Negligence;



NEGLIGENCE

Step 1) Has There Been Damage? You need some reason to be pissed off enough to sue.

There must be under a (quantifiable) head of loss such as econ loss, physical harm, loss of enjoyment etc linked to the victim. (Limitations act applies unless you can have an exception like MK v. MH; if municipal inspectors miss something etc; clock starts when damages are evident)

Step 2) Does D owe a Duty of Care to P?

A) Is it a Recognized Duty of Care? Relationships of…

1) Control or Supervision

Galaske v. O’Donnell: 8 y.o. kid with dad, neither buckle up as passengers in D’s truck, but D does. D didn’t say anything because he didn’t want to yell at dad in front of kid, but they get into an accident and dad is killed, kid paralyzed. Driver held to always be liable to those in car.

2) Creation of danger: always have a liability / duty if create danger.

Oak v. White Transport: D knocks down sign but cannot remove it; tries to report it but talked out of it by gas station attendant. Sign impales another driver. D not held to be liable because the sign was off the road = no immediate risk, even if he created an ambit of risk.

2) Economic Benefit

Jordan House Ltd. v. Mennow and Honsberger: economic benefit relationship. Mennow a well-known drunk at the bar, not allowed to drink unless with responsible people. Comes in with people, they leave, he gets drunk and rowdy and is kicked out on to highway. Gets picked up, put home, staggers out into highway and gets hit by car. Unlike in Childs, hotel is liable because professional establishment, economic relationship.

Dunn v. Dominion Railway: D sends P off train when drunk, P left in dark station where he gets hit by train. D was negligent.

Heimler v. Calvert Caterers Ltd. (1975 ONCA) D liable for contaminated food; high duty of care.

4) Statutory Duties: see Bonnie Mooney; Jane Doe (cops have duty to protect etc); issues are in reading in duties expansively.

5) Reliance: Kamloops, “lighthouse cases” etc; Mercer: normally lock a gate where the train goes past, people know this. P knows this, goes out, gets hit. D liable because he assumed a liability by his goodwill.

B) Is it a new Duty of Care?

The major case:

Cooper v. Hobart [2001 SCR]: Registrar of Mortgage Brokers suspended a broker’s licence and froze specific assets supposedly fraudulently used by the broker. P, one of 3000 investors who advanced money to the broker, alleged that D breached duty of care to investors – “D was long since aware of serious violations by broker and should have acted earlier and I wouldn’t have lost money.” SCC: No duty of care owed. Anns test suggests they weren’t close enough, P did not prove need for duty of care. Foreseeability not enough to establish duty of care. No statutory basis for duty of care from registrar except to public = insufficient proximity. Plus, policy considerations give all kinds of reasons to suspend duty of care – all kinds of liability issues, would basically mean unconditional insurance scheme to investors. Canadian version of Caparo, overturning Anns.

Cooper Test: 1) a) Was the harm a foreseeable consequence of the negligence?

b) Was D sufficiently proximate to P to owe a duty of care to P?

2) Is there any policy consideration for why we should not slap D?

Should also know

Anns v. Merton London Borough Council: P leased residential maisonettes with inadequate foundations as per bylaws; D inspected and found nothing wrong. D liable. D assumed liability by inspecting maisonettes and giving their OK; no good policy reason not to hold them liable.

Anns Test (PeePee test): 1) Is there Proximity between parties to create prima facie duty? 2) Any good Policy reason not to have it?

Donoghue v. Stevenson: you owe a duty of care to your neighbour. It’s just a question of who your neighbour is. Starts the whole fucking thing

Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd [1960s UK].: P phoned D asking about client’s credit. D about to close major contracts w/ client and lied but waived responsibility in giving info; P relied, client went bankrupt, P sued. Relationship between the parties was “sufficiently proximate” to create a duty of care – “there was a special relationship,” plus D knew P would rely on the information, BUT they got away with it thanks to the disclaimer. (See Derry v. Peek; Heilbut Symons v. Buckleton)

Econ relationships, negligent misstatements.

Home Office v. Dorset Yacht Co [1970s UK].: youth inmates at special island reformatory escape; some sneak out, take yacht and collide it with another yacht (property of D, NOT P). P owed duty of care to D because youths had escaped etc; definitely foreseeable, plus P had vicarious liability because its agents were negligent.

Public authorities can be held liable.

Kamloops v. Neilsen: House in Kamloops had poor foundations; stop-work orders not enforced, D bought the house. D sued for negligent performance of inspection. P hjad discretion, but performance of inspection = duty of care. Anns test was used to say that there was no policy reason the city shouldn’t be held liable for D’s economic loss.

Difference between public and private duty is that with the former, misfeasance is actionable, but nonfeasance isn’t.

See also Just v. BC: municipal road maintenance = duty of care

Caparo Industries Plc v. Dickman: Sinking company targeted for takeover by P; P bought up shares, looked at books, bought company out, then found company was in even worse shape than the books had suggested. Sued D (accountant of company) for negligence. No duty of care b/c for indeterminate time to an indeterminate group of shareholders

Caparo test: 1) Harm must be reasonably foreseeable of D’s conduct; 2) Relationship of proximity between D and P; 3) Must be “fair, just and reasonable” to impose liability.

This case overturns Anns (Sutherland v. Shire Council: develop negl. Law by analogy)

Odhavji Estate v, Woodhouse: Odhavji shot by cops, investigation went nowhere b/c cops stonewalled. Re negligence: Must prove harm was foreseeable, duty was present b/c of proximate relationship, and there was no policy reason to consider otherwise.

Cops are liable: It was foreseeable that cops’ stonewalling would hurt P; easily a causal link between cops’ stonewalling and harm to P; statutory obligations exist which also create duty; no policy reasons for restraining it. BUT the police board / A.G. etc. were NOT liable – no duty to ensure cooperation, no causal link between them and the alleged harm; no statutory obligation, etc. Odjavi makes it possible to recover psych damages and sue public officials.

Childs v, Desormeaux: D (notorious drunk) left party at private home, drove car into traffic, collided with another car and killed and injured others. P brought an action against the hosts. SCC: Dismissed appeal:

*Social hosts do not owe a duty of care to highway users – no proximity

*Injury to P not reasonably foreseeable; history of impaired diving does not make an MVA foreseeable (!)

*Even with foreseeability, there is no duty b/c the alleged problem was a failure to act when there was no duty to do so; only way there would be a duty is if social host directly created the risk.

*Alcohol consumption is an individual choice – why force others to pay for your individual stupidity?

*No evidence anyone relied on hosts to monitor guests’ consumption; not reasonable to rely on social hosts to do so.

(Contra Winnell: US case influencing this one; but there, D knew guy was drunk and going to drive and did nothing)

Commercial context heavily regulated, not like personal servings etc.

Step 3) What is the Standard of Care? The extent to which you owe a duty of care (which is the obligation you owe.) Generally based on an objective standard, but sometimes adds subjective elements.

Conduct is negligent when it creates unreasonable risks of harm, usually found by F-PLOC:

Foreseeability ( Probability X Loss = Object X Cost

Foreseeability (see REMOTENESS, below): Is the kind of harm foreseeable? Is the class of plaintiff foreseeable? (Use your imagination)

(Regardless of the outcomes of the following cases, these are really just here to show you some of the ways you might “foresee” harm. Hay v. Young, below: could you really foresee that your accident would cause P to miscarry? If not, you don’t need to get into probability)

Hay v. Young: Woman getting off the bus, motorcyclist illegally passes, hits her and kills them both; P sees this and blood afterwards and flips out and has a stillbirth. Deceased motorcyclist (D’s spouse) owed no duty of care to P because P not foreseeable. (Diss: “you owe a duty of care to the world at large!”)

Farrugia v. Great Western Rwy: D overloads truck, P chasing truck to try and stow away, gets hit by box when it falls off after passing overpass, hits and kills P. Irrelevant that P was doing something illegal etc; this could’ve hurt anyone.

Dobson (litigation guardian of) v. Dobson: Unborn children not capable of being litigants until they are born with injuries sustained in the womb, but in Dobson it was a friendly case where grandfather was suing mother to access insurance money. Court says we can’t sue mothers for policy reasons (thanks, intervenors!). Dissent: “If she knows she’s pregnant, she should take care. The plaintiff is still hurt by mother’s negligence.”)

Mustapha v. Culligan: P total OCD, saw dead fly in D water after buying for 15 years for health concerns; freaks out, got depressive etc. Trial judge said P’s higher standards linked to his Lebanese and Muslim heritage, but that’s exactly the point: this is an objective test, and P was only hurt psychologically because he was subjectively less robust and therefore not foreseeable. (Also, contract liability based on probable result of breach, so nothing there either.)

Vanek v. Great Atlantic and Pacific Co. [2000]: “Reasonably foreseeable” to a person of “reasonable fortitude”; (Kid drinks out of wrong bottle and gets sick, but parents freak out – they’re not being reasonable).

