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LAW 430: TortsTerm 2OGBOGUTable of Contents TOC \o "1-3" \h \z \u Introduction PAGEREF _Toc479621165 \h 1Standard of Care PAGEREF _Toc479621166 \h 2Vaughan v Menlove PAGEREF _Toc479621167 \h 2Buckley v Smith Transport PAGEREF _Toc479621168 \h 2Roberts v Ramsbottom (QB, 1980) wrong decision PAGEREF _Toc479621169 \h 3Mansfield v Weetabix (CA, 1998) PAGEREF _Toc479621170 \h 3McHale v Watson (HCA, 1966) PAGEREF _Toc479621171 \h 3R v Hill (SCC, 1986) PAGEREF _Toc479621172 \h 4McErlean v Sarel (ONCA, 1987) PAGEREF _Toc479621173 \h 4Fleming, Law of Torts PAGEREF _Toc479621174 \h 4United States v Carroll Towing co. (1947) PAGEREF _Toc479621175 \h 5Bolton v Stone PAGEREF _Toc479621176 \h 6Wagon Mound No 2 PAGEREF _Toc479621177 \h 6Latimer v AEC PAGEREF _Toc479621178 \h 6The Role of Statutes PAGEREF _Toc479621179 \h 7Saskatchewan Wheat Pool v The Queen PAGEREF _Toc479621180 \h 7Whistler Cable Television PAGEREF _Toc479621181 \h 8YO v Belleville (City) Chief of Police PAGEREF _Toc479621182 \h 8The Role of Custom PAGEREF _Toc479621183 \h 8Trimarco v Klein PAGEREF _Toc479621184 \h 8TJ Hooper PAGEREF _Toc479621185 \h 9Malcolm v Waldick PAGEREF _Toc479621186 \h 9Ter Neuzen v Korn PAGEREF _Toc479621187 \h 9Proof of Negligence PAGEREF _Toc479621188 \h 10Byrne v Boadle PAGEREF _Toc479621189 \h 10Fontaine v British Columbia PAGEREF _Toc479621190 \h 10Standard of Care in Medical Negligence Cases PAGEREF _Toc479621191 \h 11Sylvester v Crits PAGEREF _Toc479621192 \h 11Tailleur v Grande Prairie General PAGEREF _Toc479621193 \h 11Error of judgment PAGEREF _Toc479621194 \h 12Wilson v Swanson PAGEREF _Toc479621195 \h 12Lapointe v H?pital le Gardeur PAGEREF _Toc479621196 \h 12Duty of Care PAGEREF _Toc479621197 \h 13Winterbottom v Wright PAGEREF _Toc479621198 \h 13Donoghue v Stevenson PAGEREF _Toc479621199 \h 14Deyong v Shenburn (1946, CA) PAGEREF _Toc479621200 \h 16Palsgraf v Long Island RR Co (NYCA, 1928) PAGEREF _Toc479621201 \h 16Home Office v Dorset Yacht Co Ltd PAGEREF _Toc479621202 \h 17Anns v Merton Borough Council PAGEREF _Toc479621203 \h 17Caparo Industries v Dickman PAGEREF _Toc479621204 \h 18Cooper v Hobart PAGEREF _Toc479621205 \h 18Cooper v Hobart Explained PAGEREF _Toc479621206 \h 18Problems with Cooper PAGEREF _Toc479621207 \h 19James v British Columbia PAGEREF _Toc479621208 \h 20Childs v Desormeaux PAGEREF _Toc479621209 \h 21Remoteness PAGEREF _Toc479621210 \h 23Re Polemis PAGEREF _Toc479621211 \h 23Wagon Mound, No. 1 PAGEREF _Toc479621212 \h 24Mustapha v Culligan PAGEREF _Toc479621213 \h 25Smith v Leech, Brain and Co PAGEREF _Toc479621214 \h 25Thin Skull Rule PAGEREF _Toc479621215 \h 26Cotic v Gray PAGEREF _Toc479621216 \h 27Wright Estate v Davidson PAGEREF _Toc479621217 \h 27Mechanics of the Accident PAGEREF _Toc479621218 \h 27Hughes v Lord Advocate PAGEREF _Toc479621219 \h 28Cf Daughty v Turner Manufacturing PAGEREF _Toc479621220 \h 29Jolley v Sutton London Borough Council (2000, HL) PAGEREF _Toc479621221 \h 29Novus Actus Interveniens - Breaking the Chain PAGEREF _Toc479621222 \h 30Bradford v Kanellos (SCC, 1973) PAGEREF _Toc479621223 \h 30Causation PAGEREF _Toc479621224 \h 31Barnett v Chelsea and Kensington Hospital Mgmt Comm PAGEREF _Toc479621225 \h 32Lambton v Mellish PAGEREF _Toc479621226 \h 33Corey v Havener PAGEREF _Toc479621227 \h 33Kingston v Chicago & NW Rwy [Suspect] PAGEREF _Toc479621228 \h 33Sunrise Co v The Lake Winnipeg PAGEREF _Toc479621229 \h 34Baker v Willoughby PAGEREF _Toc479621230 \h 35Jobling v Associated Dairy PAGEREF _Toc479621231 \h 35Apportionment of loss among causes - Athey v Leonati PAGEREF _Toc479621232 \h 36Factual Uncertainty PAGEREF _Toc479621233 \h 37Cook v Lewis PAGEREF _Toc479621234 \h 37Sindell v Abbott Laboratories PAGEREF _Toc479621235 \h 38McGhee v National Coal Board PAGEREF _Toc479621236 \h 39Wilsher v Essex Area Health Authority PAGEREF _Toc479621237 \h 39Fairchild v Glenhaven Funeral Services PAGEREF _Toc479621238 \h 39Factual Uncertainty PAGEREF _Toc479621239 \h 39Canadian Approach PAGEREF _Toc479621240 \h 40Snell v Farrell PAGEREF _Toc479621241 \h 40Resurfice Corp v Hanke [NEVER BRING THIS UP] PAGEREF _Toc479621242 \h 41Clements v Clements PAGEREF _Toc479621243 \h 41Loss of Chance [not on exam, doesn't apply in Canada] PAGEREF _Toc479621244 \h 42Defenses to Negligence Claims PAGEREF _Toc479621245 \h 43Contributory Negligence PAGEREF _Toc479621246 \h 43Butterfield v Forrester (KB 1809) PAGEREF _Toc479621247 \h 44Davis v Mann (Exch 1842) PAGEREF _Toc479621248 \h 44Froome v Butcher (ECA 1975) PAGEREF _Toc479621249 \h 44Lewis Klar PAGEREF _Toc479621250 \h 45Voluntary Assumption of Risk PAGEREF _Toc479621251 \h 45Dube v Labar (SCC 1986) PAGEREF _Toc479621252 \h 45Crocker v Sundance Northwest Resorts Ltd (SCC 1988) PAGEREF _Toc479621253 \h 45Waivers and Volenti PAGEREF _Toc479621254 \h 46Cf Dyck v Manitoba Snowmobiling Assoc. Inc (SCC 1985) PAGEREF _Toc479621255 \h 46Labelling PAGEREF _Toc479621256 \h 46Lambert v Lastoplex (SCC 1971) PAGEREF _Toc479621257 \h 46Illegality PAGEREF _Toc479621258 \h 47Hall v Hebert (SCC, 1993) PAGEREF _Toc479621259 \h 47Damages: Pecuniary Loss PAGEREF _Toc479621260 \h 49Janiak v Ipolito PAGEREF _Toc479621261 \h 50Personal Injury PAGEREF _Toc479621262 \h 50Andrews v Grand & Toy Alberta Ltd PAGEREF _Toc479621263 \h 50Non-Pecuniary Losses PAGEREF _Toc479621264 \h 53Liebeck v McDonald's Restaurants PAGEREF _Toc479621265 \h 54Morrow v Zhang PAGEREF _Toc479621266 \h 54Ratych v Bloomer PAGEREF _Toc479621267 \h 55Cf: Cunningham v Wheeler PAGEREF _Toc479621268 \h 55Young plaintiffs PAGEREF _Toc479621269 \h 56Occupier's Liability PAGEREF _Toc479621270 \h 57Occupiers' Liability Act PAGEREF _Toc479621271 \h 57Cullen v Rice PAGEREF _Toc479621272 \h 58Roasting v Blood Band PAGEREF _Toc479621273 \h 59Government liability PAGEREF _Toc479621274 \h 59Odhavji Estate v Woodhouse PAGEREF _Toc479621275 \h 60Roncarelli v Duplessis PAGEREF _Toc479621276 \h 60First national Properties Ltd v Highlands (District) PAGEREF _Toc479621277 \h 60Government Negligence PAGEREF _Toc479621278 \h 60Cooper v Hobart (2001, SCC) PAGEREF _Toc479621279 \h 61Kamloops v Nielson (SCC 1984) PAGEREF _Toc479621280 \h 61Just v British Columbia (SCC 1989) PAGEREF _Toc479621281 \h 62Cf Brown v BC PAGEREF _Toc479621282 \h 62Swinamer v AG Nova Scotia PAGEREF _Toc479621283 \h 63NERVOUS SHOCK (PSYCHIATRIC HARM) PAGEREF _Toc479621284 \h 63Victorian Railway Commissioners PAGEREF _Toc479621285 \h 63McLoughlin v O'Brien PAGEREF _Toc479621286 \h 64Alcock v Chief Constable of the South Yorkshire Police [CITE THIS] PAGEREF _Toc479621287 \h 64Reception in Canada PAGEREF _Toc479621288 \h 66Rhodes v CNR PAGEREF _Toc479621289 \h 66Vanek v Great Atl. And Pac. Co PAGEREF _Toc479621290 \h 66Cf Mustapha PAGEREF _Toc479621291 \h 66IntroductionNegligence: failure to take proper care in doing something - carelessnessIntention: an act or instance of determining mentally upon some action or resultAbout negligence: most prevalent cause of action in the law of torts, both in terms of number of claims and the attention it receives from lawyersExpanded in recent decades as a result flexible judicial interpretation and application of core elements3 core elements: (1) The negligent act(2) Causation(3) DamageNo negligence if any element is not provedThe negligent act: determined by identifying the appropriate standard of care to which defendant should have adheredThen, that SOC is applied to the facts of the case to see if the defendant adhered to itMust show that the defendant fell below the standard of careCausation: Determined by showing a causal link between the defendant's negligent act and the plaintiff's damageAsk: Did D's negligent act cause P's injury?Or is there some other cause or way to explain the injury? Damage: Vital element that triggers the claim and launches the entire litigation processNo harm no foulControl devices: Existence of 3 elements doesn't automatically translate to liability (may not award damages). Courts have developed control devices to keep negligence liability within the appropriate boundaries(1) Duty of CareUnless D owes a duty to take reasonable care of P's interests, harm to P can't result in liability to DWe can exclude certain persons from the scope of the defendant's responsibilitiesNegligent act itself! Reasonable foreseeability NB - plaintiff must show the consequence is within contemplation(2) Remoteness of damageSimilar to duty, it excludes liability for certain kinds of lossesOn the basis that they were utterly improbable consequences of defendant's negligent act or responsibilityDefenses: (1) Contributory negligencePartial defenceApplies where P was also negligentReduces amount of damages D is liable for(2) Voluntary assumption of riskComplete defense! No negligence on the part of D - P assumes all riskVolenti non fit injuria(3) IllegalityP was engaged in illegal conduct when the negligent act occurredOperated as a full defenceBut scope severely restricted by the SCC?Negligence analysis:(1) Does the defendant owe the plaintiff a duty of care? (2) Did the defendant's conduct fall below the standard of care? (3) Did the defendant's negligence cause the plaintiff's injury? (4) Did the defendant's conduct result in actual injury or damage to the plaintiff? Usually a right in property or bodily integritySometimes, pure economic loss - loss is simply monetary in this case5 kinds of PEL; only two are recoverable (not important for exam)(5) Was the damage reasonably foreseeable? (remoteness)Defence: Are there any defences that might shield the defendant from liability in whole or in part? ?EXAM: Duty of Care: optional! Do not attempt. SCC - don't need to make argument if precedent covers itEx: write "Doctors owe their patients a duty of care"Standard of Care?Proving that the defendant's conduct was negligent: Did the defendant's conduct fall below the standard of care (that the law expects)? Generally the SOC required of D is objective, not subjective?Vaughan v MenloveD built haystack with chimney to prevent risk of fireWhen warned of possibility of fire, said he would chance itHaystack caught fire and destroyed P's propertyTrial court found D liable on the basis of failing to meet standard of ordinary prudenceOn appeal, D argued conduct should not be measured by that standard because he's dumb - doesn't possess "highest order of intelligence" Standard should be whether he aced bona fide to the limits of his personal intelligence. Held: NO. Standard is that of a "prudent man" It is the OBJECTIVE STANDARDNo allowances for personal quirks and idiosyncrasiesStandard provides certainty - can't fluctuate to accommodate personal nuancesA reasonable level of conduct is expected of allBut does the law accommodate some allowances from the general rule? ?Buckley v Smith TransportD's truck hit a streetcar; P alleged that D, corporation, was VL; P had to prove that D's employee was neg. (fell below the SOC)Employee had syphilis of the brain - he was under delusion while drivingHeld: no negligenceHad insane delusion - he was incapable of discharging objective standard of careQ: is the defendant free from liability when his insane delusion does not affect his ability to appreciate risk? Should persons of lesser intelligence be held to a lesser standard? Negligence law penalizes D for careless actionsThe law assumes D is capable of exercising reasonable care or discharging duty of careUnderstand/control actions and consequencesOn intelligence: what about lesser intelligence today, with the advent of IQ taken into account? Ogbogu: who knows? Perhaps ought to operate like mental illness??Negligence law penalizes D for careless actionsLaw assumes D is capable of exercising reasonable care or discharging dutyUnderstand/control actions and consequences?Diminished physical capacitySame thing as mental incapacity???Roberts v Ramsbottom (QB, 1980) wrong decisionD suffered minor stroke while driving, no previous strokes, unaware of possibility of stroke happeningFelt strange but kept driving and had two accidents, kept driving and collided with p and injured her daughterDid D fail to meet objective standard of care?Held: Yes – despite impaired awareness, D had a sense of what he was doing and of his surroundingsHe was able to control the car voluntarily and deliberately, even if inefficientTotal loss of consciousness only thing that warrants exculpationConsistent with Buckley? Not much differenceNote: less than average intelligence does not have an impact on standard of care?Mansfield v Weetabix (CA, 1998)D’s employee had a condition that caused his brain to malfunction when blood sugars were lowCaused a series of accidents by driving when hypoglycemicHeld: NO liability [Roberts is WRONG]Physical ability to drive affected, like RobertsMasfield: Standard is that of a reasonably competent driver unaware that he is suffering from a condition that impairs drivingBut did the D in this case not have sufficient consciousness to have an idea of this condition??McHale v Watson (HCA, 1966)Watson, 12, threw sharpened piece of welding rod at post after a game of tagBounced off and hit McHale in the eye. She was rendered permanently blindWindeyer, J (trial): not liable – true that standard of care doctrine does not allow for idiosyncrasies, but childhood is not an idiosyncrasy?HCADid trial judge err in applying a different standard?If not, was defendant liable on the lowered standard?Majority: held for defendant but for very different reasonsMcTiernan ACJ: semi-subjective duty of care – childhood is not peculiarity - three standards that apply to children objectively(1) Babies: incapable of perceiving risk, incapable of negligence(2) Young adults: haven’t attained majority age, but nonetheless capable as adults of foreseeing risk/probable consequences of actions - held to usual standard of care (reasonable person) (3) In-between group (children): capacities to appreciate risk vary by age, intelligence, and experience, held to standard of a child with same age, intelligence, and experienceSemi-subjective as standard accounts for intelligence/experienceKitto J, concurring: no room for subjectivity—we can deviate from adult standard to account for childhood, BUT can’t say that D is slow-witted or inexperiencedDoesn't mean that age is irrelevant: Can be relied on as limitation to capacity that is not personal but a general characteristic of stage of developmentStandard of ordinariness for a 12-year oldQ: did D do anything a reasonable 12-year old boy with foresight and care expected of 12 year old boys would not have done?Would any normal boy have thrown the spike? (apparently yes) "[A] piece of wood [the post] and a sharp instrument have special affinity' for a boy of 12Who would not have weighted risk of hard vs soft wood and the likelihood of the spike stickingKitto J: did not frame this issue correctlyNo 12 year old would consider softness of the woodBut perhaps a 12 year old would think to not throw a sharp object, esp with someone standing so closeDissent –Menzies J: No deviation (correct decision)Reasonable person applies without variationReasonable person would not have thrown dart at head heightEven on lowered standard, D still liable—it’s not reasonable for a boy to throw this objectSummary:McTiernan: semi-subjective; take into account age, intelligence, experienceKitto: no subjectivity - no intelligence or experience; maybe age as a general characteristicMenzies: no altered standard - CORRECT?R v Hill (SCC, 1986)Wilson, J (dissent): standard lowered for minors, but on the road to objectivity, the standard should be adjusted incrementally in accordance with ageBut note: McEllistrum v Etches (SCC, 1956)semi-subjective standard was applied?What if a minor engages in activity associated w/ adults??McErlean v Sarel (ONCA, 1987)Two teens involved in trail bike accidentIssue of whether d should be held to standard of adultsHeld: no special treatment when child engages in adult activityRule: held to same standard as adults when engaging in an adult activity(1) Operating a motor vehicle is different from playing ballOne cannot know whether operator of approaching car is minor or adult(2) Machines capable of high rates of speed regardless of operator and inherently dangerous in wrong hands(3) When activity is insured minor is protected from ruinous liabilityShould law hold person who granted minor access instead??Rules:Standard of care applicable in negligence cases is assessed objectively?Defendant is negligent if conduct does not accord with that of a reasonable or prudent personNo allowances for low or less than average intelligence?