The Law of Torts

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THE LAW OF

TORTS ______

NCA Syllabus by: Nicholas Fernandes

(Updated 2021)

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No part of these notes may be reproduced or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, or stored in any retrieval system of any nature, without the prior written permission of the copyright holder. By signing up for the Law of Torts classes hosted by Nicholas Fernandes, you agree to abide by the terms contained herein, failing which, the copyright holder would be entitled pursue enforcement of his rights, which can include the launching of a formal complaint with the relevant Provincial administrative body.

These materials are produced for the sole purpose of self-study in preparation for the NCA Law of Torts Examination and should not be used for any other purpose. The copyright holder does not accept liability for, and makes no warranties in regards to, any use made of these materials beyond their stated purpose.

NCA candidates are only permitted to reproduce these materials for their personal use in examination preparation. The copyright holder makes his best efforts to ensure that these materials are accurate and current as of January, 2020. These materials are based on and include text from Robert M Solomon, Mitchell McInnes, Erika Chamberlain and Stephen GA Pitel, Cases and Materials on the Law of Torts, 10th ed (Toronto, ON: Carswell, 2019); and, GHL Fridman, Introduction to the Canadian Law of Torts, 3rd ed (Lexis-Nexis, 2012).

The majority of case law and legislative resources needed by NCA candidates are available on CanLII, the free legal information resource funded by the Federation of Law Societies of Canada (www.canlii.org). That includes all decisions of the Supreme Court of Canada, and all federal, provincial, territorial and appellate courts.

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TABLE OF CONTENTS

INTRODUCTION ...... - 6 -

WHAT IS A TORT? ...... - 6 - WHAT ARE THE FUNCTIONS OF TORT LAW? ...... - 6 - IMPORTANT CONCEPTS: ...... - 6 - TYPES OF REMEDIES: ...... - 7 -

STRICT AND ABSOLUTE LIABILITY TORTS ...... - 9 -

GENERAL RULE: ...... - 9 - VICARIOUS LIABILITY: ...... - 9 - ESCAPE OF A DANGEROUS SUBSTANCE: ...... - 12 - STRICT LIABILITY FOR ANIMALS: ...... - 13 -

INTENTIONAL LIABILITY TORTS ...... - 15 -

TRESPASS TO PERSONS ...... - 15 - BASIC PRINCIPLES: ...... - 15 - BATTERY: ...... - 15 - ASSAULT: ...... - 16 - FALSE IMPRISONMENT: ...... - 17 - MALICIOUS PROSECUTION: ...... - 19 - ABUSE OF PROCESS: ...... - 20 - NERVOUS SHOCK: ...... - 20 - INVASION OF PRIVACY: ...... - 22 - BREACH OF CONFIDENCE: ...... - 23 - TRESPASS TO PROPERTY ...... - 24 - TRESPASS TO PERSONAL PROPERTY / CHATTELS: ...... - 24 - TRESPASS TO CHATTELS: ...... - 24 - Trover and Conversion: ...... - 25 - Detinue: ...... - 25 - TRESPASS TO REAL PROPERTY ...... - 26 - TRESPASS TO LAND: ...... - 26 - TRESPASS UNDER STATUTE: ...... - 28 - NUISANCE: ...... - 29 - Trespass –vs- Nuisance ...... - 29 - Definition: ...... - 29 - General rules: ...... - 29 - Defences: ...... - 31 - Public nuisance: ...... - 32 - Remedies: ...... - 33 - TRESPASS TO AIRSPACE AND SUBSOIL: ...... - 34 -

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NEGLIGENT LIABILITY TORTS ...... - 35 -

GENERAL RULE: ...... - 35 - DUTY OF CARE: ...... - 37 - STANDARD OF CARE: ...... - 41 - CAUSATION: ...... - 46 - REMOTENESS: ...... - 52 - ASSESSMENT OF DAMAGES: ...... - 55 - !!! ANSWER FORMULA !!! ...... - 58 - ESTABLISHED OR ANALOGOUS CATEGORIES OF DUTY OF CARE ...... - 64 - DUTY OF CARE ...... - 66 - Duty of Rescue ...... - 66 - Duty to Control the Conduct of Others ...... - 67 - Duty to Perform Gratuitous Undertakings ...... - 69 - Duty Owed to Rescuers ...... - 69 - Duty to Unborn ...... - 70 - Psychiatric Harm ...... - 71 - Health Professional’s Duty to Inform ...... - 72 - Manufacturers’ and Suppliers’ Duty to Warn ...... - 72 - Duty of Care Owed by a Lawyer ...... - 72 - Negligent Misrepresentation Causing Pure Economic Loss ...... - 73 - Negligent Misrepresentation and Contract ...... - 75 - Pre-Contractual Misrepresentation ...... - 75 - Negligent Performance of Service ...... - 75 - Negligent Supply of Goods ...... - 75 -

DEFENCES ...... - 76 -

CONSENT: ...... - 76 - CONSENT TO CRIMINAL / IMMORAL ACTS: EX TURPI CAUSA NON ORITUR ACTION ...... - 81 - DEFENCE OF SELF: ...... - 82 - DEFENCE OF 3RD PARTIES: ...... - 82 - DISCIPLINE: ...... - 83 - DEFENCE OF REAL PROPERTY: ...... - 84 - DEFENCE AND RECAPTION OF CHATTELS: ...... - 85 - NECESSITY: ...... - 86 - LEGAL AUTHORITY: ...... - 87 - APPORTIONMENT OF FAULT: ...... - 87 -

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OVERVIEW: THE LAW OF TORTS

STRICT / INTENTIONAL NEGLIGENT DEFENCES ABSOLUTE LIABILITY TORTS LIABILITY LIABILITY TORTS

Definition: Definition: Definition: Definition: The Defendant may The Defendant possesses A cause of action Even if the Plaintiff be held liable in the a subjective intention to concerned with is able to establish absence of wrongful interfere with the Plaintiff’s liability arising that the Defendant intention or person or property. from a failure to committed a tort, negligence if his Intention must be for the take reasonable liability might not be conduct causes the result, not the action itself. care to prevent imposed if the Plaintiff loss. foreseeable harm Defendant is able to (Interference = trespass**) to others. raise CL or statutory (Strict liability = possibility of defences / defences. Absolute liability = no (The Plaintiff must defences) establish on a B.o.P the below mentioned)

Types: Types: Types: Types: a) Vicarious Liability a) Trespass to Persons: a) Duty of Care a) Consent b) Escape of a i. Assault b) Standard of b) Consent to ii. Battery dangerous Care and its criminal / immoral iii. False substance Imprisonment Breach acts c) Strict liability for iv. Malicious c) Causation c) Defence of self Prosecution animals d) Remoteness d) Defence of 3rd v. Abuse of d) Trespass of Cattle Process e) Assessment of parties vi. Nervous Shock Damages e) Defence of Real vii. Invasion of f) Defences Property Privacy (established on viii. Breach of f) Defence and a BoP by the Confidence Defendant in Recaption of

order to reduce Chattels b) Trespass to Property: the quantum of i. Personal g) Necessity damages he / Property h) Legal Authority she will be liable ii. Real Property for) i) Apportionment of iii. Nuisance Fault

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INTRODUCTION

What is a Tort?

• A Tort is a civil wrong. • “Tort” is a French word that simply means ‘wrong’. • Compensation takes place by means of CL remedies in damages. • A Tort is not a crime or breach of contract HOWEVER they can occur simultaneously (eg): assault = crime + Tort. • There are 4 categories of actions underlying the theories of liability: strict liability torts / torts of intent / torts of negligence and residual actions (ie: defamation, nuisance).

What are the functions of Tort Law?

• There are several motivations for the functions and goals of Tort Law, including: 1) Compensation for injury • the dominant function 2) Deterrence • to deter wrongdoing • fails if damages flow to customers without penalizing the wrongdoer 3) Corrective justice • identifying and remedying the specific actions of wrongdoers and correct the personal injustices to victims 4) Retribution • addresses anger and resentment • tort becomes a civilized vehicle for securing retribution 5) Education • educational dimension • litigants are taught and become aware of the requisite standards of conduct as well the need to recognize and accommodate the legitimate interests of others 6) Accountability • holding individuals responsible for their non-criminal conduct Important Concepts:

• Volition • You must have a conscious mind when committing a Tort. • Only really used when dealing with mentally ill persons or minors. • Parents are not vicariously liable for the actions of their children UNLESS they were a party to the action of the child OR negligent in supervising / controlling the child.

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• Intent • Definition: the desire to bring about a result or consequence of action rather than the desire to do the physical act itself. • General rule: If the result is not desired, then the action is unintentional. • Intent is for the result, not for the action itself (this limits the Scope of intentional Torts). • Just because there might be an absence of direct intent, does not mean that a Tort has not been committed (exceptions to the general rule): (1) Transferred Intent: intending to commit a Tort against one person, and committing the same Tort against someone else. If the consequences are certain / substantially certain and result from the same action, then it is said that there can be imputed intent. (2) Constructive Intent: intention to commit a Tort against an individual, and committing an entirely different Tort against the same individual.

• Motive • Does not usually play any part in the cause of action. • If the Plaintiff can demonstrate that there was malice on behalf of the Defendant, establishing motive can be helpful in adding punitive damages in calculating the size of the award to be given to the Plaintiff.

• Duress • Does not negate intention in the Law of Torts • (Gilbert v Stone)

• Provocation • Requirements: 1) The Defendant loses power of self-control 2) The Defendant’s actions were proximate in time to Plaintiff’s actions • If there is transferred intent, provocation does not apply.

• Mistake • Has no bearing on the issue of intent and is not relevant to Intentional Tort elements. • Can be taken into account when considering the size of the award in damages that is owed to the Plaintiff. • Neither A MISTAKE OF FACT or MISTAKE OF LAW is recognized as a defence to Intentional Tort liability.

Types of Remedies:

• Remedies may be: 1) ordered by the Court 2) achieved by way of settlement 3) granted by automatic operation of the Law

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• When the Plaintiff succeeds with a Tortious claim, remedies can include: 1) Damages – payment of a sum of money (monetary award) to cover loss or injury

• Types of damages: Pecuniary = special damages (for monetary loss) Non-pecuniary = general damages (for non-monetary loss)

• Nominal damages = usually to redress a violation of a legal right

• Compensatory damages = compensation for actual loss

• Aggravated damages = when the wrongdoer’s actions are so outrageous that the harm done is worse than it would have otherwise been had the Defendant acted appropriately after the Tortious action

• Punitive damages = general objective – punishment / deterrence / denouncement (they are not compensatory in nature)

• Disgorgement damages = strip the Defendant of any benefits obtained as a result of his/her wrongdoing (rarely applied in Canadian Law)

2) Injunction – a declaration involving certain acts to be performed or prohibited 3) Declaration – a Court order confirming a parties’ rights 4) Restitution

Extra-judicial remedies – self-help remedies capable of being enforced outside of the Courts (eg): recapture of chattels / re-entry of land / abatement of nuisance.

Please Take Note: Non-pecuniary damages are capped at an amount of $100,000, but the final award could reflect an amount of more than $100,000 if you take into account; inflation as well as pre- and post- judgement taxes. A Court has not awarded more than $100,000 for non-pecuniary damages that has not been turned on appeal when those damages have arisen from a bodily injury.

If you claim for non-pecuniary damages for defamation for example (not a personal injury), then the Courts can, and have, awarded more than the $100,000 in non-pecuniary damages.

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STRICT AND ABSOLUTE LIABILITY TORTS

General rule:

• A defendant may be held liable in the absence of an intention to act, or negligence in acting, IF his conduct (or the conduct of those with whom he shares a special legal relationship) causes the Plaintiff loss or injury. • Strict liability: • Under the doctrine of strict liability, the Defendant may be held liable without acting intentionally, carelessly or unreasonably. • In some instances, defences can be raised (strict liability torts). • (eg): employers are liable for the actions of their employees if they commit an act that results in loss or injury during the course and scope of their employment. • Absolute liability: • Commission of a certain act serves as proof of a Tortious action resulting in liability. • The essential issue is causation and not fault. • There are no defences that can be raised.

Vicarious Liability:

• Several forms of vicarious liability: 1) Statutory Vicarious liability - (s192 Ontario Highway Traffic Act) – an owner of a vehicle accepts liability for any other driver using it with their knowledge - (Yeung v Au) 2) Principal/Agent relationship - A principal may be held liable for the Torts committed by an agent 3) Employer/Employee relationship - A Court can hold an employer liable, and an employee personally liable. - The doctrine of vicarious liability provides the Plaintiff with an alternative source of relief – this does not mean that the employee is relieved of responsibility.

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I.R.A.C. (Vicarious Liability for Employer / Employee Relationship)

• Issue: - Restate the question … (BASED ON THE EXAM PAPER…!!!)

• Rule: - a Court can hold an employer vicariously liable, and an employee personally liable for the actions of the employee. This doctrine provides the Plaintiff with an alternative source of relief based on strict liability. The employer has a general right to recover losses from the employee at fault where negligence is found. An employment contract may exclude 3rd party protection – London Drugs

• Application: - To succeed in a Tortious claim for vicarious liability, the following 3 elements must be met:

(1) a Tort must have been committed (ADD FACTS…!!!)

(2) the Tortfeasor must be an employee of the Defendant (ADD FACTS…!!!) - (Ontario Ltd v Sagaz Industries Ltd) –to determine if worker = employee - Whether an employment-like relationship exists turns on whether the employer exercises control over the alleged employee - An employer will not be held vicariously liable for the Torts committed by an independent contractor – exception(s): employer was negligent in hiring contractor / employer was negligent in supervising the contractor / employer hired contractor to do something wrongful - If the employer does not control the activities of the worker, the policy justifications underlying vicarious liability will not be satisfied - Ask yourself whether the person engaged to perform the services is doing it as a person in business on his own account? (USE JUDGEMENT…) - This is determined by evaluating the level of control the employer has over the worker’s activities - Factors to consider in making this determination: (ADD FACTS…!!!) (i) whether the worker provides his own equipment and uniform (ii) whether the worker hires his/her own help (iii) the degree of financial risk taken by the worker (iv) the degree of responsibility for investment and management by worker (v) opportunity for the worker to profit in the performance of his/her tasks - Conclude by telling the examiner that the more independent the worker, the less likely an employer/employee relationship exists

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(3) the Tort must be committed during the ‘course and scope of employment’ - (Salmond Test): an employee’s wrongful conduct falls within the course and scope of employment where it consists of either: (i) an act authorized by the employer, OR (ii) unauthorized acts that are so connected with acts authorized by the employer, that they may rightly be regarded as modes of doing what has been authorized : this test is used for NEGLIGENT TORTS ONLY - The notion of enterprise risk is the unifying theme of vicarious liability. Where the employee’s conduct is closely tied to a risk that the employer’s enterprise has placed in the community, the employer may justly be held vicariously liable for the employee’s wrong. If the employer’s enterprise fosters the environment in which the Tort could occur, they are vicariously liable.

