is that the standard is reasonable person in circumstances of the defendant. These three situations are exceptions to that.

Standard of care in relation to children

 Joyal – standard is the ordinary child in those circumstances, not the reasonable person. They are held to lower standard of care.

 They’re not as experienced as adults, have less understanding and less capacity, less capability of using foresight. They also are younger and have less intelligence. They have less capacity to understand and control their actions, lesser impulse control.

 developmental rationale: childhood is when you make mistakes and law should be mindful of that, kids get their life experience by making mistakes and finding things out for themselves. Law must create space in society to allow kids to behave in ways that would be negligent. 20

 The standard of care expected of a child is determined according to what a child of that age, intelligence and experience would have done in the same circumstances.

 Heisler divides children into tender age (5 yr old) and above tender age. Says children of 5 years or below can NEVER be liable.

 Joyal is that you look at all those factors that indicate children (experience, understanding, capacity, age, intelligence). Jurisdictions mostly follow Joyal’s approach too. Some differ on whether to include “intelligence”

Carroll (disability)

 meet standard care of someone in similar situation with similar disability.

 the law should take disabilities into account, can’t hold them to a standard that by virtue of their disability they can’t meet.

 Can be held to contributory negligence if you don’t take account of your own limitations. Don’t take unnecessary risks, have to work within their capacities.

 defendant has to show on balance of probabilities that you either had no capacity to understand or you had no control.

 No understanding = you think the set of events are different than they actually are.

 Absolved of liability if you can show either you didn’t have capacity to understand the duty of care or you had no meaningful control over your actions and so couldn’t be held to the relevant standard of conduct.

 Carroll’s issue of prior warning: In Fiala, he didn’t know this would happen to him. If he knew that when he jogs, he can have a spontaneous episode, he may be held responsible.

Hutchings

 found not liable because his delusion was such that he had no understanding.

 For people suffering with continuous illnessthat’s their living condition, he would fall under “not understanding that he has duty of care.” In those cases, court will provide complete relief. No prior warning because so continuously crazy that he has no idea that there’s anything wrong with him. Problem is, barring insurance, injured people would get no recovery

 Just because someone is harmed doesn’t guarantee compensation. Must be fault. 21

Profession

 the standard that is expected of people of that profession in similar circumstances. Judged by standard of care of his or her profession.

 Based on industry specific standards of practice and testimony of experts. (White v Turner).

 Failure to meet the standard practice of the profession is evidence of a breach

Volunteer firefighter (Killips Television)

 not held to the same standards of those “working” in the same field. It is based on training.

Causation

 Cause in fact “did A’s act cause harm to B?” (tort law’s causation)

 Cause in Law: “should A be held responsible for causing harm to B?” (remoteness)

 Cause in fact question: “but for test,” if we can “but for A’s act, harm would not have happened to B” then we have answered this question in the affirmative.

 Then we move to second question, cause in law, as to whether there are policy reasons or reasons in fairness that we should restrict the liability.

 In working out but for, court must first determine what a cause is

 Things that we ordinarily expect to be true, we assume there’s oxygen, they are not but for causes, they are background conditions. For instance, a lit match is a but-for cause, but the presence of oxygen or paper are background conditions (Reeses)

Class 13

Barnett v Chelsea

 The mere fact someone has a duty and fails to meet it doesn’t mean they will be liable for negligence – causation matters, have to show they are the but-for cause. Even when they’re negligent, doesn’t mean they’re responsible.

 Guy shows up, hospital sends him away, he dies of arsenic poisoning...but his case was so advanced that they couldn’tve done anything ofr him anyway.

 But-for is an all or nothing, very binary, which can lead to unfairness.

 Other problem related to but-for are hypotheticals. But-for tests are always balanced against hypothetical situations, we don’t actually know though. We just say we don’t THINK the doctors 22

could’ve done anything for him, we’re very confident he’d’ve died regardless of what they could’ve done, given the level of poisoning, but we can’t say it with 100% surety.

 Loss of chance: Barnett has lost something, he lost that slight chance of living ^. Loss of chance is the chance of recovery you sue for, not the actual recovery. He also, by going to the hospital and being turned away, he lost the other opportunity to pursue other options.

Causal Indeteriminacy

Evidential Gap/Evidential Insufficiency.

 where you don’t enough evidence to apply the but-for test so you have to either use material contribution test or materially increased risk.

Walker (Material Contribution Test)

 hospital was sued for taking blood from HIV positive donor. Negligent in not providing a good enough pamphlet.