(Vaughan)Exceptions to general rule: courts sometimes accommodate or allow lowered standardDefendant may be excusedIf acting under insane delusion and unable to appreciate risk or consequences (Buckley)If unable to discharge duty of care duty to physical impairmentEven if still conscious - total loss of consciousness not required (Mansfield, overruling Roberts)Provided defendant was unaware of condition triggering impairment (Mansfield)?Physically impaired defendant liable if she knew or ought to have known of condition AND failed to take reasonable steps to address condition before engaging in risky activity (Mansfield)For young persons (minors), age matters – adjust standard of care in accordance with age (Hill –Wilson J)Intelligence and experience also matter (McTiernan in McHale)BUT no adjustment for minors engaged in adult activity (McErlean)?Fleming, Law of Torts(1) Reasonable person standard eroded over time(2) Objective standard necessary for welfare of society (compensation of injured plaintiffs) (3) Often changed when does not meet or hinders objective(4) Cases sometimes make adjustments to RP standard based upon specific factorsConverse is not true (if person has higher level of experience, they may be judged to this experience)Knowledge/ExperienceNo allowances for substandard knowledge/experienceBUT converse is not trueIf a person has a higher level of experience, they may be judged according to that experienceE.g. lawyer w specialized skills held to higher standard than general practitionerThough lower intelligence/experience does not affect judgmentPhysicians: Held to average of a reasonably skilled practitioner of the class to which she belongs or holds herself out to belong (i.e. surgeon held to higher standard than GP)Beginners – no lowered standard of care: held to standard of reasonably skilled and proficient persons in that callingLayperson engaged in expert activity: Layperson undertaking this type of task will be judged by the standard of the expert especially when public safety is implicatedPhysical and intellectual impairments: Physically disabled people often judged by standard of reasonably prudent person with the same disability ( think blind man example from the textbook) No allowances for intellectual or emotional characteristicsLunacyDepends on whether D can appreciate risk and need to take careFleming: Weight of authority suggests no allowances (Fleming) – but Buckley says otherwise?Standard of Care?What does it mean to be a reasonable person? Who, by definition, takes reasonable carePosner – ‘Learned Hand Formula’United States v Carroll Towing co. (1947)Barge broke away from moorings while unattended and collided w another shipQuestion of whether leaving barge unattended in harbour negligent?Failure to meet expected standard of care of reasonable person?Held: Learned Hand, J: test for reasonable person:B = burden/cost of precautionsP=probability of accident occurringL=loss/cost of lossIf B<PL= reasonable to take careReasonable to take precautions where cost of avoidance (B) is less than cost of loss (L) discounted by statistical probability of accident occurring (P)Where the cost of avoiding accident is lower than the expected cost of the accident - that is, it is cheaper and more reasonable to pay to avoid the accidentThen defendant ought to take reasonable care - should not have left barge unattended?How does the Learned Hand test relate to the RP standard? If B<PL then D acted unreasonably - reasonable person standard not metIf B>PL, then D acted reasonably - reasonable person standard met (not reasonable to take precautions here)Difficult test to apply in practicePosner: McCarty v Pheasant RunLH test is really just RP test phrased differently Analytically better, but difficult to apply in practice because: B (cost of burden/precautions) is fairly easy to quantify, but VERY difficult to monetize L and PIf B is high, then it is not negligent to inflict harm on the plaintiff! So - okay to sacrifice the plaintiff's wellbeing for the social or economic good without any compensation? Test is based on the assumption that everything is reducible to monetary termsBender: Economic analysis turns people into abstractionsWeighed against profits or benefits to be earned from injury-causing activityRather, no one should be hurtB can never be high enough to absolve D of taking precautionsReasonable person test is one of conscious care and concern of a reasonable neighbour under similar circumstancesPosner's response to Bender: The caring person does not really get us anywhere - most neighbours really couldn't care less about each other. ?Bolton v StoneP hit and seriously injured by cricket ball - probability of injury extremely low, but not inconceivable. Ball hit clear out of grounds only 6 times in 30 years. Landed in lane that was back entrance into row of housesTest: D's actions are to be assessed on the RP standardBut what does it mean to act reasonably in the context of this case? That D must have considered the cost of avoidance (B) and expected cost of harm (PL)?Lord Reid: Def not liable: We must draw a distinction between unforeseeable risk and foreseeable real risk Sounds like P! Unforeseeable risk arises from events so bizarre and freakish no one could reasonable foresee the outcomeForeseeable risk is risk one can foresee.... To impose a foreseeable risk on another can be a breach of the standard of careBut, once an unforeseeable risk occurs once, it is now foreseeable, right? (P's argument)Court: we can refine to account for the degree of foreseeable riskForeseeable but small or infinitesimal risk VS Foreseeable and substantial riskThe law doesn't seek to protect people from all risksWe live in a crowded society and even the most careful person creates risk. Defendant only required to refrain from creating FORESEEABLE AND SUBSTANTIAL risksD must also consider seriousness of the consequences - sounds like L! Where does B come in? Lord Reid said "I do not think that it would be right to take into account the difficulty of remedial measures?"?Wagon Mound No 2 Wagon Mound docked to take on oil - due to bad fitting, oil was discharged into the harbour by the defendant, covering part of the harbour. Dock owner welding, molten metal fell into water - ignite, fire, burn. Trial: foreseeable but infinitesimal risk, so no liabilityOVERTURNED by Lord Reid! Bolton: risk was so small a reasonable person would be justified in disregarding itAnother reason it was reasonable to ignore the risk in Bolton was the considerable expense in eliminating it! In the case at hand, no avoidance costs - all it will take is to tighten the fitting, therefore the RP would not create the risk. Ratio: a RP would not disregard a foreseeable but small risk, if that risk could have been avoided without difficulty, disadvantage or expense - sounds like B! ?Latimer v AEC Flood factory floor - slip and fall Held: NOT LIABLE - cost of avoidance would have been to shut down the plantRatio: if the risk is foreseeable and substantial, cost of precaution is irrelevant, but relevant consideration if the risk is foreseeable but small If the risk is foreseeable and small, but the cost of precaution is LOW, defendant may be found to have acted without reasonable care. ?Summary:(1) If risk is unforeseeable, no liability(2) If risk is foreseeable, is it small or substantial? (a) if small, consider: Seriousness of consequencesCost of precautions - if low, D may be liable(b) if substantial: Consider seriousness of consequencesDO NOT consider cost of precautions?The Role of StatutesQ: In assessing the reasonableness of a defendant's conduct, is the fact that such conduct breached a statute a relevant consideration? If there's a breach of statute, can we bring that to negligence?Remember: tort law and statutory regulation are distinct legal devices - tort law developed exclusive of state regulation of hazards, which came laterBreach of statutory rule matters to the regulator, but should it matter to the relations between the plaintiff and defendant? Three possibilities:(1) Breach of statutory duty is determinative of liabilityBreach of statute is breach of SOC; the statutory rule IS the SOCThe breach of the statute is itself a tort(2) Breach of statutory rule is totally irrelevantSuch cases deal with the interaction between two private parties - plaintiff and defendantNot between the defendant and the stateIn determining the standard of care, obligations owed by defendant to the state does not matter. (3) Somewhere in between: can be considered, but not determinative[CANADA]?Saskatchewan Wheat Pool v The QueenD stored and transported P's grain - loaded a quantity that was later discovered to be infested with rusty grain beetle larvae - P was required to divert ship to Kinston, unload and fumigate, at cost of $100k , which sought to recoverPlaintiff didn't allege negligence or any other specific tort here!! Alleged breach of section to Canada Grain Act that prohibited delivery of infested grain to the BoardDickson J: No general principle or rationale can be identified from existing casesFrom England, the painful emergence of a new nominate tort of statutory breachInvolves a search for non existent Parliamentary intent to create a civil cause of actionArduous tests developed to determine whether duty is owed primarily to the state and only incidentally to the individual, or VVIn the US, some confusion in the cases (dominant position is that violation of statute is negligence) Canada: (1) (side note) none of this applies to industrial statutes, which historically involve absolute liability - no fault required(2) Cdn law rejects the idea of a civil action for breach of statutory dutyTo hold otherwise is judicial legislationRULE: Mere fact of a statutory breach does not give rise to a civil cause of action No tort of statutory breach or civil cause of action for SB(3) instead, the fact of a statutory breach should be considered within the context of a claim for negligence - as part of the evidenceRULE: evidence of a breach of statutory requirements is a relevant consideration in assessing whether the defendant breached the SOC, but is not determinativeOther considerations in this case include whether D operated the terminal to accepted trade standards, made regular checks for infested grain, and tested samples and carried out visual inspections. Breach of statute does NOT, in itself, constitute a tort OR a basis for a standalone civil actionHOWEVER, a statute may be used as evidence of the standard of care, and a breach of that statute as evidence of breach of that SOCTOF has 2 options: (1) reject the statutory offense for the purposes of negligence law(2) throw in the bag with all other evidence and treat as a factor in assessing if the standard of care was breachedCANNOT treat the breach on its own as determinative of whether negligence occurredQuestions remain: What if the stat breach was intentional?? Then you wouldn't sue in negligenceCases exist where courts have treated a breach as forming the basis of a private right of actionBy attempting to distinguish Sask Wheat Pool as applying only to cases of negligence?Whistler Cable TelevisionAbsent a statutory breach, has D committed a tort? NO. To compete is not to commit a tort. However, Broadcasting Act made it an offence to broadcast without a license, subject to a fineHELD: SWP confined to negligence law. Doesn't eliminate the 'tort of breach of statute'! [NOT A THING]?***EXAM: BREACH OF STATUTE DOES NOT AUTOMATICALLY AMOUNT TO NEGLIGENCE***?YO v Belleville (City) Chief of PolicePolice disclosed youth CR - contrary to statute and penalty is criminal prosecution P sued for negligenceNo tort of breach of stat duty - case should be determined on negligence principlesBUT: all defendants had a duty to the plaintiff to use reasonable care to keep his youth record confidential Ds were negligent and breached that duty. What tort was committed here? Hard to say... HOW is this negligence? Can't 'negligently' disclose the youth's CR to their employer. In this case, appears as though the judge treated the breach of statute as determinativeWhat should have been done: just prosecute the defendant as per the statute! Rule is not applicable in cases where statute expressly provides that person harmed by breach has action for damages caused by breachP recovers if able to prove breach of statute and that breach caused damage! ?NO TORT for Statutory BreachIf the provision outlines a penalty - go for the outlined penaltyIf the provision says that the plaintiff is entitled to seek damages in a civil suit, then the plaintiff may do soIf you're going for negligence then the breach is merely part of the evidence, and is not determinative?The Role of CustomIn determining whether there has been a breach of the SOC, is it relevant to know how similarly situated persons conducted themselves? "Accepted trade standards" ?Trimarco v KleinBathtub glass shatters, commonplace to use shatterproof glass since 1950s, law in 1973 (door installed prior though) - criminal sanction doesn't apply Should evidence of custom influence the SOC? YES it is influentialProof of an accepted practice and conformity be defendant may establish due care as well!! Why? (1) Custom shows collective judgment of many people on the issueBetter than having a judge make it up - the community generally thinks that acting reasonable entails the customary practice(2) shows that precautions that the court is imposing on the defendant are feasibleIf everyone can do it, then the defendant can as well. When certain dangers have been removed by a customary way of doing things, this may be considered in determining whether a defendant has met the SOC or notCustom is not determinativeMust the custom be universal? NOIt is enough that it is fairly well defined and in the same calling or business, such that D either knows about it or is negligently ignorant. Is the evidence of custom conclusive? NOFinder of fact must still be satisfied that the custom itself is reasonable. Just because everyone is doing it doesn't mean it is reasonable. Focus is not just on what everyone else is doing, but also on what is reasonable. ?TJ HooperBarges, tugs, storm and sink, no radioNo general custom requiring the use of radio setsEven though they could be obtained at little expense, fairly reliable with maintenance, and offers great protection D held liable at trial, but appealed on the basis that use of radio sets was not customary in the industry - tried to use custom as a shield. LH: the custom itself is unreasonable - barges are unmaneuverable ships - sets are their 'ears' and are quire necessaryRULE: Custom is often helpful in the standard of care analysis, but only if the custom itself is reasonable.SUMMARYEvidence of custom is never determinative or conclusive in the standard of care analysisIt is influential, but only if it is a reasonable custom ?Malcolm v WaldickWaldick slipped on D's icy driveway and fractures skull. D didn't salt/sand driveway - claimed this was local practice in their rural community. Trial and ONCA ruled D's failure to salt was negligent, regardless of customSCC: dismissed appeal in which defendant claimed that custom wasn't consideredD is wrong. Local custom was taken into account but it is not determinative. Because it wasn't applied, doesn’t mean it wasn't considered. Didn't offer sufficient proof of this 'custom' - relied only on testimony of one defendant Local standard, if it did exist, is in itself negligentNo amount of general community compliance will render negligent conduct reasonableOgbogu: Good decisionHypothetical: say there's a practice adopted by most or all astronauts, which exposes others to risk. How do we determine the reasonableness of the complicated astrophysics that underlies such practice? ?Ter Neuzen v KornHIV transmission via AI - sued for negligence on physician's part - failed to warn plaintiff of the dangers of contracting HIV from AI procedureOnly one letter in a journal that was not heavily circulated warned of risk, no practice of screening donors or warning anyone of risk. Physician complied with standard of medical practice in not warning patient of risk of HIV. He did screen donors, but one was not completely forthright about sexual practicesTrial: negligent; CA overturned. SCC (Sopinka) upheld CAOnly two ways jury could have found D negligent(1) Jury could find that D violated the customEvidence of custom in case was unambiguous. Defendant action COMPLIED with that custom - and did slightly more even by screening donors. No jury acting judicially can correctly reach a conclusion that D failed to conform to custom of the profession. (2) Jury could find that the custom itself was negligentImpossible conclusion for the jury or judge to reach in the case at hand. Case here involves a complex area of practice. Highly technical and scientific, beyond the competence of a TOF! Therefore not open to a TOF to find such custom or standard practice negligent. Note: experts only say whether or not the practice is custom - not whether the custom, if there, is negligentONLY ONE EXCEPTION: Custom or standard practice if fraught with obvious risksThe standard practice fails to take precautions that are readily apparent to anyone with the experience or knowledge base of the TOF. As a general rule, where the standard practice or custom involves complex, scientific or highly technical matters which are beyond the ordinary comprehension of a judge or jury, it is not open to the judge or jury to find the standard practice or custom negligent (or unreasonable). Such situations are not reviewable by judge or jury unless the standard practice or custom is fraught with obvious risks that any reasonable layperson can detect. ?Proof of NegligenceThe plaintiff in a torts case must prove their case on the balance of probabilitiesEvidence can be direct or circumstantialRes ipsa loquitur (the thing speaks for itself)Mechanism for dealing with circumstantial evidenceTraditionally, RIL was considered to be sufficient evidence where:(1) The thing that caused the damage was under the defendant's control(2) The event would not have occurred without negligence(3) There is no evidence as to why or how the event took placeMorphed into interpretation that BOP shifted to the defendant to disprove negligenceByrne v BoadleBarrel of flour rolled out of defendant's shop, struck and seriously injured the plaintiffHELD: Barrels of flour don't just get up and exit buildings - can only result from negligenceAccident reveals evidence that defendant can either rebut or be found negligentQ: What kind of evidence can defendant use to rebut RIL? ?Fontaine v British ColumbiaAppellant's husband was travelling in car driven by hunting buddy - car veered off road in bad weather. Both killed - nobody saw the accident and nobody knew when it happened exactly. Evidence of driver's negligence: car was moving with sufficient force to plough through small trees, but also circumstantial evidence of other non-negligent causes like weather or worn tires. So, do the alternative explanations negate RIL? SCC: RIL no longer applies: it's technical, confusing, and unhelpful. Intended as a way of dealing with circumstantial evidence. NEW TEST for dealing with circumstantial evidence: (1) TOF must weigh circumstantial evidence against any existing direct evidence to determine whether plaintiff has established, on BOP, a prima facie case of negligence(2) If P successfully establishes a prima facie case, it falls to the defendant to present evidence to negate the plaintiff's evidence, or the plaintiff will succeed on the prima facie case. ..how different is this test really?EXAM: Apply this test (prima facie), not RIL. ?Standard of Care in Medical Negligence CasesEvery medical practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of careBound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing, and if he holds himself out as a specialist, a higher degree of skill is required of him than of one who does not profess to be so qualified by special training and abilityConduct must be assessed against the conduct of a prudent and diligent doctor placed in the same circumstancesGeneral principlesTypically assessed by looking at conformity of the defendant's conduct with the accepted or approves standard practiceStandard practice is the first thing you look at!!!Consistent with ter Neuzen, courts will NOT overrule approved practice unless clearly unnecessary or unduly hazardousSylvester v Crits5yo plaintiff injured during medical operation when anaesthetic explodedAnaesthetist created a highly explosive mixture of oxygen and ether; also placed the ether can on the operating table, close to the plaintiff's head. Explosion