- (West & West v. MacDonald’s Consolidated Ltd & Malcom) : employee takes detour to pick up wrench, on the way back he is involved in an accident. He was negligent in causing the accident : if the employee was doing something appertaining to the course of his employment, unless the servant was on an independent and separate journey of his own unconnected to the work for which he was employed, the employer is liable : it is immaterial that the servant may be doing private business of his own if he is also on his master’s business, the employer is still liable

- (Wills v. Bell) : employee delivers ice. On his way back to return cart, he stops at a bar for a drink and gets drunk. Hits someone when driving the cart back : the Court found that the employee was on a frolic of his own : difference with (West) – alcohol and time spent on external activity : the employer was found not to be liable : in some instances, one can mix private business with their employment and still be acting within the course and scope of their employment – this is not one such instance

- (Bazley v. Curry) – applied in instances of INTENTIONAL TORTS : this case OVERRULES the Salmond Test. Therefore, mention Salmond and proceed with your analysis according to this case. : For negligent Torts, the Courts have continued to apply the Salmond Test : vicarious liability is all about public policy : The test should be replaced with a contextualized, policy orientated 3 stage process: (1) should there be liability based on public policy? (2) whether the wrongful act of the employee is sufficiently connected to contact authorized by the employer to justify the finding of liability? (focus is on whether employer created or enhanced possibility of risk)

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(3) in determining sufficiency of the connection between the employer’s creation or enhancement of the risk and the wrong complained of, subsidiary factors may be considered. When related to an intentional Tort, they may include, but are not limited to: (i) opportunity enterprise afforded employee to abuse his/her power (ii) extent to which wrongful act may have furthered employer’s aims (iii) extent to which wrongful act related to friction, confrontation or intimacy inherent in the employer’s enterprise (iv) extent of power conferred on the employee in relation to the Victim

• Conclusion: - In conclusion, based on the following reasoning, I believe the employer to be (vicariously / not vicariously) liable. - Summarize reasoning for your conclusion

Escape of a Dangerous Substance:

• (Rylands v Fletcher) • Defendant built reservoir on his property to supply water to mill. The reservoir was constructed over an abandoned mineshaft that was connected to the plaintiff’s property. Water from the reservoir broke through the hidden shaft and flooded the plaintiff’s adjoining mine. • In order to prove Tortious liability based on a cause of action for escape of a dangerous substance, the Plaintiff needs to prove the following: 1) Defendant brought something onto his land, 2) Defendant was not using his/her land in a natural way (non-natural use), 3) The thing was likely to cause mischief if it escaped (consequences of use), 4) The thing escaped and caused damage

• Defences to the Rule laid down in this case: 1) Consent - if the Defendant establishes that the Plaintiff implicitly or explicitly consented to the presence of the danger, he/she enjoys a complete defence to a claim 2) Common benefit - if the source of the danger is maintained for the common benefit of both parties, liability will not be imposed - (Carstairs v Taylor) – rain water was collected in a special box on the roof. Rat made a hole in the box. Water flowed into plaintiff’s ground floor premises, damaging his property. Action was dismissed as the water in the box was for the mutual benefit of both.

3) Default of the Plaintiff - a person who voluntarily and knowingly encounters a known danger cannot

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claim under Rylands - recovery will also be denied if a Plaintiff’s wanton, willful or reckless misconduct materially increased the probability of injury - Defendant will not be held liable for damages which are caused by the abnormal sensitivity of the Plaintiff’s property 4) Act of God - a force of nature which arises without human intervention - natural force must be so unexpected that it could not have been reasonably foreseen – therefore the effects could not have been prevented 5) Act of a stranger - no liability if the Defendant proves that the escape of the dangerous thing was caused by a stranger’s deliberate and unforeseeable acts - Defendant will have to show that the escape could not have been prevented through the exercise of reasonable care 6) Statutory authority - liability maybe denied if the Defendant acted under statutory authority

• (Read v. Lyons) – to be used in conjunction with the above test • This case established the escape requirement • It is the obligation of the party managing the hazardous activity to be ultra-cautious • It will still be the task of the injured person to demonstrate that a duty of care was owed and not fulfilled

• (Gertsen v. Municipality of Metropolitan Toronto) – establishing non-natural use • Disposing waste to level off a ravine was not a natural use of land

Strict Liability for animals:

• Dangerous animals • (Cowles v Balac) • General Rule: the keeper of a wild or vicious animal will be strictly liable for the damage caused by that animal regardless of fault – occupiers liability if someone enters premises • You could raise the defence(s) of contributory negligence and/or voluntary assumption of risk • A lion is considered a dangerous animal BUT a dog is not (look into the dog’s history of aggressive behaviour if it exists)

PLEASE TAKE NOTE that if you are involved in a criminal act while you are injured, you are generally prohibited from recovering damages - Ex Turpi Causa Non Oritur Actio. Please note that there is an exception discussed later on in these materials.

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• Cattle Trespass – absolute liability • (Acker v Kerr) • An owner of animals domitae naturae is bound to keep them under control. Such owner is liable if they escape and cause such damage as it is ordinarily in their nature to commit • The liability is an absolute liability independent of negligence UNLESS the escape or trespass was involuntary / caused by an Act of God / due to the act or default of the Plaintiff or of a third party for whom the Defendant is not in law responsible.

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INTENTIONAL LIABILITY TORTS

Trespass to Persons

Basic Principles:

• Trespass = interference • Intention must be for result, not the action itself (this limits the scope of liability for intentional Torts) • If there is no direct intention ® a Tort still exists based on the principles of: 1) Constructive Intent 2) Transferred Intent

Battery:

• Definition: • The infliction of harm or offensive contact on another person. • (eg): being touched without consent – PHYSICAL CONTACT is required.

• Elements: 1) Intentional, 2) Infliction onto another person, 3) Of harm and offensive contact.

• General rules: • The Defendant must have intended for the contact to occur, motive is irrelevant. • If the contact was intended, and the magnitude of the consequences exceeds the expectations of the Defendant, it is irrelevant. • Incidental contact does not constitute battery – (eg): shuffling on a bus. • It is not necessary for you to actually touch the Plaintiff’s body COULD INCLUDE offensive contact with a person’s clothing / something they are wearing / something they are riding on / indirect intrusion such as poisoning. • Actionable per se ® no need to prove actual damage. • The Defendant does not have to be aware that the contact has occurred.

• Defences: 1) Consent (most common and major defence) - If the Defendant can establish that the Plaintiff consented to the battery, the Defendant will not be civilly liable (evidentiary burden rests on the Defendant). - (eg): physical contact in sporting activities. - A person cannot consent to serious bodily harm. 2) Self-defence

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- (Bettel v Yim): Y shakes B to correct his behaviour, their heads collide and B’s nose is broken in the process. : foreseeability of negligence is not relevant here. : If physical contact was intended, then the fact that the magnitude of its consequences exceeded the expectation is irrelevant. : Y is liable. - (Dalhberg v Naydiuk): Hunters must recognize that firing over land without permission of the owner constitutes a trespass to land and if injury to person results (a stray bullet hits someone), trespass to person.

3) Discipline - s43 of the Criminal Code of Canada. - (R v Dupperon) - Please refer to the section on Defences for an in-depth explanation.

Assault:

• Definition: • Intentional creation in the mind of other person(s) a reasonable apprehension of imminent harm or offensive contact.

• Elements: 1) Intentional, 2) Creation in the mind of other persons, 3) A reasonable apprehension of imminent harmful or offensive contact.

• General rules: • DIFFERENT FROM BATTERY ® physical interference is not required. • Court’s inquire into the impact on the Plaintiff’s state of mind. • Whether the defendant actually intends or has the ability to cause the contact is irrelevant - what is important is that the defendant intends to cause the apprehension that they will follow through on the threat in the plaintiff’s mind. • Immediacy of the threat and the capacity to follow through is of importance when looking into whether an actual assault has taken place (when there is a conditional of future threat = it must be accompanied by a show of force / when looking into capacity = look into past conduct). • Words alone = rarely constitute assault (if accompanied by an act, can be construed together as constituting an assault). • (eg): (R v Ireland) – multiple phone calls, silence on the line but breathing - proximity is irrelevant - there was a clear intention to cause mental harm through harassment

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• Subjective / Objective Apprehension Test: 1) Did the Plaintiff in fact apprehend the immediacy of the physical contact? 2) Was the apprehension reasonable? • (Holcombe v Whitaker): W threatened to kill H if she brought him to Court, began pounding on the door. : threatening words + actions that make them plausible are necessary to establish assault. : banging on the door is a physical action that shows the intent and willingness to follow through on the threat of future harm.

• (Police v Greaves): G told P – “If you don’t leave, I will stab you”. : a conditional threat can constitute an assault. : When there is a threat of violence exhibiting an intention to assault, and a present ability to carry the threat out, the elements of an assault are made out. : The fact that there was an alternative (eg): to leave the house - did not prevent the conditional threat from constituting an assault. • Defences: 1) Legal Authority

False imprisonment:

• Definition: • The intentional confinement, even if momentarily, of another person(s) within fixed boundaries against their will.

• Elements: 1) Intent to confine another person(s) against their will, 2) An act pursuant to this intent, 3) The resulting confinement of another person against his or her will, 4) Absence of a reasonable means of escape (not reasonable if endangers safety), 5) Absence of legal authority.

• General rules: • There must be TOTAL CONFINEMENT (eg): blocking a person’s path is not imprisonment if there is another route that can be taken. • Restraint is not total if there is a reasonable means of escape left open to the Plaintiff ® there must not be an expectation for the Plaintiff to risk injuring themselves – (Wright v Wilson). • Restraint on freedom can be imposed by; barriers / physical means / threat of force (implicitly or explicitly) / legal authority (implicitly or explicitly). • False imprisonment also occurs if you cause someone else to imprison someone.

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• If there is no physical force ® look at the assertion of, and submission to, control – (Bird). • Psychological force can achieve restraint on an individual, it makes escape impossible (eg): false imprisonment if a Plaintiff goes along with the defendant in order to “avoid a scene which would be embarrassing” – (Campbell). • Punitive damages are increasingly awarded in false imprisonment cases. • Shopkeepers privilege – discuss if applicable (will likely fail in Canada) - shopkeeper temporarily detains for investigation

• (Bird v Jones): B is stopped from crossing a bridge by police. B could go in other directions. : false imprisonment requires a total restraint of movement. : false Imprisonment –vs- restriction on freedom. : if have a reasonable means of escape = no false imprisonment.

• (Campbell v SS Kresge): security called and C accused of shoplifting. Security accosted C to accompany him. C, fearful, complied. No stolen items found. C released but felt upset. : If as a result of Defendant’s intentional conduct, a person feels totally restrained, however these results are obtained, it amounts to an imprisonment. : total restraint does not need to be physical. : distinction between someone who submits against their will and someone who cooperates reluctantly.

• (Herd v. Weardale Steel): WS prevented H from using lift cage, which was only only means to exit mine. H was detained in the mine for a few extra hours as he had not finished the work he was under contract to do, and he refused to do it. : NOT false imprisonment to hold the Plaintiff to a a condition he/she accepted. : By entering into the mine and working under express contractual means – he accepted to operate and limit his freedom according to the rules of the mine. : Principle of Volenti Non Fit Injuria was applied.

• (Khan v El Al Israel Airlines): if you board a plane from A-C, you cannot claim false imprisonment for wanting to get off at B without a proper reason to do so.

• Defences: 1) Legal Authority 2) Consent 3) Necessity

• False arrest: (could come up in the exam) • This is a category that falls within the broader scope of false imprisonment.

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• Can be brought against a peace officer or citizen (who asserts legal authority). • (Green v Ottawa Police Service Board) – false arrest typically leads to additional charges against an individual, such as; malicious prosecution and Charter violations.

Malicious Prosecution:

• Definition: • Improper initiation of criminal proceedings against an individual. • This Tort is concerned with indirect interferences, namely those that result from the improper initiation of criminal proceedings, against an individual.

• Elements: (Nelles v Ontario) – must ALL be proved for the Plaintiff to succeed 1) Proceedings must have been initiated by the Defendant, 2) Proceedings must have terminated in favour of the Plaintiff, 3) Absence of reasonable and probable cause. • An honest belief in the guilt of the accused based upon a full conviction, founded on reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed.

• (Miazga v. Kvello Estate): The reasonable and probable cause inquiry is not concerned with a prosecutor’s personal views as to the accused’s guilt, but with his or her professional assessment of the legal strength of the case. : Given the burden of proof in a criminal trial, belief in “probable” guilt means that the prosecutor believes, based on the existing state of circumstances that proof beyond a reasonable doubt could be made out in a court of law.

4) Malice, or a primary purpose other than that of carrying the law into effect • Has a wider meaning than spite, ill-will or a spirit of vengeance and may include any improper purposes.

• General Rules: • Derived from TRESPASS ON A CASE. • The Plaintiff must prove some loss or harm. • Courts can still award damages against the Crown for prosecutorial misconduct • Prosecutorial misconduct = marked and unacceptable departure from the reasonable standards expected of prosecutors.

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• Crown attorneys do not enjoy absolute immunity. • (Henry v British Columbia (Attorney General)): Section 24(1) of the Canadian Charter of Rights and Freedoms authorizes courts of competent jurisdiction to award damages against the Crown for prosecutorial misconduct absent proof of malice.

Abuse of Process:

• Definition: • The misuse of civil proceedings for a collateral or illicit purpose other than the resolution of the claim. • (eg): serve frivolous action to financial ruin the P.

• Elements: (the Plaintiff must prove ALL of the following) 1) The defendant brought a civil action, 2) The defendant did so for some extrinsic purpose, 3) The defendant undertook, or threatened to undertake some overt act, other than the litigation itself, in order to further the improper purpose, 4) The plaintiff consequently suffered a loss

• General Rules: • A common law Tort action. • NOT ACTIONABLE PER SE ® must show proof of loss. • The need to prove an overt act independent of the litigation itself is usually difficult to demonstrate.

Nervous Shock:

• Definition: • Intentionally causing another person(s) severe mental suffering. • (eg): If P suffers from phobia, and D does something that P fears.

• Elements: 1) Intentional and outrageous conduct, 2) Designed to inflict emotional distress / a reasonable person would have known that the conduct would have caused emotional distress, 3) Sufficiently established if the Defendant acted recklessly / foresaw that profound distress would occur, 4) Causes visible and provable illness.

• General Rules:

• NOT ACTIONABLE PER SE ® must prove actual harm suffered. • The Plaintiff bears the onus of proving that, as a result of the Defendant’s conduct, he/she suffered some kind of "visible and provable" illness.

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• (Wilkinson v Downton): as a practical joke, D tells W that her husband is hurt. W goes into nervous shock; she has a history of bad nerves. : there is a cause of action when the Defendant has wilfully done an act calculated to cause physical harm to the Plaintiff, and that has in fact caused harm. : there was definite intent to cause some degree of distress, and this is enough to impute the full liability of the onset of nervous shock.

• What happens when there is no intention to cause nervous shock? • (Rahemtulla v Vanfed Credit Union) – this more recent decision held that it is not necessary to show that the Defendant intended to cause nervous shock ® reckless disregard to this possibility is sufficient

• “Visible and Provable Illness”: • (Radovis v Tomm): Daughter is raped. Mother tries to recover for being distraught. : The physical consequences of the shock must be present to amount to “visible and provable” illness. : you must show some that there is some physical or psychological manifestation of injury. : this case was dismissed because of the lack of physical or psychological evidence. • More recently ® Courts broadened concept (liability for nervous shock has been expanded by widening the definition of “visible and provable”). • If there is an absence of expert evidence, this is no longer fatal to the claim. • If the claim falls short of physical or psychological conditions, you can establish a claim on the principle of EMOTIONAL HARM (Tran v Financial Debt Recovery 2000).

• To establish emotional harm: 1) Intentionally engaged in conduct, 2) With the purpose of inflicting emotional distress, or 3) A reasonable person would have thought so, 4) And the conduct offends generally acceptable standards of decency and morality, 5) Can be emotional harm. • A claim for emotional harm can be used as an alternative to emotional shock if the Plaintiff is unable to establish the requirements as laid down by the CL.

• Innominate Torts:

• Is a tort that has not been specifically named.

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• (Wilkinson) established an innominate intentional Tort claim for all unjustified, intentionally-inflicted bodily injuries (eg): nervous shock / intentionally inflicting someone with a disease / setting a trap in someone’s path / removing essential medicine from an incapacitated patient • Innominate action provides a convenient mechanism for redressing such claims without disturbing accepted principles • Nominate torts = battery / assault / false imprisonment

Invasion of Privacy:

• General rules: • Nominate intentional torts were not designed to redress invasions of privacy and only incidentally protect these interests. • In Canadian there is NO GENERAL RIGHT TO PRIVACY per se – no action in tort for conduct said to amount to “an invasion of privacy”. • Reason ® the parameters of privacy have never been satisfactorily defined and concluded.

• (Motherwell v. Motherwell)

• The Supreme Court of Alberta was able to utilize the law of nuisance to grant a remedy, by way of injunction, to restrain the Defendant from making objectionable, but not obscene or criminal, telephone calls.

• (Jones v. Tsige)

• For several years, the Defendant used her workplace computer to gained access to the Plaintiff’s personal bank accounts at least 174 times. • The action was for what was termed ‘intrusion upon the plaintiff’s seclusion of solitude’, or into his private affairs. • At first instance the defendant was successful on summary motion because the tort of invasion of privacy does not exist in Ontario. • The court of Appeal reversed this decision and allowed a nominal award. • The Ontario Court of Appeal overturned the Superior Court of Justice decision, ruling in favour of Jones and recognizing a new common law tort: “intrusion upon seclusion.” The new tort is a subset of the broader invasion of privacy category, which includes other recognized and potential causes of action. A central rationale for the recognition of the new cause of action was the unprecedented power to capture and store vast amounts of personal information using modern technology. In the last century, technological changes included the invention of near-instant photography and the proliferation of newspapers. Today, highly sensitive personal information can now be accessed with relative ease, including financial and health information as well as data related to individuals’ whereabouts, communications, shopping habits and more. The Court found that the common law must evolve in response to the modern technological environment.

