UNIVERSITY OF TORONTO FACULTY OF LAW Page 1 of 8

DATE: December 13, 2019 TIME: 9:30am - 12:30pm

ANNUAL EXAMINATION 2019-2020, DECEMBER 2019 Course: LAW 104H1F. Examiner: Professor E. J. Weinrib

NOTE: 1. This is a 3 hour exam closed book examination. You may not consult any materials. A list of cases is attached to this exam.

2. The exam is composed of three questions of equal value.

3. Cell phones, pagers and other communication devices are prohibited in exams. Cell phones are not permitted as a time keeping device, therefore should not be visible on the desk during an examination. Communication devices left on the desk during an exam may be removed by the invigilator.

4. During the examination, only one student at a time is permitted to leave the examination room. No student may leave within fifteen minutes of the conclusion of the examination.

5. At the end of this examination, the invigilator will ask you to stop typing and exit ExamSoft. For students who are handwriting their examination, you will be asked to stop writing, count the total number of booklets used, record this on the front of the first booklet, and insert all booklets into the first booklet. You will then remain seated and quiet until all the examination papers are collected. The invigilator(s) will let you know when you can leave the examination room.

6. Time limits will be strictly enforced. Students who continue to write or type after the examination has ended will have their answer booklets/examination envelope collected separately and may be subject to a penalty.

Instructions for handwriters: 7. Before you begin, ensure that you have written your pseudonym, course name, and the number of the booklet on each examination booklet and the name of the instructor on the first booklet. If you request an additional booklet(s) during the examination, write the required information on the booklet at the time you receive it. No time will be permitted for this at the end of the examination. IF YOU ARE WRITING BY HAND, PLEASE DOUBLE SPACE YOUR ANSWERS.

Torts, December 2019 Page 2 of 8 Prof. E. Weinrib

Question One: (1 hour)

The editor of the prestigious journal The Legal Beagle of Canada has asked you to write a comment on the following case. She knows that you have been intensively studying law at the best law school on Queen’s Park Crescent. She accordingly considers you a ‘natural’ for commenting on this important judgment. You are given the liberty to comment on any aspect(s) of the judgment that seem to you to be interesting or significant. Write the first draft of the comment (do not repeat the facts).

BOLD SPIRIT J.: From a judgment permanently enjoining the defendant, Dysodoria Cattle Farm, from operating a cattle feedlot near the plaintiff Pleasant Properties Development Company's Fairhaven Retirement Community. Dysodoria appeals. We feel that it is necessary to answer only two questions. They are:

1. Where the operation of a business, such as a cattle feedlot is lawful in the first instance, but becomes a by reason of the development of a nearby residential area, may the feedlot operation be enjoined in an action brought by the developer of the residential area?

2. Assuming that the nuisance may be enjoined, may the developer of a completely new town or urban area in a previously agricultural area be required to indemnify the operator of the feedlot who must move or cease operation because of the presence of the residential area created by the developer?

[Bold Spirit J. then outlined the facts. The defendant operated a cattle feedlot situated 25 kilometres west of the city of Metropolis in what had long been an agricultural district. The plaintiff purchased land (for considerably less than the price of land in urban Metropolis) in the neighbourhood of the feedlot in order to develop an urban area to be known as Fairhaven Retirement Community. Fairhaven catered to senior citizens, who began to purchase homes there as they became available. As the development grew, it came closer and closer to the feedlot, until the developer encountered sales resistance because of the flies and smells of the feedlot.]

At the time of the suit, Dysodoria was feeding between 20,000 and 30,000 head of cattle, and the facts amply support the finding of the trial court that the feed pens had become a nuisance to the people who resided in the southern part of Pleasant’s development. The testimony indicated that cattle in a commercial feedlot will produce 35 to 40 pounds of wet manure per day, per head, or over a million pounds of wet manure per day for 30,000 head of cattle, and that despite the admittedly good feedlot management and good housekeeping practices by Dysodoria, the resulting odor and flies produced an annoying if not unhealthy situation as far as the senior citizens of southern Fairhaven were concerned. There is no doubt that some of the citizens of Fairhaven were unable to enjoy the outdoor living which Pleasant Properties Development had advertised, and that Pleasant Properties Development was faced with sales resistance from prospective purchasers as well as strong and persistent complaints from the people who had purchased homes in that area. Torts, December 2019 Page 3 of 8 Prof. E. Weinrib

It is noted, however, that the citizens of Fairhaven are not represented in this lawsuit and the suit is solely between Pleasant Properties Development Company and Dysodoria Cattle Farm.