Dulieu v White and Sons [1901]: first case allowing damages for psych fear; reasonable foreseeability + policy, locational, relational and temporal proximity

Alcock v. Yorkshire Police: primary vs. secondary bystander

Paige v. Smith: primary victim: need only establish foreseeability of physical harm and experience ~; Secondary bystander: must show reasonably foreseeable psych illness.

Probability: Is the harm (the “loss”) likely enough that the reasonable person would act to prevent it?

Bolton v. Stone: D hits cricket ball, which hits P. Only 6 instances in 30 years did a ball go out into the highway, which was not frequented by many people, and potential harm to people was very small. Obviously too remote, and costs of prevention would clearly outweigh harm. (Like NY golf case when golfer hits another’s car: everyone has a shitty drive sometime or another.)

Loss: If potential loss is great, slightest risks create liability.

Paris v. Stepney Borough Council: one-eyed man blinded by chip of metal. Employer is liable for not having provided goggles. Just because it was not standard practice doesn’t mean it wasn’t negligent.

Majority said the magnitude of the loss was greater; dissent said it was based on risk, which was equal between two-eyed employees and P.

Object: Weigh the probability of the loss with the reason you might incur the risk

Even if probability and loss are high, D may be excused if the object is highly socially important and have to reconcile the probability of something going wrong and the probability of a specific consequence.

Test Case (example)

Watt v. Hertfordshire County Council: Fire department doesn’t have a proper truck to carry a particular jack, so they take it on another truck. The jack it slips off and hurts P. The courts rule it was alright to assume this high risk because the object of executing a public duty and saving numerous lives far outweighed the probability and loss analysis.

Law Estate v. Simice: doctors’ duty to patients outweighs almost any duty to contain health care costs. No cutting corners!

Often seen with Cops

Bittner v. Tait Gibson Optometrists: P is a cop who slips and falls on ice on D’s steps while pursuing a suspect. P not contributorily negligent because of duty.

Priestman v. Colangelo and Smythson [1959](p. 173) – kid steals car; cops chase, fire warning shot at tires, but hit a bump, shot the kid, who was killed and whose car careened into two women waiting for the bus. Reasonable risks are necessary for police duty to stop this stuff.

Poupart v. Lafortune [1973]: D a cop, not liable for having opened fire on bank robbers firing at him and accidentally hitting a bystander. Legislative duty as a cop imposed this dangerous activity on him.

BUT Woodward v. Begbie [1962]: cops liable for shooting prowler instead of ground near his feet because force was excessive.

Cost: What is the cost of removing the risk? If it is small (e.g. seatbelts ), it should be assumed. Should be weighed against other factors, particularly foreseeability: Ice cream vendors have a high probability of accident with children, so you need a second attendant.

Test case (example)

Shilson v. Ontario Light and Power: 12 year old boy injured by electrical wire as he walks across a ravine on a 12-inch pipe after passing and ignoring warning signs.

Courts: “this is one big-ass ravine: with all these barriers and warnings. Not only is it hard to foresee the harm, but the cost of definitely preventing any adventurous boy from ever getting hurt is pretty difficult.”

Hogan et al v. McEwan et al: passenger P hurt when D swerves to right to avoid dog. D not liable because it was this or hit the dog or hit a lamppost (was the best option); generally, though, people worth more than animals.

Hoster v. Toronto Electric Light Co.: P touches uninsulated wire by foot passenger bridge about 14-20 inches from the bridge. Court: “everyone walks across this. Someone would touch this wire, duh.”

Step 4) Reasonable Person: To whose standards do we hold D?

Rule: Objective standard regardless of individual capability or idiosyncrasy; assumes we’re all intelligent, knowledgeable, in control of kids; allowances made for individual circumstances of physical disability, superior knowledge etc.

Test Cases:

Blyth v. Birmingham Water Works (1856): original case for establishing this standard. D had fire plug installed, but severe frost of 1855 cracked it, leading to a flood. No negligence because reasonable care was taken given the circumstances.

Vaughan v. Menlowe (1837): D left up a big stack of dry hay (fire hazard) and said he “would chance it”; burns down D and P buildings. D conduct below reasonable person standard.

Exceptions:

Children

Rule: Evaluate the “reasonable child” based on individual age, intelligence, experience etc

Test Case:

McEllistrum v. Etches (?): 6 y.o. lives by hwy, taught about its dangers by parents, going to cross with siblings; one brother runs across to median. A car comes, sees kids, slows down, daughter runs out and is hit by this car. Daughter understood because of experience and was therefore contributorily negligent.

AND

Heisler v. Moke: kid warned against jumping but jumps and causes injury to P; age of 7 is general age of responsibility but depends on circumstances; D is 9 and bright, is liable.

Dellwo v. Pearson: Adult activity by kids = hold kids to that standard they assumed. (Unfair for victims; cars etc equally deadly)

Pope v. RGC Management: Golf is an adult activity (bow chicka wow-wow)

Teno v. Arnold: ice cream vendor should know kids run out after ice cream truck

Custom:

Rule: Depends on custom, issue, community; less likely to overrule technical/professional customs, but common sense can prevail (like doctors who don’t normally count sponges)

Test Case (example):

Waldick v. Malcom: even if D proved it customary that icy steps not usually salted, that doesn’t mean everyone wasn’t negligent.

Brown v. Rolls Royce: D didn’t supply barrier cream to employees and P gets dermatitis. Courts know D consulted physicians who know this wouldn’t have changed causation, so custom not conclusive.

Warren v. Camrose (City): what was current custom? Courts can still disagree with custom.

Disabled:

Rule: If aware of disability, must keep out of situations which would pose problems (No blind people driving busses!). If unaware of disability, don’t worry about it!

Test Case:

Fiala v. Checkmanek (2001): MacDonald goes for run, gets very first bipolar incident, jumps on D’s car roof, hits D, who hits pedal; accelerates and hits P. Symptoms unforeseen = no liability for M. Brings into questions about purpose of tort (compensation vs. punishment), questions about apportioning fault with mental illness.

AG Canada v. Connolly: no liability w/o foreseeable harm and NCRMD = can’t foresee, can’t appreciate duty of care

Robertson v. Aye (?): Mental patient attacks shopkeep; patient’s hospital not liable because this is not foreseeable. Stricter standard than “anything you can foresee”).

Slattery v. Haley: while driving, 1st ever heart attack: no liability if unaware of condition.

Layers:

Rule: General professional standards

Test Case (example):

Brenner v. Gregory: just like Winrob v. Street: lawyers not negligent if not looking at or surveying property lines because that’s not what they do.

Medical:

Rule: Emphasis on scientific evidence and causation; litigators assume a duty of care unless doctor answers questions at a cocktail party or something like that. Generally a standard of the reasonably prudent person in the same situation, not necessarily what the majority would do.

Test Cases:

Challand v. Bell: P hurt his arm, D treated, it got worse and needed to be amputated. SCC: if surgeon has average skill, for his GROUP (Rural? GP? Etc), then no liability. D did even what a specialist would have done

AND

TerNeuzen v. Korn: P gets HIV from artificial insemination in 1985, but happened before there was any evidence that HIV could be transferred this way = not negligent.

De Vos v. Robertson: Doctors must choose patient over the system

Taylor v. Gray: even non-experts know leaving forceps in the patient is a bad idea.

Anderson v. Chasney: ditto for sponges.

Ribel v. Hughes; White v. Turner: P underwent surgery, got stroke, said he didn’t know all the risks. Disclosure depends on the risk: high likelihood of small problem, any likelihood of big problem etc. Without misrepresentation, failure to disclose etc, it’s negligence and not battery, and reasonable patient would have opted for surgery anyway.

Ciallariello v. Schacter: P going for tests, asks that they be stopped; D asks to start up again, P consents and got hurt; D okay because risks had not changed.

Bohun v. Sennewald et al (2007) : Dr (D) was late in diagnosing P’s breast cancer. D says balance of probabilities says she would have died anyway but court finds material contribution to death and agrees with P that 20% better chance of survival = 20% of damages.

Mercer v. Gray [1941 ONCA]: medical fuckups are life. Severe medical fuckups are negligent. OVERTURNED BY

Kolesar v. Jeffries (1977 SCC); see also Price v. Milawski (1977 ONCA): D responsible for loss caused by another doctor’s negligence (D scanning for ankle injury but X-rays foot, OK’s it = Dr #2 relies on this = P is fucked by the time Dr. #3 tries to fix it.)

Parents:

Rule: responsible for certain things (feeding kids etc) and basing decisions on individual kids. (History of behaviour problems in kid? etc); (BC Parental Responsibility Act: if kids do small claims-style damage etc, you’re responsible unless you take reasonable precautions).

Professional Negligence:

Rule: Based on ordinary standards of that professional

Whitehouse v. Jordan: Denning declares mistake not necessarily negligence.

Miles v. Judges: use objective standard: no distinction between experience in surgeons.

Aldana v. March: ditto for interns.