 Court applies material contribution test, if you can say the negligence of the defendant materially contributed to causation, then they are liable. Doesn’t have to be but-for. The test is material contribution beyond de minimis.

 Too much unfairness to require the defendant to be the sole cause of the loss. Material contribution leads to distribution of damages relative to the level of contribution. But for usually would lead to 100% apportionment of damages to the but-for cause.

 Material contribution test will also arise in situations with multiple defendants with none of them being but-for causes, but all contributed materially. Able to allocate.

Fairchild

 plaintiff got asbestos disease and he’d worked for various employers that used asbestos and couldn’t say which place caused the disease, so all the employers were held jointly liable in that they all materially contributed to his harm.

 Court says in these cases, they’ll hold both A and B liable as otherwise, you’ll end up with illogical outcome of neither place being responsible when one of them had to be.

 This is an illogical outcome that can occur in but-for cases, which causes the judge to move to the material contribution case and finds them both jointly liable – one of them HAD to be responsible, just can’t determine which, both were negligent.

McGee (Materially Increased Risk Test) 23

 Brick dust CAN cause that dermatological condition, but it’s not the only cause and you can’t prove that that’s how you got it; however, it materially increases risk of getting the condition.

 Can’t scientifically prove causation and there are workers exposed who don’t get it, but can say based on medical evidence that people exposed like plaintiff was are more likely to get condition than those who aren’t; company materially increased the risk, enough for causation

 Materially increased risk test substitutes for but-for test where evidentiary is impossible as in here and would lead to unfairness

 Court accepts that you just can’t prove that it was definitely or more than 50% chance, but-for cause, that the negligence, the continuation of the operation caused this stroke months later. Plenty of people get those strokes who don’t get those surgeries.

 Court says, though, you can infer causation as it’s likely to have materially contributed to the chance of the stroke. Materially increased risk.

 Makes it clear that notion that material increased risk can be applied outside medical negligence

 The plaintiff can’t prove but-for, plaintiff can discharge burden of proof for causation by showing that, from a common sense perspective, it would be reasonable to infer thta the actions of the doctor materially increased the risk of harm to the plaintiff. Low standard.

 If the answer is yes, burden shifts to the presumed expert, the defendant to adduce evidence that that conclusion is unreasonable, to disprove. All this is on the balance of probabilities.

Athey (Multiple Insufficient Causes)

 Trial judge says multiple causes, says Athey is only 25% responsibl. SCC overturns this, says 25% is beyond de minimis and if you’re a cause that’s beyond de minimis you’re responsible for it all.

 court says that the car accident is the only tortious cause. Court says the pre-existing condition, the doctor’s non-negligent advice, they’re all non-tortious. So even though these are multiply insufficient causes (none by themselves lead to the outcome, no but-for cause), court says you can ignore all the non-tortious causes and give all liability to driver/defendant, because that’s the only tortious cause available.

 the law doesn’t exclude the defendant from liability simply because other causal factors which he or she isn’t responsible for helped to cause the harm. It doesn’t excuse them from being responsible for some of it.

 Defendant wasn’t responsible for pre-existing condition, they’re only being held for additional harm caused by the car accident and what comes after. For instance, if I’m injured again in my 24

rehab, if I’m not negligent in my rehab, you should be responsible as I wouldn’t be in rehab were it not for your negligent act that injured me in the first place.

 you can’t say that because a non-tortious act intervened, you are no longer responsible.

Multiple sufficient causes

 where there are two causes, both of which can be but-fors. Two people shoot someone in the head at the same time. The law holds them both liable

Class 14

Remoteness

 Breach of duty + factual causation isn’t enough for liability. We also need for something to be a a relationship between the breach of duty and the eventual loss; cannot be too remote.

 Remoteness emerged as a way for courts to exclude liability where the loss is beyond what would be expected of a particular breach of duty.

 Cases focused on duty are usually focused on ideas of neighbourhood, foreseeability. The policy discussions tend to be about floodgates and indeterminacy.

 When you look at cases talking about remoteness, you see language like directness, probable outcomes, close consequences, and immediacy.

 is there a relationship between the negligent act and the harm? (is the harm foreseeable?)

 Remoteness isolates a separate question, it’s trying to separate out foreseeability of plaintiff and foreseeability of harm.

Re Polemis

 Court of appeal says foreseeability isn’t the question, but rather whether it’s a direct consequence of your actions. If it is a direct consequence of your actions, it’s not too remote.