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• The Court of Appeal followed the approach that has been developed in the United States, and formulated the new tort as follows: • One who intentionally [or recklessly] intrudes, physically or otherwise, upon the seclusion of another or his [or her] private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person. • It is significant that this test includes an objective standard, such that the invasion of privacy must be “highly offensive” to a “reasonable person.” The Court also acknowledges that the protection of privacy may give rise to competing claims, such as freedom of expression, which may trump privacy rights. • It is also noteworthy that the tort of intrusion upon seclusion is actionable without economic harm. However, the Court indicated that an upper ceiling of $20,000 is appropriate in cases where there is no evidence of economic harm. Punitive and aggravated damages may also be possible in egregious circumstances. The Court listed the following factors relevant to assessing damages:

1. the nature, incidence and occasion of the defendant’s wrongful act; 2. the effect of the wrong on the plaintiff’s health, welfare, social, business or financial position; 3. any relationship, whether domestic or otherwise, between the parties; 4. any distress, annoyance or embarrassment suffered by the plaintiff arising from the wrong; and 5. the conduct of the parties, both before and after the wrong, including any apology or offer of amends made by the defendant.

• Upon consideration of these factors, Jones was awarded damages of $10,000 in this case.

Breach of Confidence:

• Definition: • Used to protect the privacy of sensitive business and personal information.

• General Rules: • (Lac Minerals Ltd. v International Corona Resources Ltd) – in order to recover for breach of confidence, the Plaintiff needs to establish the following: 1) The information was confident in nature, 2) The information was disclosed in circumstances creating an obligation of confidentiality, and 3) Its unauthorized use was detrimental to the confider.

• Defences: 1) Consent 2) Necessity (legal obligation) 3) Accident

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Trespass to Property

Trespass to Personal Property / Chattels:

• 3 ways in which a person can be deprived on their chattel(s): 1) Wrongful taking 2) Trover and conversion (wrongful disposal superseded by conversion) 3) Detinue (wrongful detention)

• Extra-judicial remedies for the above include: reception and replevin 1) Recaption ® take goods back (it is possible to use force / trespass upon land) 2) Replevin ® alternative to reception (interlocutory relief) i) interim order ONLY for the recovery of the property ii) followed by a final order for the return of the property (there is no compensatory relief!!!)

Trespass to Chattels:

• Definition: • A direct physical act against another person’s chattel. • This Tort is designed to recover property under criminal actions of theft and larceny.

• Elements: 1) The Defendant’s actions were direct and forceful (physical act) 2) The affected good(s) were in the Defendant’s possession

• General rules: • Actionable per se – there need not be actual damage to the chattel. • Mere improper touching suffices to attract liability (although recoverable damages will depend on the actual loss suffered through the trespass). • The act that constitutes the trespass ® deliberate or negligent. • Forms of trespass to personal property: improper handling / depriving the Plaintiff of possession (indefinitely or for a period of time / causing physical damage / destroying the property.

• Defences: 1) No intention Accident (A plea of mistake is NOT an excuse to escape liability) 2) No negligence 3) Consent by Plaintiff 4) Necessity

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Trover and Conversion:

• Wrongful appropriation of the claimant’s chattel (eg): discover property is not yours BUT you treat it as your own, thereby also destroying or consuming the good(s).

• (Fouldes v. Willoughby): for conversion, it is necessary either that the party taking the goods should intend some use to be made of them, by himself or by those for whom he acts, or that, owing to his act, the goods are destroyed or consumed, to the prejudice of the lawful owner.

• (Mackenzie v Willoughby): if you take the property belonging to another person, mistaking it for your own, but immediately upon discovery of the mistake, return it to the original owner, you cannot be held liable for conversion.

• Defences: 1) Abandonment (Plaintiff renounces possession and immediate right to possession) • The Defendant must adduce evidence of: intention to abandon and physical relinquishment. • A mere reasonable belief of abandonment will NOT suffice.

Detinue:

• Provides the Plaintiff with a remedy to sue for the wrongful detention of goods. • Detinue gives the Defendant the option to either; return the chattel or pay the value of the chattel as assessed from the time of its detention to the Plaintiff. • (Gen. & Finance Facilities Ltd. v Cooks Cars (Romford) Ltd.)

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Trespass to Real Property

Trespass to Land:

• Definition: • The direct and intentional physical intrusion onto the land in possession of another.

• Elements: 1) Direct, (expanded to indirect under certain circumstances – refer to page 17) 2) Physical entry, 3) Onto the land, (or object on the land) 4) In the possession of another.

• General rules: • This trespass can be committed by: (1) entering the Plaintiff’s land in person without permission; (2) propelling an object or 3rd person onto the property; (3) failing to leave after permission to enter has been terminated; (4) bringing an object onto the Plaintiff’s land and wrongfully failing to remove it (the continued presence on the land of a structure, chattel or other thing which the actor has tortuously placed thereon – whether or not the actor has the ability to remove it).

• “Land” includes = surface area / houses and other structures / trees / anything affixed to the land. • Actionable per se – no need to show harm • The Plaintiff is generally required to be in possession of the land at the time of intrusion - does not have to have legal title, but the best title holder at the time of intrusion. • A person with legal title is presumed to have exclusive possession and the right to maintain a trespass action - (Penney v Gosse). • Indirect trespass = are not actionable (ie): wind that blows snow onto your neighbour’s land is not actionable BUT if you use a snow blower to blow your snow build-up onto your neighbour’s land, it would be actionable. • A trespasser becomes liable not only for personal injuries resulting directly and proximately from the trespass BUT ALSO those which are indirect and consequential - (Turner v Thorner). • Doctrine of continuing trespass ® where an object remains on the Plaintiff’s land without consent, the Plaintiff is able to maintain successive actions in trespass until the object is removed (Johnson v BC Hydro).

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• (Turner v Thorner): Defendant worked as a delivery driver. Attempted to deliver package but the Plaintiff was not home. Garage was open, so he left delivery in the garage. Plaintiff came home. Walked through the poorly lit garage and tripped over the delivery and injured himself. : the Defendant is liable for damages as trespass on the property made the presence of the chattel a liability towards him. : once it is established that the defendant is a trespasser, he is liable for all the consequences of the trespass, whether or not they are intended or foreseeable.

• (Entick v Carrington): C, claiming authority under a warrant, broke into Entick’s house and carried away some papers. : law of England - every invasion of private property, be it ever so minute, is a trespass. : “No man can set his foot upon my ground without my license, but he is liable to an action, though the damage be nothing; which is proved by every declaration in trespass, where the defendant is called upon to answer for bruising the grass or even treading upon the soil. If he admits the fact, he is bound to show by way of justification, that some positive law has empowered him or excused him.”

• (Penney v Gosse): One does not have to hold a legal title to land. Any possession is good against those who have a weaker right of possession themselves. : A squatter without title maintained a trespass action against a subsequent trespasser : “any form of possession, so long as it is clear and exclusive and exercised with the intention to possess, is sufficient to support an action for trespass against a wrongdoer. Actual possession is good against all except those who can show a better right of possession in”

• Private Property –vs- Public Property

• The considerations which underlie the protection of private residences cannot apply to the same degree with regards to a Shopping Centre in respect of its parking areas, roads and sidewalks. • Those amenities are closer in character to public roads and sidewalks than to a private dwelling • A more appropriate approach is to recognize a continuing privilege in using the areas of the Shopping Centre provided for public passage, SUBJECT TO LIMITATIONS arising out of the nature of the activity thereon and to the object pursued thereby, and subject as well to a limitation against material damage

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• (Harrison v Carswell): The owner of a mall has enough possessory interest in common areas of the mall to claim trespass. : The public areas of a private shopping mall are private property for the purposes of trespass law : The plaintiff is therefore entitled to seek an injunction against the Defendant (a picketer) to prevent her from entering the public areas for the purpose of picketing : A different decision would require an amendment by the legislature to the Petty Trespasses Act

• Defences: 1) Accident 2) Right of Authority (eg): warrant 3) Consent 4) Duress and Mistake is NOT a defence 5) Lack of knowledge is NOT a defence

Trespass under Statute:

• The Plaintiff has an option of bringing an action under Trespass Legislation rather than a Common Law action for trespass (eg): Ontario Trespass to Property Act – s2 (1,2) and s12 (1-5)

• S2(1): Every person who is not acting under a right or authority conferred by law and who, (a) without the express permission of the occupier, the proof of which rests on the defendant (i) enters on premises when entry is prohibited under this Act, or (ii) engages in an activity on premises when the activity is prohibited under this Act; or (b) does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier, is guilty of an offence and on conviction is liable to a fine of not more than $2,000

• S2(2): colour of right defence It is a defence to a charge under subsection (1) in respect of premises that is land that the person charged reasonably believed that he or she had title to or an interest in the land that entitled him or her to do the act complained of.

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Nuisance:

Trespass –vs- Nuisance

Trespass: Nuisance:

• Must be a direct ‘interference’ • Can be indirect interference • Actionable per se – proof of loss • Substantial and unreasonable is not required interference • Protects possession • Not actionable per se – requires • Requires intent proof of loss • Protects quality of possession • Concerns the effect of the Defendant’s conduct on the Plaintiff’s use of land – not with the nature of the conduct • Liability may be imposed even if the act was neither intentional or negligent (strict liability + intentional liability)

Definition:

• Nuisance is concerned with the effect the Defendant’s conduct has on the Plaintiff’s use and enjoyment of their property. • You can attract tortious liability even if your actions are not intentional or negligent. • Success of a claim depends on proving unreasonableness.

General rules: • Private nuisance: a private nuisance is a Tort usually committed by one land owner against his/her neighbouring landowner . • There are 2 ways in which a private nuisance may be committed: 1) Conduct indirectly leads to the causing of physical damage to the land of the Plaintiff OR property of the Plaintiff that is on his land. - where physical damage is caused, liability is strict. - the Defendant can be liable even if the Defendant can prove that Step 1: reasonable care was taken to avoid causing damage. Establish prima 2) Indirect interference causing the Plaintiff inconvenience by making it facie nuisance difficult for him/her to enjoy the use of the land by creating an unpleasant situation or atmosphere (KNOWN AS INTERFERENCE). - this type of nuisance requires a continuing state of affairs – NOT a one time thing - various factors, including failure to exercise reasonable care, must be satisfied before liability can ensue

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• Once you have set out a prima facie case of nuisance, you then have to establish that the nuisance is unreasonable.

• (Huron Steel Products) ® establish if nuisance is unreasonable 1) The severity of the interference, having regard to the nature and duration and effect, 2) The character of the locale, 3) The utility of the Defendant’s conduct, 4) The sensitivity of the use interfered with. Step 2: • The Law of Torts lists eight factors that commonly affect the determination as Establish if to whether the Defendant’s conduct constitutes a nuisance, namely: nuisance is unreasonable 1) The character of the neighbourhood; 2) The intensity of the interference; 3) The duration of the interference; 4) The time of day and the day of the week of the interference; 5) The zoning designation of the neighbourhood; 6) The utility of the defendant’s conduct; 7) The nature of the defendant’s conduct; and 8) The sensitivity of the plaintiff.

• (Kerr v Revelstoke Building Materials Ltd) : Debris and sound from the Defendant’s drifted to the Plaintiff’s property causing disturbances. : The ash, smoke and dust which assaulted the Plaintiff’s premises from time to time was serious enough in itself, but the objectionable sounds which emanated from the sawmill operations were such that they constituted a nuisance which was so serious it substantially interfered with the operations of the plaintiff’s motel business and with their use and enjoyment of the land. : The Plaintiff succeeded in trespass (the ash smoke and dust) and nuisance (the noise).

• (K (M.J.) v M (J.D.)) • Court refused to find a nuisance when the Defendant carried on surveillance through the use of vehicles parked near the Plaintiff’s home.

• (Nor-Video Services Ltd. v. Ontario Hydro) • The defendant was held liable in nuisance because the location of its power lines disrupted the Plaintiff’s television broadcasts. • Court held that watching television was an important incident of ordinary enjoyment of property and as such, an interest worthy of protection. • The Defendant’s conduct was held to be unreasonable interference, even though it acted in good faith in placing its lines in the most economically efficient location.

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• (Hunter v Canary Warf) • The House of Lords held that the Defendant’s lawful construction of an enormous skyscraper, which interfered with the local residents’ television reception, did not constitute private nuisance. • The Defendant was free to build on its property any structure it wished provided it did not violate the planning law.

• (Hollywood Silver Fox Farm Ltd. v Emmett) • A person who shoots on his own land, or makes other noises on his own land, for the purpose of annoying or injuring his neighbour, does by the Common Law, commit the actionable wrong of nuisance. • A person acting this way will be liable for damages and should be restrained from carrying on this conduct by an injunction.

Defences:

1) Statutory authority

• (Tock v St. John’s Metropolitan Area Board) A claim in nuisance will not lie against a municipal corporation for damages resulting from a service provided under statutory authority IF that body could establish that; (1) the occurrence complained of was inevitable in the sense that it could not have been avoided by the exercise of all reasonable and available expertise and, (2) care was exercised in the design, construction and operation of the service • Test: ® there can be NO NUISANCE if the occurrence complained of is inevitable 1) Inevitable consequence of discharging duty, then the nuisance itself is authorized and there is no recovery in the absence of negligence,

2) If legislation is specific as to the manner or location of doing the thing authorized duty and the nuisance is the inevitable consequence of doing the thing authorized in that way or in that location, then the nuisance is itself authorized and there is no recovery absent negligence,

3) If legislation confers authority and also gives the public body a discretion, not only whether to do the thing authorized or not, but how to do it and in what location, then if it does decide to do the thing authorized, it must do it in a manner and at a location which will avoid the creation of a nuisance. If it does it in a way or at a location which gives rise to a nuisance, it will be liable whether there is negligence or not

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• (Execotel Hotel Corp) • Airbourne woodchips and particles settle on the Plaintiff’s land. • This could not give rise to a trespass because the interference was indirect and unintentional. • The Defendant was liable for nuisance.

• (Smith v Inco) • Trespass claim failed because there was no direct interference. • Nuisance claim was denied because there was no proof of damage. • The Defendant’s conduct did not either pose a risk to the Plaintiff’s health or decrease the value of his property.

• (Doucette v Parent) • Natural use of land do not pose any foreseeable risk that might result in liability arising from nuisance.

Public nuisance:

• a public nuisance is NOT A TORT ® it is a crime at Common Law or under statue dealing with harmful conduct that affects the community as a whole or some significant section of it. • There are two forms: (1) Common Interest (2) Private Interests Combined • S180(2) of the Criminal Code of Canada 1985 • “Everyone commits a common nuisance who does an unlawful act or fails to discharge a legal duty thereby”. • In some instances, a public nuisance may lead to the granting of a private remedy • one such instance ® when a public nuisance results in suffering of a ‘special’ or ‘particular’ damage. • what constitutes such damage has long been a subject of controversy. • it is said to be different from the loss or damage suffered by other people generally affected by the public nuisance in question. • in such circumstances, public nuisance (which is a criminal offence) becomes a Tort resulting in civil liability.

• (Attorney General of Ontario v Orange Productions) • Interim injunction against the hosting of a rock festival. • Injunction operational until such time that the number of attendees was limited and the appropriate infrastructure (security / porta-potties etc…) were properly arranged.

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• (Hickey v Electricity Reduction Co.) • ERC discharged poisonous waste from their plant and destroy fish in the adjacent waters. • This results in a public nuisance, HOWEVER, suffering the same harm as the general public but to a different degree is not enough to constitute special or particular damages of which civil liability will ensue

Remedies:

• The Plaintiff may be entitled to one or more remedies • The most common remedies for nuisance are: injunctive relief / damages / abatement • Types of injunctions: 1) Prohibitive: compels the Defendant to refrain from committing a certain act 2) Mandatory: compels performance of a certain act 3) Interlocutory: temporarily restrains the Defendant from acting pending the Plaintiff’s attempt to establish a case for a permanent order 4) Quia timet: to prevent the Defendant from causing an anticipated harm 5) Permanent: granted by a Court after a full hearing in resolution of a dispute

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Trespass to Airspace and Subsoil:

• (Bernstein v. Skyviews & General Ltd) • The rights of a landowner to the airspace above his land is restricted to such height as is necessary for the ordinary use and enjoyment of his land and the structures upon it. • Above such height, the landowner has no greater rights to the air space than any other member of the public.