McCormick v. Marcotte: standard is practitioners in similar communities.

Statutory Standards:

Rule: There is no “statutory breach” tort like in the UK. Breach is only relevant if causal; can be cited as evidence.

Test Case (example):

R in Right of Canada v. Saskatchewan Wheat Pool: D violated statutory duty not to deliver larvae-infested wheat. UK creates tort of statutory breach; we use US means of using it in negligence, but you must have evidence of negligence, and this breach occurred without fault.

See also

Gorris v. Scott: Sheep washed overboard, P says on account of D’s negligence in adhering to legislative standard. But statute is to prevent disease etc; cannot use statute aimed at A to show cause of action for B.

Fraser v. U Need A Cab: breach of bylaws about keeping taxis in good shape = proof of negligence when D’s door falls on P.

Powell v. Phillips: non-compliance does not ipso facto equal negligence

Schofield v. Town of Oakville: Tortuous conduct must cause the injury to be relevant.

Godfey v. Cooper (1920): Breach only relevant if causal.

BUT Paulsen v. CPR: D failure to put of fence (to ensure safe passage of trains in areas with animals) relevant enough when P’s kid is killed.

Vancouver v. Burchill: D entitled to compensation for P failing to repair roads even though D had no license.

Ryan v. Victoria (City) (1999): P hurt when front tire got caught in RR track gap in street. RR not barred from liability because statutory exception is obsolete; statutory compliance does not exhaust standard of care.

Step 5) Causation: Did the damage ensue from a breach of the Duty of Care or the Standard of Care?

TEST 1: “But-for test”. “This harm would’ve happened but for D’s conduct”

Usually works, except in cases of scientifically unprovable circumstances; multiple or repeated causes.

Snell v. Farrell (p. 258): “ordinary common sense” standard (res ipsa loquitur: “the thing speaks for itself”) is the easiest way to go beyond “but for”: so obviously negligent that you don’t need to fuck around with defining it. Causation need not be precise.

TEST 2: Res Ipsa Loquitur: the thing speaks for itself.

Bird v. Vogel (p. 246): Barrel of flour landed on a guy from a store window; no evidence of anyone upstairs pushing it or anything, but it’s pretty obvious that this was negligent. Outdated, but related to modern-day common sense. See also, Snell v. Farrell, above.

TEST 3: Material Contribution: Sort of like Smithers in Crim:

Test Case:

Athey v. Leonati: P had a lot of back problems and then got into a couple of MVAs. It’s unfair to make the defendants prove which one caused the herniated disc in his back; P just needs to prove D materially contributed to the harm. The crumbling skull argument (“we put people back to where they would have been, but this guy would’ve had this happen anyway”) doesn’t work in this particular case because there’s no evidence this hernia would’ve happened without D’s conduct.

Test 4: Materially Increased Risk

Test Case: McGhee v. National Coal Board: unfair to make P prove which instance working with coal production would have given him his illness. D is liable if found to contribute beyond de minimis.

BUT

Kauffman v. TTC [1959]: kids horsing around on top of stairs = P falls and hurts herself. D not liable because she would have done so regardless of whether or not D put a railing there.

Davidson v. Connaught Labs [1959]: Failure to warn doctors about the side effects of rabies serum is irrelevant because doctors’ conduct would not have changed regardless.

Horsley v. McLaren [1969]: Passenger fell overboard into frigid Lake Ontario; the negligent rescuer was not liable because the deceased would’ve probably died anyway, particularly as this had given him a heart attack.

Jobling v. Associated Dairies: P had a condition which would’ve rendered D’s damage moot in about 3 years = damages reduced accordingly because you cannot put P on a better position than he would have been in.

Step 6) Remoteness: Was the damage too far removed from the negligence to hold it against D?

A) Generally:

Test Case

(Wagon Mound 1) Overseas Tankship (UK Ltd) v. Morts Dock and Engineering Co. Ltd. [1961 AC]: Wagon Mound spills furnace oil into water, D stops work, inquires, concludes it’s okay so long as they work safely. It starts a massive oil fire, damaging many ships. Courts: “Yes, this is possible, but nobody would’ve ever thought so. The only liability is for the damage of the fire, which experts thought was impossible.” Overturns Re Polemis: (D can be held for all consequences, no matter how foreseeable)

Canadian Version: R. v. Coté (1974 SCC): all that matters is the general class or character of damage, not the circumstances of it.

B) Is The Type of Damage Too Remote? Cases get won and lost on how you frame the harm.

RULE: If the type of damage is foreseeable, the circumstances in which it arrives are irrelevant.

Test Case

Hughes v. Lord Advocate [1963]: City workers cover open manhole with tarp, surround by lamps, go on break. P (kids) fuck around with the stuff, trip over lamp falls into hole, explodes, knocks him into hole, gets burned etc. Foreseeable because you’re not supposed to be able to foresee the way damage happens, only that this type of damage can occur. You can foresee kids getting burned, falling down the hole, that’s enough.

Doughty v. Turner Manufacturing [1964 QB]: Asbestos cover knocked into heating bath, causing an explosion, hitting P. Courts: “only splashing is foreseeable, not this eruption.”

Lauritzen v. Barstead (1965 ABSC): D and P driving together, D drunk, grabs wheel. Accident, lots of trying to rescue and get help. P gets frostbite. Courts: “this was foreseeable.”

Oke v. Weide Transport (1963 MBCA): D knocks over metal post on strip of gravel between hwy lanes. V is impaled. Court follows Wagon Mound 1: “no way he could’ve seen this freak accident”

Weiner v. Zoratti (1970 MBQB): foreseeable that negligent driving = hit hydrant = flooding basement is foresesable.

Tremain v. Pike [1969] UK: It was rat urine, not a rat bite, that caused your disease. We don’t think that’s foreseeable.

Assiniboine South School District No. 3 v. Hoffer and Greater Winnipeg Gas Co (1970 SCC): Dad modifies Ski-daddler so son can start it easier. Son takes off, plows into exterior gas company line, causing an explosion. Kid and dad 25% liable, gas co 50%. Foreseeable that gas pipes would be damages.

Falkenham v. Zwicker (1978 NSSC): D crashes into fence, some staples come out into grass. Farmer tries to remove some, doesn’t get them all. Cows eat them, they shred cows’ stomachs. P failed to mitigate the loss, but that staples would come out of the fencepost is foreseeable.

Jolley v. Sutton London Borough Council: [2003 HL]: 14 y.o. boy and his friend fucking around with a boat D left in a yard and didn’t remove. Trying to repair it, hoisted it up by a car jack, crash! HL: “totally foreseeable that kids would fuck around with a boat like that one”

C) Is the possibility of the type of damage at issue?

RULE: If it’s thought to be impossible, it’s not foreseeable

Test Case

Wagon Mound 2: Overseas Tankship v. Miller SS Co Pty. [1966] AC: same basic scenario as Wagon Mound 1. Courts: the difference is not foreseeability (you can foresee aliens and shit, too), but whether or not it’s possible enough that the risk “would occur to the mind of a reasonable man” and that he’d act to correct it. In this case, they knew it had happened in WM1, so they’re liable.

=the test is “what is possible and not what is probable”

Shirt v. Wyong Shire Council [1978 NSCCt]: waterski injuries from shallow water are possible.

McKenzie v. Hyde (1967)(MBQB): D digging, hit a gas line, gas seeps and explodes in nearby basement. Reasonably foreseeable, possible.

Palsgraf v. Long Island RR Co [1928 NYCA] Train leaving, 2 dumbasses running after train get pushed to board the train in time. One of them has a suitcase full of fireworks which drops thanks to the negligent pushing of D’s employees, explodes. It rattles the platform, and P, at the other end has an industrial scale fall on her

Majority: “P is trying to claim as a vicarious tortfeasee; how the fuck can D anticipate a guy with a suitcase full of fireworks? This is a huge cause-and-effect stupidity.

Diss: The duty of care was to those around the scales, and they thus owed a duty of care to P. This isn’t a broken chain of consequences.

Contributory Negligence?

Amar Cloth House v. La Van Co (1997) If your own contributory negligence is in itself foreseeable, you might be able to collect on that.

D) What about Thin Skull Victims?:

RULE: If the type of harm is foreseeable, how V reacts to it is your problem

Test Case

Smith v. Leech Brain & Co [1962] QB: P’s husband gets burned with molten metal, causing cancer. Courts: WM didn’t have thin skull victims in mind; the issue is that you have to be able to foresee the type of damage, and it was foreseeable that he’d be burned.

Malcom v. Broadhurst [1970 QB]: husband and wife injured in car accident. Husband becomes violent, bad tempered. Wife gets upset. Courts: exacerbation of nervosity is foreseeable. Irrelevant that it happens via the husband.

Duwyn v. Kaprelian (1978 ONCA): parent ineffectively cares for injured kid, causing additional mental suffering. Can collect on this (like improper medical treatment; totally foreseeable).