caused by static electricity igniting escaped ether-oxygen mixture accumulated near the plaintiff's headCourt found there was a 'minimum of evidence' on approved standard practiceHowever, obvious to a non-technical person that turning off the O2 tank would have prevented the accidentRand J: It does not require a technician's understanding to see that a dangerous volume of the gaseous mixture had built up in the immediate area in which the flash of flame appearedApproved standard practiceTypically determined through expert testimony by reviewing professional standards of practiceOften taken as conclusive evidence of the standard of care, unless 'fraught with obvious risks' Courts show deference as they lack technical expertise to determine what is appropriate?Tailleur v Grande Prairie GeneralPlaintiff sustained an injury to her heel and Achilles tendon. Doc referred her to Dr. Sendziak, an orthopaedic surgeon, for repair of the Achilles tendonApplied cast running from above the toe to below her kneeLater diagnosed with gas gangrene requiring immediate above the knee amputation - rare but devastating infection caused by clostridia perfringens, a cousin of clostridia tetanus (exists in areas contaminated with fecal waste of domestic animals)Plaintiff sustained injury after swimming in an earthen dugout full of runoff water on an acreage that had domestic animalsGas gangrene infection professes rapidly and results in amputation or death. Diagnosed if crushed, dead, or devitalized tissue, dirt, or other sign of contamination present on wound siteTx includes proper cleaning, leaving wound open, monitoring, and antibioticsAt trial, accepted that plaintiff's wound was a 'clean wound' - expers agreed that defendant followed proper practice in treating wound. Every orthopaedic expert testified they would have done exactly the sameAll agreed the cast did not cause gas gangrene. While the cast could delay detection, it would not contribute as a causeMost likely cause was inoculation of the bacteria when the wound was sustainedCooke J: held that Dr. Sendziak breached the SOC because he failed to consider and react to the risk of infection in the circumstances, especially since he is a part time farmerReasoned that defendant should have used an alternative castWould have made the lower limb visible, aiding visual inspection and earlier detection - may not have prevented the gangrene but may have resulted in below the knee amputation Basically subbed in expert facts for his own Overturned on appeal - no evidence to support factual findings that:(a) risk of infection increased by circumstances(b) the doctor breached the SOC by selecting the wrong type of cast(c ) earlier detection was possible by visual inspection No evidence to support a breach of accepted orthopaedic practice. TJ didn't have the expertise to comment on technical mattersNot his place to review the matter, as he lacks the expertiseAccepted practice not fraught with obvious risks that are detectable without diagnostic or clinical expertise. "Where a common and accepted course of conduct is adopted based on the specialized and technical expertise of professionals, it is unsatisfactory for a FOF to conclude that such a standard was inherently negligent"***Use this verbatim if you're dealing with medical negligence and custom on an exam!***However, "matters falling within the ordinary common sense of juries can be judged to be negligent"?Error of judgment Medical professionals should not be held liable for mere errors of judgment that are distinguishable from professional faultDoctors make mistakes! Sometimes they arise out of bad judgment call, not necessarily negligenceIf tx A and B are options arising from the symptoms presented, and the doctor chooses the wrong one, it's not negligence, but rather an error of judgment, provided that both are actually reasonable options (within SOC) - doctors will sometimes explore a number of optionsAsk: is the wrong option a reasonable option?What distinguishes error of judgment from professional fault? Reasonableness***There will be an exam question from here***Could a reasonably competent and similarly skilled professional have made the same error? An error of judgment is an error made in the context of the exercise of reasonable care"A doctor will not be found liable if the diagnosis and tx given to a patient correspond to those recognized by medical science at the time, even in the face of competing theories" (-L'Heureux-Dubé, LaPointe)A typical example: misdiagnosis that is consistent with approved standard practiceHowever, doctor still negligent if she fails to reconsider diagnosisEx: if tx A doesn't work, ought to consider tx B?Wilson v SwansonDefendant surgeon found growth in patient's abdomen during surgeryTest by pathologist showed growth was "probably malignant"Defendant made judgment call to remove organs that would have been untouched in the surgery, and not to wait for confirmatory test Turns out the growth was benign - patient sued"an error in judgment has long been distinguished from an act of unskillfulness or carelessness or due to lack of knowledge" Court characterized this as an error of judgment, not negligenceThe option the doctor went with was indeed reasonable"The honest and intelligent exercise of judgment has long been recognised as satisfying the professional obligation""He obtained the opinion of a pathologist of recognized competence. He then made an admittedly difficult decision - in making that decision I am satisfied he exercised his best judgment in what he considered to be the best interest of his patient"?Lapointe v H?pital le Gardeur5yo cut elbow, resulting in severed artery and severe blood lossAttended to be emergency GP, who realizing he could not fix artery, made judgment call to send her to pedsSo - was the judgment call negligent? Didn't perform blood transfusion, but communicated gravity of case to peds, including possibility of shockPatient suffered massive cario-respiratory arrest due to O2 loss upon arrival in pedsLeft with irreversible brain damageSo - should the doctor have performed the blood transfusion before transferring her to pediatrics? Remember - setting up the transfusion is likely to take a fair bit of timeSCC held that the doctor made an error of judgment - exercised proper judgment in ordering transfer. Decision to transfer without giving her a transfusion was reasonableReasonable because defendant stopped bleeding and replaced lost fluidsInsertion of intravenous drip took almost an hour - defendant had to balance delays in transferring patient with waiting for bloodHis actions were reasonable and something that would not be considered negligent - this was a reasonable decision to have made! ?Summary A medical professional is held to a standard of care expected of a prudent, diligent, and reasonable skilled practitioner of the same standing and experience. A medical professional who acted in conformity with approved standard practice is not negligent, unless the standard practice is fraught with obvious risksMedical professionals are not legally responsible for error of judgment that are distinguishable from professional fault?Duty of Care***Will not test this on the exam - do not argue that it's been established***RemotenessUnless a defendant owes a duty to take reasonable care for the plaintiff's interests, breach of SOC resulting in harm to the plaintiff is not enoughEven if you've shown the SOC has been breached and have satisfied the 3 criteria, still have to determine whether a duty of care is owed - whether the defendant is responsibleLegal artifact made by the courts to exclude certain defendant's from liabilityLiability is confined to a certain type of personA person who is under a legal obligation or duty to exercise the requisite standard of care with respect to the plaintiffDuty to care for your interests or welfareEven if plaintiff can show the other elements of negligence, defendant not liable if they fall outside the duty of careQuestion of law - the judge determines if the duty existsNot a question of factMust convince the judge that DOC exists?Donoghue v StevensonSeminal decision - starting point for duty of care analysisPre-Donoghue Winterbottom v WrightDefendant is a coach manufacturerContracts with postmaster to maintain coaches in good working orderPostmaster contracted with third party, Atkinson, to deliver coachAtkinson contracts with plaintiff to drive coach to its destinationEn route, coach broke down due to hidden defectsPlaintiff was seriously injured - sued defendant manufacturerChain of causation: Defendant manufacturer - postmaster/Atkinson - Coach driver /PlaintiffPrivity between: Defendant & PostmasterPostmaster & AtkinsonAtkinson & PlaintiffAt the time of Winterbottom, nothing connecting the defendant and the plaintiff - no concept! The only thing connecting two parties was privity of KNo privity between P and D so no legal connectionIssue: did the defendant owe the plaintiff a duty of care? Court: NONo precedent for thisNo privity of K between P and D 3rd party interests to a K are not importantGranting plaintiff relief will open the floodgatesAnyone injured by the upsetting of a coach could sue the manufacturerBaron Rolfe: Duty flows ONLY from K P's K was with Atkinson, and D's w PostmasterNo duty between P and DOnly basis for a duty to exist is the Kual linkDamnum absque injuria: loss without a violation of legal rightsHard cases make bad lawFleming: courts consider many factors in the duty of care analysisHistory, ideas of moral and justice, administrative convenience, social normsIt was a time of precedentWinterbottom based on fear of 'impeding industrial development'But should no longer be a concern with the advent of insuranceInsurance has led to widening of scope of duty - industries can obtain insurance against losses?Donoghue v StevensonFacts: Friend purchases bottle of ginger beer for plaintiff. Bottle was opaque so P couldn't detect contents. Bottle had decomposed remains of a snail - P claims she got gastro-enteritis from consuming beerIssue: Did the defendant manufacturer owe the plaintiff a duty of care? Trial: NO DUTY (trial decision affirmed by Court of Sessions; P appealed to HL)HL: Yes, on a 3-2 splitDissent (Buckmaster J): Winterbottom is the lawAbsent a Kual relationship between P and D, there is no duty2 exceptions:(1) Inherently dangerous articles such as firearmsAnyone injured by firearms falls under that exception(2) Articles that are dangerous by reason of hidden defects known to the manufacturerFloodgates issue - then D will eventually owe duty to all person who consume the product regardless of Kual privityNote: Donoghue didn't have privity! Majority opinion (Lord Atkin) [Ogbogu recommends reading the case in full]Duty of care has been determined based on precedent of established classificationsContract, Bailment, Transfer of custody of chattelsThis approach results in denial of claims that don't fit established categoriesApproach is inconsistent with the CL methods of adjudicationIf there is no law, then maybe create new law. But if there is precedent then apply it. Rather than relating the specific facts of a case to established categories, we should relate them to a general principle - a principle that relates to most facts[Ogbogu thinks Atkin is right - if all you're doing is comparing facts then you won't get the right result]Neighbour PrincipleYou must take reasonable care to avoid acts of omissions which you can reasonably foresee would be likely to injure your neighbourTo whom? "Persons so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected"No limit really to who your neighbour can be so long as your imagination can get thereIn Donoghue, customers beyond the manufacturer fall within the scope of neighboursApplication of these principles: D intended the product to reach the consumer in the form it left the factory - no real possibility of other inspectionNo Kual relationship but a direct relationship existsD intended the product to be consumedD can foresee that negligence on his part will cause injury to P's legally protected interestsWhat about Winterbottom? No duty alleged in Winterbottom other than that arising out of K - doesn't apply or govern here (reading down)[Winterbottom is not destroyed - the principle is expanded to include more facts that Winterbottom would not be able to touch. Existing precedent doesn't apply]Concurring judgment (MacMillan J)Claim in tort is not precluded by the absence of Kual privity - Winterbottom doesn't applyNot a problem in contract here! P in Winterbottom sought to impose Kual liability on DAgrees with the application of the Neighbour PrincipleTo sum up, two main/intersecting ideas flow from the Neighbour Principle(1) Close and direct relationship (proximity)(2) Contemplation of foreseeability (foreseeability)Emphasis not just on foreseeability of harm, but also on foreseeability of harm to a person who is a proximate relationship with DLord Atkin: D owes P a duty to take reasonable care to avoid acts that will result in an injury to the plaintiff's life and property(Injury to the plaintiff's legal rights)Defendant only in breach of DOC where they injure the plaintiff's legal rights (misfeasance)Remember difference between misfeasance and nonfeasance!This principle creates problems - people's legal rights evolve over timeQuery: Which of the two intersecting ideas is the essential component (or trigger) for the duty of care inquiry? Is it proximity that triggers the duty of care analysis or is it foreseeability of harm? Can we ignore one or find that a duty exists simply on one element? 3 interpretations/approaches(1) Classic/current English positionYou need both(2) NZ (formerly CDN) positionForeseeability alone is sufficientFirst, ask if risk of harm is reasonable foreseeableIf yes, then ask if there are policy reasons to limitThe scope of the duty; Class of persons to whom it is owed; orQuantum of damagesAs a judge is there anything I can do to not allow liability to the defendant in the case that the plaintiff ought not to get relief?Anns formula (Anns v Merton Borough Council (1978, AC)) [bad]Kamloops v Nielsen (1984, SCC)(3) Foreseeability + Proximity - Policy Limitations (CDN/AUS)Cooper v Hobart (2001 SCC)Is there precedent? This makes things easier if there is! Then you don't need to do the analysis. Stage 1: Prima facie duty of care(a) Foreseeability - if yes, move on to (b)(b): proximity/internal policy(i) analogous categories - if no, move on to (ii)(ii) proximity + internal policyStage 2: External policyThis is a legal artefact?Misfeasance vs Nonfeasance?Deyong v Shenburn (1946, CA)P, actor, had his clothes stolen from dressing room during a rehearsalArgued producer owed him a duty of care to safeguard property, because it was foreseeable that the producer's negligence would lead to theft of clothesHeld: NO DutyDid D interfere with P's legal rights? No legal right against the world to have clothes looked after. There may be harm to a protected interest (clothing, but no legal right entitling P to claim protection of that interest from D)No proximity? Reliance on guarantee by D would have produced different resultModern employment statues may impose an obligation of safekeepingBecause no guarantee, no legal right to have your clothes looked after[Will not test this concept unless he states that a legal right exists]?Palsgraf v Long Island RR Co (NYCA, 1928)Ratio: Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a rightPackage dropped by a passenger when d's employee pushed him onto trainPackage contained fireworks, which detonatedShock from explosion knocked over scales at the other end of the platform; one fell and injured PIssue: did the defendant owe her a duty of care? Majority (Cardozo CJ) - no duty of care [right on the result but explanation isn't great]"The conduct of the defendant's guard, if a wrong in its relation to the holder of the package, was not a wrong in its relation to the plaintiff, standing far away" Persons are not protected from all kinds of harm, but from harm which interferes with a legal right"What plaintiff must show is a wrong to herself, ie a violation of her own rightNot just a wrong to someone else, or wrongful conduct because it's "unsocial" No duty of care if Mrs. P is not within the ambit of risk created by D's employeeDuty can't be derived from risk posed to another[OGBOGU DISAGREES]If no hazard as apparent to the eye or ordinary vigilanceNegligence requires close and direct relationship between the doer and suffererLegal rights though.... Palsgraff had a legal right not to have her bodily integrity interfered withRisk to P must be seen to be in guard's contemplation when he created it. AND risk to P must be seen to be in guard's contemplation when he created it. Dissent (Andrews J) [Better]: Negligence is an act or omission which unreasonably affects the right of others, including those not within the ambit of the riskSince employee's act is a negligent breach of duty owed to the holder of the package, he is liable for the outcome where there is injury to anotherTo confine breach to the person owed the duty is too narrowD not absolved from liability just because he didn't injure the 'closets and most direct person', but rather, a more remote personProximity isn't just the closest person but those within some foreseeable ambitThe question is how remote the person isBUT, the broader scope of liability has limitsFactual causeProximate causeArbitrary line drawn on the bases of convenience, public policy, and practical politics[?] Andrews J thinks Palsgraf is close and proximate - Ogbogu disagreesMain difference between both opinions? Majority: No duty if no proximity, not reasonably foreseeable, and no violation of a right - inquiry stops here! Dissent: There can be a duty without proximity, provided that there is a factual and proximate causeClassic private law reasoning vs classic policy reasoningThis case was wrongly decided - control devices would have worked but Cardozo took it down the wrong pathNeither was right, but Andrews was more right than CardozoOnly bring up misfeasance if it's very clear that that is the issue??Home Office v Dorset Yacht Co LtdFocus on whether there are reasons to exclude the duty of care (policy analysis)Several "borstal" boys escaped while guards were sleepingDamaged a yachtIssue: were guards/HO liable for tortious acts of competent adults? HO also argued duty not recognized OR should not be recognized for policy reasonsMajority applied Donoghue to reach conclusion that D owed the owners of yacht a duty of careOutcome/damage is foreseeable and not public policy reasons