• (Boehringer v. Montalto) • A landowner’s title to the subsoil extends only to the depth which he or she can reasonably use. • A sewer 150 feet underground was beyond reasonable use

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NEGLIGENT LIABILITY TORTS

General rule:

• Negligence is a cause of action that arises from a Tort concerned with liability for careless conduct. Carelessness is a specific element within the cause of action (Duty of Care). • Negligence evolved from the writ system of strict liability. • The leading development in Negligence came about in the case of Donoghue v Stevenson . • The Rule of ‘Love thy neighbour’ extended the Duty of Care owed. • This expansion also included businesses and encompasses the duty to prevent harm.

• Elements for negligence: 1) Duty of Care:

• For tortious liability to exist in Negligence, the Defendant must have owed the Plaintiff a Duty of Care. • There are some defined relationships in which this Duty arises automatically (ie): doctor / patient or solicitor / client (established Duty of Care). • The more difficult cases occur where this relationship between parties is less formal. In which case the neighbourhood principal will help guide the analysis (establishing a novel Duty of Care). • In order for a duty to arise, there must be: (i) a foreseeable risk of injury, (ii) a relationship of proximity between the parties, and (iii) no policy reasons for not imposing a duty. • The Standard of Proof = on a Balance of Probabilities.

2) Standard of Care and its Breach:

• There is no liability unless the Defendant breached an owed Duty of Care. • Whether a breach has occurred is determined by asking whether his / her actions fell below the appropriate Standard of Care. • General Standard of Care = ‘reasonable person’ in the circumstances of the case. • Some groups in society are held to a higher standard (doctors / lawyers) or a lower standard (children) than what is expected of the ‘reasonable person’.

3) Causation:

• Causation = cause in fact. • This element links the Defendant’s breach of the Standard of Care with the Plaintiff’s actual loss. • The ‘But For’ test: § If it can be held that; but for the actions of the Defendant this harm would not have occurred, then causation has been established.

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§ Additional tests exist where the ‘But For’ test is inadequate (ie): multiple Defendants / learned intermediary rule / informed consent rule / material contribution test / material increased risk test.

4) Remoteness:

• Remoteness = cause in law. • Remoteness asks whether the relationship between the Defendant’s breach and the injury experienced by the Plaintiff is too remote to justify recovery. • The effect is that in Negligence, liability is usually limited to those losses that were a foreseeable consequence of the Defendant’s actions at the time of the loss occurring.

5) Assessment of Damages:

• Negligence is ONLY actionable in cases where the Plaintiff has suffered actual loss. • After the decision in Andrews v Grand & Toy (ABCA), damages are quantified under the following: § Pecuniary loss § Non-pecuniary loss

6) Defences:

• The Defendant can raise a variety of defences that will limit or completely negate liability even in circumstances where all of the elements of the Tort have been made out. • Defences specific to Negligence: § Contributory Negligence § Voluntary Assumption of Risk § Participation in a Criminal or Immoral Act § Inevitable accident

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Duty of Care:

• Steps to follow for the Duty of Care analysis: 1) Is the alleged Duty of Care within an established category or one analogous to it? (If YES ® the duty is established / If NO ® conduct Novel Duty of Care Test)

2) Is the harm reasonably foreseeable? (B.o.P rests on the Plaintiff)

3) Is there a sufficient proximate relationship between the Plaintiff and Defendant? (B.o.P rests on the Plaintiff)

4) Are there any residual policy considerations which would negate or limit the Duty of Care? (B.o.P rests on the Defendant) a. What are the resulting legal / social / economic implications and obligations if there was a Duty of Care? b. Does the law already provide a remedy? c. Would recognition of the Duty of Care create unlimited liability to an unlimited class?

• Steps 2, 3, and 4 are known as the Anns / Kamploops Test • Steps 2 and 3 do not apply to established categories (Childs v Desormeaux)

• Donoghue v Stevenson

• The Plaintiff drinks a bottle of root beer that has a decomposed snail in it. She complains of gastric pains and sues for negligence. • You must take reasonable care to avoid acts or omissions which you can reasonably foresee would likely injure your neighbour. • Who is ‘my neighbour’? • “persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question” • A Duty of care arises when the Defendant is proximate to the Plaintiff and can reasonably foresee harm. • Donoghue Test = (i) reasonable foreseeability of harm and (ii) a relationship of close proximity between the Plaintiff and the Defendant.

• Anns v Merton London Borough

• The Defendant was informed that the foundation of the building was complete, but chose not to inspect, and issued a building permit as is. The Plaintiff sues the Defendant for failing to inspect the foundations and granting a building permit. • It is not necessary that the Duty of Care fall into one of the previously established categories.

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• This case recognizes that new categories of Duty of Care in negligence can be established (novel Duty of Care). • Two stages to a novel Duty of Care: 1) Is there a sufficient relationship of proximity between the Plaintiff and the Defendant which in the reasonable contemplation of the Defendant, carelessness on his part may be likely to cause damage to the Plaintiff? (If YES ® a case prima facie duty of care arises) 2) Are there any considerations which ought to negative, or to reduce or limit the scope of the duty? • The 2 part Anns test was first adopted in Canada in Kamloops v Nielson

• Cooper v Hobart

• Where the Duty of Care does not fall into a recognized category, the second part of the Anns test arises. • The second part of the Anns / Kamloops test is an avenue for policy considerations. • What are the arising legal/social/economic obligations if there is a Duty of Care? • Does the law already provide a remedy? • Would recognition of Duty of Care create unlimited liability to an unlimited class? • Policy implications meant that the Defendant had to balance private and public interest and the public always wins. • In this case, the Defendant did not owe a duty of care, thus no liability.

• Foreseeability:

• Whether, at the time of the alleged tort, it was reasonably foreseeable to a person in the Defendant’s position that ANY carelessness on his or her part could create a risk of ANY injury to the Plaintiff.

• Moule v NB Electric Power Co

• ONLY reasonably foreseeable risks will lead to a Duty of Care. • It is foreseeable that children will climb trees. Power companies should therefore respond by placing their wires such that children will not come unexpectedly in contact with them. However, a company is not necessarily responsible for every accidental contact with its wires by climbing children, or that it is deemed to be endowed with prevision of every harmful contingency. • In placing the wires 33ft from the ground and causing the adjacent trees to be limbed as they were at the place of this accident, the defendant had taken adequate precautions against such dangers inherent in the presence of the wires as could be reasonably foreseen. • The accident as it happened was a result of a number of unlikely events, which were outside of the range of reasonable foreseeability.

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• Amos v. NB Electric Power Co

• The Plaintiff climbs a young tree, which sways under his weight and makes contact with the power line causing the boy to be electrocuted. The boy’s parents sue the electrical company for negligence in not trimming the tree sufficiently or placing the lines far away. • It was held that the tree was not trimmed sufficiently. • Those who erect electric lines have a duty to take proper precautions against all foreseeable injuries. • Unlike in Moule, the Defendant had failed to take adequate precautions against reasonably foreseeable dangers inherent in the presence of the wire. • The accident was one which could have been foreseen and which was almost inevitable. • Foreseeability (and thus a Duty of Care) cannot be transferred from one Plaintiff to another. • This does not mean that each individual Plaintiff must be foreseeable, but rather that the Plaintiff must belong to a class of persons foreseeably at risk (such as all drivers on the road).

• Palsgraf v Long Island Railway Co

• The Defendant need not have foreseen the particular Plaintiff, the fact that the Plaintiff belonged to a class of persons that was foreseeable to the Defendant is enough to establish foreseeability.

• Proximity: • ‘Proximity’ is generally used to characterize the type of relationship in which a duty of care might arise. • Proximate relationships are often identified through the use of categories. • Courts have created a series of relationships which are innately proximate: • Where the defendant’s act foreseeably causes physical harm to the plaintiff or the plaintiff’s property; • Negligent misstatement; • Misfeasance (an affirmative action) in public office; • A duty to warn of the risk of danger; • A duty to inspect without negligence; • A duty to conduct work undertaken in a non-negligent manner; and • Relational economic loss related to a contract’s performance (in some defined situations). • The Court in Cooper endorsed a list of categories from Anns in which a proximate relationship (and thus a duty) had already been established. This list was not intended to be exhaustive

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• Special Duties of Care: ( REFER TO LIST FOR FULL EXPLANATION)

• Special duties ® generally refer to situations where Courts have already established (often as a matter of policy) that a duty will or will not arise. • Those instances where a duty has been found to consistently arise become the “established categories of duty” that are referred to at the initial stage of the Cooper test. • If you can fit your case into one of these established categories, there is no need to proceed with any additional duty analysis. • Misfeasance = positive acts / Nonfeasance = omissions or failures to act. • As a general rule, Courts have been willing to impose liability for losses caused by misfeasance, but rarely in cases of nonfeasance. • The few cases where nonfeasance has given rise to a duty typically involve a contractual or statutory obligation to act. • One way to think about the distinction between misfeasance and nonfeasance is that misfeasance involves worsening the Plaintiff’s position, whereas nonfeasance involves failing to improve it.

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Standard of Care:

• The ‘Standard of Care’ is the standard of behaviour expected of the Defendant in the particular circumstances of the case. • A breach occurs if the Defendant’s conduct fell below the requisite standard. • Underlying the concept of the standard of care is the ‘reasonable person’ test. • The judge must determine the Standard of Care by asking himself how the reasonable person in the circumstances of D would have acted.

• The measure of what is reasonable depends on the facts of each case, in light of: 1) The likelihood or probability of foreseeable harm (an event can be foreseeable even when not probable); 2) The gravity / severity of the harm; 3) The burden or cost (both private and social) that would be incurred to prevent the harm.

• Arland v Taylor

• The standard is “the care that would have been taken in the circumstances by a reasonable and prudent man”. • What is the standard of the reasonable man? • The Standard of Care is not a subjective one, but an objective “reasonable person”. • The reasonable man is a creature of law whose conduct is the standard by which the Courts measure the conduct of all persons and find it to be proper or improper in particular circumstances as they may exist from time to time. • He is not required to display the highest skill of which anyone is capable. He is not a genius who can perform uncommon feats, nor is he possessed of unusual powers of foresight. • He is a person of normal intelligence who makes prudence a guide to his conduct. • He does nothing that a prudent man would not do and does not omit to do anything a prudent man would do. • He acts in accord with general and approved practice.

• Bolton v Stone (Probability and Severity of Harm)

• The Plaintiff is hit by a cricket ball as she walks on a small lane behind the court. The Defendant (club) claims that only 6 balls flew out of the court in the previous 30 years. • The reasonable person would take into account the degree of risk and take precautions only where the risk is substantial. • The injury was foreseeable, as balls have flown out of the court before. • However, mere foreseeability is not enough to require the Defendant to take precautions. • Rather, the focus should be on the likelihood of injury.

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• Is the risk of damage to a person on the road so small that a reasonable man in the position of the defendant would have thought it right to refrain from taking steps to prevent the danger. • Consider: • How remote is the chance that a person might be struck? • How serious the consequences are likely to be if a person is struck? • Not the difficulty of remedial measures (this is overturned later)

• Paris v Stepney Borough Council (Probability and Severity of Harm)

• A one-eyed worker suffers an accident and loses his remaining eye. The accident could have been prevented if the employer provided him with safety glasses. • The severity of the damage (considering individual characteristics of the plaintiff) can outweigh the low probability of injury. • The risk of splinters breaking off the steel bolt was slight, however the damage could be serious, especially to someone with one eye. • The Plaintiff’s one-eyed status was relevant to determining the Standard of Care. • The risk was slight, but because the injury would be heightened in the case of a one-eyed Plaintiff, the severity of injury warranted the provision of goggles. • Unlike Bolton, the court considers the cost of avoidance as an important factor. • Here, the cost of avoidance was small. The Defendant was held liable

• Vaughn v Halifax-Dartmouth Bridge Company (Cost of Risk Avoidance)

• The Defendant is engaged in painting the bridge, under which the Plaintiff’s car is parked. Plaintiff’s car gets paint on it. • One has to consider all the possible cheapest precautions. • The only precaution that the Defendant took was employing one person to wipe off the paint from cars. • The Defendant argued that it had taken all reasonable measures and that to expect any more from them would constitute a prohibitive cost to them. • Court rejected this argument because there were straightforward and cheap methods by which the Defendant could have met his Standard of Care. • The Defendant could have had the authorities who managed the parking lots, post warning signs at the parking lots, and/or issued warning via radio or the newspapers. Further, in the past the Defendant had issued warnings and cars were moved.

• Law Estate v Simice

• The Plaintiff dies after the hospital failed to provide him with skillful, timely and efficient care, particularly by failing to take a CT scan before surgery. • The Defendant claims that they were underfunded and did not have sufficient staff and resources to be thoroughly diligent. • Financial restraint is something to be considered by those responsible for the provision of medical care and those who are responsible for financing it.

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• If it comes to a choice between a physician's responsibility to the patient and responsibility to the medical care system overall, the patient must take precedence in a case such as this. • The severity of the harm that may occur to the patient who is permitted to go undiagnosed is far greater than the financial harm that will occur to the medical care system if one more CT scan procedure only shows the patient is not suffering from a serious medical condition. • Public policy can be important when determining the Standard of Care, but in this case, the Defendants were found to be negligent.

• Social utility:

• Courts consider the burden taking of precautions places on Defendants • The Court also weighs the social utility (positive public contribution) of the Defendant’s actions. • If the Defendant’s conduct has some social utility, this should be factored into the gravity, probability and cost formula in favour of the Defendant. • Generally, the Courts will consider the social utility of the Defendant’s conduct ONLY where the Defendant is a public officer or is employed by a public authority (ie): fireman / police officer.

• Watt v Hertfordshire CC

• Plaintiff was a firefighter. A special jack was needed for an emergency call, however, it had not been used in over 15 years, so its transport vehicle had to be swapped out. The new transport vehicle had to break suddenly, shifting the jack and injuring the Plaintiff. • The saving of life or limb justifies taking considerable risk. • You must balance the risk against the end to be achieved. • Emergency responders had to perform a rescue, and switching the jack was an appropriate risk to the rescuer.

• Economic Analysis:

• U.S v Carroll Towing Co.

• Vessels can and will break from its mooring points. It is the owner’s duty to prevent this harm as far as possible. There are 3 variables to consider: (i) the probability that the vessel will break away, (ii) the gravity of the resulting injury if it occurs and (iii) the burden of adequate precautions.

• Disabled:

• Fiala v Cechmanek

• A physically disabled Defendant is required to meet ONLY the Standard of Care of a reasonable person with a similar disability.

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• At the same time, such a person must be aware of his or her limitations and take precautions to avoid injury (Dobbs v. Mayer). • You must balance the risk against the end to be achieved. • In order to be relieved of tortious liability when the Defendant is afflicted suddenly and without warning with a mental illness, that Defendant must show either of the following on the balance of probabilities: 1) As a result of his or her mental illness, the Defendant had no capacity to understand or appreciate the Duty of Care owed at the relevant time OR 2) As a result of mental illness, the Defendant was unable to discharge his Duty of Care as he had no meaningful control over his actions at the time that relevant conduct fell below the objective standard

• Children:

• Joyal v Barsby

• 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. • A subjective test where the Court must consider the particular child, all the qualities and defects of the particular child, and all of the opportunities (or lack of them) which the child might have had to become aware of any particular danger or Duty of Care. • IF the child is engaged in adult activities such as driving a car, snowmobiling, golfing or hunting, the child is required to meet the standard expected of a reasonable adult (Pope v. RGC Management).