Marconato v. Franklin [1974] BCSC: Woman slightly injured in car accident becomes depressed, hostile, paranoid etc. Thin skull rule applies despite P’s peculiarities because psych harm was foreseeable from physical injury.

Crumbling Skull

Smith v. Maximovitch (1968) SKQB P losing his teeth, loses them all thanks to accident. Teeth assessed for what they were (crap).

Suicide

Pigney v. Pontiers Transport [1957 ER]; Swami v. Lo (1979 BCSC); Wright Estate v. Davidson (1992 BCCA): liable if accident causes insanity which causes suicide

E) i) Did an Intervening Act (novus actus interveniens) cause the real harm in an unforeseeable way?

RULE: If so, any negligence on the part of D is eliminated or greatly reduced

Test Case

Spagnolo v. Margesson’s Sports Ltd. (1983 ONCA) : D leaves car with keys in ignition, stolen, and six days later he crashes with P. Trial: foreseeable etc, especially with stats, and the rush of stealing a car. CA: “Yes, but this was six days later; how did this greater risk than you’d suffer from any normal driver?”

Harris v. TTC and Miller [1967 SCC]: P sticks arm out of bus, hurts it when bus pulls away.

Majority: of course the kid put his arm out the window, it’s what kids do. A sign telling them not to is not enough, and how are they to know? The kid is not an independent actor in such a situation.

Stermer v. Lawson [1977]: those with dangerous products must be reasonable about preventing injury.

Bradford v. Kanellos [1974 SCC] flash fire in restaurant = extinguisher = hissing sound = D freaks, “GAS!” = P trampled. Not foreseeable from negligence regarding grease on the grill.

Canphoto Ltd v. Aetna Roofing (1965) (MBBQ): D leaves propane tank in alleyway over weekend; someone fucks with it and it causes a fire which hurts P. This is not an intervening act b/c if flows directly from D’s negligence

Stansbie v. Troman [1948 UKCA]: Decorator liable when he goes out without locking the door and thief steals stuff. Obviously foreseeable, directly flowing.

E) ii) But did the “Intervening Act” stem from a recurring situation?

RULE: The recurring situation tends to make the intervening act foreseeable: frequently with rescuers

Test Case (Read for the dissent for a good application of this rule)

Horsley et al v. MacLaren et al (The Ogopogo) (1972 SCC): D operating cabin cruiser. Matthews falls into frigid waters. D fucks up rescue procedure, leading to Horsley to jump in. M lost, H dies, and others jump in to rescue H and almost die. Majority: situation of peril was created when M falls into water. D fucking up was an error in judgment under pressure, not b/c of drinking/negligence. Diss: D created a risk when he took the boat out, as is recognized in maritime law. H was the good Samaritan, who jumped in thanks to D’s negligent fuckups. Totally natural and probable consequence of poor handling of a boat. (Also, you can sit by and smoke a cig and watch your neighbor drown. No duty to act, just a duty not to fuck it up if you do.)

Seymour v. Winnipeg Electric Ry (1910 MBCA): “we should know humanity is good and will jump to rescue.”

Chapman v. Hearse (Aust HC 1961): rescued held partially liable for injuries to rescuer.

Cleary v. Hansen (1981 ONSC): rescuers may be found contributorily negligent.

Moddejonge et al v. Huron County Board of Ed (ONHC)[1972]: D employee rescues 1 girl and drowns trying to save another. Court: “She had a duty, she did her best. Who cares if she was negligent? She’s dead.”

Corothers v. Slobodian (1975 SCC): P sees accident, stops, runs to get help when D sees her, slams on brakes, jackknifes. SCC: “this is what people do in an emergency. Leave it alone.”

E) iii) But did the “Intervening Act” stem from intermediate inspection?

RULE: If you did not warn the inspector of a fault of which you aware, you likely remain liable.

Test Case

Ives v. Clare Bros [1971 ONHC]: D makes gas furnace used by gas company X; D aware of problem. 3 inspections from X, no warning about danger of burns to P. D liable for failing to warn “customers, suppliers and service men”; X also liable.

RULE: If you’re not particularly negligent and the intervening actor is negligent, you are not liable

Test Case

Viridian Inc. v. Dresser Canada (2002 ABCA): X sells D general diaphragms. D puts them into high pressure gas compressors, which it sells to P. Diaphragms not meant for this kind of thing; they explode. X not liable because it was not probable or foreseeable that D would use these without testing them, inspecting them etc.

Dutton v. Bognor Regis [1972 UKCA]: both builders and inspectors liable for shoddy house

Taylor v. Rover Co Ltd [1972 UKCA]: D1 manufactures chisel, which D2 issues to employees (P). Chips fly off and injure P. D1 not liable because D2 knew about the defect and failed to correct.

Smith v. Inglis Ltd (1978 NSCA): P cut off third prong of plug on stove made by D with help from X. P gets shocked because of it. D still liable because they should know people do this. D cannot sue X, because X’s fault is wrapped up in P’s contributory negligence.

Good-Wear Treaders Ltd. v. D & B Holdings (1979 NSCA): P sells D a retreaded tire warning it could not be used on gravel trucks. D does it anyway. Accident. P 20% liable because it should have been anticipated as probable.

F) Does this case deal with a second accident which stems from the first?

RULE: The second accident generally flows from the first

Test Case (example)

Wieland v. Cyril Lord Carpets [1969 QB]: P in accident, fit with collar, ergo couldn’t have bifocals, so fell when descending stairs with help. Court: “This is easily linked to the first accident.”

Lucas v. Juneau (Alaska 1955): D negligent in injuring P, then when transporting P, ambulance driver has epileptic fit. This counts as negligent transport of P.

Patten v. Silberschein [1936 BCSC]: D liable for being robbed after being rendered unconscious in accident thanks to D.

RULE: If the plaintiff’s injury was caused by negligent conduct, the plaintiff is his own thin skull victim and you’re off scott free.

Test Case (example)

McKew v. Holland et al [1969 HL]: P’s leg hurt in accident. Leg gives way and he falls down stairs, jumps to fix landing, gets a way worse injury. HL: “this is foreseeable for P, not for D. This is novus actus intervenes; he should have been more careful.”

Priestly v. Gilbert [1972] (ONCA): Ditto, except leg broken when P drunk and dancing. What a dumbass.

Duce v. Rourke (1951) (ABSC): D not liable for tools stolen from P’s car when car left on hwy after accident.

G) Was there a product warning?

RULE: You don’t have to warn against the obvious, but you have to give fair warning about each specific danger of your product to those with less knowledge than you

Test Cases (example)

DeShane v. Deere & Co (1993 ONCA): P falls into unguarded harvester machine. No duty to warn because it’s so obvious what the ordinary danger was.

Rozenhard v. Skier’s Sport Shop (2003 AB:P): Obvious that falling is a danger of rollerblades.

RULE: If you discover a defect in your product after sale/distribution, you have a continuing duty to warn.

Test Case

Rivtow Marine v. Wash. Iron Works (1973 SCC): D fails to warn P about defective crane after they found out about the defect. D owes P a big fucking apology and a bigger fucking cheque.

RULE: When dealing with complex products (medical prescriptions etc), you must give adequate warning to the “learned intermediary” who can best explain it to the patient

Test Case

Hollis v. Dow Corning Corp [1995 SCC]: P gets breast implants 1983, which rupture 1985. D knew about the risk in 1979, but Dr. got “little” warning. Dr. needs enough warning to educate patients properly, otherwise doctors do not count as an intervening cause.

Buchan v. Ortho Pharm. Ltd. (Y?) ONCA: learned intermediary rule does not apply to oral contraceptives.

Step 7) Defences: D had better have a good excuse

Contributory negligence: 3 ways: P can… 1) Contribute to the accident; 2) Expose self to risk, 3) Fail to take reasonable precautions to minimize injuries. Issues in how you apportion blame: degree of blameworthiness, between P and multiple Ds, or on an individual P-to-D basis etc?

Case: Recognized by Negligence Acts

Butterfield v. Forrester (1809 KB): P tearing ass down a road on a horse, doesn’t see D’s blocked it.

Courts: you shouldn’t be able to throw yourself on the obstacle of another and then sue the bastard

Last Clear Chance Rule (“dandelion of causation: keeps popping up though we try to choke it out”) (now gone)

Davies v. Mann (1842) P’s donkey illegally in the way; scares D’s legal, negligently-controlled horses to trampling him. Courts: “D’s still supposed to act non-negligently; there may be cases where your own negligence (D had the last clear chance to avoid the accident)

Hellborne v. Barnard [1954 ONHC]: P struck by D golf ball. P contributorily negligent, but judge says that only applies to negligence (and this was a trespass case), ergo D liable for 100%.

Bell Canada v. Cope (Sarnia) (1980 ONCA): P is 2/3 responsible for D cutting wire b/c P negligently places it

Speed and Speed ltd. v. Finance America Realty (1979 NSCA): contributory negligence applies to breach of contract, any “fault”

Due Diligence: Comes in at the standard of care phase. If you need a defence, you’re already fucked.