to deny liabilityLord Reid: Donoghue is a milestone and Atkin's speech a 'statement of principle' Principle isn't a statutory definitionIt will require qualification in new circumstancesOught to apply unless there is some justification or valid explanation for its exclusion?Anns v Merton Borough Council [Still referenced re: duty of care analysis]Focus on whether there are policy reasons that negative or limit a prima facie duty of carePs were tenants in a block of flats which developed structural defectsBecause foundations were too shallowD responsible for inspecting block of flats during constructionIssue: Did D owe Ps a duty of care? HELD: YESWilberforce: Duty of care analysis based on 2-part test(1) is there a prima facie duty of care? Ask - is it within the reasonable contemplation of D that his carelessness will likely cause damage to P? Foreseeability! (2) Ask: are there any conditions which ought to negative, reduce or limit:(a) the scope of the duty(b) the class of person to whom it is owed(c ) quantum of damagesPolicy, not legal considerations! No policy reasons to prevent duty in Anns?Caparo Industries v Dickman3-part test: foreseeability, proximity and whether it is fair, just and reasonable to impose a duty of careOverruled the previous 2-part testMin difference is retreat to foreseeability and proximityFar, just and reasonable standard arguable same as second part of Anns testAnns applied in Canada until CooperCooper v Hobart1997 - D suspended a registered mortgage broker's licenseFroze its assets because broker allegedly used investor's funds for unauthorized purposesNamed P was one of over 3000 investors who lost substantial investments due to broker's misconductSued D claiming he breached SOC correlative to a duty of care owed to investorsPs alleged that D became aware of broker's offences in mid-1996Should have acted earlier to suspend license and to notify investors that broker was under investigationIf he had done so, their losses would have been avoided or mitigatedThis is a situation of pure economic lossRemember there are only 2/5 kinds of PEL that can be recovered. This situation is one of them If institution is negligent and that leads to economic loss, then you're entitled to recoveryPs applied to have action certified as class action (number of plaintiffs who have a common complaint, so courts will allow them to combine their cases as a matter of efficiency)Had to show that action discloses a cause of actionComponent: there must be a duty of care owed by D to investorsTrial court: pleadings disclosed as a cause of actionCA reversed! Issue before the SCC: did D owe P a duty of care as an investor to protect him from economic loss? NO DUTY OF CARE Duty unrecognized, and this is not a proper case to recognize a new duty"We attempt to clarify the distinctive policy considerations which impact each stage of the Anns analysis"?Cooper v Hobart ExplainedThere are two stages of the Anns TestStage 1: Prima facie duty of careStage 2: Policy inquiryStage 1: Two questions arise(1) Foreseeability: Was the harm foreseeable? Was the harm that occurred the reasonably foreseeable consequence of the defendant's act?If no, analysis ends (no duty of care)If yes, go to question (2) (2) Proximity analysisFocused on the factors that arise from the relationship between the plaintiff and defendantsHave to shift gaze to the plaintiff and defendant and ask if there's something that connects the two parties; that necessitates the finding that the defendant's actions would effect plaintiff? Viewed as a legal and a policy matterIncludes a broad application of policy considerations (policy internal to proximity analysis)What policy reasons/factors tell us something about the relationship between the two people that allow us to decide whether or not they are proximate? Analysis is two-pronged(1) Are there any analogous categories of cases where proximity has previously been identified? Is there precedent? Examples: Physical harm to P or P's property, nervous shock, negligent misstatement, duty to warn of risk of danger, relational economic loss, gov't liability for economic losses and physical damage arising from failure to inspect propertyIf there is an analogous category, prima facie case is established. Go to stage 2 of Ann's test (2) Full proximity analysisFactors that allow us to evaluate the closeness of the relationship between P and DAnd to determine whether it is just and fair to impose a duty of care on D having regard to that relationshipNo single unifying characteristic: diverse and fact-specificWe look at expectations, representations, reliance, property, and other interests involved. Good indicator of what you can doWhen dealing with public authority, as in Cooper, proximity must be grounded in statute. Goal of the Prong 2 analysis: To establish new categoriesThe categories are not closed and new categories of negligence may be introducedIf new category is found, prima facie case is established: Go to Stage 2 of Ann's testIf no new category, inquiry ends - no prima facie case. Stage 2 of Anns test: "External" Policy InquiryAsk: are there policy reasons to limit the duty of care? This policy analysis is not concerned with proximityRather, concerned with effect of recognizing duty on other legal obligations, legal system, and/or society more generallySummary: Stage 1: Prima facie duty of care analysis(1) Foreseeability analysis. No: stop; Yes: go to 2(2) Proximity analysis: (2 prongs)Prong 1: Analogous categories? Yes, go to State 2; No, go to Prong 2Prong 2: New category? No, stop; Yes, go to stage 2Stage 2: External policy analysis?Problems with CooperScope of internal policyInsufficient proximity between registrar and investors"Such a duty would come at the expense of other important interest, of efficiency and public confidence in the system as a wholeSounds like State 2 analysisConfusing on issue of policyAnalogous categoriesHow analogous do the categories have to be? When dealing with public authority, as in Cooper, Proximity must be grounded in statuteRare to find express statement of proximityQuestion is whether statue, which is designed to protect the public, can be read as creating a right in the plaintiff as an individual Deciphering legislative intent?Practice case: Ogbogu loses his fingers because he got coldSki Shop: Analogous scenario? Physical harmRelianceRepresentationCoach: RepresentationPractice Case 2P works on a large farmEmployer operates under a harvesting license issued by the provincial governmentThrough their union, employees expressed concerns to Minister regarding closure of sections of farm during harvesting seasonMinister responded by enacting policy requiring a clause in every harvesting licence preventing closure of farm during harvesting season. Two years later, harvesting licence renegotiated. Ministry staff involved in renegotiation inadvertently deleted the clause in the new license.P's section of the farm closed during the next harvesting season and she is laid off. Sues the government for negligence (CL for negligence of employees) Harvesting licence issued under stat authority, which provides 3 conditions for licenseCreating or maintaining employment opportunitiesManaging or utilizing farm produceFurthering agricultural developmentMinister has discretion to relax or disregard conditionsQ: apply Cooper v Hobart to determine if plaintiff is owed a DOC Is this foreseeable? YesProximity analysis - is it grounded in statute?Note: they're claiming pure economic lossPromise was made to employees - when mistake was made that affected the employeesJames v British ColumbiaFacts are just like Practice Case #2Notice that courts tend to disagree on proximity analysesObserve: If you're the defendant - ask the plaintiff to show that the duty of care is owed! Sawmill permanently shut because Minister and staff inadvertently removed from tree farm license clause that would have prevented mill closurePlaintiff claimed analogous category: PEL (2 sub categories)(1) The independent liability of statutory pubic authorities(2) negligent performance of a serviceTrial judge: (1) is inapplicable. Duty imposed by statute is to public as a whole, not to workers in forestry industryCase is indistinguishable from Cooper - in Cooper, we didn't agree that this form of economic loss appliesHow about category (2)? This is where you have a service provider who has a K between client or customer and service provider is to provide reasonable skill and careThere's a 3rd party beneficiary here too, who stands to gain income from the K - no privity of K But 3rd party ben stands to gain or lose(Hedley Byrne v Heller)Example: I enter into K with a solicitor to draft my will, in which I make a gift to my daughterSolicitor negligently prepares or fails to prepare will My daughter fails to inherit - her loss is purely economicNo privity between daughter and solicitorCan recover under this sub category?Result: Duty establishedCause of action disclosedClass action certifiedBCCA: Prima facie DOC: Foreseeability and proximity are both okayOn Category (1): TJ wrong: case is indeed distinguishable from CooperMinister has discretion - registrar in Cooper did notLegislation required Minister to balance competing interest in implementing conditionsNegligence was operational in nature: not arising from policy but from implementation of the policy"It can safely be said that the more 'operational' a power or duty may be, the easier it is to superimpose upon it a common law duty of care" (Anns)On category B: Analogy works! "The employees can be said to have relied upon the Minister to exercise reasonable care to retain Clause 7 in the licence unless and until he reached a decision on policy grounds to remove it"Even if analogous categories did not exist, we would still find that this meets full proximity analysis based on 'expectations, representations, reliance...Other notesIf minister had discretion to withdraw the clause at any time, how could the plaintiff have reasonably relied on it? Cooper may be confusing, but what effect has it had on the cases? Retreat and surrender - defendants win in the vast majority of cases where courts are called upon to recognize a new duty of care - major shift from pre-CooperCase in point: Childs v DesormeauxChilds v DesormeauxDwight Courrier and Julie Zimmerman hosts a BYOB party. Guests drink alcohol.Inebriated Desormeaux drives away, causes accident, injures POnly alcohol served by hosts was 'three-quarters of a bottle of champagne in small glasses at midnight"Hosts know Desormeaux was a heavy drinker - had 12 beers, left party with BAC of 235mg per 100mgIssue: does a social host owe a duty of care to a person injured by a guest who has consumed alcohol at his or her party? SCC: Is there an analogous category? Canadian law doesn't provide a clear answer on whether duty is owed by social hostsDuty recognized for commercial alcohol providers, but not the same thingThree main differences in the proximity relationship(1) Commercial hosts are better able to monitor consumption Easy and expected by host, patrons, publicThey have to ensure paymentRegulators require training in monitoring(2) Sale and consumption of alcohol strictly regulated(3) Duty is necessary to suppress "perverse" incentive that CAPs have to encourage over consumption for profitBOTTOM LINE: Not an analogous categoryNew duty then? NOInjury to Ms. Childs was not reasonable foreseeable to the facts[Ogbogu disagrees: should be RF especially given his history]TJ didn't find that hosts knew or ought to have known D was too drunk to drive[Ogbogu disagrees: this point is stupid]Thinks proximity, not foreseeability, is the issue here. Should they have reasonably foreseen injury to road users based on D's past history? History of alcohol consumption and impaired driving does not make impaired driving and consequent risks to motorist foreseeableD didn't display signs of intoxication when escorted to vehicleNonfeasance, not misfeasance - wrong alleged is a failure to act or nonfeasance in circumstances where there was no positive duty to actRemotenessRemoteness/Cause in law/Legal causation/Proximate causeDuty of care inquiry: is the defendant obligated to take reasonable care not to injure the plaintiff? Remoteness inquiry: Assuming a duty of care owed, and that duty was breached:Was the resulting injury (or the mechanism by which it occurred) a natural or sufficiently direct consequence of the negligent act?The line here is drawn on law, not factAssuming: That the plaintiff is someone foreseeably affected by the defendant's negligenceThat the plaintiff's relationship with the defendant is sufficiently close and direct,Is the specific injury or result suffered by the plaintiff foreseeable? General thoughts: Courts have resorted to all sorts of tests to resolve remoteness problemsBecause no single concept appears sufficient to resolve myriad of difficult factual situationsDecisions based on a blend of common sense, pragmatism, and judicial policy regarding issues. What's important is to recognize all the doctrines that apply, and where to apply them Thin skull rule - remoteness problemDuty/remoteness overlapAsk if it's foreseeable for the defendant's actions to lead to harmFocus on the injury sustained by the plaintiffIs it foreseeable that these events would occur? Think PalsgraffForeseeability is what binds duty of care and remoteness! Duty of care just looks at harm more broadly than remotenessDuty = foreseeability of harm, not foreseeability of the actual harm arising from the factsHarm in an abstract senseRemoteness = foreseeability of specific harm suffered by the plaintiffHarm in an actual senseNot a freak event - don’t' want to award damages against the defendant because the plaintiff suffered from some freakish event. To satisfy remoteness, must the plaintiff show that the type of damage suffered is a foreseeable consequence of the negligent act? Or is it enough to show that some kind of injury was foreseeable, and that as a result, D should be liable for any injury that results. Re Polemis [NO LONGER GOOD LAW]D chartered ship from P for use in transporting petrolDue to rough storm some petrol leaked and filled ship hold with petrol vapourStevedores employed by D dropped a plank into the holdThis caused a spark, which caused a fire, which destroyed the shipArbitrator: Stevedores acted negligentlyBut D contended the damage to the ship was too remoteThat is, that this kind of damage was not foreseeableCA: As long as some kind of injury was a foreseeable result of the negligent act, D is liable for any kind of injury that results The fact that the damage caused is different than expected is immaterialRule: If a reasonable person can foresee that an act would cause damage, and the damage caused is directly traceable to the negligent act, it does not matter that is not the exact kind of damage expected.Scrutton LJ: "Once the act is negligent, the fact that its exact operation was not foreseen is immaterialThe fact that the knocking down of the planks produced an unexpected result does not relieve the D from liabilityForeseeability of actual extent of the damage suffered by P is not requiredRather, just foreseeability of some damageIf the damage is a direct consequence of (or traceable to) the negligent act, P can recover. BAD LAW: remember the injury that occurred must be foreseeableIn sum [BAD]:If the injury suffered is directly traceable to the negligent act, recovery is possibleIt does not matter that sepcific injury was unlikely to occurSo long as some harm is foreseeable, any harm directly traceable ......Recalls Ann?Wagon Mound, No. 1 [CITE THIS FOR REMOTENESS]P, wharf owners, are carrying on welding operationD, an oil-burning vessel, leaks oil due to ship-owners' negligenceThrough discussions, everyone agrees oil CAN'T be lit on fire on water surfaceSo, P (manager) keeps weldingSome molten metal, wood and cotton cause a fire which destroys dock and several shipsP And D agree this damage was NOT foreseeable (TJ Agreed)However, P suffered some other foreseeable damageSuch as congealment of spilled oil on slipwaysIssue before PC: Was this type of damage remote and what is the proper test for remoteness?Directness (Re Polemis) or RF? Do we ask whether the fouling and congealment was: (a) directly traceable to the oil leakage; OR(b) a reasonably foreseeable consequence of the oil leakage?HELD: Foreseeability is the test for remotenessRe Polemis overturnedVISCOUNT SIMONDS: The essential factor in determining liability is whether the damage is of such kind as the reasonable man should have foreseenDamages suffered by P must be reasonably foreseeableUnder Re Polemis, the negligent actor is held liable for "all consequences, however unforeseeable" as long as direct (traceable to) negligent actWill lead to palpable injustice against the defendantConsider the following case: Ben and Jerry suffer some unforeseeable losses as a result of the Haagen-Dazs' negligenceBen also suffers some further foreseeable lossShould Ben recover for ALL losses then? Or just the foreseeable loss? It does not seem consonant with justice or morality that, for an act of negligence, which results in some foreseeable damage, the actor should be liable for all consequences, however unforeseeable, so long as the can be said to be direct?Mustapha v Culligan [READ THE WHOLE CASE]P saw a dead fly in an unopened bottle of Culligan waterNeither he nor his family members consumed the waterAlthough all members of his family had consumed D's water for the last 15 yearsMustapha became obsessed with what he had seen and with potential implications of past consumption for his family's healthHe was diagnosed with major depressive disorder, with associated phobia and anxietyHe freaked out majorlyTrial decision: Reaction "objectively bizarre"But clearly foreseeable that supply of water with dead flies would cause P to suffer some degree of nervous shockAwarded $80k in general damages, about $25k in past and future special damages and $237,600 in past and future economic lossCulligan appealed to ONCACA - Issue: whether defendant may be liable for damages for psychiatric harm where the harm, by any objective measurement, consists of an exaggerated reaction by an obsessive person of particular sensibilities to a relatively minor or trivial incident. CA/SCC: NOCulligan DID owe Mustapha a duty of careAnd the standard of care was indeed breachedBUT, were the plaintiff's damages too remote to warrant recovery? Per WM #1: Was the actual harm reasonably foreseeable?No person of ordinary fortitude would have foreseeably suffered this kind of injury from seeing flies in an unopened