• Professionals:

• White v Turner

• The Standard of Care for a professional is determined based on industry specific standards of practice and testimony of experts in the given field • When determining the appropriate Standard of Care of a professional, the court must turn to experts in the field and standard practice • Failure by the Defendant to meet the standard practice of the profession is evidence of a breach of the requisite standard of care • Courts have been willing to apply industry specific and professional standards to a wider and wider group of Defendants, including most skilled trades and occupations

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• The Role of Custom:

• Ter Neuzen v Korn

• Conforming to a negligent practice enshrined as an industry standard is not an excuse. • Where a procedure involves difficult or uncertain questions of medical treatment or complex, scientific or highly technical matters that are beyond the ordinary experience and understanding of a judge or jury, it will not be open to find a standard medical practice negligent. • As an exception to the rule, if a standard practice fails to adopt obvious and reasonable precautions which are readily apparent to the ordinary finder of fact, then it is no excuse for a practitioner to claim that he was merely conforming to such a negligent practice.

• Gross Negligence:

• While the Standard of Care is a relatively static concept, on most occasions we rely on the reasonable person / reasonable professional standard (occasionally statutes will alter the Standard of Care) – ie: Good Samaritan Act. • In such instances, liability flows only in cases of Gross Negligence. • For practical purpose, Gross Negligence can be understood as requiring something less blameworthy than Criminal Negligence, but something worse than ordinary Tort Negligence.

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Causation:

• Causation is cause in fact. • The Plaintiff need not prove that the Defendant’s negligence was the sole / immediate / direct / the most important cause of the loss - the Plaintiff only has to establish that the Defendant’s negligence was a cause. • The Defendant is only responsible for the foreseeable injuries.

• ‘But For’ Test:

• If the Plaintiff’s injury would not have occurred but for the Defendant’s negligent act, then the act is the cause of the injury. • If the Plaintiff’s injury would have occurred regardless of the Defendant’s negligence, the act is generally held to not be the cause.

• Kauffmann v Toronto Transit Commission

• The Plaintiff is severely injured when he was riding on an escalator in a subway and a bunch of people above him fell down, causing a chain reaction and falling on top of him. • The Plaintiff sues the TTC for installing a new type of escalator with a different type of hand-rail. • The finding of negligence must be made out by evidence, and not left to the conjecture of the jury. • Negligence is not the cause of injury as the injury would have happened regardless of the type of hand-rail.

• Barnett v Chelsea & Kensington Hospital

• The Plaintiff goes to the hospital complaining of stomach pain. The nurse on duty sends him home without having a doctor look at him. He dies of arsenic poisoning 5 hours later. Is the negligence of the hospital a cause of death? • If the action would not have prevented the injury, then negligence is not the cause of the injury. • Given the time that it would take to admit and diagnose the Plaintiff, by the time the arsenic poisoning would have been identified, it would be too late to treat him. • He still would have died even if he was admitted. Thus, the hospital’s negligence is not the cause of death.

• Exceptions to the ‘But For’ Test: 1) Multiple Negligent Defendants • If the Plaintiff can prove that both Defendants were negligent, and that one of them had to have caused his loss, and that it is impossible to prove which one, the burden of proof shifts to the Defendants. • Each Defendant will be held liable UNLESS one Defendant can disprove causation on the balance of probabilities.

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• (Cook v Lewis)

2) The Learned Intermediary Rule • Applies in cases where a product is not directly available to the public and reaches the consumer only after passing through an “expert” • A manufacturer cannot use the learned intermediary rule to shield itself from liability, though contributory negligence can be shown • It is not necessary, in order to show causation, for the Plaintiff to prove that the intermediary would have passed the information on

3) Informed Consent • Healthcare professionals have a duty to patients to put them in a position in which they can make informed decisions about whether to consent to particular medical treatment. • In cases where doctors have negligently failed to provide information that would enable a patient to give informed consent, doctors have argued that even if the patient had been informed of the dangers, they would have consented anyway. • A Plaintiff responds by bringing evidence of what he would have done (ie): subjective analysis . • To decrease the subjectivity of the analysis, the Court adopted a subjective / objective test of causation, framed in terms of whether a reasonable person in the Plaintiff’s position would have consented if adequately informed (Arndt v Smith).

4) Material Contribution Test • Material contribution arises when the Defendant’s conduct contributed to the occurrence of the injury, but was not the only cause. • The “but for” test is unworkable in these cases, because we cannot be sure that the injury would not have occurred had the Defendant not been negligent. • Material Contribution Test = A contributing factor is material if it falls outside of the de minimis range.

• According to Hanke v Resurface Corp the material contribution test can only be applied if two requirements are met:

a) The Plaintiff must first establish that it is impossible to prove causation using the but-for test and that this impossibility results from factors beyond the Plaintiff’s control, such as the current limits of scientific knowledge

b) The Plaintiff must establish that the Defendants breached the Standard of Care and that the Plaintiff’s injuries fell within the ambit of the risk created by the defendant’s breach

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• Walker Estate v York Finch General Hospital

• If the conduct of the Defendant was a sufficient condition outside of the de minimis range, then the Defendant is liable. • In cases of negligent donor screening, it’s impossible to prove hypothetically what the donor would have done had he been properly screened. • Thus the question in cases of negligent donor screening should not be whether the Canadian Red Cross’s conduct was a necessary condition for the Plaintiff’s injuries using the “but for test”, but whether that conduct was a sufficient condition. • The proper test for causation in cases of negligent donor screening is whether the Defendant’s negligence “materially contributed” to the occurrence of the injury.

5) Materially Increased Risk • Materially Increased Risk Test = if scientific evidence is lacking, but contribution can be shown to be beyond the de minimis range, the Courts will infer causation. • The Material Increase of Risk Test emerged to deal with those cases where the Plaintiff couldn’t meet the burden of proof because it was impossible to draw a precise (often scientific) conclusion, but it was likely that the defendant’s conduct increased the risk of injury. • Thus an inference of causation is established.

• Snell v Farrell

• The Defendant performs an eye operation on the Plaintiff, and sees bleeding. The Defendant stops the surgery for half an hour, and the bleeding stops. After the surgery, the bleeding returns, and the Plaintiff loses sight in the eye. • The bleeding could have been caused by continuation of the operation, or by natural causes: it is impossible to definitely prove what caused the bleeding. • In cases where scientific proof of causation is lacking, materially increased risk is applicable. • Experts must be bold in their statements and it should then be up to the judge to decide whether an inference of negligence should be drawn, applying common sense. • Decisions do not need to be based on firm medical opinion. • In this case, the experts were unsure about the origins of the injury, but the actions of the Defendant did increase the risk, and were possibly one of the causes of the injury.

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• Therefore, there was a material increase of risk and the Defendant was held liable.

• Proportionate Cause:

• The proportionate cause approach has emerged as a possible solution to the “all or nothing” nature of causation. • Applying the proportionate cause approach, a Plaintiff would recover based on a possibility that the Defendant was a cause of the loss. • Thus, if there was a 35% chance that the Defendant’s negligence caused the loss, the Plaintiff would recover for 35% of his loss.

• Sindell v. Abbott

• If it is clear that a group of Defendants were negligent, but not clear that any of them caused harm to the Plaintiff, are they liable and if so to what extent? • When a particular class of Defendants can be identified as being responsible for an injury, but the specific party that caused the injury cannot be determined, then all of the Defendants must share liability for the damages proportionally to the probability that they caused the injury.

• Gariepy v. Shell Oil Co.

• Where the specific manufacturer of a defective product used by a particular class member is unknown but the product by different manufacturers is the same, then liability may be able to be determined on a market share theory.

• Cuillerier v. André’s Furnace

• Another possibility for assigning responsibility to tortfeasors who have distributed a dangerously defective product, is the “market share” approach cited by the responding party. • This approach based on American authorities was accepted as potentially applicable in Ontario by Cummings J. in Gariepy v. Shell Oil Company. • This was in the context of a class proceeding in which it is not necessary for each member of the class or for the representative Plaintiffs to have a cause of action against each named Defendant. • The applicable principle however is drawn from the second restatement of the law of torts in which it is said that “where the conduct of two or more actors is tortuous, and it is proved that harm is caused by one of them, but there is uncertainty as to which one has caused it, the burden is upon each such actor to prove he has not caused the harm”.

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• Multiple Causes and Divisible / Indivisible Loss:

• Divisible Loss: • Loss that is attributable to the actions of a single tortfeasor. • If the Plaintiff’s loss can be divided and each loss easily attributed to a single tortfeasor, the loss is considered divisible.

• Indivisible Loss: • Where the Plaintiff’s loss or injury cannot readily be attributed to a single tortfeasor. • The loss or injury is usually as a result of multiple causes – each cause perpetuated by a different tortfeasor.

• Two categories of indivisible loss: 1) Independent Insufficient Cause : refers to situations where the causes are accumulative, each one being insufficient on its own to have caused the final loss. The test is “But For” or “Material Contribution”.

• Athey v Leoni

• As long as the defendant is part of the cause of an injury, the defendant is liable, even though his act alone was not enough to create the injury. • Crumbling Skull Rule = If the Plaintiff has a pre-existing condition, with some sort of an inevitable end point, which is hastened by the Defendant’s negligence, the Defendant is only liable to put the Plaintiff in a position equal to where they were prior to the accident - that is back to their deteriorating condition (only liable for the portion of the loss or injury caused). • Thin Skull Rule = the Defendant simply takes the plaintiffs as he finds them (irrespective of the Defendant’s contribution, he / she will be liable for all Plaintiff’s loss or injury).

• Nowlan v Brunswick Construction

• If two or more negligent Defendants cause or contribute to an indivisible injury, liability is joint. • Where there are concurrent torts, and where the damage would not have occurred in the absence of either, the liability is a joint and several liability, and either party causing or contributing to the damage is liable for the whole damage to the person aggrieved.

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2) Independent Sufficient Cause : refers to cases where each of the two or more causes was sufficient on its own to cause the plaintiff’s overall loss. • Independent tortfeasors are only liable for injuries that they have caused. • Joint tortfeasors are liable for the torts committed by their fellow tortfeasors. If the Defendants are joint tortfeasors, the Plaintiff need only prove that one of them was negligent, for all of them to be liable.

• Lambton v Mellish

• The Defendant is liable if his conduct is a “significant and substantial” factor. • Where there are independent sufficient causes the traditional "but for" test should not be applied. • Rather, the court should ask whether the Defendant’s conduct was a "significant or substantial" factor in causing the Plaintiff harm.

• Cook v. Lewis

• Recognized three situations of joint tortfeasors:

a) Employee committing a tort on behalf of the employer, b) Agent committing a tort on behalf of the principal, and c) Two or more individuals agreeing to act in concert to bring about a common end that is illegal, inherently dangerous, or one where negligence can be anticipated.

• Successive Causes of Parallel Injury

• Situations where, prior to trial / appeal, a Plaintiff suffers a second independent injury that causes additional loss. The question raised by these cases is how to determine damages. • The first tortfeasor cannot benefit from subsequent culpable behaviour (ie): a second tort, except where the second tort somehow reduces the Plaintiff’s disability or shortens the period that he would suffer. • Otherwise the plaintiff would not be compensated in full for the two injuries suffered (Baker v Willoughby). • Where the successive injury is caused by non-culpable behaviour (ie): non- tortious, the Defendant can rely on the successive action to reduce damages (Penner v Mitchell).

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Remoteness:

• Even in situations where the Defendant breached a Duty of Care owed to the Plaintiff and that breach caused the Plaintiff to suffer harm, IF the actual harm suffered by the Plaintiff was too “remote” there will be no liability. • Remoteness of damages focuses on the foreseeability of the injury itself and is designed to limit the scope of liability. • Remoteness is similar to causation, but whereas causation deals with the physical nature of causes, remoteness considers legal and policy causes - where do we draw the line on legal responsibility? • In order to establish remoteness, you firstly need to conduct an analysis as to whether or not the risk of loss or injury was foreseeable, and secondly, whether the loss or injury was possible.

• Foreseeability Test for Remoteness:

• Wagon Mound (No. 1)

• Foreseeability is the proper test for remoteness. • There must be some limitation imposed upon the consequences for which the negligent actor is to be held responsible. • Unless the events can be reasonably foreseen, there should be no liability for the negligence.

• Hughes v Lord Advocate

• The proper question for remoteness is whether the injury is of the kind that is foreseeable. • The question is not whether the exact injury and its circumstances are foreseeable, but whether the injury is of the kind that is foreseeable. • Whether the actual harm (severe burns) is of the same kind as that which was foreseeable (burns)?

• Smith v Leech Brain & Co.

• Should the plaintiff’s pre-disposition to cancer discount the damages that the defendant owes his estate? • The test is not whether the Defendant could reasonably have foreseen that a burn would cause cancer and that the Plaintiff would die. • The question is whether the defendant could have reasonably foreseen the type of injury which the plaintiff suffered, namely, a burn.

• Possibility of Injury:

• Wagon Mound (No. 2)

• Injury must be reasonably foreseeable and possible ® not probable. • This case has relaxed the foreseeability standard for remoteness articulated in Wagon Mound No 1.

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• The injury was possible, though not probable, was treated as sufficient to satisfy remoteness.

• Assiniboine South School Division v Greater Winnipeg Gas Co.

• Injury was possible, though not probable, was treated as sufficient to satisfy remoteness. • The extent of the damage and its manner of incidence need not be foreseeable, as long as the physical damage of the kind is foreseeable. (Hughes principle). • In this case, property damage was foreseeable, no matter whether it was by collision or fire. • The test of foreseeability of damage is a question of what is possible rather than what is probable (impossible?).

• Intervening Causes:

• Intervening causes ® refers to situations where the Plaintiff’s loss is caused by the Defendant’s breach AND a subsequent intervening act. • A Defendant remains liable despite an intervening act, as long as the intervening act is a foreseeable consequence of the Defendant’s original negligence • (eg): driver hits the Plaintiff and the Plaintiff goes to the hospital where she is negligently given the wrong drug and killed. The question is whether the intervening act of the negligent doctor should protect the negligent driver from liability for the Plaintiff’s death - does the intervening act render Plaintiff’s injury ‘too remote’? If the intervening act was a foreseeable consequence, damages will be apportioned according to each parties’ contribution to the harm. If the intervening act was not a foreseeable consequence, then it’s too remote.

• Bradford v Kanellos

• An intervening cause will not break the chain of causation if it is a consequence of the original negligence. • “It is no longer open to serious question that the operation of an intervening force will not ordinarily clear the Defendant from further responsibility, if it can fairly be considered a not abnormal incident of the risk created by him [sic]”.

• Price v. Milawski

• In this case, it was reasonable foreseeable by the first doctor, that once the information generated by his negligent error got into the hospital records, other doctors subsequently treating the Plaintiff might rely on the accuracy of that information. • It was also foreseeable that some doctors might do so without checking, even though to do so in the circumstances might itself be a negligent act.

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• Medical history is always a factor in a subsequent diagnosis and consequent treatment. Such a possibility was not a risk which a reasonable man (in the position of Dr. Murray) would brush aside as far- fetched.

• Price v. City of Red Deer

• The Defendant was operating a tractor used to move gravel. The Defendant takes a break and leaves the keys in the ignition, and does not lock the cabin. He comes back to find the tractor gone and driven into the side of a house two and a half blocks away, with the engine still running. • It was reasonably foreseeable that anyone might become aware that the tractor is left unattended. It was also reasonably foreseeable that such a person would be tempted to put it in motion • Therefore, the Plaintiff was negligent and the chain of causation is note broken.

• Tong v. Bedwell

• The Defendant left his keys in his car and was not held liable for having that car get into an accident after being stolen • The court found that it was foreseeable that someone would steal the car with the keys in it, but it was not foreseeable that the thief would drive recklessly.

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Assessment of Damages:

Special (Pecuniary): General (non-Pecuniary):

(1) Future Care (1) Survivors Personal (2) Loss of Earning Capacity Injury (2) Dependants (3) Considerations relevant to both

• Future Care and Loss of Earning Capacity:

• Andrews v Grand & Toy Alberta Ltd.

• The Plaintiff was rendered paraplegic in a car accident. The Appellate Court changed the damages awarded on appeal – you can only do so if there was an error of law or fact, not because you simply disagree. • A claim for the cost of future care is a pecuniary claim for the amount which may reasonably be expected to be expended in putting the injured party in the position he would have been in had he not suffered the damage. • To determine accurately the needs and costs of future care basic living expenses should be included. • Home care is an acceptable cost. • The Court will take into consideration: 1) Level of earnings, 2) Length of working life, 3) Contingencies, and 4) Duplication of compensation

• Townsend v Kroppmanns

• In assessing damages, the Court does not take into consideration what the victim will actually do with the award. • The Plaintiff is he free to do whatever they want with the sum of money awarded.