 Basically, they’re saying that as a matter of fairness, if you are liable based on the first three stages (duty of care, standard of care, factual causation), you’re going to be held to full liability and held to be legally causation.

 Polemis is critifcized and rejected as it will almost always turn out to be pro-plaintiff.

Wagon Mount #1

 Rejects Polemis as too plaintiff friendly; legal causation is not a barrier at all. Nothing would be too remote: clearly directly caused by failing to meet standard of care. 25

 While there can be no liability until the damage has been done, it’s not the act but the consequences on which liability is founded.

 If you have a directly caused loss which was not foreseeable, we generally ay not liable as a matter of common sense.

 If we have indirectly caused loss but it’s foreseeable, we say liable, out of common sense.

 concludes from this that the essence of fairness that liability turns on is thus not directness, as Polemic says, but foreseeability. For someone to see the harm coming, but get off because it was indirect would be unfair.

 Wagon Mount #1 is trying to harmonize negligence: saying that although we divide negligence into different stages and tests, at the heart of negligence is this notion of reasonable foreseeability. Why would we depart from this on question of remoteness?

 Wagon Mount #1 test you should be applying: when asking about remoteness, you ask whether the harm caused was reasonably foreseeable.

Shifts and Qualifications to Wagon Mount #1 test

 a shift from manner to type of harm.

 treat accidents as sequences and not discrete events.

 increased focus on fairness.

Hughes (shift from manner to type of harm)

 Court says the reality is that lamps cause burns, unattended lamps can cause burns but the way it causes the burn doesn’t matter, it’s whether it causes burns. You don’t foresee the particular manner in which the lamp caused burns (explosion), only foresee that lamps cause burns. It’s the type of harm that matters, not the manner of it. This is much more plaintiff-friendly.

 This verdict has been strongly criticized. This leads to a somewhat arbitrary categorization of things that fall within particular types of harm.

Assiniboine (sequence of events.

 Court sees the events as foreseeable, sees the consequences as being foreseeable.

 Runs through all the events and consequences in sequence and finds each of them foreseeable and hence they constructed a foreseeable outcome by splitting it up into events.

 if they’d just skipped to the end result, the final, ultimate consequence, and asked if it was foreseeable, you’d say no. But by splitting it up into sequential events and asking whether each of them was foreseeable, you end up winding up at the final consequence being foreseeable. 26

Osborne (academic)

 remoteness is becoming less and less important as its unusual for courts to strike cases out at this late stage for interests of fairness, so courts will end up finding creative ways to find things foreseeable at this stage. Very unusual to find cases failing by reason of remoteness alone.

Class 15

Intervening causes

 originally it was the last wrongdoer doctrine. The last wrongdoer is fully liable.

 In practice, the use of last wrongdoer doctrine was more subtle than that, courts found ways to hold people jointly liable. However, in theory, it produces hugely unfair outcomes

 Other problem with is that when intervenor comes along, it makes the original wrongdoer free and clear and, frankly, “lucky.”

 Types of intervening causes: naturally occurring (like nature, storms, etc), negative intervening acts, deliberately wrongful or intentional acts.

 General rule is that intervening causes won’t break the chain; notion of normality or usualness attached to them.

 Naturally occurring acts couldn’t break the chain, while negative intervening acts of third party could break the chain and wrongful/intentional acts would almost always break the chain

 Problem is the categorization: what if you can’t fit an intervening act neatly into one of the categories. Old problem also: liability of a tortfeasor is contingent on a subsequent wrongdoer.

Bradford

 Decision at trial: was the action of the guy yelling “gas leak” seen as intervening act?

 SCC said that the actions of the third party that yelled gas leak was unforeseeable. The actions of the third party were idiotic and hysterical and as such, beyond the contemplation of the reasonable person.

 the questions of whether the actions of third person are intervening or not turns on whether or not they were foreseeable by the original tortfeasor.

 When you looking at the act complained of or the precautions the person should’ve taken, should they have taken the possibility of this intervening act into account? Can we say that the negligent actions of the defendant (the restaurant) are the but for cause of the harm complained of? Would a reasonable person regard the behaviour of the third party as 27

foreseeable? Is it in the scope of the risk? If yes, then it’s not an intervening cause and doesn’t break the chain. It no, not foreseeable, it breaks the chain and is an intervening cause.

 Goes back to Denning saying that the heart of negligence is whether the plaintiff was reasonably foreseeable and if yes, you’re liable for negligence.