Illegality:

Rule ex turpi causa non oritur actio : basically, thieves shouldn’t benefit from being thieves

Case :

Hall v. Hebert [1993 SCC]: P and D drinking. Car stalls, D pushing, P at wheel loses control, gets serious head injuries. McL: Ex turpi is really about things like preventing a bank robber from suing his partner in fraud etc. (IE “profiting” from illegality), and not in situations like this where they had nothing to gain from illegality.

Seatbelt Defence:

Rule: If P failed “to take a step [P] knows or ought to know to be reasonably necessary for his own safety” Gagnon v. Beaulieu [1977 BCSC], he can be held generally up to 25% liable.

Test Case

Galaske v. O’Donnell: 8 y.o. kid with dad, neither buckle up as passengers in D’s truck, but D does. D didn’t say anything because he didn’t want to yell at dad in front of kid, but they get into an accident and dad is killed, kid paralyzed. Driver held to always be liable to those in car: creates risk, position of control, etc. Degree of duty owed to kids depends on age, relationship thereto etc.

Genik v. Ewanylo (1980 MBCA): huge difference between buckling up on icy road at night and summer road for a few blocks – look at circumstances.

Should you calculate based on percentages of total loss, or difference between best case and actual loss?

Voluntary assumption of risk:

Rule: volenti non fit injuria: “you’re a grownup and can do what you want” –J. Blom.

Virtually gone these days thanks to statutes, cases.

Test Case:

Lagasse et al v. Rural Municipality of Ritchot et al (1973) MBQB: P’s dead husband using tractor for plowing snow on lake at D’s request; tractor falls through ice. Not volenti b/c deceased did not expressly consent.

Hambley v. Shepley ONCA 1967: P a cop, instructed on radio to block D with his cruiser. Collision, P seriously hurt. Volenti doesn’t apply here because P had a duty to do this. Volenti requires “genuine inference that P consented not merely to the risk of injury, but to the lack of reasonable care which may produce that risk.”

Kelliher (Village) v. Smith [1931 SCC]: generally requires 1) that P knew about and appreciated nature and character of the risk, and 2) voluntarily incurred it.

Murphy v. Steeplechase Amusement Co (NY1929): P injured in fucked up amusement park ride. Courts: “He took a chance, so fuck him.”

Hagerman v. Niagara Falls (1980) ONSC: P spectator hit in eye with puck at hockey game. P sat there. Volenti.

BUT

Payne v. Maple Leaf Gardens: P sitting in front; P hit by stick during a fight. Courts let P collect: “Who could possibly foresee ANY violence or fights at a hockey game?!”

Step 8) Liability: Who’s going to pay for all this? Apportioned equally if no other way to decide on a percentage

Joint Liability:

Each D is 100% liable for the full amount, but P can only get up to 100%.

No need for concurrent actions – you can go after others for the remainder.

Several Liability:

P can collect 100%, but each D is only liable for his portion

Joint and Several Liability

Makes sure P gets something. P may collect 100% from A, who is only 20% responsible, and A has to sue B 80%.

Everyone else does have to be named in the action, but this encourages frivolous litigation by giving incentives to include as many D with deep pockets as possible.

Leaky Condos: leaves City of Delta holding the bag; the other defendants go bankrupt, so Delta’s holding the bag.

BC Ferries Agreement: If you settle for $X, nobody can come after you for more than $X.

Strict Liability

1) The Rule of Rylands and Fletcher:

You fuck with land/resources etc in an unnatural way, you deal with the consequences

Rylands and Fletcher (1868 HL): Facts: Fletcher’s dead mines are underneath a reservoir constructed by Rylands; engineers negligent (but courts ignore this) and the mines are flooded. Conclusion: Rylands liable.

Ratios and Analysis: Blackburn J. says Rylands must bear some blame because he knew water was dangerous thus, he put water there anyway and thereby assumed prima facie liability for the “natural consequences” of water’s escape unless it was an Act of God.

Lord Cairns distinguishes: “natural” uses in the “ordinary course of enjoyment” of land? Have at ‘er! Non-natural? You assume all risks related thereto. You fuck with the non-natural at your own risk.

Lord Cranworth: Concurs with both: if you accumulate something that will cause damage on escape, you’re liable. Bound sic uti suo ut non laedat alienum: do no harm to your neighbor; but not about personal injury

BUT

Burnie v. Port Authority (1994 AHC); Cambridge Water Co Ltd. v. Eastern Counties Leather Plc. [1994 ER]: harm should be foreseeable, dangerous undertakings require reasonable care = should fold this into negligence

Aldridge v. Van Patter et al [1952 OR]: P hurt when stock car crashed out of track into P; Rylands extends to personal injury if damage is foreseeable

Requires:

A) Unnatural Use of Land:

Rule: D is protected from strict liability if the use is natural, either in the activity of use or its risks.

If use is non-natural, he’s fucked.

Test Cases:

Tock v. St. John’s Metro Area Bd. [1989 SCR] Facts: D’s sewer overflows in heavy rain, floods P’s basement. Ratio and Analysis: like Rickards, plumbing (and sewers) are a normal modern use of land, but D loses because this is nuisance and has no statutory exemption.

Rickards v. Lothian [1913 AC PC]: Facts: D has toilet and basin on fourth floor, and water leaks down into P’s stock.

Ratio and Analysis: No evidence of negligence, and this looks like an Act of God as mentioned in Rylands; toilets are necessary for today’s society and are therefore an ordinary natural use of land. Sic utere suggests we all accept the risk inherent in modern plumbing. Conclusion: Rickards has to suck it up

Read v. J. Lyons & Co Ltd. [1947 HL AC]: P working at D factory as ammo inspector; P hurt in explosion.

Courts: ammo factories completely natural use of land in wartime

Danku v. Town of Fort Frances (1976 OR): Private trailer park liable for broken sewer system; town is NOT.

St. Anne’s Well Brewery Co. v. Roberts (1928) (UK CA) – building is natural use, ergo falling brick wall is natural

Maron et al v. Baert & Siguaw Devs. Ltd. (1981 QB): garages used for welding, so fire in garage is natural

Lyon v. Village of Shelburne (1981 ON CoCt): sewage pipes non-natural use of land

Hudson v. Riverdale Colony (1980 MB CA): fire set to prevent another fire from spreading; this is not natural

Cambridge Water Co Ltd. v. Eastern Counties Leather Plc. [1994 ER]: storage of many dangerous chemicals in industrial company town does not constitute natural use but damage “not foreseeable” b/c of knowledge of chemicals

Mihalchuck v. Ratke (1966 SKQB): D liable for drift of herbicide because he used a crop dusting plane and not a tractor

Non-natural uses of land include flag poles (Shiffman v. Order of St. John [1936 KB]), Christmas decorations (Saccardo v. Hamilton [1971 ONHCJ]), and an advertising balloon (Calgary (city) v. Yellow Submarine Deli Inc (1994 AB Prov. Ct.)

Gertsen v. Toronto et al (1974 ONHCJ): D storing bio waste = methane gas, which caused an explosion which hurt P. The garbage fill was “self-serving” and therefore not natural

Wei’s Western Wear Ltd. v. Yui Holdings Ltd (1984 AB QB): D’s water use non natural because dangerous and for commercial purposes

B) Escape:

Rule: Something dangerous needs to “escape” for its causation of harm to be actionable.

Test Cases:

Rigby v. Chief Constable of Northamptonshire [1985 QB]: cop fires gas canister into store, causes fire: “I see no difference between allowing a man-eating tiger to escape from your land … and … from the back of your wagon.”

AND

Hunter v. Canary Wharf [1997 AC HL]: P says D construction interferes with TV reception and creates dust. On TV reception, House of Lords tells P to suck it up, nuisance deals with things escaping from the building.

Read v. J. Lyons & Co Ltd. [1947 HL AC]: P working at D factory as ammo inspector; P hurt in explosion.

Courts: Rylands and Fletcher dealt with danger escaping from your land; nothing escaped here, ergo no strict liability

Deyo v. Kingston Speedway Ltd [1955 SCC]: personal injury claim dismissed partly b/c nothing escaped D’s lands

Ponting v. Nokes [1894 QB]: Horse eats from poisonous tree in D’s property and dies; P cannot recover b/c no escape

Charring Cross Electricity Supply Co v. Hydraulic Power Co [1914 KB CA]: D’s hydraulic mains burst and damaged P’s lines. D liable because concept of “escape” is not limited to adjacent lands.

Dokuchia v. Domansch [1945 ONCA]: D got P to lie on fender and pour gas into carburetor to keep truck going = D liable for resulting explosion; irrelevant that damage from dangerous activity caused on or off premises

Ekstrom v. Deagon and Montgomery [1946 ABSC]: D’s stalled truck towed to P garage; draining fuel tank dangerously caused garage to burn down = D liable because his dangerous substance (fuel) escaped.