• Lines v Gordon

• A Court weighs and compares work history and potential for advancement and career at the start of his career in this case • There are two major components to an assessment of loss of future earning capacity: a) The general level of earnings thought by the trial judge to be realistically achievable by the Plaintiff but for the accident, taking into account the Plaintiff’s intentions and factors that weigh both in favour of and against that achievement,

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b) The projection of this earning level to the Plaintiff’s working life, taking into account the positive and negative vagaries of life.

• Legislative Reforms:

• s116 of The Court of Justice Act 1990 ® provision is made for periodic payment and review of damages. • In Ontario = s116.1 has expanded the mandatory use of Court-ordered periodic payments for future costs in medical malpractice cases.

• Survivors and Dependent Claimants:

• s27 of The Survival of Actions Act (2002)

• Baker v Bolton = Fatal Accidents Legislation originally gave no right to anyone who was not a victim to the accident to make a claim. This has since been overridden by The Family Law Act (1990). • Keizer v Hanna = based on The Death of a family Provider Act, used actuarial statistics to measure the life expectancy to gauge an amount to be paid in the long term. Courts can factor in the possibility of remarriage (Buckley v John Allen & Ford).

• Damages for Property Loss:

• Divided into: 1. The assessment of the damage to the property itself, § In the assessment of the property itself, the Plaintiff is entitled to restitution for the loss or the value thereof 2. The assessment of the economic losses consequent to the damage of the property, and § In assessing economic losses, the principle is largely the same as in personal injury and property loss cases 3. The Plaintiff’s obligation to mitigate § It is the Plaintiff’s obligation to mitigate any loss or injury. These principles are applied more strictly in claims for property loss than in claims of personal injury

• Collateral Benefits:

• In most cases, the Plaintiff will also receive compensation in various forms from collateral sources (ie): Government Health Insurance / Private Insurance / Employment benefits. • Certain collateral benefits are not deducted from the Plaintiff’s damages. • The deductibility of many types of collateral benefits is governed by Legislation.

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• Subrogation:

• A party, who honours a legal obligation to indemnify another, has an equitable right to subrogation. • This essentially means that a party who has provided indemnification to another, is entitled to recover any excess compensation received by that other party for the same loss.

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!!! Answer Formula !!!

ISSUE: Identify the legal issues and paraphrase the question for this section.

RULE: Negligence is a cause of action concerned with liability arising from careless conduct. In order to successfully claim for Tortious liability in negligence, you must prove, on a balance of probabilities, the following elements:

ANALYSIS: A. Duty of Care

The Defendant must have owed the Plaintiff a Duty of Care. In order for this duty to arise, according to Cooper, there must be: (i) a foreseeable risk of injury, (ii) a relationship of proximity between parties, and (iii) no policy reasons for not imposing a duty.

1. Established or analogous category:

According to the given facts …

If no clear precedent relationship is evident, we turn to the Anns / Kamloops test to determine if a new relationship of Duty of Care should be established.

• (Eg): class of persons where a DoC is recognized – solicitor / client • Listed in the syllabus

2. Novel Duty of Care: (if there is no established / analogous category of DoC)

a. Was the harm foreseeable? At the time of the alleged Tort, was it reasonable for someone in the Defendant’s position to foresee that carelessness would have caused a risk of injury to the Plaintiff. Any reasonably foreseeable risk will lead to a Duty of Care – Moule. According to the facts …

b. Was there a sufficient relationship of proximity to impose a Duty of Care?

According to the facts … the Defendant may / may not have a close or direct effect on the Plaintiff because …

• Proximity characterizes relationships in which a DoC might arise ® Donoghue v Stevenson (neighbourhood principle)

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• Consider the following factors: expectations / representations / reliance / property interests / other interests • Not only physical proximity, but general relationship of influence (close relationship in space and time) c. If there was a foreseeable risk and proximity, the Defendant bares the burden of raising policy considerations to negate the Duty of Care.

Policy considerations do not support a finding that would negate or limit the Duty of Care. Even if such finding could be made, the analysis proceeds as if the duty has been established.

• Consider: (i) Alternative remedies that might be available? (ii) Will the DoC give rise to indeterminable liability? (iii) Policy decisions by the Government which should be immune?

B. Standard of Care and its Breach

The Plaintiff must establish that the Defendant failed to observe the Standard of Care applicable in the circumstances. This includes determining:

1. The Standard of Care:

The general Standard of Care is that of a reasonable and prudent man in the circumstances. It is an objective standard. The reasonable and prudent man is a person of normal intelligence who acts in accord with general and approved practices.

• Remember: the SoC will change depending on who you are dealing with (eg): when the Defendant is a Doctor, the SoC will be that of a reasonable and prudent doctor.

2. Breach of the Standard of Care:

Whether the Defendant breached the Duty of Care is determined by asking yourself whether his / her actions fell below the appropriate Standard of Care. The following are factors the Courts will take into consideration in determining whether there has been a breach in the Standard of Care:

a. Probability of injury ® Bolton / Paris Two most important b. Potential severity of injury c. Costs associated with avoiding the risk ® Vaughn d. Social utility of the Defendant’s conduct ® Watt • Considered in certain circumstances when the Defendant holds a certain type of office / position (eg): fireman, police officer • Compare commercial end –vs- human end to save life and limb

Overall, the Plaintiff is likely to establish a breach because of …

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C. Causation (the ‘But For’ Test = cause in fact)

In order for liability to arise, the Plaintiff must prove that the Defendant’s act / omission caused the loss or injury. Causation is the element that links the Defendant’s breach of Standard of Care to the Plaintiff’s loss or injury. It is not necessary to prove that the Defendant’s negligence is the sole, immediate, direct or most important cause - it is sufficient if you can prove the Defendant’s negligence was a cause.

1. ‘But for’ Test:

If loss or injury would not have occurred “but for” the acts of the Defendant, then the Defendant is liable (Kauffmann / Barnett). If there are intervening actions, or other actors included, liability could be excluded or reduced.

2. Exceptions to the Test:

a. Multiple negligent Defendant’s ® Cook b. Learned Intermediary Rule ® Hollis c. Informed Consent Rule ® Arnold d. Material Contribution Test ® Walker e. Material Increased Risk Test ® Snell

3. Crumbling Skull Rule:

A person can only be held responsible for the injuries they caused. Any pre-existing loss or injury is not taken into account.

• This is different from the Thin Skull Rule – which has been replaced by the Crumbling Skull Rule

4. Joint Tort Feasors:

The Defendant(s) will be joint Tortfeasors when: 1) Agency 2) Vicarious Liability 3) Act to bring about a common end

• If the Defendant’s are join Tortfeasors, the Plaintiff only needs to prove one of them was negligent.

According to the facts of the case, “but for” the actions of the Defendant …

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D. Remoteness (the Test for legal causation)

Remoteness of damages is concerned with the legal connection between the Defendant’s breach and the Plaintiff’s loss or injury. This element of the analysis is referred to as proximate causation – Palsgraf. In order to fully establish the extent of the Defendant’s liability, we must have full regard of the following:

1. Foreseeability:

The Defendant can only be held liable to the extent that loss or injury was reasonably foreseeable at the time the incident took place. According to Wagon Mound No.1, foreseeability is the correct Test. Not whether the exact loss or injury is foreseeable, but whether injury of the kind is foreseeable – Hughes.

Based on the facts before us …

2. Possibility:

Loss or injury must not only be foreseeable, but must have the possibility (not probable) of occurring (Wagon Mound No.2).

It is possible / not possible for …

3. The ‘Directness’ Test:

If loss or injury is not foreseeable, we utilise the ‘Directness Test’ to overcome any untoward consequences of the ‘Foreseeability Test’. This Test involved establishing a direct result by way of a close temporal and spatial connection (Re: Plemis and Furness).

Based on the fact that … could not be reasonably foreseeable at the time of the incident, the ‘Direct Test’ establishes legal causation, which would mean that …

4. Intervening causes:

An intervening act is one that causes or contributes to the Plaintiff’s loss or injury, after the original Defendant’s breach has taken effect. The Defendant remains liable despite the intervening act IF the intervening act is a foreseeable consequence.

• If the IA is a foreseeable consequence = damages are too remote • If the IA is not within the scope of risk, the original Defendant = no liable ® Bradford

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If the intervening act was a foreseeable consequence of the Defendant’s original negligence, damages will be apportioned according to each party’s contribution to harm (Prince v Milawski).

In summation, and according to the facts presented, there is a reasonable foreseeability / based on the ‘Directness Test’ that if the Defendant … this would establish the connection to the Plaintiff’s loss or injury.

E. Assessment of Damages

The Plaintiff bares the burden of proving on a Balance of Probabilities that he / she has suffered a type of loss that is recoverable. This means being able to prove the existence and the quantum of loss.

• (Eg): Personal injury / survivors and dependant(s) of the deceased / damage to property

The Plaintiff has a duty to mitigate and set-off the extent of damages.

• If applicable, mention any facts that may be a clear indication of this. Alternatively, contributory negligence on the part of the Plaintiff that has in effect added to the damages suffered.

The type of damages that may be claimed …

Special (Pecuniary): General (non-Pecuniary): (1) Future Care (1) Survivors Personal (2) Loss of Earning Capacity Injury (2) Dependants (3) Considerations relevant to both

When it comes to injury to property, the general rule is that there is restitution for the loss or value of repair / replacement / devaluation of the property. In circumstances that involve personal property, it is important to differentiate between property that is common place versus property that is unique. The aims quantifying damages is to place and restore the party to his / her previous position by the least expensive means.

• If property = common place ® the lesser of the cost of repair / replacement / decrease in value • If property = unique ® either unique or of sentimental value (eg): heirloom may require greater expenditure. Courts may consider the Plaintiff’s subjective evaluation in rewarding damages

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F. Defences

There a special Defences that a particular to negligence. Based on the facts of the case …

• Identify any of the below (singularly or in combination) that may apply to the facts of the case in order the Defendant to evade liability completely, or reduce the quantum of damages he owes in settlement of the liability to the Plaintiff.

1. Contributory Negligence:

Apportionment of damages analysis

2. Voluntary Assumption of Risk:

3. Participation in a Criminal or Immoral Act:

4. Inevitable Accident:

Concerned with factual circumstances (eg): Acts of God

CONCLUSION:

In conclusion … • Summarize each element succinctly.

DO NOT FORGET to do the entire analysis for each negligent party!!!

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Established or Analogous Categories of Duty of Care

1. Duty of Rescue

2. Duty to Control the Conduct of Others a. Liability for the intoxicated b. Duty to control situations c. Duty to protect crimes and protect others (Jane Doe v Metropolitan Toronto)

3. Duty to Perform Gratuitous Undertakings (Smith v Rae, Soulsby v Toronto)

4. Duty Owed to Rescuers (Horsley v Maclaren)

5. Duty to Unborn a. Pre- conception wrong b. Wrongful birth or life c. Wrongful pregnancy d. Pre- natal injuries

6. Psychiatric Harm (Mustapha v Culligan)

7. Health Professional’s Duty to Inform (Haughiam Paine) and the Healthcare Consent Act

8. Manufacturers’ and Suppliers’ Duty to Warn (Hallis v Dow)

9. Duty of Care Owed by a Lawyer (Demanco v Ungano)

10. Negligent Misrepresentation causing Pure Economic Loss (R v Imperial Tobacco)

11. Negligent Misrepresentation and Contract and Concurrent Liability on Contract and Tort

12. Pre Contractual Misrepresentation (Queen v Congnos)

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13. Negligent Performance of Service (James v B.C.)

14. Negligent Supply of Goods (Winnipeg Condo Corp v Bird)

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DUTY OF CARE

• “Special duties” generally refer to situations where courts have already established (often as a matter of policy) that a duty will or will not arise. • Those instances where a duty has been found to consistently arise become the “established / analogous categories of duty” that are referred to at the initial stage of the Cooper test. • If your set of facts fit into one of the established categories, there is no need to proceed with any additional duty analysis.

Duty of Rescue

• Rule: there is no general Common Law duty to rescue, even if you have specific skills that could be of aid.

• Osterlind v Hill

§ There is no duty to rescue AS LONG AS the Defendant has not created the situation of peril. § The failure of the Defendant to respond to the cries of help is immaterial as there is no legal obligation for him to do so.

• Matthews & Horsley v Maclaren

§ There are is no Common Law obligation to rescue a drowning person. § BUT by beginning the rescue process, a Defendant assumes a duty to act, and will be liable for negligence.

• Stevenson v Clearview Riverside Resort

§ A diver suffers additional spine injuries when people try to pull him out of the water. An off-duty ambulance officer observes this, but does not intervene. He is charged with negligence. § An ambulance attendant has no duty to offer assistance to individuals rescuing the Plaintiff. § There was no duty for the ambulance officer to intervene - there is no special relationship between someone who is not working in their working capacity, and someone who is in need of assistance. § An off-duty ambulance attendant is simply a private party (the same goes for doctors, who have no general duty - some jurisdictions have imposed a statutory duty). § Health Professionals cannot abandon a patient or discontinue care without making adequate arrangements for ongoing treatment. § Code s.129 (b): An individual must comply with an officer’s request for assistance in making an arrest or keeping the peace and duty to render assistance in emergency situations involving crime.

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§ Code s.252: if you are involved a car accident you must stop and render assistance if a person is injured. § Code s.217: one who undertakes an act is required to complete it, if failing to do so is or may be dangerous to life.

Duty to Control the Conduct of Others

a. Liability for the intoxicated § Rule: there is no general duty to control the conduct of others, but Courts have been willing to impose such a duty in situations where a special relationship can be demonstrated, such as ® Bar owner / Patron (created by liquor licensing rules). § Serving patrons past the point of intoxication is not in itself a foreseeable risk – Stewart v. Pettie. § Social hosts do not owe a responsibility to third parties that are injured by their drunk guests (Childs v Desmoreux and Wardak v. Froom) § Social host –vs- Bar host - Ability to monitor the consumption of alcohol - Licensing regulation - Profit from sales § An owner of a vehicle has a Common Law duty not to permit a drunk to drive

§ Crocker v Sundance Northwest Resorts

§ The Plaintiff is at a snow-tubing contest. After filling out an entry form which includes a waiver clause, he then proceeds to buy alcohol from the resort (as well as form the contest site) and gets visibly intoxicated. The resort manager questions his capacity to perform and the Plaintiff says that he is alright. § The Plaintiff injures himself and becomes quadriplegic. § There is a Duty of Care between a proprietor and an intoxicated patron, when the proprietor is aware of the Plaintiff’s intoxication and participated in getting him to that point. § The common thread running through commercial host cases is that one is under a duty not to place another person in a position where it is foreseeable that that person could suffer injury. § The relationship between the ski resort and the Plaintiff mirrored that of a commercial host and patron (bar owner / patron), where a positive duty has been found. § The Defendant knew that the Plaintiff is severely intoxicated: they had factual knowledge. § The Defendant provided the Plaintiff with additional liquor.

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§ Both owner and manager questioned the Plaintiff’s ability, but did not stop him. § The resort was liable.

b. Duty to control situations § Parents / Children: Parents are not (automatically) vicariously liable for their children’s acts. For liability = it needs to be shown that the parent failed to adequately supervise the child (be negligent in their supervision).

§ Prison Guards / Prisoners: guards have a duty to control prisoners.

§ Employers / Employees: employers have a duty to keep employees safe and to supervise their behaviour.

§ Mental Health Workers: have a duty to control mental health patients in institutional settings.

§ Sports coaches / supervisors: have a duty to control participants.

c. Duty to protect crimes and protect others

§ Jane Doe v Metropolitan Toronto Police

§ The Plaintiff is raped by an established balcony rapist with a set modus operandi. He had perpetrated several rapes in the area and was under investigation by the police. The police chose not to warn the women in the neighbourhood, because they would become hysterical and jeopardize the investigation. The investigation was low key, as it was not violent, but “just rape”. The Plaintiff sues the police for negligence. § Police have a duty to prevent crime in situations where the Plaintiff falls into a category of foreseeable and proximate victims. § The rape could have been prevented, since the rapist followed the same procedure all the time. § The police decided that the best way to catch the rapist was after another rape – they used the Plaintiff was used as bait. § SCC applies the Cooper test: • It was reasonably foreseeable that the rapist would rape again. • At the time that she was raped, the Plaintiff had become a member of a small specific group that were vulnerable to attack. • Proximity is present, in respect to the plaintiff being a member of a class of potential victims. • There is no policy reasons for preventing such a duty. • Police do not have a Duty of Care to a larger populace, only to the proximate, foreseeable victims. § There is a Duty of Care which is not a general duty to prevent crime, but rather a duty to warn the potential specific victims.