It is clear that the operation of Dysodoria's feedlot is a private nuisance.

There was no indication at the time that Dysodoria set up its operations that a new city would spring up, full-blown, alongside the feeding operation and that the developer of that city would ask the court to order Dysodoria to move because of the new city. Dysodoria is required to move not because of any wrongdoing on the part of Dysodoria, but because of a proper and legitimate regard of the courts for the plaintiff’s rights.

Pleasant Properties Development, on the other hand, is entitled to the relief prayed for (a permanent injunction), not because Pleasant Properties is blameless, but because of the damage to the people who have been encouraged to purchase homes in Fairhaven. It does not equitably or legally follow, however, that Pleasant Properties, being entitled to the injunction, is then free of any liability to Dysodoria if Pleasant Properties has in fact been the cause of the damage that Dysodoria has sustained. It does not seem harsh to require a developer, who has taken advantage of the lesser land values in a rural area as well as the availability of large tracts of land on which to build and develop a new town or city in the area, to indemnify those who are forced to leave as a result.

Having brought people to the nuisance to the foreseeable detriment of Dysodoria, Pleasant Properties must indemnify Dysodoria for a reasonable amount of the cost of moving or shutting down. It should be noted that this relief to Dysodoria is limited to a case wherein a developer has, with foreseeability, brought into a previously agricultural or industrial area the population which makes necessary the granting of an injunction against a lawful business and for which the business has no adequate relief.

This remedy, although novel, is both fair and efficient. It is fair because Pleasant Properties is responsible for creating the incompatibility between its use of the land and Dysodoria’s. It is efficient because Pleasant Properties will not impose the cost of moving on Dysodoria unless Pleasant Properties gains more from the defendant’s move than Dysodoria loses from it. We all recall Bramwell LJ’s famous statement in Bamford v Turnley, (1862) 122 ER 27, that something is in the public benefit “when the loss to individuals of the public who lose will bear compensation out of the gains of those who gain.” That happy result is what our decision achieves.

Question Two: (1 hour)

In Home Office v Dorset Yacht Co. Ltd, [1970] AC 1004 (HL), Viscount Dilhorne (dissenting) made some observations about the limits of judicial action in developing the law of . Torts, December 2019 Page 4 of 8 Prof. E. Weinrib

Those observations are reproduced in the next few paragraphs. Do you think that those observations are adequate? If you do, what positions are you rejecting. If you do not, what do you think might be viable alternatives to what Viscount Dilhorne is saying? Illustrate your comments by reference to the material on negligence law studied this term. (You should not confine yourself to the Dorset Yacht case.) Your answer should not be merely a list of illustrations but should coherently develop a theme that relates the material studied to the issues raised by Viscount Dilhorne’s observations. (In answering this question do not use illustrations that will overlap with your answer to question three.)

Lord Atkin's answer to the question "Who, then, in law is my neighbour?" while very relevant to determine to whom a duty of care is owed, cannot determine, in my opinion, the question whether a duty of care exists … [T]he Donoghue v. Stevenson principle cannot be regarded as an infallible test of the existence of a duty of care; nor do I think that if that test is satisfied, there arises any presumption of the existence of such a duty.

Lord Denning MR in the course of his judgment in this case said that he thought that the absence of authority was "because, until recently, no lawyer ever thought such an action would lie." Whatever be the reasons for the absence of authority, the significant fact is its absence and that leads me to the conclusion, despite the disclaimer of counsel for the respondents of any such intention, that we are being asked to create in reliance on Lord Atkin's words an entirely new and novel duty and one which does not arise out of any novel situation.

I, of course, recognise that the common law develops by the application of well established principles to new circumstances but I cannot accept that the application of Lord Atkin's words … suffices to impose a new duty on the Home Office and on others in charge of persons in lawful custody of the kind suggested. No doubt very powerful arguments can be advanced that there should be such a duty. It can be argued that it is wrong that those who suffer loss or damage at the hands of those who have escaped from custody as a result of negligence on the part of the custodians should have no redress save against the persons who inflicted the loss or damage who are unlikely to be able to pay; that they should not have to bear the loss themselves whereas if there is such a duty, liability might fall on the Home Office and the burden on the general body of taxpayers. However this may be, we are concerned not with what the law should be but with what it is. The absence of authority shows that no such duty now exists. If there should be one, that is, in my view, a matter for the legislature and not for the courts.