 The more culpable the third party, the more egregious their conduct, the more likely the court is liable to see it as unforeseeable

 Ankle swells up, sees another doctor, who looks at hospital’s diagnosis and based on that, says not broken. Injury gets very bad and cripples the plaintiff.

 Court asks whether it was foreseeable that Dr. Carbin would rely on Dr. Murray’s original x- rays? Yes, so they find not an intervening cause, they’re jointly liable.

 Carbin is negligent (should’ve still taken own x-rays); thus, subsequent negligence can be foreseeable.

 Seems morally dubious to expect people to behave badly, but nonetheless that’s the case

 Test in Price is “whether the risk had to be foreseeably possible” as opposed to “reasonable foreseeability” in Bradford. Bradford is better. Price can be taken to lower the bar, but really it’s just trying to restate Bradford to make it clearer.

Class 16

Defences

 voluntary assumption of risk and illegality are rarely accepted. In practice, you’re left with contributory negligence, which isn’t a complete defence and only pertains to apportionment.

Contributory Negligence

 A defendant will be contributory negligence if it can be shown that their careless conduct contributed to the harm suffered as a result of the defendant’s negligence.

 B suffered the harm from A, but if A had a chance to prevent the harm, contributory negligent. It’s not all-or-nothing anymore. It’s not like the most recent contributing cause is 100% liable.

 The last opportunity rule gets abandoned through legislation, which argues that apportionment should be based on fault.

Bow Valley (contributory negligence test) 28

 SCC formally abandons the common law approach and goes with apportionment, echoing the legislative developments and bringing the common law in line with the statute.

 where there is a clear statutory trend or intent, the common law should harmonize with it.

 Bow Valley establishes a two-part test to establish a defence of contributory negligence: 1) Plaintiff did not take reasonable care of himself. 2) Lack of care in 1 contributed to the injury.

 If you get 1 and 2, the court can apportion liability on basis of fault.

 Case has to apply the Bow Valley test, the 1st part, the reasonableness of the conduct: did the throwing snow on the fire, is that evidence that the plaintiff didn’t take reasonable care?

 “agony of the moment” argument. Conduct under the circumstances was reasonable, you have to look at the context in which the conduct took place, can’t just imagine it is a reasoned, considered context, this was an emergency.

 They were ruled to have taken reasonable conduct in that it’s what a reasonable person would have done in the context.

Gagnon

 Court says the test is not whether the plaintiff believes they’d taken reasonable care of themselves, it’s “plaintiff did not,” it’s a fact in the world.

 The test is whether they do the things a reasonable person would have done?

 Plaintiff could only sustain argument by saying that reasonable person would not have worn a seatbelt in those circumstances, which they can’t do.

 Court has an overwhelming amount of evidence about the effectiveness of seatbelts and that the injuries were caused by not wearing it. Reasonable person would have worn it.

 The plaintiff’s belief about the reasonableness of their conduct does not matter in the first stage of the test. The standard of care expected of a plaintiff when faced with contributory negligence is that of a reasonably prudent person. Subjective, honest belief is immaterial.

Thin skull rule

 1st question: are they reasonably foreseeable plaintiff, is the injury reasonably foreseeable? If yes, you are liable for all harm that results, even if it’s due to their extra sensitivity. The fact that they suffer a particularly severe injury due to the pre-disposition, you are still liable for it 29

 It’s the reasonably foreseeable plaintiff with Alcock’s proximity considerations. Once this is established, and they suffer a particularly bad injury, they still get compensated

Leech Brain

 if the injury suffered by the plaintiff was foreseeable, the plantiff can recover in full even if they suffered greater damage than an ordinary plaintiff (due to pre-existing condition/vulnerability).

 type of loss has to be of a kind that courts recognize.

Rules of apportionment under the BC Negligence Act:

1) under s.1, apportionment is on the basis of fault and where the distribution of fault can’t be determined, they just split it equally

2) Liability for legal costs are apportioned under the same principle of s.1. They add up the losses and the legal costs and split it up under s.1

Violenti defence

 to one who is willing, no harm is done. Where a person engages in an activity and knowingly accepts the accompanying risks, you can’t sue for negligence based on the materialization of those risks.

 Two basic situations: express agreement and implied agreement.

 Express: like a contracting out of tort liability, signing waiver of voluntarily assuming risk even if we’re negligent.

 Implied is where by virtue of the conduct of the other people involved or the situation it’s implied that you know of and consent to the risk.

 Canadian courts have become increasingly less willing to allow

 Violenti is a complete defence, if you establish it, there is no liability on the defendant – court is uncomfortable with that and prefer contributory negligence.