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§ The Plaintiff has to argue that they are not a random victim. § The police were liable as they did not treat the crime of rape seriously and did not warn the readily identifiable group of the threat.

Duty to Perform Gratuitous Undertakings

§ Thorne v Deas

§ D assured P twice that he would obtain insurance on a boat they jointly owned. P relied on these promises. Boat was wrecked and not insured. § An omission to act, without reward, extends the onus of failing to follow through on undertaking.. § The rule in the Thorne case has been watered down

§ Smith v Roe

§ D was a physician who made arrangements for P’s admission during the final stages of pregnancy. The husband agreed, therefore a contract was formed. The D did not attend due to another medical commitment. The baby died. § The Court said that the D did not have a Duty of Care. The D could HOWEVER be sued in contract.

§ Zelenko v Gimbel Bros. Inc.

§ General rule = without a Duty of Care, there is no negligence. But there are other ways in which such a duty may arise. § The P came into a store ill. The D make an undertaking to take care of him. In such instance, the duty arose. The D would therefore be liable.

§ Soulsby v Toronto

Duty Owed to Rescuers

§ If a person by his fault creates a situation of peril, he must answer for it to any who attempt to rescue the person who is in danger (Videan v. British Transport Commission). § Though it is possible, Courts rarely hold rescuers contributorily negligent for their rescue attempts. It is presumed that because the Plaintiffs are responding to an emergency situation, the Plaintiff’s should not be held to the same standard of care as those acting in less extreme circumstances. § The defense of voluntary assumption of risk has been pretty much eliminated in rescue cases. § The presence of rescuers is foreseeable and therefore creates a Duty of Care, since “danger invites rescue” (Wagner v. Intl. Ry. Co.). § The principles of rescue apply to cases where Plaintiffs are injured while attempting to save themselves or their property.

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§ A rescuer can sue the person being rescued in the event that the person being rescued negligently imperiled him or herself (Dufault v Excelsior Mortgage Company).

§ Horsley v Maclaren

§ If one by his fault creates a situation of peril, he has a Duty of Care to anyone who attempts to rescue the person who is in danger. § For the Defendant to be responsible for the Plaintiff’s death, there must be such negligence in his method of rescue as to place the Plaintiff in an apparent position of increased danger subsequent to and distinct from the danger to which he had been initially exposed by his accidental fall. § Any duty owing to the Plaintiff must stem from the fact that a new situation of peril was created by Defendant’s negligence which induced the Plaintiff to act as he did.

Duty to Unborn

d. Pre- conception wrong

§ A duty can arise in cases of pre-conception wrongs where the Defendant carelessly causes a parent to suffer an injury that detrimentally affects a subsequently conceived child (Paxton v. Ramji). § Typically, these cases involve the mother or father being exposed to chemicals that harm their reproductive health.

e. Wrongful birth or life

§ Usually arises when a doctor carelessly fails to inform a woman that she faces an unusually high risk of giving birth to a child with a disability, or when a doctor negligently performs tests that are designed to detect fetal abnormalities. § Because of the doctor’s failure to inform of negligence, the woman continues the pregnancy that she would otherwise have terminated. § The claim brought by a parent is “wrongful birth” and a claim brought by the child is “wrongful life”. § Wrongful Life claims are seen as bogus, because the claim would succeed only if one accepted that the child had a right not to be born. § There is no cause of action available for wrongful life. While a physician owes a duty to a child regarding pre-natal injuries that become manifest on birth, a physician does not owe a duty of care to a child to provide its mother with information that would lead to an abortion (Jones v. Rostvig). § Courts will recognize a mother’s wrongful birth claim, but she must show that had the physician’s duty been appropriately performed, she would have terminated the pregnancy. (Arndt v. Smith).

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f. Wrongful pregnancy

§ Medical negligence cases where parents have taken medical steps to prevent pregnancy or childbirth (ie): vasectomy or abortion, but due to the negligence of a doctor, a pregnancy occurs or continues. § The situation becomes more complicated when the woman decides not to terminate the unwanted pregnancy, and then sues after the child is born. § Traditionally, Canadian Courts have permitted wrongful pregnancy claims but have limited damages to lost earnings consequential to the pregnancy and delivery, damages for emotional consequences of dealing with an unplanned pregnancy, and any costs specific to raising a child with a disability or because the parents are themselves disabled. § Current position – retreating from the traditional position, the Court held that damages could be awarded for the cost of raising a healthy child, but only where the parents’ primary motivation for wanting to limit the size of their family was financial (Kealey v. Berezowski).

g. Pre- natal injuries

§ Where a child, now born, sues in negligence for injuries sustained in utero. § Courts have recognized that a person may owe a Duty of Care to a fetus to avoid careless actions before birth that may result in a loss upon birth HOWEVER the claim does not crystallize until the birth of the child. § For public policy reasons, the Court should not impose a Duty of Care upon a pregnant woman towards her fetus or subsequently born child. To do so would result in very extensive and unacceptable intrusions into the bodily integrity, privacy and autonomy rights of women. § In contrast to the third-party Defendant, a woman’s every waking and sleeping moment, in essence, her entire existence, is connected to the fetus she may potentially harm. If a mother were to be held liable for prenatal negligence, this could render the most mundane decisions taken in the course of her daily life as a pregnant woman subject to the scrutiny of the courts.

Psychiatric Harm

§ Mustapha v Culligan

§ P, a germophobe, was convinced of the purity of Cullingan water, and only drank it at home. While changing his jug, he noticed before breaking the seal, two dead flies in the water. P did not even drink from the water, but this caused severe shock because he became obsessed with the idea and it began to haunt him day and night. This also made his pregnant wife violently ill. § The issue before the Court was whether they should measure psychiatric harm objectively or subjectively. § Originally it was subjective. The Court then looked at the objective, but finally decided to strike a balance between the two when analyzing the facts of the case.

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Health Professional’s Duty to Inform

(Haughiam Paine) and the Healthcare Consent Act

Manufacturers’ and Suppliers’ Duty to Warn

§ A manufacturer of a product has a duty to warn consumers of dangers inherent in the use of its product of which it has knowledge or ought to have knowledge. § The duty to warn is a continuing duty, requiring manufacturers to warn not only of dangers known at the time of the sale, but also of dangers discovered after the product has been sold and delivered. § The warning required varies with the level of the danger involved in using the product. The more dangerous the product, the more detailed the warning must be. General warnings are insufficient for very dangerous products. § While the duty is owed by the manufacturer to the consumer, in certain circumstances a manufacturer may satisfy its duty by providing a warning to a “learned intermediary”. § This rule usually applies when the product is highly technical and will only be used with the supervision of an expert, such as a doctor. In such a case, the manufacturer may satisfy its duty to warn to consumer by warning the learned intermediary who will be expected to pass on the warning.

§ Hallis v Dow

§ Manufactures have a continuous duty to warn the users or learned intermediaries of all existing and new evidence of hazards. § The duty to warn is a continuing one and manufacturers of potentially hazardous products have an obligation to keep doctors abreast of developments even if they do not consider those developments to be conclusive, or do not know about the exact nature of the development. § Where medical evidence exists, which tends to show a serious danger inherent in the use of a drug, the manufacturer is not entitled to ignore or discount that information in its warning because it finds it to be unconvincing: the manufacturer is obliged to be forthright and tell the whole story.

Duty of Care Owed by a Lawyer

§ A lawyer can be liable in tort as well as in contract

§ White v Jones § Central Trust Co v Rafuse § Demanco v Ungano

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Negligent Misrepresentation Causing Pure Economic Loss

§ Negligent misrepresentation arises with respect to written or oral communications (eg): communications made by a financial advisor, business consultant, lawyer, stockbroker or banker, typically in the form of some kind of advice. § Historically, the law has refused to recognize a Duty of Care in such circumstances, arguing that the purpose of tort is to compensate for physical harms not pure economic loss.

§ Hedley v Burne

§ The Plaintiff is a firm of advertising agents who wanted to know if it is advisable to extend credit to a customer. The Plaintiff’s bankers asked the Defendant (customer’s banker) to provide a credit rating. The Defendant responded that the customer is “quite good for the arrangement”. On the basis of this advice the Plaintiff issue a credit, and the customer goes into liquidation without repaying Plaintiff. The Plaintiff claims negligent misrepresentation causing pure economic loss. § A duty can arise in a situation of negligent misrepresentation that results in pure economic loss. § The Defendant was not liable because of the inclusion of a “disclaimer clause” in the letter of advice. § A duty can arise in a situation of negligent misrepresentation that results in pure economic loss, but the actual circumstances in which such a duty might arise were left undetermined.

§ Keith Plumbing v Newport City Club

§ The mere presence of a disclaimer clause will not automatically prevent liability. § Subsequent to Hedley v. Byrne, Courts have interpreted disclaimer clauses narrowly, and in the event of ambiguity, against their drafter. § The mere presence of a disclaimer clause will not automatically prevent liability. § The disclaimer clause was not upheld on three grounds:

1) It was not well calculated to convey any clear meaning to “persons not versed in the mysteries of banking practice” – in other words, the Plaintiff could not have been expected to understand its meaning;

2) The Plaintiff had no other means to check on the developer’s financial circumstances; and

3) In the circumstances, it was reasonable for the Plaintiff to rely on the bank’s statement. They were, after all, financing the project

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§ Hercules v Ernst & Young

§ The duty analysis for negligent misrepresentation cases should be no different than in any other cases. § It’s reasonably foreseeable that if the Defendants (accountants preparing an audit report) are careless in preparing the report it could cause harm to the Plaintiff (shareholders). § Proximity is said to arise in circumstances where the relationship between the Plaintiff and Defendant is one of reliance. “Proximity can be seen to inhere between a representor and a representee when two criteria relating to reliance may be said to exist on the facts: (a) That the defendant ought reasonably to foresee that the plaintiff will rely on his or her representation; and (b) Reliance by the plaintiff would, in the particular circumstances of the case, be reasonable”. § Court relies on five, non-exhaustive, “indicia of reasonable reliance”. It’s not necessary to show that all of these elements are present:

1) The Defendant had a direct or indirect financial interest in the transaction in respect of which the representation was made;

2) The Defendant was a professional or someone who possess special skill, judgment or knowledge;

3) The advice or information was provided in the course of the Defendant’s business;

4) The information or advice was given deliberately, and not on a social occasion; and

5) The info or advice was given in response to a specific inquiry or request.

§ In this case, there is proximity and foreseeability, but the duty is negated by having too broad of a class of Plaintiffs

§ R v Imperial Tobacco

§ The Supreme Court of Canada has clarified the scope of manufacturers’ potential liability under the law of negligence to the retailers of their products for “pure economic losses”—lost profits, lost sales, and reputational harm that are not accompanied by harm to person or property—associated with selling their products – (1688782 Ontario Inc v Maple Leaf Foods Inc.)

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Negligent Misrepresentation and Contract

§ Where a given wrong supports an action in contract and in tort, the party may sue in either or both, except where contract indicates that the parties intended to limit or negate the right to sue in tort. § In the event that such a limitation exists, the tort duty, a general duty imputed by the law, must yield to the parties’ superior right to arrange their rights and duties in a different way. § However, insofar as the tort duty is not contradicted by the contract, it remains intact and can be sued upon (BG Checo v. BC Hyrdo).

Pre-Contractual Misrepresentation

§ Queen v Congnos

Negligent Performance of Service

§ The applicable principles closely mirror the rules that govern liability for negligent misrepresentations.

§ B.D.C Ltd v Hofstrand Farms Ltd

§ The Appellant, a courier company which had delivered a time sensitive envelope and caused economic loss to the Respondent, was unaware that it was time sensitive.

§ James v B.C.

Negligent Supply of Goods

§ Liability will clearly lie in Tort with respect to personal injuries and property damage that the Plaintiff suffers as a result of the Defendant’s supply of shoddy goods or structures. § (Winnipeg Condo Corp v Bird)

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DEFENCES

Consent:

• General rules:

• Even if the Plaintiff establishes that the Defendant committed the intentional Tort, liability might not be imposed IF the Defendant is able to raise a Common Law or Statutory defence. • The Plaintiff must have CONSENTED to the specific act that gave rise to the tortious action. • Burden ® rests on the Defendant to prove his defence on a B.o.P. • Consent = explicitly (words or in writing) / behaviour or demeanour • The Plaintiff’s failure to physically resist the Defendant’s conduct falls short of affirming the conduct (NOT CONSENT!!!) • You CANNOT consent to serious bodily harm / death • Consent can sometimes be vitiated ® public policy / fraud / competency / duress • Consent to acts generally extends to risks normally inherent in that act • Reasonable consequences of that activity (eg): sporting injuries • Unreasonable / unforeseen consequences = exceeds and vitiates consent • Failure to resist or protest is an indication of CONSENT • HOWEVER, it must be a reasonable person who is aware of the consequences and capable of protest or resistance, and would voice his objection • Consent must be genuine, it must not be obtained by force or threat of force

• Implied consent:

• The law is willing to find that the Plaintiff consented in certain situations EVEN IF the Plaintiff has not explicitly issued consent ® known as implied consent • (eg): sporting injuries / physical altercations

• (Wright v McLean) • Children playing - throwing clay and mud balls at each other. W is injured. • In sport where there is no malice, no anger and no mutual ill will, combatants consent to take the ordinary risks and the pain that may result from them. • This is only while play is fair ® according to the rules and if the blows are not malicious, then there is implied consent. • If play is not fair ® parties regain same rights as when not engaging in sport.

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• Entering a sport or game implies consent to the normal events of such a sport or game.

• Exceeding consent:

• If the Defendant exceeds the consent provided by the Plaintiff ® case treated as if no consent given.

• (Agar v Canning) • A sues C for injuries that resulted from a hockey game. • A person who engages in sport must be assumed to accept the risk of accidental harm and to waive any claim he would have (implied consent). • This includes unintentional injury resulting from one of the frequent infractions of the rules of the game. • Conduct of players in the heat of the game is instinctive and unpremeditated and should not be judged by standards suited to polite social intercourse. • BUT there is a need to establish some limits on player’s immunity from liability. • Injuries inflicted in circumstances that show a definite resolve to cause serious injury to another, even when there is provocation and in the heat of the game should not fall within the scope of implied consent. • Consent to the game may mitigate damages.

• (R v Cey) • “It cannot be assumed that players implicitly consent to a specific type of assault simply because it occurs with some frequency in the sport”.

• (R v McSorley) • Courts have become less tolerant of hockey violence. • Some forms of conduct are too dangerous for players to consent to.

• What happens in cases involving a fight between parties?

• Courts will protect parties from liability in situations of a consensual fight. • HOWEVER, the law says that one CANNOT consent to serious bodily harm or death – (R v. Jobidon)/

• (Abbot v Jarocki): fight between High School kids. J, while wearing steel capped toe boots, kicked A while he was already on the ground. : Court held that A could not have consented to the infliction of that kind of bodily injury.

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: in such instances, it would make more sense to treat the case as having exceeded consent. • Competency to consent: (mainly becomes an issue when a person is too old or too young). • FOR CONSENT TO BE VALID ® consenting individual must be capable of appreciating the nature and consequences of the act to which it applies. • Courts are likely to interpret adults to be competent to consent • If consent is at issue, the Plaintiff will bares the burden of proving that the consent was not valid. • When can a person NOT GIVE CONSENT? 1) Minor ( >14 cannot consent to sexual activity = statutory rape) 2) Diminished Mental Capacity 3) Intoxication • • Vitiating consent: (cancels out consent) 1) Fraud • Not all situations of fraud will vitiate consent • The Plaintiff must establish that: 1) the Defendant was aware of, or responsible for, the Plaintiff’s misapprehension, 2) the fraud relates to the nature and quality of the act as opposed to a collateral matter

• (R v Williams) • Consent to sex was vitiated where the 16 year old Plaintiff was not aware of the sexual nature of the act.

• (Papadimitropoulos v R) • Consent to sex upheld where the Defendant deceived the Plaintiff about whether they were married. • Whether the parties were married or not was a collateral matter that did not pertain to the nature and quality of the act.