There is no authority for the existence of such a duty under the common law. Lord Denning MR in his judgment in the Court of Appeal, I think, recognised this for he said "It is, I think, at bottom a matter of public policy which we, as judges, must resolve" and "What then is the right policy for the judges to adopt?" After noting the absence of authority, he went on to ask: “Should we alter all this?” Where I differ is in thinking that it is not part of the judicial function "to alter all this." The facts of a particular case may be a wholly inadequate basis for a far reaching change of the law. We have not to decide what the law should be and then to alter the existing law. That is the function of Parliament.

Torts, December 2019 Page 5 of 8 Prof. E. Weinrib

Question Three: (1 hour)

An article entitled “The Decline of Cause” says the following about factual causation:

Once upon a time there was a simple way of characterizing tort law. It could in those days be said that the defendant will be declared liable for the plaintiff’s loss if and only if the plaintiff proves the following three things: (1) that he suffered a loss, (2) that an act or failure to act on the part of the defendant was the proximate cause of the plaintiff’s suffering that loss, and (3) that the defendant was at fault in so acting or failing to act. Proximate cause was a messy business, of course, but one thing that was clear was that a person’s act or omission was not proximate cause of another person’s loss unless it caused the loss. So much for once upon a time. In a number of cases in recent years the plaintiff has won his suit on proof (1) that he suffered a loss, and (3) that there was a faulty act or omission on the part of the defendant, but without proving (2) that the defendant’s faulty act or omission caused the loss. No doubt the plaintiff has to prove some connection between his loss and the defendant’s faulty act. But in the kind of case I have in mind, the connection he makes need not be causation. This development is what I term ‘the decline of cause.” My own impression is that cases in which loss and fault are clear, but causality cannot be proved were very rarely won until recently. Why are they being won now? If is an excellent question, with, I am sure, a great many answers. Chief among them is probably a mix of four things: first, the very fact that causality is hard to prove in them; together with, second, the felt need to regulate the increasing number of activities which impose risk as a by-product of technological advance; third, an increasing public acceptance of egalitarianism; and fourth, the absence as yet of a mechanism other than the tort suit to regulate those activities and secure a measure of compensation for those who may be being victimized by them. In the light of these comments, how would you assess the contemporary approaches to factual causation? Your answer should deal with TWO kinds of fact pattern to which the comments in the article might apply. Are the developments to which the author of these words may be pointing a “good thing?” In particular, do these contemporary approaches suitably liberate negligence law from the dead hand of the law’s traditional doctrines about cause in fact? Or are they ultimately reconcilable with those doctrines, so that talk of “the decline of cause” is misleading?

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LIST OF CASES 2019 Torts, December 2019 Page 6 of 8 Prof. E. Weinrib

NUISANCE

Appleby v. Erie Tobacco Co. (tobacco smells) Rogers v Elliott (church bells) Mayor of Bradford v Pickles (interception of underground water) Hollywood Silver Fox Farm v Emmett (disturbing the vixens) Fountainebleau Hotel v Forty-Give Twenty-Five (shading the cabana) Bryant v Lefever (smoking chimney) Prah v Maretti (solar panels) Hunter v Canary Wharf (television reception) Critelli v Lincoln Trusts (snow on the roof) Hay v Cohoes (blasting) Shuttleworth v Vancouver General Hospital (infectious diseases hospital) Laws v Florinplace (pornography shop) Bamford v Turnley (brick-making) Miller v. Jackson (cricket balls in plaintiffs’ yard) Sturges v. Bridgman (confectioner next to physician’s surgery) Coventry v Lawrence (coming to the nuisance) Antrim Truck Centre v Ontario (truck stop) Coventry v Lawrence (injunction) Canada Paper v Brown (injunction against pulp mill) Black v Canadian Copper (injunction against copper mill) Boomer v Atlantic Cement ( instead of injunction) KVP v McKie (legislating damages) Stephens v The Village of Richmond Hill (sewage disposal)

NEGLIGENCE: THE STANDARD OF CARE

1. THE OBJECTIVE STANDARD

Vaughan v. Menlove (fire in hay rick) Buckley v. Smith Transport Ltd. (syphilis of the brain) Roberts v. Ramsbottom (driving while affected by stroke) Mansfield v. Weetabix (low blood sugar) Dunnage v Randall (paranoid schizophrenic) McHale v. Watson (boy throwing ‘dart’) The Queen v. Hill (provocation) McErlean v. Sarel (operation of trail bikes)