North York (Muncipality) v. Kert Chemical Industries (1985 ONSC): Rylands may not deal with intentional discharge

C) Defences:

Act of God

Rule: Rare, but even Rylands basically lets this give you carte blanche

Test Cases

Nichols v. Marsland (1876 UK CA): Unprecedented rainstorm flooded D dams and swept away P bridges. P not liable because no way to anticipate

Greenock Corp. v. Caledonian Ry. Co [1917 AC]: Severe rainfall; D not liable for the same reason.

Carstairs v. Taylor (1871 UK): non-negligent water damage after rats chew on conduit pipe; rats can be Act of God

Hargrave v. Goldman [1965] Austrl: lighting an act of God; Cushing v. Walker [1941 UK] only strong winds can be.

Consent

Rule: If P consents, even impliedly, by lack of protest or occupation or whatever, D is not liable.

Test Cases:

Peters v. Prince of Wales Theatre [1943 KBCA]; Pattison et al v. Prince Edward Region Conservation Authority (1984 ONCA): P impliedly consents to sprinkler systems via occupation = no liability for non-negligent sprinkler damage

Carstairs v. Taylor (1871 UK): non-negligent water damage after rats chew on conduit pipe; D not liable b/c water was collected for P = implied consent;

Western Engraving Co v. Film Laboratories Ltd. [1936 UK CA]: D liable for water damage because P does not benefit

London Guar. & Acc. Co. Ltd. et al v. Northwestern Utilities Ltd. [1936] AC: D gas line serving neighborhood explodes; damages P’s building nearby = D liable because P did not consent to the installation

Contributory negligence

Rule: If P helps it happen, he can’t collect it all.

Test Cases

Dunn v. Birmingham Canal (1968 HL): P denied compensation for carelessly flooding his own mine under D canal

Ponting v. Nokes [1894 QB]: Horse eats from poisonous tree in D’s property and dies; P cannot recover.

Deliberate Acts of Third Parties

Rule: Foreseeability applies, but 3rd party actions must intentionally cause damage and cannot just be “intentional” per se.

Test Case

Rickards v. Lothian [1913 AC PC]: Facts: D has toilet and basin on fourth floor, and water leaks down into P’s stock. Damage caused by 3rd party deliberately blocking pipe Rule: 3rd party actions must intentionally cause damage, not just be intentional; for D. Conclusion: Rickards must eat loss.

Perry v. Kendricks Transport [1956 UK CA]: D not liable when kids throw matches into gas tanks of trucks

Box v. Jubb (1879 UK): 3rd party empties his reservoir into D’s reservoir, causing a flood. D not liable b/c no control.

BUT

Hale v. Jennings Brothers [1938 UK CA]: you should know that people fuck with carnival rides; 3rd party act not enough to absolve liability.

Legislative Authority

Rule: If the statute says you’re golden, you’re golden.

Test Case

Diversified Holdings Ltd. v. R in Right of British Columbia (1982 BCCA): D’s program to feed elk near P’s property caused increase in population; when program was cancelled, they damaged P’s crops and property. P fucked because this was an exercise of statutory discretion and D immune over animals in control.

Vaughan v. Taff Vale Ry Co. (1860 ER): unless negligence, no liability from legislatively sanctioned act

BUT Quebec Ry. Co. v. Vaundry [1920 AC PC]: authority not a license to commit torts; Ryan v. Victoria: narrow defence

Jones v. Festiniog Ry Co (1868) QB: legis never meant to excuse D for D’s sparks setting fire to P’s haystack

AG v. Colney Hatch Lunatic Asylum (1868 UK) and Burgess v. City of Woodstock [1955 OR]: ditto re sewer flooding

AG v. Leeds Corp (1970 UK): ditto re smallpox hospital; Rapier v. London Tramways Co [1893 UK CA] horse stable

2) Animals

Rule For ferae naturae (dangerous, like lions), strict liability; for mansuetae naturae (possibly dangerous individually, like dogs), depends on the animal. Animals must be in D’s control for D to be liable.

Test Case:

Diversified Holdings Ltd. v. R in Right of British Columbia (1982 BCCA): D’s program to feed elk near P’s property caused increase in population; when program was cancelled, they damaged P’s crops and property. P fucked because this was an exercise of statutory discretion and D immune over animals in control.

Lewis v. Oeming (1983) (UK QB): animals must be in owner’s control to be strictly liable.

Bacon v. Ryan (1995 SKQB): possession and control, not ownership, create responsibility

Fleming v. Atkinson [1959 SCR]: farmers now responsible for their herds on roads, overturning old UK common law.

Rule “Every dog is entitled to one bite” – can only be liable for foreseeable damage from mansuetae naturae.

Test Case:

Sgro v. Verbeek (1980 OnHCJ): D’s German shepherd not used to children, bit P’s kid and had never bitten anyone. D not liable; dog’s only propensity was to bark and run at strangers, and this bite was not consequent to that.

Draper v. Hotter [1972 QB]: D should have foreseen his dog would have bitten P’s child.

Acheson v. Dory (1993 ABQB): D’s stallion tried to bite P’s horse but bit P. No “special propensity” = no liability, even in negligence

3) Fires

Rule Generally strict liability; generally a non-natural use of land.

Test Case

Franks v. Sanderson (1986 BCCA): fire at D’s garage spread to P’s café and grocery store. P must prove D is liable for fire to collect from D.

Musgrove v. Pandelis [1919 KB CA]; Goldman v. Hargrave [1967 AC PC]: can be liable for accidental fire if negligent about it

Maron et al v. Baert & Siguaw Devs. Ltd. (1981 QB): garages used for welding, so fire in garage is reasonable

Hudson v. Riverdale Colony (1980 MB CA): D liable for slough fire set to prevent another fire from spreading

4) Products Liability

Rule strict liability if there are foreseeable dangers, duty, and reliance

Test Case

Escola v. Coca Cola (1944 Cali SC): Coke bottle explodes in P’s hand: res ipsa locquitur and basic Donoghue v. Stevenson reasons: no intermediary, implicitly safe by being on the market, non-negl use by P; need strict liability as blunt force solution to make sure manufacturers don’t fuck around.

Rae v. T. Eaton Co. (1961 NSCA): test is not “whether product is sold” but all circumstances of manufacture & sale

Greenman v. Yuba Power Products Inc (1963 Cali SC): D’s tool caused piece of wood to fly off and hit P in head. Same basic reasons as above, less res ipsa locquitur)

Henningsen v. Bloomfield Motors Inc (1960 NJ): P injured when steering gear screwed up. D breached implied warranty of merchantability

Shandloff v. City Dairy [1936 ONCA]: D liable for glass particles in chocolate milk for basic reasons in Escola

Willis v. FMC Machinery and Chemicals (1976 PEI SC): herbicides inherently dangerous: must take all reasonable care

Ives v. Clare Bros. Ltd. [1971 ONHCJ]: D liable for defective furnace b/c D installed it etc.

BUT

Arendale et al v. Canada Bread Company Ltd. [1941 ONCA]: D not liable for glass in bread because he took all reasonably possible steps

Heimler v. Calvert Caterers Ltd. (1975 ONCA) D liable for contaminated food; high duty of care.

Nusiance: 1) land-related; 2) must prove special damages if you have no interest in the land being violated.

Private Nuisance:

TEST: 1) Significant interference with occupier’s use and enjoyment of property

2) Need not have been negligent;

3) interest in land must have been invaded; frequently results from lawful acts

(Royal Anne Hotel v. Ashcroft (BCCA 1979)

No defense if… P came to nuisance; nuisance beneficial to public; nuisance causes minimal harm;

all possible care is taken D’s act must have predicate nuisances to consitute nuisance; D is

reasonably using his own property (Russell Transport v. Ontario Malleable Iron [1952 ONHC])

BUT you can consider 1) Reasonableness of use; 2) Character of the locality, and 3) Special sensitivities of P

Pugliese et al v. NCC (1979 SCC): D construction lowers P’s groundwater table, causing subsidence. Must consider balance between rights of property owners. No right to support from water, but right of action in nuisance.

Tock v. St. John’s Metro Area Bd. [1989 SCR] Facts: D’s sewer overflows in heavy rain, floods P’s basement. Ratio and Analysis: D had authority to construct sewers, but duty to do so respecting private rights. D’s stupidity = nuisance

Russell Transport Ltd. v. Ontario Malleable Iron Co. [1952 ONHC]: P using land as a marshalling yard, but D’s foundry causes particles to mar finish. Yes, you have reasonable expectations depending on where you reside, but regardless of reasonable use, this is about a material injury to property: it’s not like automobile finish is delicate stuff.

Exercise of Rights No Excuse

Hollywood Silver Fox Farm Ltd. v. Emmett [1936 KB]: D doesn’t like P, takes his shotgun and starts firing it off on his own land to disrupt fox breeding habits. Court says he has no absolute right to shoot and make noise on his own land. And he’s a prick.