bottle of waterBut what if plaintiff had been diagnosed with and was being tx for severe OCD prior to the incident? OR: your negligence results in a weight that won't furt a fly being dropped on meTurns out I am an acute hemophiliac (rare bleeding disorder that can damage organs and tissues) and I suffer massive and severe internal injuries? Even less foreseeableShould not matter - too remote if we follow MustaphaConsider the following: The defendant is liable where plaintiff is unusually or uniquely prone to an unusual or unpredictable degree of injury as a result of the defendant's negligent actIf defendant's negligence injures P with unique or unusual predisposition to unforeseeable harm, then the defendant is liable?Thin skull: Plaintiff with a proved vulnerability to an otherwise remote harmOrdinarily wouldn't affect anyoneDisposition must be proved?Smith v Leech, Brain and CoWorkers at D's plant must dip stuff into a molten metal bath from behind a small corrugated shieldD's employee is splashed on the lip, resulting in a bad burnBurn becomes malignant, and he dies of cancer laterDeceased employee was suffering from 'pre-malignant changes' prior to the incident due to the nature of his job - burn was a promoting agentFamily suedWe have a physiological vulnerability or predisposition to injury (cancer, not burn)But cancer (and death) not really foreseeable as no defendant would have been aware of vulnerability or predisposition to cancer. Is this specific type of injury (cancer/death) foreseeable? Is it foreseeable that a small splash would case a burn that would in turn cause a lethal cancer (and death)? HELD: WM #1 doesn't not apply to this type of fact patternDid not address thin skull rule casesNo proved predisposition to the harm suffered in WM1TSR: A tortfeasor takes his victim as he finds themIt is not answer to negligence to say that the plaintiff: Would have suffered less injury (degree) or no injury at all (type)If the plaintiff did not have a thin skull ie vulnerability or predisposition that led to the degree or type of injury sufferedNagging problem: the cancer and death are clearly not foreseeable - whether viewed as specific types of injury or degrees of injury arising from burn. ?Thin Skull Rule[A] tortfeasor takes his victim as he finds him/herIt is no answer to negligence to say that the plaintiff: Would have suffered less injury (degree) or no injury at all;If the plaintiff did not have a 'thin skull' ie a vulnerability or predisposition that LED to the degree or type of injury sufferedNagging problem: the cancer and death are clearly not foreseeable - whether viewed as specific types of degrees of injury arising rom burnLord Parker CJ:Burn was foreseeableBurn triggered cancer and eventual deathThe test is not whether these defendants could reasonably have foreseen that a burn would cause cancer and that Smith would dieThe question is whether these defendants could reasonably foresee the type of injury which he suffered, namely the burnWhat, in the particular case, if the amount of damages which he suffers as a result of that burn, depends on the characteristics and constitution of that victimBurn was foreseeable and that's all that mattersThe extent of the injury caused by the burn is irrelevantParticularly so where the plaintiff's vulnerability or predisposition led to that degree of injuryThe rule is then: if the threshold injury is foreseeable, injuries that flow from it are irrelevant but only as applies to thin skull plaintiffsMustapha: Once a plaintiff has established the foreseeability of a mental injury would occur in a person of ordinary fortitude - the defendant must take the plaintiff as it finds him for the purposes of damagesNot a general ruleIf initial injury to the plaintiff is foreseeable, the defendant is liable for linked injuries that only arose because the plaintiff has a thin skull, regardless of foreseeabilityQuestions: Is the TSR too harsh on defendants? The ultimate consequence suffered by Smith (death) is disproportionate to threshold injury (burn) What do you make of reduction of damages in Smith because the deceased might have developed cancer without the burn? Crumbling skull rule: plaintiff had some signs of cancer - already a degree of cancer - if you leave him alone he'll still get cancer but the burn exacerbated itOught to then reduce damages since some of the harm already presentWhere plaintiff has an exacerbated rule then that plaintiff is still liable but damages reduced to account for preexisting damageGenetic predisposition: thin skull ruleHarm (cancer) must be present for CSR to applyShould the thin skull rule apply to cases where a plaintiff with depression prior to negligent act commits suicide because unable to accept the threshold injury caused by negligent act? OGBOGU WILL TEST TSR/CSR AND DIFFERENCEHarm is already present, and defendant's negligence makes it worse. LESS damages and so favours the defendant. ?Cotic v GrayP, a man with history of mental problems, committed suicide after surviving car crashHis mental condition deteriorated after the crash because of guilt feelings over the death of the negligent driver and of his sonWife of P brought suitONCA: TSR applies - P can recoverNote: as a general rule, suicide by a normal and healthy individual would be an unforeseeable intervening act distinct from negligent actIn Cotic, suicide is a result of predisposition to depression and flows from the threshold injury. ?Wright Estate v DavidsonAs a general rule, a victim who suffers aggravated damage because of a physical or mental precondition will always recover, and his extended injuries will never be too remote, because the possibility of a predisposition to injury is foreseeable as a class of harmThe extent of injury need not be foreseen, only the type of injury. ?Mechanics of the AccidentHow the accident happened can be relevant to remoteness analysisIf injury suffered is foreseeable, does it matter that the manner in which it occurred is unforeseeable? Characterization NB as advocacy toolMorris, p 194All cases, for purposes of remoteness, fall within 3 categories(1) Typical, ordinary caseMr. Builder drops brick on Mr. Pedestrian, causing head injuryObviously foreseeable(2) Extraordinary case - freakish factsD left truck on highway at night without flaresCar crashed into truck and caught firePlaintiff rescues car occupantsHands gun on mat to husband to retrieve mat to pillow wife's headHusband, dazed and confused, shoots plaintiffObviously unforeseeable(3) Everything in between - not ordinary or freakish - this is where mechanics really matterResult of remoteness analysis depends on description/characterization of factsA more general description of the facts is likely to yield conclusion that incident was foreseeableEx: Car A hits Car B - a spark from the collision ignited a gaswell on the side of the road. Conversely, a more detailed description will likely yield finding that incident was unforeseeableCar A hit Car B at a speed of 30 km/hrCar A had a rare chrome bumper - most bumpers made of plastic materialsCar B has a plastic bumper. But small bracket holding one taillight is made of combustible metalBracket flew off upon collision, past both cars, across 8ft wide trench and 15ft platform, into 18in wide entrance to deep gaswellIgnites explosion in gaswellTWO lessonsAdvocacy skills as mush as knowledge of doctrine will help win casesThe role of a good judge is to settle on a reasonable description of facts. Fair and just to both P and D Respectful of idea that liability is imposed for unreasonable risks, not every riskHughes v Lord AdvocatePostal employees are working on cables located undergroundThey open a manhole and are working belowHole is covered by a tarp tent surrounded with red paraffin warning lampsEmployees take a tea break and leave manhole unattendedTwo kids prepare to descend into manhole, taking lamps with themOne lamp knocked or dropped into manhole, went boomPlaintiff/appellant falls into manhole and suffers serious burnsMechanics of the accidentLamp fell and broke in manholeParaffin escaped, vaporizedDetonated by naked light of lampSessions: Mech of explosion, which caused the burning, was unforeseeable, so accident or injury was unforeseeable. D not liable. HL reversed - defendant is liableLord Reid: True, explosion/mechanics of accident not foreseeable - experts agreedNot clear if injuries were directly caused by explosion of by fire in manholeBut injuries were caused mainly by burns, which were foreseeableBecause it is foreseeable that if boys entered a dark tent, they would take the lamp with themAnd if lamp fell and broke, boys would be burned and injury may be seriousAccident was caused by a known/foreseeable source of danger, but caused in a away which could not have been foreseen - Mechanics of the accidentMech not important so long as the injury is foreseeable!! Unforeseeable mechanics (explosion) likely made the injury more seriousBut the risk of burning injury from a known source of danger - the lamp - was foreseeableIt should not matter to recovery that damage was made more serious by unforeseeable eventsLord GuestIt is foreseeable that if you leave dangerous lamps in circumstances children would find alluring, burning might occurIt is not necessary that the precise details leading up to the accident should have been reasonable foreseeableIt is sufficient if the accident which occurred is of a type which should have been foreseeable by a reasonably careful personThe focus on mechanics of the explosion is misleading and based on fallacious reasoningIssue is whether igniting of paraffin and consequent burns was a foreseeable consequence in the circumstancesImmaterial that burning was caused by explosion from vaporized paraffinCould have been caused by contact between liquid paraffin and naked flameBut who cares? Both are burning accidents and would lead to burning injuries. What matters is that burning was caused by a potentially dangerous paraffin lampLeft in circumstances that one can foresee that children would find alluringAnd if they play with the lamp, it is foreseeable that paraffin might spill and igniteAnd burning will occurWould the HL have reached the same result if the injury suffered was loss of hearing from explosion/ Did the defendants breach the standard of care? Fairly deserted street - no nearby housesTent over manhole, warning lamps, sides closedRemoved ladder from manhole, never bothered by children before. Bottomline: It is sufficient to focus on the foreseeability of the source of harm suffered/type of harm sufferedIf foreseeable, no need to examine the actual mechanics of the accident or precise course of events that led to the accident. ?Cf Daughty v Turner ManufacturingAsbestos cover falls into molten metal cauldronNobody know immersion of cover posed danger, so nobody stepped awayOnly foreseeable risk was splashing, which did not occurCover disintegrated upon immersion, causing explosion (not a foreseeable risk) Explosion ejected liquid from cauldron and injured P P argued even though the risk was unforeseeable, he should recover becauseActual injury sustained (burning) was of the same kind as injury that would be sustained from splashingIf burning is foreseeable from the splash caused by lid slipping or being knocked over, then actual mechanics by which his injury occurred (explosion) should not bar recoveryHeld: NOReasoningHughes dealt with foreseeable risk of dangerous allurement to children, which might cause them burningP in Hughes was injured by foreseeable risk (potentially dangerous alluring situation) and suffered foreseeable injuryAccident and injury in Hughes was foreseeable, and did occur, even though it was made more severe by unforeseeable eventsHere, the only foreseeable risk is splashing from inadvertent slipping or knocking into molten liquid. Take home point:Characterization of facts and damage in relation to risk is extremely important in remoteness analysisKeeton, p 190: degree of specificity vs degree of generality can have a significant impactCase in point: Jolley v Sutton London Borough Council (2000, HL)?Jolley v Sutton London Borough Council (2000, HL)Dilapidated boat was left abandoned for at least 2 years beside a block of flats on land owned by defendant councilCouncil aware of preserve of boat, but plans to remove it not implementedP and his friend, aged 14 and 13, started to repair boatUsed a car jack and some wood to prop it up - boat fell off prop while boys were working on it and crushed PSustained serious spinal injuries, rendered paraplegicWB: For PlaintiffGeneral characterizationPresence of boat would attract childrenBoat posed two types of foreseeable risk(1) young children falling through(2) older children propping it upCA reversedAlthough reasonably foreseeable that children would play on boat and be injured, not foreseeable that they would prop up the boat and be injuredNarrow, more specific characterizationOgbogu likes this decisionAsks: is the damage suffered foreseeable? Best characterization of the issueHL, for plaintiffTwo rival descriptions of risk, but trial judge's characterization is betterDoes not say whyPerhaps because if D had met standard of care, both specific and general risk would have evaporatedCases show that in remoteness analysis, reasonable people can disagreeIn exam, argument and clarity of reasoning is importantAnalysis and conclusion should be well supportedApply the law as clearly as possibleDon't use mechanics if you don't need to - if it's clear that it's not a foreseeable accident, don’t need to do a characterizationEXAM may not have a clear yes/no answer?Novus Actus Interveniens - Breaking the ChainWhat if following D's negligent act, but before P suffers actual damage, something or someone triggers or worsens the P's damage? Novus actus interveniens - new act intervenes - new intervening actA new act which intervenes between defendant's negligence and plaintiff's injuryComplete defenceTest is reasonable foreseeability! If intervening act is within the scope of foreseeable risk created by original defendant's negligence, that defendant is still liableHint: the more capable the intervening act is, the more likely it is to be deemed unforeseeable?Bradford v Kanellos (SCC, 1973) Gas grill in D's restaurant caught fireExtinguishers activated, producing hissing soundA patron heard hissing sound and yelled "GAS!"Panic ensures. P pushed or fell from her seat and was injuredD argued that there may have been negligence with respect to cleanliness of grillBut actions of hysterical third party were novus actusTrial: held for P Third party's actions were foreseeableNatural consequence of an emergencyCA reversedThird party's actions were novus actus - broke chain of causationD could not have foreseen intervening actsSCC (Martland J) agreedInjuries not caused by D's negligent act, but by hysterical patronNot reasonably foreseeable, especially since hysterics resulted from proper functioning of fire equipment, not the fireLaskin J dissentedIf was reasonably foreseeable that the stampede could happen if visible gas grill caught fire and extinguisher went into operationEven if patron acted negligently (and not clear that he did), injury to P still foreseeableReaction to hissing sound and gas grill on fire was natural/probably/ordinary consequence of original negligent actBottom line: Reasonable foreseeability is everywhereCharacterization matters in remoteness/NAI analysisCausationStandard of Care: Principles we rely on to characterize the actions of the defendant as negligenceDuty of Care: How we assess defendant's legal responsibility for foreseeable risk posed to a class of personsRemoteness: How we assess the foreseeability of specific kinds of injuryCausation: Factual causation, or "cause in fact" Purely factual question of whether, the unreasonable risk created by D, as a matter of fact, caused the injury suffered by P What connects the defendant's conduct to the plaintiff's injury Must show that defendant's conduct caused injury to plaintiff?Two main rules to causation:(1) But forFirst and general rule Defendant is 100% to blame for what happened to plaintiff"But for" their actions then the damage wouldn't have occurredIf that rule doesn't exist, be careful to put blame on defendantSCC: Don't need scientific precision for this to applyProve on BOP that defendant is to blame. That there's only one person/thing responsible(2) Material contributionThe only exception to the "but for" ruleMultiple defendants, all human beings, who are 100% to blame (no science needed) - then you blame all of themPlaintiff has 2 choicesGo against one of them - then defendant can sue the others for indemnitySue all parties to blame - then they splitEx: 2 defendants and 1 non-human cause, then the rule will not applyMust be all human?Note: Law students tend to seek causation. If you can't apply the BFR or MCR then there is no causation - that's it. TerminologyDo not confuse factual causation of cause in fact with remoteness/proximate cause/cause in law/legal causeFactual causation deals with the simple question of what, in fact, occurredPure factual inquiry into whether D's act caused P's injuryThe proximate cause/remoteness/case in law/legal cause inquiry is based on judgment/law, rather than factAssuming D's act factually caused P's injury, should D be legally liable for that injury? We dealt with question under 'remoteness'Bottom line: Cause in fact is a straightforward conceptRequires that we simply link defendant's conduct with the plaintiff's injuryQuestion: Did the defendant's conduct cause the plaintiff's injury? Not that simple! (1) Courts have struggle with what legal test to use in determining cause in fact(2) Evidence often unclear on what happenedEspecially where there are several possible causes, including D's negligence?Proof of causationHow do we determine cause in fact from the evidence? The "but for" test"But for" the defendant's negligence, would the plaintiff have suffered the injury? If no, defendant is liableP would not have suffered the injury without D's negligenceIf yes, defendant is NOT liableThen there would be some other causeP would have suffered the injury regardless of D's negligence"But for" test works well in vast majority of casesExample: D fails to stop at a red light at intersection. P is crossing intersection. D's vehicle hits P - P suffers back injury. But for D's negligence in failing to stop at a red light, would P have suffered the back injury? Most likely not, so D's negligence caused P's back injuryIssuesIn some situations, the but for test leads to the perverse result that there is no causationWhen, as a