 Court has restricted violenti by saying that you really have to be specific about the risks you need to know and understand. Not enough to say they generally appreciated the risk and generally consented, have to have understood the very specific risks and explicitly and specifically consented to those risks.

 has to show something that is tantamount to an agreement not to sue. They knew full well what they were getting into and it’s a waiver of liability. 30

 In practice, very difficult to establish, as what sort of plaintiff would genuinely consent to that?

 The burden lies upon the defendant of proving that the plaintiff, expressly or by necessary implication, agreed to exempt the defendant from liability.

 To constitute a defence there has to have been an express or implied bargain between the parties whereby the plaintiff gave up his right of action for negligence.

 Only where circumstances are such that it is clear that the plaintiff, knowing of the virtually certain risk of harm, in essence bargained away his right to sue for injuries incurred as a result of any negligence on the defendant’s part.

Ex turpi

 old rule is that you couldn’t have a cause of negligence if you the plaintiff was involved in an illegal act, or in an illegal act with the defendant, you can’t then sue.

 Can only show the defence where: 1) plaintiff stands to profit from the criminal behaviour and 2) Compensation would amount to avoidance of criminal sanction.

 Can’t use negligence to circumvent or mitigate the sanction from criminal law – use money from negligence suit to pay criminal fine. Must “maintain the internal consistency of the law.”

 McLachlin says it operates more naturally as a defence because its purpose is to frustrate what would be, had ex turpi no role, a complete cause of action.

Inevitable accident (Rintoul):

 Must be able to show that something happened over which he or she had no control.

 Could not have been prevented by the exercise of reasonable care on their part.

 Hard to know how operative this defence is as there are very few cases on it.

 Could easily fall into causation instead of defence: Just say that you’re not the factual cause of this harm...if you have no control over it, it could be an intervening cause instead.

Class 17

Wagon Mound No.2

 when accessing what a reasonable person would do, modified test so that it’s what a reasonable person like the defendant would do 31

 in this case, a reasonable ENGINEER, have to think about the context and expertise of the person in that position

 When determining whether a person has discharged that care, look at cost and social utility, etc

 can conclude that a person in the reasonable position of the defendant might have a certain standard of care, but you can say that the cost of reaching standard of care is so prohibitive that they do something less, the court will take that into account as part of what the reasonable standard of care is.

 Foresight: standard of care by reasonable person and what they would foresee as needing to do.

 It might not be possible to discharge for a number of reasons. Weigh the standard against cost, social utility, etc. Look at the standard according to what would be reasonably foreseeable for that person and whether there are limits we should put on the standard based on those factors.

 it’s the reasonable person in that context, but not far enough to be subjective

Tort liability of public authorities

 first cover whether it is a public authority or not: government departments, elected officials, delegated authorities like licensing boards or regulatory authorities

 question is whether they are acting according to the power delegated to them by the legislature and the statute that empowers in them.

 legislative and judicial actions are not subject to tort liability (Wellbridge). Only the consequences of administrative decisions

 standing over the shoulder of the govn’t because it politicizes the judiciary, hence inappropriate

 Public authorities can only be held liable in tort for losses resulting from the negligent exercise of administrative powers (Wellbridge). Only liable for results of operational, not policy or judicial decisions.

 Immunity only extends to actions that are directly or indirectly tied to legislative activities, legislators are only protected to the extent that they are acting as legislators.

 even if there was a generally foreseeable economic loss, not enough for policy decisions to be open to review.

 There’s a margin of legitimate error: municipalities should be given some leeway in terms of their liability because allowing liability in negligence for legislative activities would make governing impossible EXCEPT in cases where they were either not acting in good faith or their actions were demonstrably irrational. 32

 Judges cannot be held for losses or damage that flow from the exercise from their judicial authority, even if they were exercising it negligently

 public authorities can only be held liable for administrative and operational decisions, not policy

Two types of operational decision:

 discretionary: decisions made under a statutory discretionary power

 statutory: to fulfil a statutory duty.

 hard to find liability for statutory duty, as there`s usually no choice or discretion attached.

 More likely to be found liable for discretionary operational decisions

Class 18

Statutory vs. Discretionary

 Provided they do what the statute requires (don’t just not do it) and are not careless in doing it, they generally can’t be held liable in negligence.

 Where the statute gives discretion to public authority in the execution of a statutory obligation. The question for the courts when someone is injured due to negligence by the police, was the harm coming out of a policy or operational decision?