Motherwell v. Motherwell: D kept calling P 50 times a day and says it’s lawful activity. Invasion of privacy claim established via nuisance: this is active interference with P’s enjoyment of normal necessities of life.

AG of Manitoba et al v. Campbell (1983 MBCA): D owns a farm by the airport. P announces it’s expanding a runway. D gets pissed off and erects a useless steel tower to screw with aircraft. Court makes D take it down.

Exception

Bradford v. Pickles [1895 HL]: D keeps diverting water to piss off P and induce them to purchase his farm. P cannot get injunction because P has absolute water rights.

Nature of Neighborhood

Rule: Generally irrelevant (“fresh noise” is still actionable), but minor nuisance in bad area less actionable than minor nuisance in good area

Test Case:

Appleby v. Erie Tobacco Co (1910 ONSC): D’s tobacco processing stinks to high heaven. “Fresh noise” principle: just because you live in a dirty/stinky/noisy area doesn’t mean that one more feather on the camel’s back isn’t actionable.

Oakley v. Webb (1916 ONCA): D stonecutting not actionable because P lives behind a railway yard.

Thompson-Schwab v. Costaki [1956 CA] P lives in good neighborhood, ergo can have injunction against local brothel.

Everett v. Paschall (1910 Wash.): TB sanitarium not allowed in residential area.

Sturges v. Bridgman (1879 UK): P a doctor with a consulting room next door to D; D gets a noisy machine. Yes, there’s a nuisance, tough on D. “P coming to the nuisance is no defence” (Fleming v. Hilsop 1886 AC), but consider if P was aware of it, + time involved in complaining etc.

Andreae v. Selfridge & Co Ltd [1938 CA]: Noise and dust of building being demolished not out of ordinary as far as the demolishing of buildings goes, ergo not actionable

Muirhead v. Timber Bros Sand and Gravel (1977 ONHC): Dust and noise from quarry are nuisance.

Segal v. Derrick Golf and Winter Club (1977 AB TD): Golf balls landing on P’s property are a nuisance.

Jackson v. Drury Construction (1974 ONCA): Blasting causing cracks causing leaks causing water pollution IS actionable.

Shuttleworth v. VGH [1927]: D not liable for infectious diseases ward lowering P’s property value (close to D). Damage to P and his property value is merely “sentimental”.

BUT Everett v. Paschall (1910 Wash.): TB sanitarium not allowed in residential area.

Nuisance without interest in property

Rule: Ambiguous

Cases

Hunter v. Canary Wharf [1997 AC HL]: P says D construction interferes with TV reception and creates dust. Only those with interest in land can sue in nuisance.

Sutherland v. Canada (AG) [2001 BCSC]: Children of homeowners cannot have cause of action re noise of airport.

BUT Motherwell v. Motherwell (1976 ABCA) and Devon Lumber Co v. MacNeill (1987 NBCA): occupants, spouses, kids, etc. all have individual rights to enjoy premises.

Public Interest

Miller v. Jackson [1977 QB CA]: P is a bitch who doesn’t like cricket. Denning tells her to move or suck it up. Cricket rules. Also, public interest is a huge tiebreaker. BUT this is an aberration.

Ward v. Magna International (1994 ON Gen. Div.): D liable for P’s noisy use of recreational park. D must modify activities.

Boomer v. Atlantic Cement Co (1970 NY): Court orders “permanent damages” to P for noise and smoke etc from D’s plant. But no owner can ever sue D again. D too valuable a company to local owners.

Spur Industries Inc v. Del E. Webb Development Co (1972 Ariz): P gets injunction only if P compensates D for costs in preventing nuisance.

Tock v. St. John’s Metro Area Bd. [1989 SCR] Facts: D’s sewer overflows in heavy rain, floods P’s basement. Ratio: Plumbing and sewers are a normal modern use of land and flooding happens, but that’s no reason why random people like P should be fucked over. D has deeper pockets. D should prove they did all they could etc.

Sensitivity

Rule: Generally, abnormally sensitive plaintiffs cannot recover

Cases

O’Regan v. Bresson (1977 NSCCt); Devon Lumber Co v. MacNeill (1987 NBCA): abnormally sensitive plaintiffs (athsma etc.) cannot recover; also, Lewis v. Town of St. Stephen (1981 NBCA): 15 year-old girl terrified of airplanes thanks to D’s spray aircraft, but this is abnormal sensitivity.

St. Pierre v. Ontario [1987 SCR] : D not liable for hwy built next to P retirement home. Did not significantly alter nature/enjoyment of property, and highways are a huge public good.

Statutory Authority

Mandrake Management Consultants v. TTC (1993 ONCA): D’s subways are useful and common to the city, and even so, they have statutory authority. P has to suck up the noise and vibrations.

Ryan v. Victoria [1999 SCR]: “statutory authority is, at best, a narrow defence” but must be “inevitable” or “practically impossible” to avoid

Tock v. St. John’s Metro Area Bd. [1989 SCR]: Authority is usually permissive, not mandative. D should prove they did all they could etc.

Sutherland v. AG Canada (2002 BCCA): Whoso asserts statutory defence must prove it and that nuisance is inevitable and that the statute permits it.

Allen v. Gulf Oil Refining [1981 AC]: P mad at D’s construction of refinery works; Denning strictly looks at legis and decides it wasn’t the explicit intent of Parliament to permit damage without redress

Schneck et al v. R. in Right of Ontario (1981 ONHC): P’s fruit crops damaged by road salt. Statutory duty not enough.

TV signals, rights of receipt

Rule: Ambiguous.

Cases

Nor-Video Services Ltd. v. Ontario Hydro (1978 ONSC): D liable for knowingly putting hydro tower in a place that would interfere with P’s TV signals, despite better alternatives. TV is critical to normal enjoyment of modern property.

BUT Hunter v. Canary Wharf [1997 AC HL]: P says D construction interferes with TV reception and creates dust. House of Lords tells them to suck it up, nuisance deals with things escaping from the building. Reception interference is like light interference, just a fact of life with buildings. AND only those with interest in land can sue in nuisance: explicitly frowned upon Canadian cases:

Public Nuisance:

TEST: Interference with public convenience and welfare (things on road etc.) Actionable if special damage to an individual or falls under another tort

Proved Exceptional Damage

Cormier et al v. Blanchard (1980 NBCA) : D fish processing plant interferes with P land by discolouring water, attracting seagulls, leaving slime, preventing maritime recreation. Both public AND private nuisance. P wins.

Newell v. Smith (1971 NSTD): D blocked roadway, prevented P’s access to property = P suffered particular damage

Mint v. Good [1951 KB CA] P injured by collapse of wall beside highway. D held liable because wall in unreasonable disrepair is a risk to anyone who passes by on public highway.

Harrold v. Watney [1898 QBCA]: ditto if P on private land, but Hardcastle v. South Yorkshire Ry (1859) not if too far away

BUT Ross et al v. Wall et al (1980 BCCA): owner only liable for defective wall if he was negligent

Burgess v. M/V Tamano (USDC Maine 1973): D spills oil. Fishers, clam diggers have a claim because of a special interest, but town’s businesses cannot (plus loss of business is indirect)

Esso v. Southport [1955 HL]: Esso discharges oil which washes on S’s shore. Anyone who suffers greater damage than normal can claim. King’s lands naturally offended by this.

R. v. The Ship Sun Diamond et al [1984 FCTD]: Crown can recover for oil damage after two ships collide off Vancouver, but only for public (not private) cleanup. Bon pere de famille principle = Crown duty to clean up = special damage.

Failed to Prove Exceptional Damage

Hickey v. Electric Reduction Co of Canada (NF SC 1970): also McRae v. British Norwegian Whaling Co [1927-31 NFSC]; also Fillion v. New Brunswick International Paper Co [1934 NBSC] : D discharged poisonous material into waters, polluting fish. All other fishermen (and public) suffered equally, esp since everyone has a right to fish, ergo P fails. P can only sue for particular and special damages, not damage particular to a class.

Manitoba (AG) v. Adventure Flight Centres Ltd (1983 MBQB): residents complained about D’s ultra-light flight training. No cause of action because they had not proved “particular, direct, substantial” damage beyond what public suffers.

Stein and Tessler v. Gonzales: Crown pushes prostitutes downtown; business owners fail in nuisance because they cannot prove specific damage. See also NS AG v. Beaver (1984 NSCA).

ON (AG) v. Dieleman (1994 On Gen Div): anti-abortion nuts can picket public hospitals, not private homes and clinics

Chessie v. JD Irving Ltd. (1982 NBCA): P injured when collided snowmobile with D’s wharf. D not liable because wharf did not unreasonably interfere with right of passage over ice.

Public nuisance can come close to negligence

Ware v. Garston Haulage Co [1944 KBCA]: P killed when he collided at night with unlighted truck stopped on highway. D liable because it obstructs lawful use of the highway and is likely to cause an accident.