matter of common sense and or justice, it is quite clear that the act in question contributed to the injuryThese situations have forced the counts to invent other tests for causation where necessaryThere are two main situations where this problem arises: (1) Pre-emptive causation(2) Duplicative causationPre-Emptive CausationTheoretical problem - no case lawEx: P is just about to drink a cup of tea that X, third party, laced with poison. D fires gun negligently and kills P But for D's negligence, would P have died?Yes - P would have died anyway through the fault of X - poisoned teaD merely pre-empted death by poisonDuplicative causationD and X each independently start firesP's house is destroyed by the fireNot clear from evidence which fire triggered the destruction of P's house. Each fire, on its own, is sufficient to destroy P's house. The "but for" test would result in no liability for D or X. But for D's negligence, damage to P's house would have occurred anyway, because of X's negligenceBut for X's negligence, damage to P's house would have also occurred, because of D's negligence?Barnett v Chelsea and Kensington Hospital Mgmt CommNight watchman (P's spouse) and two co-workers drank tea around 5am. They became sick and went to hospital when the day workers arrived. Nurse informed doc on call that patients were vomiting. Doc told them to go home and did not admit or treat them. P's spouse died.Ruling and analysisDefendant D owed a duty of care and breached the standard of careBut did the D's negligence cause the plaintiff's spouse's death?Evidence was that even if the P's spouse was admitted and treated properly, he would have died anyway. Because it was not possible for him to have taken antidote on timeDue to elapsed time spend waiting for day workers to arriveAnd regular procedures followed in such casesNeild J - evidence is significant - even if D had responded properly, there would not have been enough time to save P's spouse. But for D's negligence, P's spouse would still have died, so NO LIABILITY. Note: Doc's failure to admit/treat would have been cause in fact IF, AND ONLY IF, the P's spouse would not have died without that failure. To figure out the "but for" test, ask:(1) What happened? P's spouse died. (2) What would have happened if the negligence is taken out of the picture? P's spouse would have been admitted and treated, but still would have died. Thus, since injury would have still occurred regardless of D's negligence, no causation and no liability?Duplicative causation: Where more than one party independently but concurrently cause the plaintiff's damageResulting in non liable under the "but for" test?Lambton v MellishNuisance case, but reasoning relevant (negligence wasn't well developed then)Two companies catering to visitors in common area by providing games, rides, organ music, etcThis generated a lot of noise, which was found to be "maddening" and a nuisanceD argued that noise can only be factual cause of nuisance if, and only if, the nuisance would not have occurred but for their activities. That is, not liable because without the noise generated by them, P would have still suffered the nuisance owing to other company's activities. Chitty J: If there are two or more tortfeasors, each aware of what the other is doing and each contributing to the damage, each is liable in full?Corey v HavenerP was riding his horse-drawn carriageTwo defendants came up from behind on two loud and smoky motor tricycles which backfires as they passed himP was injured as a result of the horse being startledJury found both defendants contributed to P's injuryBut is the outcome defensible on the "but for" test? They would both escape under the BFRCourt treated the two tortfeasors as oneWhere each defendant contributed to the plaintiff's injuryConsider indemnity hereEach being liable in full to the plaintiffBottom line: notwithstanding the but for test, two or more tortfeasors who jointly or concurrently cause or contribute to the plaintiff's injury are each fully liable for damages. ?Natural cause + Tortious CauseWhat if one of the causes is a natural cause? A negligently pollutes river. River is also polluted by non-negligent circumstances, ie natural disaster. Is A liable? A would argue that pollution would have occurred without her negligence. ?Kingston v Chicago & NW Rwy [Suspect]Damage to P's property by united fire - from D's locomotive and unknown originIf, in situations of duplicative causation, one of the causes is a natural causeThen there is no causation and the tortfeasor will not be liableBut the defendant must demonstrate that the other cause was a natural causeWhat happens if the other cause is of unknown origin? Doctrine doesn't applyDuplicative causation = causes occur contemporaneously or concurrentlyWrap up: Where the defendant's negligence caused or materially (and concurrently contributed to the plaintiff's injury, defendant is fully liable. Except where the defendant can demonstrate that the other contributing and concurrent cause was a natural cause. What happens if the causes are not concurrent, but sequential? Two unrelated, sequential events cause damage to P Which defendant is liable? Independent intervening cause?But for D's negligence, would injury occur? (1) NO - D 100% to blame for injury(2) 2 or more Ds, 100% to blame for injury (Duplicative causation)(3) D and unknown cause D to blame (Suspect rule)?What happens if the causes are not concurrent, but sequential? Two unrelated, sequential events cause damage to P Which defendant is liable? Independent intervening cause?Sunrise Co v The Lake Winnipeg P's boat was grounded two consecutive times in unrelated accidentsFirst grounding resulted from D's negligenceAfter this accident, on way to anchorage area, boat was grounded again Either through owner's negligence or force of nature - not clearEach incident alone would have necessitated detention in dry dock for repairsRepairs for both incidents in dry dock was completed in 27 daysRepairs for first incident alone would have taken 27 daysRepairs for second incident alone would have taken 14 daysWho is responsible for the loss of earnings resulting from the detention for 27 days? L'Heureux-Dubé:When you have two unrelated incidents which are sequential and which cause property damage, and the first incident was sufficient to cause all of the loss, then the nature of the second incident or cause (tortious or non-tortious) is irrelevant"No causal link between the second incident and the loss of profit suffered by the plaintiff"In such situation, the party who caused the first accident, D, bears full responsibility for the lossRegardless of whether or not the second accident was caused by the owner, a third party, or by no oneAsk: What is the loss/injury here? McLachlin (dissenting): Restitutio in integrumOgbogu: too focused on fairness, not causationThis rule can be safely ignored Do not argue the dissent on an examThe purpose of damages is to restore P to position he would have been in but for D's tortious conductWhere a second intervening incident necessitates repairs at the same time as repairs resulting from the first incidentA court can conclude that because the second incident would have put the ship out of commission anywayThe person who caused the first incident is not responsible for the entire lossEvents which subsequently and independently diminish the loss caused by the first tortfeasor must be reflected in damage awardsWe have to recognize the causal contribution of the second intervening causeThis approach produces fairer resultsIt is more generally applicable"It avoids intricate arguments about factors such as the order of accidents, their impact on the use of the ship, and causation" The only question is how best to accomplish thisTwo approaches:(1) Full diminishment where second incident is a non-tortious causeDiscount completely the loss occasioned by non-tortious causeD (who caused the first incident) is responsible for only the differenceIn the present case, P would recover for 13 days (27 less 14-day diminution for second incident) (2) Pro rata apportionmentTwo causes of the detention and loss of earningsD is solely responsible for 13 days of groundingD and subsequent cause responsible for 14 daysDivide equally - 7 days eachD responsible for 20 days?Causation is not a question of fairness, but of factA finding has to be made on causation before the question of damagesBottom line: First cause, full cause, full responsibility for lossWhat happens when the loss is a personal injury rather than property damage? Applying the "but for" rule to the facts of Sunrise CoWhy? Two accidents in the case are not concurrent"But for" is the traditional rule (NO, so D is liable)But for the defendant's negligence (first accident), would the plaintiff have suffered damage (loss of earnings for 27 days)But for the second accident, would the plaintiff have suffered damage (loss of earnings for 27 days) YES, because of D's negligenceSo, second incident is NOT a cause?Baker v WilloughbyP sustained injury to leg and ankle due to D's negligenceSued for lost incomeBefore trial, P shot in attempted robbery and sustained injury to already injured legLeg had to be amputatedD argued he was not liable for lost income after the date of robberyHL: NO. D's negligence and robbery were concurrent causes of the loss of income flowing from independent intervening event (robbery)Injury of the leg still remained after the robberyD is responsible for the value of the losses after the date of robbery caused by him?Cf... ?Jobling v Associated DairyP suffered back injury due to D's negligence - could only engage in 'light work' Before trial, suffers from a spinal disease unrelated to initial accident (independent intervening event), which resulted in total incapacity to workNo signs or symptoms of disease at the time of accidentIssue: Is D responsible for lost earnings for partial incapacity for the rest of P's working life OR only up until the time that disease resulted in total incapacity? Lord Keith: If independent intervening event is non-tortious, D remains liableOgbogu: grossly unfairMight end up cutting off the defendant if you apply the "but for" ruleDon't forget about the BFRExam: BFR is the rule he wants to seeHowever, D's liability for damages should be reduced to account for loss of income flowing from non-tortious independent intervening event. This approach accords with the principle that tort law compensation should return P to the original position prior to or absent D's negligenceP would have suffered the disease anywayBy making D pay for the ongoing losses less losses linked to non-tortious intervening cause, P is returned to original positionMaking D responsible fully for ongoing losses without reduction will make P's position better than the original positionIf the intervening event is tortious, as in Baker, D is also liable for ongoing losses less contribution of second tortfeasorD cannot say second tortfeasor is solely responsible for loss flowing from independent intervening eventBecause it is unfair to impose full liability for independent intervening event on second tortfeasor without recognizing P was already injured to some extent by D (first tortfeasor)Both tortfeasors are jointly liable for total loss after or flowing from independent intervening eventIf D alone is sued by P, he is responsible for position of total loss after or flowing from independent intervening eventThat portion cannot be reduced or eliminated by the fact that a second tort (independent intervening event) occurred. ?Apportionment of loss among causes - Athey v LeonatiP suffered back injuries in two successive MVAs Soon after he experienced disc herniation during a mild stretching exerciseHerniation caused by combination of injuries from two MVAs and pre-existing conditionCause #1 - MVAs - TortiousCause #2 - Pre-existing condition - Non-tortiousTrial Judge: Herniation caused by combination of MVAs (25%) and pre-existing condition (75%)Sidenote: why is pre-existing condition relevant in this case? Why not just apply the TSR and hold responsible for the whole thing? NB: because TRS is a remoteness rule and not a rule of causationIn the remoteness doctrine, we disregard pre-existing conditions in determining whether the P's injury is too remoteThat is, the fact that P has a pre-existing condition that exacerbated or triggered her injury and which may not be foreseeable is irrelevant in det whether that injury is remote or notHere we are asking whether the pre-existing condition, as a factual matter, actually caused the injuryAnd if it did, should the courts apportion some of the losses to the pre-existing condition? Or conversely, should damages for the tortious case (MVAs) be reduced to account for causality linked to pre-existing condition? SCC (Major J): NOWe will not apportion losses between tortious and non-tortious contributing causesIf D's negligence is cause of injury, presence of non-tortious contributing causes will not reduce D's liabilityBecause this will result in P not receiving full compensationThis case should be distinguished from other situations where apportionment is possible: (1) multiple tortious causes: Each D is liable in full and can seek contribution and indemnity from one another(2) Divisible injuries: separate and distinct injuries not true apportionment - each D liable on but for rule(3) Independent Intervening Events: non-tortious event is sequential to or occurs after tortious eventFailing to apportion or account for IIEs in reducing D's damages will make P's position better than the original one (Baker, Jobling)Disc herniation in present case is not independent intervening eventIt is the product of tortious and non-tortious eventsThe pre-existing condition is not a sequential or independent intervening event either(4) "Crumbling Skull" rule: Respondent's strongest submissionApplies where a pre-existing condition is inherent in the plaintiff's original positionThat is, P's original position includes the pre-existing condition which would have detrimentally affected P anywayAny compensation that does not discount the future (foreseeable) measurable risk and effects of the pre-existing condition will put P in a position better than the original positionTherefore, D's liability ought to be reduced to account for the measurable risk of the pre-existing condition. Different from the TSRD is not arguing that the injury (disc herniation) was made worse or triggered by a pre-existing conditionAnd that as such the injury or the extent of it unforeseeable or too remoteRather, that the pre-existing condition is part of the plaintiff's 'original position' and a factual causeAnd therefore, while D is responsible for the injuries, his liability should be reduced to account for the 'other factual cause' so as not to make P better off than the original positionSCC: Good argument, but does not apply here because trial court didn't find that there was a measurable risk that the injury would have occurred without MVAs(5) Loss of ChanceConclusionWhere D's negligence caused or materially contributed to the plaintiff's injury, the defendant is fully liableDefendant can't escape liability by pointing to another contributory or intervening cause (tortious or non-tortious), unless it is a natural causeHowever, damages owed by D can be reduced where: The injury to P would have resulted from a pre-existing condition which existed before the defendant's negligence (CSR)A non-tortious independent intervening event occurs after the defendant's negligence, which affects or worsens P's original position. Courts will not apportion losses between causes?Factual UncertaintyWhat happens in cases where the courts are unable to make a finding of fact about what actually caused the accidentNot a question of which cause to blame, but who or what in fact caused the accidentEvidence is inconclusiveEven scientists cannot provide answersOr the events are such that we don't know exactly what happened?Cook v LewisDefendants, Cook and Akenhead, were hunting in a hunter-infested area of Quisnam LakeTurns out it was LewisSeriously injured, lost an eyeJury was unable to return a verdict because impossible to tell which D hit the plaintiffBut for test is not applicableShould the court impose liability on both, one, or none of them? On BOP, was each D's negligence a 'cause in fact'?Court: both Defendants are liable, but slightly different reasonsCartwright J, MajorityIf all A can prove is that he was injured by EITHER B or C, but is unable to establish who among B or C caused the injury, then the action, absent special circumstances, must failSpecial circumstancesHere, P can demonstrate special circumstancesP argued that Ds were in a 'joint enterprise' (recognized exception)Merely sharing the spoils of a hunt does not make a person liable for the fault of anotherDs liable because they are in a better position to tender evidence as to who really is the guilty partyIf they cannot or will not exculpate themselves because each was blameworthy, they will both be liableReversed the burden of proofThis way, P not left without a remedyOgbogu: Terrible rule of law - we rarely reverse the burden of proofDefendants should not be required to prove their own innocence in this caseBad law - later overturnedRand J, concurringDs breached the SOC in shooting negligentlyIn doing so, they wrongly and foreseeably interfered with the plaintiff's ability to prove cause-in-fact and obtain a remedyThe latter wrong - foreseeably impairing P's ability to prove factual causation, shifts the onus of proof or legal burdenD must then disprove cause-in-fact and is liable if unable or impossible to do soLocke J, dissenting [GOOD]P could not prove who shot him - end of storyWhat is the difference between the two majority judgments? Cartwright: Evidentiary rationaleDs are more likely than P to know what happened, so burden shifts to themRand J - Rights rationaleRight to bodily integrity gives rise to a right to remedyRight to bodily integrity includes within it the means to vindicate the rightIf you interfere with the means of vindication (by making it impossible to prove causation), then you have interfered with the right itselfBottom line:In special circumstances involving factual uncertainty, courts would shift the burden of proving factual causationFacts similar to Cook v LewisPerhaps where the rights or evidentiary rationales apply? But can we really modify conventional causation rules in this manner (ie simple to ease the P's burden of proof) Remember on exam: just apply the law. ?Sindell v Abbott LaboratoriesP develops cancer and pre-cancerous lesion from