 Plaintiff has to show the decision was operational and not policy. If the policy says “in those cases, where we’re faced to a public order problem and a health problem, we will devote more to health problem,” it’ll be hard to argue, as that’s a policy. However, if the policy is silent of what happens in that case and the person makes a decision where to put resources, arguably carelessly, then that’s operational.

Just vs. BC

 Cory says you need to look at true, narrow policy decisions where you have a broad allocation of funding at high level of government.

 The policy element is allocating funding to this area of the highway but by the time you get to the point of maintenance crews, timing, manner in which they do their job, that’s operational.

 If you start to question the resource allocation, that looks like it’s usurping legislative authority.

 Once you get down to how it works on the ground, schedules, division of labor, it’s operational.

 Allocation of resources and basic parameters are policy but manner in which inspection is carried out, frequency of them, etc are all operational, proper for court to examine to see if they meet standard of care. 33

 Policy part of Anns test deals with this: deciding if its policy or operational.

 Test, standard of care, is what is reasonable in the circumstances – that allows you to look at resources and budget, because with infinite resources and budget, of course it would be a much more ideal program.

 In determining whether something is policy, have to look at things like whether they involved the broad allocation of resources as opposed to day-to-day, look at financial allocation, how much control over broad matters they have.

 Court concludes that even though the decisions about scheduling and such were made by low- level dude, the fact they involved broad allocation of resources and involved personnel, unions, etc, it’s possible this is a policy decision.

 decisions can be devolved, policy decisions can be made at operational level, as top of the pyramid made the decision to shift the policy decisions downwards to lower-levels.

 always have to inquire what the subject matter and circumstances of the decision are. Here, they determine they were making broad decisions of resources allocations which meant policy

 limits to how much you can devolve. Police chief can’t just devolve really broad things like “maintain order” to the operational level, don’t really want policy decisions made on the ground

Misfeasance in a public office:

Woodhouse

 Mental element required is simply that you have to be aware that this might harm them. They also can’t just turn their mind away from the fact that their conduct will harm the plaintiff, can’t be wilfully blind.

 Where you can show that the public officer is engaged in deliberate unlawful conduct the court will almost always conclude that they subjectively knew what they were doing, that it was unlawful. Proof of intention to harm will be inferred from the conduct.

 Obligation is on the public officer to know the limits of their authority. Court will not accept wilful blindness.

 Essential question to be determined is whether there has been deliberate misconduct on the part of a public official (doesn’t have to be of power he actually possessed, just in the purported performance of the functions of the office).

 Deliberate misconduct is an intentional illegal act and an intent to harm an individual or class of individuals. Can be an action or a failure to act. 34

Statutory Torts

 statutes can create a cause of action.

 Statutes can also change or limit the operation of a common law duty or tort.

 infer a common law duty of care from the words of a statute. For instance, statute may create a common law duty in this case, it may also infer one in a similar case.

Class 19

Statutory Torts

 Where a statute creates a tort, like the Marine Liability Act.

 Simple case is where statute says “there is a tort called this, and duty of care and standard of care are this”, you go through the statute.

 These are direct statutory torts, torts that live and exist in the statute.

 Where the statute only provides the basis for a common law tort, gives rise to or a tort, or modifies an existing tort, leading to a common law cause of action. Statute here will typically have a prohibition in it, which gives rise to a discussion of what the common law should do given

 the court might say that clearly the intent of the legislature was to protect in this situation. Court might see in statute a reason to recognize a common law duty of care.

 Two ways in which you can get to a common law cause of action from a statute: one is that the statute is used to provide the basis of a common law duty of care, you can extrapolate a common law duty of care from it, and that leads to a common law cause of action (a tort)

 Other way they do it is to bypass that step and just say that the statute in and of itself lends itself to establishing a new common law tort, don’t have to look for common law duty of care as interim step, just jump forwad to establishment of a tort/new tort.

Canadian Method for Establishing Statutory Tort

 In Canada, we go with the “indirect method,” the intermediary step is important as it stops judicial activism. It requires them to look at the scope of the statute closely, what it’s trying to regulate, and whether it’s fair to take a smaller step to say there should be a common law duty of care in a similar way.

 In future cases, you don’t have to go back to statute to look for that duty of care, just start with the DoC, it’s now a creature of the common law.

 Problem with this though is if the statute gets changed or the case is slightly different from the one that established the duty of care....makes starting from the DoC problematic. 35

 In Anns/Cooper test, seeing a statute that regulates similar conduct is a relevant policy consideration that says that novel duty of care should be recognized.