Maitland v. Raisbeck and Heitt [1944 KBCA]: Ditto, but only if obstruction is unreasonable; must look at facts.

Ryan v. Victoria [1999 SCR]: public nuisance interferes with public’s right for health, safety, convenience etc.

Vicarious Liability:

Test is 1) employer-employee relationship,

2) tort must have been in conduct of employment

3) Salmond Test:

i) Employee acts authorized by employer;

ii) acts are improper modes of authorized acts

Hern v. Nichols (1700s UK): merchant relies on employee. If someone has to lose, it might as well be the party that trusted.

671122 Ontario Ltd. vs. Sagaz Industries Canada Inc [2001 SCR]

P suffered huge losses when D induced Canadian Tire to choose them to supply car seat covers. Inducement was provided by a contracted rep (AIM) for D, but D is not vicariously liable because this is not employment.

Two policy considerations: 1) employers create certain risks and should pay for them; 2) must deter torts

But must consider whether employees provide equipment, labor, have responsibilities or chances for profit, etc.

Ultimately, AIM was not an employee and in any event, they bribed Canadian Tire on their own without D’s direction

Bazley v. Curry [1999 SCR]: Children’s Foundation provided substitute intimate parenting for troubled kids. Curry (now dead) turned out to be a pedophile. Foundation liable based on Salmond Test (above): must also consider:

1) Should employer really be liable? 2) Is the tort related to a risk employer created, and 3) Look at all factors (opportunity given to employee; victim vulnerability; extent tort was related to function; profits, etc.)

Here, intimately taking care of kids creates obvious material risk; harm obviously a result of Curry’s employment

John Doe v. Bennett (2002 SCC): Catholic Diocese liable for priest’s sex assaults.

Lister v. Romford Ice and Cold Storage [1957 H.L.]: vicariously liable employer can sue employee for damage

BUT no vicarious liability in…

Jacobi v. Griffiths [1999 SCC]: D worked at youth club; groomed kids by having them over to his place to play video games etc with parental permission; this was strictly banned or the scope of his position. Employer did everything reasonable to prevent harm, and harm not connected to employment, so no vicarious liability.

(McL +2 in Diss: D hired to be a trustworthy role model; also, look at policy for vicarious liability.)

KLB v. BC [2003 SCR] and MB v. BC [2003 SCR]: D not vicariously liable for kids abused in foster homes;

EDG v. Hammer [2003 SCR]: school district not liable for abuse by janitor.

Government / School boards do not supervise or manage homes or individual employees; not a breach of fiduciary duty because that entails acting loyally and in the interests of kids only.

Supertorts

Tobacco lecture

BC v. Imperial Tobacco: D marketed to children, as “lights”, while knowing it was harmful. BC trend: “if you lose, legislate that you won” like with HEU cases, prosecutors, teachers etc. BC legislated itself special limitation periods; retroactivity; allowed standard of causation to apply to every patient generally based on trends.

Privacy: actionable without damage. “Right to be left alone” – includes intrusions into diaries, personal info, surveillance, etc; exception for public safety

Motherwell v. Motherwell: D kept calling P 50 times a day and says it’s lawful activity. Invasion of privacy claim established via nuisance: this is active interference with P’s enjoyment of normal necessities of life.

Silber v. BCTV Broadcasting System Ltd: Strike at P company, D filming, P asks them to leave, and later sees them filming on his property; fight breaks out and D broadcasts it. P not entitled to protection from embarrassment because he did it in public where anyone could see it, plus media have public interest role. P gets small $ for trespass.

Commercial exploitation: “unauthorized use of another person’s name/likeness as a symbol of that person’s identity.

Unauthorized Use = including portrait, anything resembling P. Action ends with P death.

Joseph v. Daniels: P sues D because D misused P pictures for publicity photos; P didn’t sign release but got $50; P tried to contact D to obtain release after photo got lots of attention; negative implied rights re photo use, but P not identified in photo (not a portrait etc) = entitled to $550 (going rate for “extra usage”)

Davis v. MacArthur: wife moves out and hires P.I. to spy on husband. Husband pissed because he’s being followed. Privacy actionable w/o damage, but P.I. acting as employee, and not maliciously.

Privacy Act: Tort actionable without damage; look at reasonable interests and circumstances; can find trespass with eavesdropping etc.

Lee v. Jacobson: D liable for drilling hole in wall.

Milton (?): P vacationing in Hawaii, has topless photos taken on beach, leaves photos in jacket she borrows there. Friend shows them around, courts say it’s tough for her. P was careless and had no concern about some punk developing them.

Hollingsworth (?): cameraman participates in educational video about hair transplants; BCTV uses the footage w/o realizing there’s a confidentiality agreement. “Willful” is the issue.

Constitutional Torts: Constitution can be used to back up liability:

Jane Doe v. Board of Police Commissioners: P not notified by D about serial rapist because of D’s stereotypes about women. Causation of harm to P was based in D’s violation of P’s S. 15 rights.

Economic Loss:

Defective Products

Winnipeg Condo Corp v. Bird Construction (SCC 1995): D build a crappy, dangerous condo. Danger is key, and costs should be for repairing/rectifying danger. Policy reasons = we should throw the book at D. We can foresee that anyone who owns/lives in your building subsequently is going to get hurt (this is not too indeterminate; nor is cost of repairing; and it only lasts for the life of the building). Need to encourage socially responsible construction. Caveat emptor was a product of classically liberal England.

Negligent Misrepresentation

Queen v. Cognos Inc [1993 SCC]: P suing D over negligent misrepresentations made during job interview. Hedley inspires these requirements

1) Must be duty of care (foreseeability of damage, proximity of rel’p, reasonableness of duty)

2) Representation must be “untrue, inaccurate, or misleading”

3) Representor must have acted negligently

4) Representee must have relied to his detriment

5) Reliance must have been detrimental (causing damage)

(Also, missing info can act like bad info)

Hercules Management Ltd v. Ernst & Young [1997 SCC]: P shareholders who had relied on D’s audits to make investment decisions. P claimed shoddy audits led them to invest negligently. SCC uses Anns, says that reliance must be reasonable, must use info for its intended purpose (audits just for general management), tells them to fuck off. D must know identity of P (or class of P), and losses must stem from the statement.

Test for reasonableness

1) D had direct/indirect financial interest?

2) D was a professional or had extraordinary skill/knowledge etc

3) Advice given via business

4) Info given deliberately (outside social occasion

5) Info given in response to a specific inquiry

Too many risks of indeterminate liability to hold D liable.

(see also)

Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd.: P phoned D asking about client’s credit. D about to close major contracts w/ client and lied but waived responsibility in giving info; P relied, client went bankrupt, P sued. Relationship between the parties was “sufficiently proximate” to create a duty of care – “there was a special relationship,” plus D knew P would rely on the information, BUT they got away with it thanks to the disclaimer. 3 Options: you could answer, answer with a caveat, or shut up. Either of the last two are enough to prevent liability. (See Derry v. Peek; Heilbut Symons v. Buckleton)

Negligent performance of services

BDC Ltd v. Hofstrand Farms [1986 SCC]: P a courier delivering a grant for D to be delivered before close of business 31 Dec 1976. D loses it for failure to register, sues P.

SCC: P didn’t know, and “anyone who might be affected by a failure to register” is not a limited class; no reasonable contemplation of econ loss.

BUT Whittingham v. Crease & Co (1977 BCSC): lawyer fucks up will, P gets fucked. P fucks lawyer in court because while P didn’t “rely” per se (no subsequent act) it’s obvious that negligent performance of legal services will fuck P.

Relational econ loss:

Bow Valley Husky v. St. John Shipbuilding [SCC 1997]: P got D to build an oil rig. Negligent wiring caused electrical fire, fucking over rig for months. D wants (and gets) compensation for this, but third parties whose contracts stipulatd that they must pay even with did not.

Relational econ loss only recoverable in certain circumstances, of which open categories include

a. Claimant has proprietary interest in the property

b. “general average cases” (?)

c. Joint venture between claimant and property owner.

Public Liability: standard of care may be different; may be statutory exemptions. Don’t forget about misfeasance, vicarious liability.

Rule: Public authorities cannot be held liable for policy decisions for nonfeasance. Public authorities MAY, however, be held liable for misfeasance once they assume a duty (Kamloops principle)

Case:

Just v. BC [1989 SCC]: boulder falls on P’s car, killing daughter, because of negligent highway maintenance. Court: governments are allowed to make policy choices, but once they do, they’re liable for making sure they’re done properly. (Distinction between policy and operational decisions)

(Swanson and Peever v. Canada (1991 Fed CA): feds knew one pilot always flew negligently, so they’re liable when the pilot crashes the plane. Operational decision.)

Swinamer v. Nova Scotia (?? SCC): Tree falls on to P’s truck. 200 trees – not this one – marked for removal. Court: “decision on which trees to prioritize for removal is a policy decision”

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