drug (DES) ingested by mom during pregnancy to prevent miscarriageDrug manufactured by over 200 companies - impossible to say which one made he dose ingested by momDs were six manufacturers with 90% of the market shareThey moved to strike claim on the basis that P can't prove causationCourt held for plaintiffWeird! No way to find them liable - here we have 200 people! Causation by market share, which makes NO SENSEReasons: Where P knows the type of drug but not the manufacturer, special considerations ariseThe main bar to recovery is an old Common Law rule that says that for the burden of proof to be shifted to Ds, all potential Ds must be before the courtThis rule would require 194 additional defendants with a market share of 10%For tort law and product liability to make any sense, we need to eliminate this ruleRule: if P sued enough manufacturers such that their combined market share is a substantial percentage, burden shifts to Ds to disprove causationTendency to shift to support the plaintiffIn this case, there is really no way - the six manufacturers shouldn't even be in court! Simply causation on the bases that they have big sharesIf Ds cannot disprove causation (by showing who made the DES in question), causation will be assumed to be proportion of their market shareThis case makes no senseDissentP's reasoning: None of these manufacturers injured me, but each of them almost certainly injured someoneApproach taken by majority to resolving this problem is not tort lawIt resembles the 'deep pockets' theory of liabilityBut wealth cannot be equated with causationWe cannot have one rule for the rich and another for the poorMarket share is, in fact, not a stable thingMore like deep pockets where it should be causation?In Canada and other Commonwealth courts:?McGhee v National Coal BoardP is covered in coal dust and sweat (non-negligently) at workNo showers provided at work, so has to ride bike home to wash offDeveloped dermatitis Alleged negligence was employer's failure to provide adequate shower facilitiesPlaintiff: could not be determined on medical evidence if the delay in washing off dust contributed to the diseaseAll that could be said was that the exposure created risk of dermatitisP could not prove dust was the specific causeUnclear if he would not have developed dermatitis if showers were provided at workCourt: Causation is provedAgain, has gone against the 'but for' ruleLords Reid and Simon: Inference of causationWhere the D materially contributed to or increased the risk of the injury occurring, we can conclude that the D contributed in fact to the injurySo P just has to prove that D increased the risk of injuryThis rule would have very broad implicationsLord Wilberforce: Reverse the burden of proofBurden shifts to the tortfeasor who created a risk that led to the expected injury to show some other causeOr face liabilityWhich option is better? The approach taken by Wilberforce makes causation a redundant in cases of factual uncertaintyIf there is factual uncertainty, P does not have to prove causation at allWilberforce's approach held sway in the Commonwealth until Wilsher v Essex Area Health Authority?Wilsher v Essex Area Health AuthorityIn Wilsher, HL affirmed McGhee but followed Lord Reid's inference of causation principleInference of causation can be drawn where D materially contributed to or increased risk of the injury sufferedIn Wilsher, inference not madeMed mal case involving a preterm baby born with O2 deficiencyCatheter was twice inserted into a vein, rather than an artery, and baby was given excess oxygenBaby developed incurable retinal condition and eventually became blindCould have been caused by the excess O2, or 5 other conditions associated with preterm birthEvidence inconclusiveDegree of uncertainty did not permit drawing an inference of causation?Fairchild v Glenhaven Funeral ServicesSome Lords affirmed McGhee per Lord ReidOthers developed "new" principleBottom Line in Fairchild:Where the cause of the injury/disease is scientifically uncertain: P need not prove that the defendant's tortious conduct caused her injuryEssentially a restatement of McGhee, per ReidRather, P only has to prove that the defendant materially contributed to the risk of the injury suffered by her?Factual UncertaintyCook: "But for" applies, except in special circumstances (undefined)Two approaches: you shift the burden to D if an evidentiary or rights rationale existsSindell: reverse onus is sometimes applied to eliminate need to prove causationMcGhee, per Reid: if D materially contributed to risk of injury that occurred, draw an inference of causationMcGhee, per Wilberforce: if D materially contributed, then reverse the burden of proofFairchild: P simply has to prove that D materially contributed to risk of injury that occurred?ALL THESE CASES SUCK?Canadian ApproachSnell v FarrellResurfice Corp v HankeClements v Clements?Snell v FarrellP was undergoing cataract surgeryDeveloped retrobublar bleedingSurgeon noticed outward signs of bleeding, but continued with the operation9 months later, when blood in vitreous chamber cleared, surgeon was able to see that optic nerve had atrophied - resulted in loss of sightExperts testified at trial that when such bleeding occurs, operation should be stoppedBreach of SOCBut that there are many causes for the atrophied condition, including P's comorbiditiesHigh blood pressure and diabetes are potential non-negligent causesNone of the experts could say what caused the atrophy - complete uncertaintyShe had high BP and also diabetesTJ applied Wilberforce in McGhee to rule in favour of PP has shown that D's negligence created a material risk of a type of injury which then occurred, so burden of disproof shifts to DSCC:Issue: what is the correct standard of proof of causation where we have factual uncertainty between a negligent and non-negligent cause? Answer: The traditional "BUT FOR" test, although based upon common sense inferences from the evidenceSopinka J: Basic rule of evidence is that onus is on the party who asserts a proposition to prove itHowever, where the subject matter lies particularly within the knowledge of one party, that party may be required to prove itHowever, those circumstances don't exist in factual uncertainty cases - no reverse onus of proofThe traditional test actually applies in these types of casesGood, but then they confuse itIf you don't apply it too rigidlyCausation doesn't require scientific certainty, just a common sense approachA common sense approach allows courts the room to make common sense inferencesWhich obviates the need for reverse onusP's evidence may be limited, but if it is consistent with our intuitions, then there is a prima facie inference of causationD will need to present evidence to rebut the inference of causationFailure to do so will result in having the adverse inferences drawn against himInference can be drawn even where scientific proof has not been adducedConsistent with balance of probabilitiesBottom Line:Inference of causation: finder of fact can take a robust and common sense view of the factsCan still find causation this wayApplying rule to Snell, finder of fact drew a common sense inferenceBy concluding that it was more likely that the injury was a result of the negligenceIt does not matter that medical evidence did not go far enough as to support inferenceIt is possible to draw inference while giving due regard to available medical evidenceEspecially since the med evidence did not contradict the inferenceTJ reached the right result, but applied the wrong testIn essence, standard of proof is not certainty, but balance of probabilitiesThis case is also wrong?Resurfice Corp v Hanke [NEVER BRING THIS UP]P is Hanke - injured when water hose was placed into gasoline tank rather than adjacent water tank of ZamboniMixture of water and gasoline led to the release of vaporized gasoline into the air in the arenaGas ignited by overhead heater, causing explosion and fireP severely burnedP received WCB no-fault benefitsAlberta WCB commenced subrogation action against manufacturer of ice-resurfacing machine, alleging design defects - D should not have put water tank next to the gas tankSimilarity of appearance caused confusion, which was the cause-in-fact of the accidentTrial judge ruled cause was P's dreadful mistake of operating machine after having observed hose in gas tankCA reversedSCC restored trial judgment based on finding of fact that the design defects did not confuse P and so did not cause his injuriesEnd of story! McLachlin, in obiter, continues re treatment of causal uncertaintyBasic test is the but for test, even for multi-cause injuriesNever been displaced - remains the fundamental testIn special circumstances, a material contribution test is used instead[special exception]Where it is impossible for the P to prove causation using the but for test; and(Problem: if it's impossible to prove causation using the BFT, then no causation!)The D breached a duty of care owed to P, thereby exposing P to unreasonable risk of injury, and P suffered from that injury(looks a lot like McGhee)Applying but for test to deny liability would offend basic notions of fairness and justiceSo while in Snell, the court opted for the inference of causationMcLachlin brought in material contribution as a way to estimate causationNo need for an inference - causation is estimated if D materially contributed to riskBut is proving a contribution to risk the same as proving cause of actual harm or contribution to actual harm? McLachlin's obiter means that P does nto have to prove causation in cases of factual uncertaintyBut merely that D contributed materially to a risk of the injury that occurredThis is, in fact, something P has to prove under standard of care - D failed to take reasonable care and created a risk of injury which materializedMcLachlin destroyed causation in factual uncertainty... ?Clements v ClementsMs. Clements was riding pillion on a motorcycle driven by Mr. ClementsMotorcycle 100lbs overload (negligent act)Nail punctured rear tireWhen D accelerated to pass another vehicle, nail fell out, tire deflated rapidly, and motorcycle began to wobbleMr. Clements was able to slow down, but not enough to regain controlOr to permit him and Ms. Clements to get off without significant injuryCrashed, Ms. C thrown offMs. C sustained severe traumatic brain injuries; sues, through litigation guardianFor insurance purposesMr. Clements didn't dispute he was negligent driving an overloaded bike too fastIssue was whether his negligence caused Ms. C's injury, or tire puncture and deflationFactual uncertaintyTJ: invoked material contribution test as in ResurficeImpossible for P to prove causation on BFT, D materially contributed to P's injuryCA reversed on the basis that the 'but for' test not satisfied - material contribution didn't applyHere we have a tort cause, and a non-tortious causeWe don't recognize this as being SCC, per McLachlinBasic rule is the BFT - scientific proof or precision not required - TJ can take robust and pragmatic view of the factsAs an exception, P may succeed by showing D's conduct materially contributed to the risk of P's injuryBut there is a need to flesh out the 'impossibility' criterion for the latter ruleMaterial contribution rule applies, where:P has established that her injury would not have occurred "but for" the negligence of two or more tortfeasorsEach possibility in fact responsible for the injury, andP is unable to show, through no fault of hers, that any of them is the "but for" causeBasically, material contribution thing only applies in Cook v Lewis type situationsHold D liable for material contribution without evidentiary or rights rationaleMcLachlin ordered a new trial because TJ committed two errors: Required scientific proof of "but for" causationFollowed her obiter in Resurfice by applying material contribution to risk test in a case that did not involve the fact pattern she just invented?On an ExamBegin with or use the BFT (Barnett, Clements)Unless case involves joint tortfeasors or multiple causes contributing to P's harmIf joint multiple tortfeasors, use material contribution test (Corey)Can sue just one D, and they'll seek indemnity, or you can sue them all and apportionIf one cause is negligent and the other is natural cause, no causation (Kingston)If first cause is negligent and responsible for full loss, second subsequent cause (whether tortious or not) is irrelevant (Sunrise Co)First cause, full causeIf the first cause remains concurrent cause together with a second tortious intervening cause, first D remains liable for losses linked to her negligence (Baker; Jobling)If first cause is negligent and second intervening cause is innocent, latter can be taken into account in damages against first D, ie apportionment (Jobling)If one cause is negligent and the other is non-tortious, negligent D is fully liable (Athey)No apportionmentBad rule: inconsistent with Kingston and the BFRTake away: do not apportion losses between causesThinks Athey should have been decided on the BFRIf there is factual uncertainty, and one of the possible causes is negligent, draw an inference that the alleged negligence caused the actual harm by taking a robust and pragmatic view of all the facts (Snell, Clements, McGhee (Reid))If multiple possible causes, all negligent, asses multiple contribution to risk of injury?Loss of Chance [not on exam, doesn't apply in Canada]Knee injury - full recovery, 40%60% chance you'll never recover, regardless of negligenceNegligence hurts kneeCan sue for the 40% chance of recoveryTypically in negligence, seek to restore to 100% stateWhere D claims I have a 40% chance of recovery - not enough to satisfy the but for ruleBut for D's negligence you might not have recovered (?) kind of weird rule??Defenses to Negligence Claims?What actions of the plaintiff might disqualify or limit her recovery? ?Three defenses(1) Contributory Negligence(2) Voluntary Assumption of Risk(3) Illegality?Contributory NegligencePlaintiff's failure to take reasonable care for her own safetyWhich contributes to the accident or her loss/damage [very important - if you skip it, you have not done the full analysis]Partial defenseD remains liableAbsolves D of liability to the extent of P's contributionContributory Negligence Act, RSA 2000 C-27Just codifies the common law Apportionment of liability - s 1When by fault of 2 or more persons damage or loss is caused to one or more of them, the liability to make good the damage or loss is in proportion to the degree in which each person was at faultBut if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability shall be apportioned equally?Voluntary Assumption of RiskPlaintiff is taken to have consented to the risk of harm generated by the defendant's negligenceVolenti non fit injuriaFull defense?IllegalityEx turpi causa non oritur actioOut of a base cause, no action can arisePlaintiff engaged in illegal conduct in the course of suffering damage should not be permitted to recoverYou break into someone's house, then fall down a flight of stairs in state of disrepairComplete defense?Contributory Negligence?Butterfield v Forrester (KB 1809)D obstructed highway with a pole while making repairs to his homeP left the public house at duck, on his horseWhich he was riding 'violently' (not intoxicated...?)Struck the obstruction, was thrown from his horse and was seriously injuredWitness said he would have seen the obstruction if riding the horse slowerTJ instructed jury that if P could have avoided the obstruction by taking reasonable care, they should find for DWas this instruction correct? Bayley J: Yes. P was riding too fast and hey would not have been hurt if he employed ordinary carLord Ellenborough: P should not be able to take advantage of another's fault if he fails to use ordinary careComplete defence approach no longer the caseLiability is apportioned?Davis v Mann (Exch 1842)D driving at a smartish pace - negligently ran over and killed P's donkeyArgued that P was also negligent tor tying the donkey facing highway with forefeet 'fettered'Court held not CN because D could have avoided injuring the donkey if he had exercised proper careParke B: "Although the ass may have been wrongfully there, still the defendant was bound to take actions to prevent mischief"No negligence on the part of the D - P should have avoided the accident to begin with Donkey did not cause injury - D's negligent driving didTo be contibutorily negligent, P's negligence must be causative of the injuryLast clear chance ruleThis Act applies if damage is caused or contributed to by the act or omission of a person, whether or not another person had the opportunity of avoiding the consequences of that act or omission and failed to do soYou didn't take the one last clear chance to avoid injury, so no liabilityThis rule has been done away with by the contributory negligence actLast clear chance rule is no longer validSection 3.1 (or around there)Think about it - still negligent right?CN is negligent conduct by plaintiff, which contributes not merely to the accident, but to the damage?Froome v Butcher (ECA 1975)P driving at speed limit, but not wearing seatbeltHead on collision with D, who was passing illegallyP suffered injuries to his ribs, and a broken fingerFinger injury could not have been prevented by wearing seatbeltNot about what caused the accident, but what caused the damageP testified he did not wear seatbelt because he thought he was better served by being thrown from carNot necessary if you're driving in good conditions below the speed limitTJ awarded ?450 and would have reduced award by 10% if required to do soShould damages be reduced for failing to wear seatbelt? YESP argued that D caused the accident, not his failure to wear seatbeltNOQuestion is not what caused the accident, but what caused the damageBoth the accident and failure to wear seatbelt caused the damageNot a criminal offence to fail to wear seatbeltNo criminal liability does not amount to immunity to civil liabilityPersonal autonomy?If I honestly believe it is safer to not wear a seatbelt, why should the law interfere?Standard of care is not subjective, but objectiveForgetfulness? Sorry. Too bad. Also negligenceWearing a seatbelt is the sensible thing to doWhat share of liability should fall to the plaintiff? If failure to wear a seatbelt made no difference, no contribution, no reduction of damagesIf failure made all the difference, then 25% reductionIf failure made considerable difference, then 15% reduction?Lewis KlarHow about a parent who fails to ensure young child is wearing belt or properly buckled in? In Canadian seat belt cases, courts