2. REASONABLE CARE

United Sates v. Carroll Towing (Learned Hand formula) McCarty v. Pheasant Run (Posner on Hand formula) Bolton v. Stone (cricket ball over fence into street) Wagon Mound No.2 (gloss on Bolton) Latimer v AEC (slippery floor) Tomlinson v Congleton Borough Council (shallow lake) Watt v. Hertfordshire County Council (transportation of firefighters) Torts, December 2019 Page 7 of 8 Prof. E. Weinrib

Trimarco v. Klein (bathtub enclosure door) The T.J. Hooper (radio equipment to monitor weather) Ter Neuzen v. Korn (AI causing HIV infection)

NEGLIGENCE: DUTY AND REMOTENESS

1. DUTY

Winterbottom v. Wright (mail coach) M’Alister (or Donoghue) v. Stevenson (snail in ginger beer) Watson v. Buckley and Osborne, Garrett and Co. Ltd. (Spanish hair-dye) Clay v. AJ Crump & Sons Ltd. (collapsing wall) Palsgraf v. Long Island Railroad (fireworks) Haynes v. Harwood (runaway horses) Wagner v. International Railway Co. (rescue) Horsley v. MacLaren (rescue) Urbanski v. Patel (transplant) Dobson v. Dobson (pregnant driver) Duval v Seguin (prenatal injury) Renslow v Mennonite Hospital (preconception negligence) Caparo Industries v Dickman (criticism of two-stage test) Kamloops v Nielsen (two-stage test) Cooper v. Hobart (Registrar of Mortgage Brokers) Stevens v.Broadribb Sawmilling (general conception) Hill v. Van Erp (no general conception) McKay v Essex Area Health Authority (wrongful life) Zaitsov v Katz (Israeli case) Hammer v Amit (reverses Zaitsov) Paxton v Ramraj (acne drug) Leibig v Guelph General Hospital (negligent of baby) Brown v Canada (sixties scoop) Rankin (Rankin’s Garage and Sales) v JJ (theft of vehicle from commercial garage)

2. REMOTENESS

In Re Polemis and Furness, Withy & Co. (falling plank) F.W. Jeffrey and Sons Ltd. and Finlayson v. Copeland Flour Mills Ltd. (tie-rods) Overseas Tankship (UK) v. Morts Dock & Engineering (The Wagon Mound, No. 1) (oil spill) South Australia Asset Management v York Montague (parable of the mountaineer) Smith v. Leech Brain & Co., Ltd. (burned lip) Stephenson v. Waite Tileman Limited (wire rope) Cotic v. Gray (suicide) Hughes v. Lord Advocate (lantern) Doughty v. Turner Manufacturing Co. Ltd. (sploosh) Jolley v. Sutton London Borough Council (rotting boat) Saadati v Moorhead (mental injury) Mustapha v Culligan (dead fly in drinking water) Bradford v. Kanellos (fire in grill) Home Office v. Dorset Yacht Co. Ltd. (borstal boys)

Torts, December 2019 Page 8 of 8 Prof. E. Weinrib

CAUSE IN FACT

1. THE NATURE OF FACTUAL CAUSATION

Barnett v. Chelsea & Kensington Hospital Management Committee (arsenic) Lambton v. Mellish (organ grinders) Corey v. Havener (motor tricycles) Kingston and Chicago and NW Ry. (merging fires) Sunrise Co. Ltd. et al. v. Ship “Lake Winnipeg” (ship’s grounding) Baker v. Willoughby (robbery) Jobling v. Associated Dairy (back injury) Saunders System Birmingham v. Adams (brakes) Wright v Cambridge Medical Group (negligently organized hospital) Athey v Leonati (disc herniation)

2.FACTUAL UNCERTAINTY

Blackstock v. Foster (teratoma) Cook v. Lewis (hunters) Joseph Brant Memorial Hospital v. Koziol (nurse) Sindell v. Abbott Laboratories et al. (DES) Abel v Eli Lilly (DES) British Columbia v Imperial Tobacco (tobacco damages recovery statute) Hymowitz v. Eli Lilly (DES) McGhee v. National Coal Board (dermatitis) Reynolds v Texas and Pacific Railway (stout person falling down stairs) Zuchowitz v United States (overdose) Wilsher v. Essex Area Health Authority (premature infant) Fairchild v. Glenhaven Funeral Services (mesothelioma) Farrell v. Snell (cataract operation) Walker Estate v. York Finch General Hospital (infected blood) Resurfice v Hanke (summary of causal uncertainty) Clements v Clements (overloaded motor bike) Gregg v Scott (untreated cancer) Lawson v. Laferriere (untreated cancer) Kaminsky v. Hertz Corp. (yellow truck)