• (R v Cuerrier) • HIV positive man who lied about HIV status to sexual partners. • Fraud that relates to the harmful consequences of the act can vitiate consent. • 3-Part test: ® the Crown must prove 1) the Accused was dishonest, which could include not only lying but also non-disclosure,

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2) the Defendant’s dishonesty resulted in a deprivation, which could consist of actual harm or exposing a person to a significant risk of bodily harm, and

3) the dishonesty induced the complainant to consent to the dangerous activity when he would not have otherwise done so.

2) Mistake • If the Plaintiff’s consent was induced by a mistaken belief, this will vitiate consent ONLY IF the Defendant was responsible for creating the Plaintiff’s misapprehension. • Consent will also be vitiated if the mistaken belief goes to the nature or quality of the act, or presents the possibility of a significant risk of a serious physical harm. • The Defendant’s mistaken belief that the Plaintiff consented provides no defence.

3) Duress • Consent which was secured by force or threat of force = NOT VALID.

• (Latter v Braddell) • Old case - duress is seen only as physical violence, not psychological. A maid is forced by her employers to undress and undergo a pregnancy examination against her will. She sues for battery. Doctor claims consent. • “The Plaintiff had it entirely in her own power to comply or not to comply with her mistress’s orders, and there was no evidence whatsoever to show that anything improper or illegal was threatened to be done if she had not complied. There was no evidence of any force or violence, or threat of force of violence”. • Lopes J (dissent): “I cannot adopt the view that PL consented because she yielded without her will having been overpowered by [physical] force or fear of violence. That is not, in my opinion, an accurate definition of consent in a case like this”.

4) Undue Influence • The Plaintiff must prove: (to show that consent is not legally effective) 1) Inequality between parties, which will ordinarily occur within the context of a special “power dependency” relationship,

2) Exploitation of some kind

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• (Norberg v Wynrib 1992) • A doctor was having sex with a drug-dependent patient in exchange for illegal prescriptions. She consented to her own violation. Is this consent valid? • The power relationship and the fiduciary duty of the doctor vitiated consent . • To show that the consent was not legally effective: 1) Proof of inequality between the parties, which will ordinarily occur within the context of a special “power dependency” relationship 2) Proof of exploitation (measured by “community standards”)

• Consent to Treatment, Counselling and Care:

• General rule ® Healthcare Professionals and Counsellors must obtain INFORMED consent in advance, before they can initiate any kind of physical exam, test, procedure, surgery or counselling • Exception ® unforeseen medical emergency (to preserve the patient’s life or health) Consent must be given by • To be valid, the consent must be: someone who is legally 1) Given voluntarily, competent 2) Relate to the specific procedure or treatment, Test: the ability to understand 3) Based on full and frank disclosure of the nature of the the nature of the proposed treatment and the risks. intervention and its risks • If the Plaintiff makes an appointment and comes for the treatment = strong Test is applied on a case-by-case basis. evidence of IMPLIED CONSENT When children are involved, • (Marshall v Curry) Courts apply the Gillick- competency rule = if the child is • Where general consent has been provided, the patient will be treated found to have sufficient intelligence, understanding and as having implicitly consented to any subsequent sessions – tests or maturity to make up his or her procedures that are incidental to the agreed treatment mind, the Court will recognize the child’s consent (or refusal to consent) • (Malette v Shulman)

When senile or mentally-ill are • M seriously injured in car accident. Was a practicing Jehovah’s involved, if the patient is able to witness. They do not believe in blood transfusions. She had her card understand the relevant information and appreciate the on her which stated to the effect that she was a – “practising consequences of the decision, Jehovah’s witness, I refuse blood”. he will be found competent to consent. • Doctor ignored this and gave her a blood transfusion anyways. • Daughter arrived and saw what was happening and told them about the religious beliefs of her mother. It was at this time that doctors stopped the transfusion (she has also stabilized at this point) • The Court found that M’s card was not vague and awarded her damages for battery • Informed consent is not the same as informed refusal – any treatment outside of consent is tortious • A doctor is legally and ethically obliged to treat within the confines of given consent

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• Statute relevant to Healthcare Professionals ® HEALTH CARE CONSENT ACT - Ontario (relevant sections below) • S1: Purpose • S4: Capacity to consent • S5(1): Patient’s wishes • S8(1): Treatment • S9-18 • Healthcare (Consent) and Care Facility (Admission) Act / Representation Agreement Act – British Columbia

• What will happen in situations where the patient CANNOT consent? • Substitute consent can be obtained from the patient’s next of kin • (Mrs. E v Eve) – for substitute consent, the following must be met: 1) The patient must be incompetent, 2) The next of kin must have acted in good faith, 3) The procedure must be in the patient’s best interest

Consent to criminal / immoral acts: ex turpi causa non oritur action

• General rules: • A person cannot recover in Tort law for the consequences of his / her own illegal or immoral act (eg): if you are physically injured you cannot recover for loss of earnings if the injury arises from an illegal activity • Rationale ® prevent a Plaintiff from profiting from his / her illegal or immoral act • This rule will GENERALLY NOT OPERATE in Tort to deny damages for personal injury.

• (Hall v Herbert) • Plaintiff sues Defendant in negligence because the Defendant allowed him to drive his car, knowing that he was intoxicated • Defendant uses the ex turpi rule • Courts can bar recovery in Tort on the grounds that the Plaintiff’s illegal or immoral conduct – only in VERY limited circumstances • This discretion of the Courts is exercisable only where this concern is in issue, it generally does not apply in damages for personal injury • The focus of the test these days is mostly on the criminal activities

• (John Beads Corp v Sani) • Plaintiff sued Defendant for theft of monies. Defendant claimed Plaintiff could not sue because they were also committing a wrongdoing • The wrongdoing committed by Plaintiff was not related to the theft – therefore, the Defendant could not rely on ex turpi causa non oritur action

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• (Vellino v CC of Manchester Police (2002)) • V tried to escape from the Police custody and was injured. V tried to sue The Manchester Police. • His claim was denied – you cannot profit from a wrongdoing

Defence of Self:

• General rules: • Self-defence is a Common Law defence which excuses intentional interference with a person if that person is threatened with harm by another • The burden rests on the party invoking the defence – (Mann v Balaban)

• Requirements: (must be established on a BoP) 1) Honestly and reasonably believed that an assault was imminent, 2) The force used to avert the risk was REASONABLE under the circumstances • Defensive force is REASONABLE if: (necessary + proportionate) 1) It is no greater than necessary for the purposes of preventing the attack (there is no reasonable alternative) , 2) Not disproportionate to the threat being counteracted (not excessive)

• (Wackett v Calder) • W is intoxicated and challenges C to a fight. Delivers and few weak blows and gets knocked down. Gets up and tries to continue the fight, but gets knocked down again, and has his jaw broken • Though intoxicated, W was a large man and could have caused serious harm if he landed a punch • What constitutes reasonable force? – determined on a case-by-case basis and is based on the facts • A person is entitled to reject force with force • “An attacked person defending himself ... is not held down to measure with exactitude or nicety the weight or power of his blows” • The first blow was insufficient to stop the Plaintiff, because the situation was not diffused, the second blow was justified and necessary

Defence of 3rd Parties:

• General rules: • Where a person uses force to intervene and rescue another person who is in imminent danger of injury, such intervener is justified in using force, PROVIDED that it is reasonable and necessary • This defence is not limited to relatives or others in some special relationship with the person in need of protection – (R v Duffy)

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• (Gambriell v. Caparelli) • The Plaintiff ran into Fred Caparelli’s car (the Defendant’s son), while backing out of his laneway. Resulting in a physical altercation with blows being exchanged by both the Plaintiff and Fred • While backing up towards the rear of the Plaintiff’s car, Fred fell and the Plaintiff began choking him • The Defendant, Fred’s mother was attracted by the screaming, showed up on the scene and saw her son being choked • She then ran into her garden shed and retrieved a three-pronged garden cultivation tool with a five- foot-long wooden handle. She subsequently used it to hit the Plaintiff three times on the shoulder and once on the head, causing the Plaintiff to release her son • “Where a person honestly and reasonably believes that he / his child is in imminent danger of injury, it would be unjust if he were deprived of the right to use reasonable force by way of defence merely because he had made some genuine mistake of fact” – (R v. Fennell) • Where a person intervening to rescue another holds an honest (though mistaken) belief that the other is in imminent danger of injury, he is justified in using force, PROVIDED that its reasonable and necessary for intervention • The reasonableness of the force employed are questions for the trier of fact • “Having regard, therefore, to the facts as I have found them and to the law as I understand it, in my opinion, when the defendant appeared on the scene and saw her son at the mercy of the plaintiff, and being of the belief that her son was in imminent danger of injury, she was justified in using force to prevent that injury from occurring”

Discipline:

• General rules: • The Common law still recognizes the defence of discipline that parents and guardians can invoke to privilege the use of force in dealing with children • s.43 of the Criminal Code largely governs both criminal and civil defences of discipline • s43: “Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction towards a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances” • UNLESS the force is “by way of correction”, that is, for the benefit of the education of the child, the use of force will not be justified

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• (R v Dupperon) • The Appellant strapped his 13- year old son approximately 10 times on the bare buttocks leaving bruises. • The Court of first instance charged the Appellant with assault causing bodily harm, fined him $400 and placed him on probation • The Court considered whether the force used exceeded what was reasonable under the circumstances so as to deprive the Appellant of the protection afforded by s43 • In determining this question, the Court will consider: 1) nature of the offence calling for correction, 2) age and character of the child, 3) likely effect of the punishment on the particular child, 4) degree of gravity of the punishment, 5) circumstances under which it was inflicted, 6) injuries, if any, suffered • If a child suffers injuries which may endanger life, limbs, health, or is disfigured, that alone would be sufficient to find that the punishment was unreasonable under the circumstances • Ten strokes of a leather belt on the bare buttocks is a severe beating, particularly under the circumstances in which it was inflicted here on an emotionally disturbed boy • There is, therefore, no basis upon which this Court would be justified in reversing that finding

Defence of Real Property:

• General rules: • It is lawful for the occupier of land / a person with authority over the land, to use a reasonable degree of force in order to prevent a trespasser from entering / to control his movements / or eject him after entry • REMEMBER ® request trespasser to leave + allow opportunity to leave before ejecting

• (Macdonald v. Hees) • M, believing he was invited, entered H’s unlocked motel room at the same time announcing who he was. M was an officer for the local political party in whose interest H was active that day, and wanted to introduce Glen Boyd to H • When M walked through the door, H no sooner threw him back through the storm door, resulting in him cutting his head • H raised defence of property as a justification for his conduct • A trespasser cannot be forcibly repelled or ejected until he has been requested to leave the premises and a reasonable opportunity of doing so peaceably has been given

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• In this case, the use of force by H was not justified, if anything it was excessive

• What happens when the trespasser enters or tries to enter while using force? • (Green v Goddard) • “…I need not request him to be gone, but may lay hands on him immediately, for it is but returning violence with violence; so if one comes forcibly and takes away my goods, I may oppose him without any more ado, for there is no time to make a request”

• (Bird v. Holbrook) • You must give notice of ‘spring traps’ on your property regardless of the intention of thwarting vandalism • The purpose of spring traps is to injure • “No man can do indirectly that which he is forbidden to do directly”

Defence and Recaption of Chattels:

• General rules: • The legal principles governing defence of real property generally apply to defence of chattels • Requirement ® Defendant must be in possession of the chattel / attempting to immediately regain possession / in hot pursuit of the person who had just taken the chattel. • If a person innocently picks up the Defendant’s chattel, the Defendant must request its return before using any force. • If a person grabs the chattel out of the Defendant’s hand, he can use force to retrieve it without first making a request for its return • Facts of case will determine whether possessor is privileged to use force and whether the force was reasonable • A person would be privileged in shooting a dog if he had no other means of protecting his livestock – (Cresswell v. Sirl) • An individual cannot invoke the defence of chattels once he / she is dispossessed ® may use the self-help remedy of recapture

• Recapture: • Recapture places owner in the role of a potential aggressor attempting to regain possession of the goods from another person • This right may only be invoked by an individual who has an immediate right to possession, and then only after a request has been made for the chattels return • Only peaceful means can be used to recapture a chattel from a person who came into possession lawfully

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• The right to use force is limited to circumstances in which an individual who wrongfully gained possession refuses to hand over the chattel after being requested to do so • There is a Common Law privilege to enter another’s land to recapture chattels in limited circumstances • If the chattel came onto the land accidentally or was left there by a wrongdoer, the owner could enter the property to retake his chattel as long as he did not use force or cause a breach of the peace • If the occupier came into possession of the chattel unlawfully, its owner could make a forced entry if his request for return is denied

Necessity:

• Public Necessity: • Defence of public necessity allows an individual to intentionally interfere with the property rights of another in order to save lives or protect the public interest from threats of nature (eg): fires / floods / storms • It is a complete defence - privileging both the interference with the Plaintiff’s legal rights to the property, and any damages resulting from it

• (Surocco v. Geary) • G blew up S’s house and property in good faith and out of necessity during a large fire in 1849. It was destroyed for the purpose of saving the buildings adjacent, and stopping its progress • The question before the courts was whether he could be held liable for the damages • The right to destroy property in order to prevent the spread of conflagration (an extensive fire that destroys a great deal of land and property), has been traced to the highest law of necessity, and the natural rights of man, independent of society or civil government • Necessitas inducit privilegium quod jura privata = necessity provides a privilege for private rights • The blowing up of the Plaintiff’s house was necessary to stop the fire from spreading • The Plaintiff cannot recover for damages due to the defence of public necessity

• Private Necessity: • (Vincent v. Lake Erie TPT. Co.) • A steamship owned by the Defendant was moored at the Plaintiff’s dock for unloading at Duluth Harbor. A violent storm came up and the Master of the ship decided to keep the boat moored tightly to the dock which resulted in damage to the Plaintiffs dock • The Appellant contended that because its conduct during the storm was rendered necessary by prudence and good seamanship under

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conditions over which it had no control, it cannot be held liable for any injury resulting to the property of others • Those in charge of the vessel deliberately, and by their direct efforts, held her in such a position that the damage to the dock resulted - preserving the ship at the expense of the dock • Public necessity may require the taking of private property for public purposes, but under our system of jurisprudence, compensation must be made

Legal Authority:

• General rules: • Relevant in instances such as: arrest / search & seizure / battery / trespass / conversion etc • Legal test: 1) Did the Defendant have the legal authority to undertake the act? 2) Was the Defendant legally privileged in both criminal and civil liability? 3) Did the Defendant meet all other obligations imposed on them in the process?

Apportionment of Fault:

• General rules: • Apportionment Statutes permit the Courts to divide responsibility for damages between the parties according to their relative degree of fault • Apportionment of damages allows for: • Joint and several liability: where two or more Defendants are at fault, both Defendants are jointly and severally liable. The Plaintiff can sue either (or both Defendants). It is up to the Defendant’s to then recover the amounts paid from one another based on their contribution to fault • Contributory negligence: Applied in situations where the Defendant is found negligent, but the Plaintiff has also negligently contributed to the damages. The Court will apportion the damages in proportion to the degree of negligence of each party • Apportionment is a finding of fact and Appellate Courts should rarely interfere with a Trial Judge’s apportionment of damages – (Mortimer v Cameron)

• Voluntary assumption of risk: (complete defence) • Volenti non fit injuria = to one who is willing no harm is done • Invoked by the Defendant in cases where the Plaintiff has, by word or deed, voluntarily assumed the risk of the Defendant’s negligence

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• Courts apply the principle of Volenti extremely narrowly • Volenti has been successfully invoked in the past where the Plaintiff and the Defendant had a shared purpose, and the Plaintiff had “incited” and “instigated” the Defendant to take the risk – (Miller v Decker ) • Volenti usually fails in a sporting context ® though it is possible to assume the dangers in intentional torts, one cannot assume the dangers of negligence. The only way volenti would apply in sports is if the Plaintiff had expressly signed away liability through a waiver

• (Dube v Labar) • The Plaintiff must not merely know of the risk, but must consent that he intended to take on the whole risk • The question is not simply whether the Plaintiff know of the risk, but whether the circumstances were such that a Court could conclude that the whole of the risk was voluntarily consented to by the Plaintiff • Merely getting into a car is not enough – as such, volenti will rarely arise in drunk driving cases