Occupier’s Liability

 3 questions of occupier’s liability: whether there are premises to be occupied, whether there’s an occupier of that premises, and the nature of the visitor

 4 different types of visitor under common law: licensee (whether there’s an economic advantage to the invitation determines if its licensee or invitee), invitee, contractual entrant, and trespasser

The Premises

 Common law says premises include allthe things you’d associate as being land (real property) and things affixed to it (buildings), even movable structures on land like ladders can be basis for occupier’s liability. Where vehicles are not moving, they can be premises. Statute says movable things can be premises except where they’re moving

The Occupier

 Who is the occupier? This is determined by Palmer case. If you have control over the premises you may be liable under occupier liability. They are responsible for the upkeep of the premises

 If multiple people are in control, they see how much control each of them had and apportion liability accordingly. Distribution of liability will mirror the distribution of control.

Common Law Classes of Visitors

 responsibility owed by occupiers to licensees is to protect from hidden dangers of which they had actual knowledge. Must take remedial steps or warn of any known dangers on the property

 For invitees, for whom the occupier has an economic interest, they are to take reasonable care to prevent unusual dangers that occupier knew about or ought to know about

 For contractual entrants, the rules were that it’s governed by the contract. If I sell you a ticket, I can specify on the ticket my liability, you can even force contractual entrants to waive all rights to liability. I can be completely absolved, provided there was effective notice

 Courts started to put in implied rules of contracts, they say that there’s an implied warrantee even in relation to contractual entrants that the premise be as safe as reasonable care could make them, so courts imply a minimum standard.

 Trespassers: no need to keep property safe, but you couldn’t intentionally or recklessly injure 36

 child trespasssers have to almost be treated as licensees based on a fictionalized consent. Basically, you should expect them to trespass; even where you give them notice that should prevent them to do so, children don’t have the same level of self-control

Veinot

 if an occupier knows that trespassers are likely to trespass and if are aware that dangers are on your property, as a matter of common humanity you have to take steps to prevent their injury.

 you’re not obliged to regularly inspect your property to ensure it’s safe to trespassers, but in establishing duty of care court can still look at time or degree of danger on the land, the age of the trespasser, the reason why the trespasser was on the land, the knowledge and resources of the occupier (what could they actually do), and the cost of preventative measures

 For instance, if it’s a huge farmland, the court may not impose it or just in a very minimal way.

 Can’t be expected to inspect the entirety on a regular basis; provided you’re not aware of and allowing extremely dangerous things to continue on your property.

BC Statute

 occupier is defined as someone who is either in physical possession of the premises or has responsibility for, control over, the conditions of the premises, persons allowed on the premises, and activities on the premises. If

 do NOT have to be the owner to be the occupier

 premises = land and buildings, movable places (cars, ships,aircraft) but only when not moving.

 dispenses with different categories and says you owe a general standard of reasonable care to people coming on your premises. See that a visitor as well as any accompanying property is reasonably safe. Thus it extends to personal effects and stuff that is brought on the property.

 Standard of care may nonetheless be adjusted by factors like foreseeability of damage, the degree of risk of injury (how likely), the gravity of the threatened injury, the kind of premises, the burden of preventative measures, the practice of other occupiers (like commercial occupiers, like what other restaurants do), and the purpose of the visitor (which is where the trespasser status becomes relevant)

 general duty is not owed to trespassers with criminal intent and trespassers on agricultural and rural ground. Your only duty is to avoid injuring them intentionally or recklessly injuring them.

Class 20

BC Statute 37

 The occupier owes duty to see any visitor is reasonably safe.

 It’s just visitors vs trespassers, then you can look at trespassers of particular kinds.

 Attempt at statutory level to bring occupier’s liability in line with negligence, that we now have notions of general duties, which are just as useful in occupier’s liability as in nuisance.

 you owe the same general duty of care to trespassers as you do to other visitors, exceptions are where the trespasser enters with criminal intent (like burglars) and trespassers on agricultural or rural ground. If trespassers falls in these categories, then statute says the only duty owed to them is to avoid injuring them intentionally and not to act with reckless disregard

 A bald notice does not relieve you of liability. Can’t use notice to subvert statute.

Varying the general standard

 Reasonable notice of any alteration of the general standard, there has to be notice. Only those privy to the original agreement are subject to the standard.

 People who come onto the property without occupier’s consent, the occupier can’t vary standard as there are no conditions.

 Where bound by contract to allow entry to persons not party to the contract, those other people are subject to the general standard because they’re not privy to the original agreement

 Occupiers are not liable for the actions independent contracts on their property, provided that reasonable care is taken in selection of the contractor and in carrying out the work.

Strict liability

 increasingly marginalized in tort so courts are becoming increasingly uncomfortable with imposing strict liability on defendants, particularly as negligence arises.

 Strict liability: you can be held for harm that you not only didn’t intend but didn’t even foresee. This strikes against notions of fairness. It starts to move towards holding people liable for accidents. We feel uncomfortable for holding responsible where they didn’t make some choice.

 Strict liability: mere fact you did this thing, even if you didn’t think it’d be harmful, may be enough to hold you liable in the event that something does result.

Rawlings

 you can be held liable for full extent of damage once it’s established that you did the act, even if the damages was massive. You may never have foresaw that any of that damage 38

 true rule of law is that the person who for his own purposes brings things onto the land that is likely to do mischief if it escapes must do so at his own peril, and is liable for damage that is the natural result of its escape. Strict liability for the escape of dangerous substances from land.

 To gain liability under Rawlings and Fletcher, you have to establish a non-natural use of land. Initially courts tended to view non-natural as being artificial, out of the ordinary, or unusual, but over time the requirement narrows, ends up being meaning you have to show that the use is dangerous, extraordinary, and of no general benefit to the community.

 Things that have been held to be presumptively non-natural (dangerous, extraordinary, etc): storage of water in bulk, the manufacture and use of explosives, storage of nuclear materials, storage and use of biological agents. Generally court looks at degree of danger, utility, and circumstances.

 Once non-natural use is established, there has to be escape of something likely to cause mischief. To do this, have to show that something escaped and that it is likely to cause mischief,

 If you get injured by this substance, strict liability of Rawlings only applies if it escapes and injures outside of the owner’s property, not if it injures someone on owner’s property

 Then show that it does damage.

 Other aspect is the requirement of damage: typically, the question is whether there should be a limit on the responsibility for damage caused. Traditionally, if you established non-natural use and escape, you are wholly responsible for the damage, fully liable.

 Cambridge Water: there’s no liability for unforeseen consequences of a non-natural use; limits liability. It looks like the court trying to draw in a limit how much damage you’ll be held accountable for despite strict liability. If the damage is really unforeseeable, then court will consider not holding you fully liable. Looks like remoteness test/negligence.

 When we consider what constitutes a dangerous thing, we’re considering what reasonable person would see as dangerous and what foreseeable consequences of escape would be.

 What makes it dangerous is that you would foresee the nuclear materials would escape and cause harm: sounds like early questions in negligence tort.

Class 21

Vicarious Liability

 not a separate tort but a way of shifting the negligence liability form an employee to an employer. Employer’s can be strictly laible for the actions of their employees.

 Plaintiff must show that the individual who caused the harm was an employee. 39

 “control test”: are they an employee or something else (like an independent contractor)

 Control test: Montreal and Montreal Locomotive works. Says does the employer have control over the actions of the employee? Can you tell them when/where/how to work?

 Problem with the control test is that it does not cover all sorts of employment situations, becomes harder when the work is more specialized and so the supervisor cannot as effectively control the work. Problem is also where there is less chance of oversight or less direct oversight

Entrepeneur test

 if it looks like the employee is carrying out a business of his own, we’re less likely to find that they’re employee – like if it’s work where the employee can make a profit or a loss.

 do they make a loss if the don’t do the work well? Do they buy their own materials? Are they acting as an entrepreneur on their own behalf, running a business? If so, less likely to be found an employee

Organization test

 whether they have been integrated into the organization? Do they get insurance from the employer, attend staff parties, wear a uniform, stuff like this.

671122 Ontario

 says central question is whether a person is performing a service for someone else or as a business on their own account. Are they acting as an employee or on their own behalf. To determine this, look at everything in these three tests, all these surrounding circumstances.

2nd stage:

 Establish that the harm was caused during the course of their employment, have to have done it in their role as an employee. Basic rule is that employer will only be liable if connection between the wrongdoing and the employment.

 Even if conduct is prohibited by the employer, that doesn’t mean they won’t be liable. You still have to look at all the facts and circumstances.

 Basic rule is that prohibitions have to be very specific and express to take someone out of the course of employment.

 Canadian Pacific railway: Argument is that even when I’m doing a prohibited act, i’m still acting on behalf of my employer, because they’re deriving the benefit from what I’m doing. For instance, if I drive the car because I’m running late between tasks. You thus have to look at the nature of the prohibition. 40