all overFailure to wear seatbelt generally unreasonableBut sometimes, accept flimsy excuses that run counter to FroomeShould a legislative requirement to wear seatbelts be determinative in such cases? No - think to statutory breach - should not be determinativeHow about a parent who fails to ensure young child is wearing belt or properly buckled in?Sue mom and the guy who caused injury?Voluntary Assumption of RiskArises where P is taken to have consented to risk of harm generated by D's negligenceUsed to be a very broad defenceMerely exposing oneself to a known risk of another's negligence was enoughNow, more restricted and difficult to establishSCC: D must prove an agreement, whether express or by implication, whereby P has consented to accept both the physical and legal risk of the injury from D's negligencePhysical risk: actual physical harm that would occur Legal risk: waive right to sue/bring an actionIf there's a risk and P accepted that riskDrunk friend, get into car asking for a ride - that's volentiAlso CN though (partial defence)?Dube v Labar (SCC 1986)P and D, friends, were on all day binge drinkingDriving back from Whitehorse, they stop to pick up hitchhikers (P driving)Car stalls After brief exchange, P and D switch placesCar flips, P is injuredD argued volenti, inter aliaJury accepted defence, Yukon CA upheldSCC upheld jury verdict, but restricted the scope of the defenceD must show that P, knowing of the virtual/certain risk of harm (knowledge of physical risk)Bargained away her legal right to se for injuries incurred as a result of D's negligence (knowledge of legal risk)Acceptance of risk may be express or implied from the conduct of the partiesBut requires understanding on part of both parties that D assumed no responsibility of P, and P agreed to thisP must have an understanding! Must highlight or point out the clause waiving legal rightVolenti likely inapplicable in vast majority of drunk driving or willing passenger casesLack of awarenessCN still an option!?Crocker v Sundance Northwest Resorts Ltd (SCC 1988)Grossly intoxicated P participated in inner tube race down a mogul rain on a ski hillSeriously injuredIgnored advice from D to withdraw from raceD argued volentiCourt: given P's level of intoxication, he could not have appreciated and accepted physical or legal risk of injuryNo volenti, but 25% contributory negligence?Waivers and VolentiFrequently used in commercial, sporting and recreational eventsValidity usually determined by applying the law of contractNot enforceable unless reasonable notice was given to P of its termsIssue: irrespective of a waiver's significance in contract law, does it lend support to a volenti defence?In Crocker, SCC refused to enforce waiverBecause P did not read it and thought it was just part of form to enter raceSo it was voidCf Dyck v Manitoba Snowmobiling Assoc. Inc (SCC 1985)P snowmobiler, crashed his machine at a race sponsored by DSigned waiver gave rise to a volenti defenceHow do we reconcile these cases?P in Dyck had read the waiver and had better understanding of its terms? But did he have a clear understanding of what the waiver really meant?Arguable he didn't have an understanding of what the waiver meantBottom line: For a waiver to apply, there must be reasonable notice and clear understanding (and acceptance) of its termsMake sure to give people the opportunity to read the waiver, draw attention to important provisionsGood way to do it in two forms - waiver and forms saying "I have read and understand the waiver, and will sign the waiver"?LabellingIs the warning on a product label sufficient to allow a manufacturer to say that user voluntarily accepted the physical and legal risks of product ?Lambert v Lastoplex (SCC 1971)Manufacturers have a duty to warn consumers of dangers inherent in use of their productsApplicable standard of care is to take reasonable steps to provide warnings that allow product to be used safelyNature and extent of warning required depends mainly upon the nature and degree of danger posed by productP, engineer, using a special fast-drying lacquer to seal the floors of the basementFact that engineer, D contends, is NB because of work standardsFurnace, in adjacent room, had a pilot lightFire - P tried to exit but explosion caused burns and property damageLacquer came with a warning label that substance should be kept away from open flames and high heat - very general warningCompeting product had much more specific warningRisk of explosion/fire from pilot lights and light switchesHigh danger, need a specific warning!TJ: for P, no volenti or CNCA: for D, volentiSCC: For P, full recoveryJudgment principally fully focused on duty to warnHave to provide enough warning commensurate with the productDuty requires explicit disclosure from manufacturerBecause of failure to warn, D can't argue volentiThat is, D had to prove that P appreciated/understood the (legal and physical) risk of leaving pilot on, and willingly took that riskWithout proper warning, knowledge of that risk can't be establishedIrrelevant of if he's engineer or notNo proper warning or failure to warn, no volentiNo CN either, even though P had some special knowledge, at least in general terms of inherent dangersFact that he was an engineer, without more, is not enough to make him contributory negligent?IllegalityEx turpi causa non oritur actioOut of a base cause, no action can arisePlaintiff engaged in illegal conduct in the course of suffering damage should not be permitted to recoverYou break into someone's house, then fall down a flight of stairs in state of disrepairComplete defenseAlso restricted considerably over time?Hall v Hebert (SCC, 1993)P and D, young gentlemen, spent the evening drinking lots, including in a field, into the early hours of the morningThey then take a drive in a 'souped up muscle car' down the road that was so bumpy that the keys fell out of the ignitionD turned the car around and suggested that they do a 'rolling start' - P asked if he could drive, D agreesP tries to jump start vehicle, but gives it too much gasCar goes off the road into a gravel pit, landing upside downP sustains significant head injuries; sues D alleging various acts of negligenceD argues ex turpi - accident happened in the course of committing illegal actTrial judge - ex turpi does not applyOnly crime jointly (?) committed was drinking in a public place, and that was not causative of damageWhat matters is what P was doing at the time of damageP was operating vehicle under the influence of alcoholCA (five justices, unanimous judgment)Ex turpi appliesSCC reversed and restricted doctrineCory J [treat as minority judgment]Focuses on second arm of Anns test - question best dealt with as part of public policy inquiryBasically tried moving this to duty of care analysisehhhPublic policy does not bar the plaintiff's recoveryPermitting his recovery would not shock the conscience of right-thinking members of society fully apprised of facts!The doctrine of ex turpi causa should be eliminated from application to tort casesIllegality should be just another factor examined under the second branch of AnnsAsk: as a matter of public policy, should the illegality of the P's conduct disentitle him or her from recovery?Case at bar - noDoes the illegality then mean that D owes no duty of care?Will this shock the conscience of the public? Is liability excused?McLachlin J [follow this one]Traditionally, basis of illegality rule is to prevent a person from profiting from his/her wrong (ex: murderer collecting on life insurance)If this is the basis of the rule, then it should have little impact on tort law, because tort law is compensatoryThe only damages we should disallow are those that would lead to a windfall or profit Has to make the plaintiff better than they were at the beginningP should be able to recover if notFew classic exceptions(1) claim for damages for lost earnings based on illegal profession or activity (2) Bar to recovery where a claim for exemplary damages might otherwise be granted - no windfall damagesExemplary damages - damages against the defendant for egregious conduct to make an example/punish the DNo role for ex turpi besides these exceptionsClaim in tort law is generally not a claim to a profitRather, for compensation, aims to restore P to original positionTraditional rationale - to prevent persons from profiting from wrong - does not apply to tort law - except for the exceptions aboveProfit as a term is too ambiguousBetter explanation is that doctrine would apply where allowing recovery would introduce inconsistency in tort lawLaw must aspire to be unified, coherent, with all parts in harmonyThis need to internal coherence demands a bar to recovery for that which is illegalThat is, for that which violates another part of the lawThis is why tort law allows a defence of illegality - to protect the legal system from incoherenceEx: P caught committing burglary due to negligence of fellow criminal cannot successfully recover cost of imposed fineBecause this allows criminal P to off-load punishment that society has deemed he should receiveWhat type of analysis will best achieve the purpose of protecting the legal system from incoherence? Cory J: matter of public policy determined in the duty inquiry per AnnsMcLachlin disagrees, for 3 main reasons(1) Duty is about relationship between P and D, and is predicated on foreseeability, not morality of P's conductIllegality is best viewed as a defence rather than a matter of duty of careAlthough P has established a cause of action in negligence, D's responsibility for the wrong is suspendedBest to allow the defendant to assert and prove the defense of illegalityBetter have a good reason for allowing a criminal to recover - need harmony between the different types of lawBecause of concerns for the integrity of the legal system(2) Dealing with illegality at duty stage creates new problemsBurden of proof - if illegality goes to duty, then P will have to disprove illegalityDuty is all or nothing, which means all of P's claims would be wiped outIf defence, properly understood, it can be applied to certain heads of damage, such as profits from illegalityWhile not affecting compensatory damagesIf you're trying to profit from illegality or get a windfall, strike downONLY compensatory damages, disallow the others(3) Under contract, D has to prove illegalityWould be ironic to impose burden on D for a breach of contract part of a case, while imposing the burden on P in tort portion of caseNot good to be inconsistent between contract law and tort lawIn present case, P is seeking only compensatory damagesNot seeking to profit from wrong, so no possibility of incoherence in the lawTrial judgment upheldEx turpi does not generally apply to tort law, save where P is seeking to profit from illegal activityHow about the following:Burglar who falls down stairs in state of negligent disrepairMurderer, fleeing from police, slips on icy sidewalkMurderer who sues manufacturer of murder weapon for defect that injured him in the course of committing offence?Limitations ActMore in Civ ProP must bring action within specified time limitsGenerally, two years from the time P knew or ought to have known of claim - whichever expires firstOr 10 years from when claim aroseTime stops for P under disability - functional disability, dependent adult, minor not under actual custodyFraudulent concealment may stop the clock?Damages: Pecuniary LossNegligence requires proof of actual damageUnlike some torts, which are actionable without proof of damageOne of the elements to prove in establishing negligenceArises mainly in personal injury casesLiability will be admitted in vast majority of cases - only question is what is the claim worth? Point of tort law is to compensate plaintiff - restore him or her to pre-accident position (status quo)Law allows for punitive and aggravated damagesAggravated damages are compensatoryEX: For humiliation, embarrassment or distress caused by nature and gravity of D's wrongdoingPunitive or exemplary damages are awarded where D's conduct is so outrageous, vicious, malicious, or despicableSuch that is warrants a severe reprimandEX: Intentional injuryViewed as exception to compensatory normRestoration to status quo impossible in personal injury casesBest the law can do is to provide, to the extent possible, monetary compensation as substitute for status quoAlso damages for some thing such as pain or loss of enjoyment of lifeCourts giving you money as an approximation with the intent of returning you to the status quo as best as possibleHow do courts determine that amount? Focus mainly on personal injury?Damages for wrongful deathSpouse or children of deceased victim sue for supportNo CL cause of action Provinces have adopted fatal accidents legislationConfers on surviving spouses and children (sometimes parents) the right to sue for losses arising from wrongful death of relativeDamage to propertyChattelsIf altered or no longer available, measure of damages is the valueBut what is value? Destroyed chattel: purchase price or depreciated value? Because tort law seeks to return P to status quo or pre-accident position, value may reflect measure of depreciationValue is therefore market value at time of accidentDamaged chattel - measure of damages is diminution in valuePre-accident value minus post-accident valueDepreciation accounted for Ask: what's the pre-accident value? And what's its value now? If cost of repair is less than diminution, courts will often award cost of repairMay award cost of repair in some cases where higher than diminutionSubject to mitigation principlesMitigationP must take all reasonable steps to mitigate her lossP can recover for costs incurred in taking such reasonable stepsP CANNOT recover for losses successfully mitigatedD has option of proving P failed to act reasonably to mitigate lossFailure to mitigate may result in reduction of damagesNeed reasonable opportunity to mitigate!D must show that this opportunity was presentJaniak v IpolitoP suffered serious back injury due to D's negligenceP was informed that if he had corrective surgery, there was a 70-75% chance of full recoveryHe would return to work thereby mitigating future income loss10% chance of a "poor result" including 1% chance of quadriplegia and 0.1% chance of deathP refused surgerySCC: refusal amounted to a failure to reasonably mitigateBalance of risk versus consequences of refusing surgery meant P should have had surgeryAbsent psychological condition which precludes rational decision-makingFear of surgery does not justify unreasonable failure to have an operationDamages reduced?Personal Injury?Andrews v Grand & Toy Alberta Ltd21 year old man suffered injury, rendered quadriplegic from motor accidentLost bowel, bladder, sexual functionsHad to reposition in bed every two hours; restricted respiratory functions; needed constant careLiability not an issueP contributorily negligent, and damages apportioned at trial (75% to D, 25% to P)TJ awarded about $1mill; reduced by CA to ~$500kIssue: 75% and 25% of what?Lower courts disagreed on legal principles applicable to assessment of damagesPrior to Andrews, courts had a tendency to make global awards (and still do)No consistent breakdown of or no breakdown at all of heads or categories of damageNo explanation or itemization of how amounts are arrived atOften a lump sum grabbed out of thin airCreated possibility of undercompensation or overcompensationNo guarantee that similar cases would be treated similarly - a hallmark of our justice systemDickson CJC:It is NB that P is not a vegetable or piece of cordwood but a human of above average intelligence with an unimpaired mind who wants to live as other people doSpecifically, he wants home care, not institutional livingDivide damages up into heads of damage!(1) Special damages ($77,344) - receiptable expensesCompensate P for damages that can be specified, ie calculable because they were actually incurred prior to trialIncludes pre-trial losses such as past income loss, past care costs, and other out of pocket expenses Generally not controversial because they have already been incurredNo need to speculate - P proves by providing receipts(2) General DamagesCompensation for future losses and other damages (past pain and suffering) that can't be precisely quantified at the time of trialSome quantification or value is ascribed to them for purposes of providing P with a damage awardGeneral damages therefore includes pecuniary damages (losses calculable in monetary terms)Future losses --> future care, lost earning capacity (future income) As well as non-pecuniary damages (losses that can't be calculated in monetary terms)Ne receipts for these kinds of damagesEven though we don't know the exact value, courts will have to estimate Generally 3 kinds(1) Pain and suffering(2) Permanent Disability/Disfigurement(3) Loss of expectation of lifeGeneral Damages - Pecuniary - Future CareEncompasses various costs associated with treatment or care that are yet to be incurredNursing, personal attendant services, user fees, home or auto modification, etcAnything arising from treating the injury or associated with ongoing disabilityProbably the most important head of damage for plaintiffsCourts typically most generous on this oneEx: Future costs of home care - $4135/mo (Generous by 1978 standards)Only alternative is institutional care, assessed at $1000/moTJ awarded home care; CA awarded institutional care; SCC awarded home careWhy? (1) point of damages is to put P in pre-accident position, which is living in a home and not an institution(2) Therapeutically the best option for P(3) Cost mostly taken care of by liability insurance anywaysMethodology for awarding costs of future care: (1) set the amount(2) account for variety of factors that impact on ultimate amount to be awardedLife expectancy: 50 --> 45 (5-year reduced life span for quadriplegics)So if 50 years is the normal life expectancy, we knock off 5 yearsNot on the hook foreverContingencies of lifeAdjust amount to account for future events that might increase or decrease cost of future carePositive or negative adjustmentTypical contingencies associated with cost of future care: P might require periods of hospitalization (cheaper than home care)If admitted, cheaper than having him at home - so need to discount from awardMight benefit from social services (thereby saving on costs) Need to discount this tooMight have to pay for special equipment (thereby spending more)Ie something new, like new kind of wheelchairUpward adjustmentSo you adjust upward or downward with future cost of care consideredTJ discounted award by 20% for 'contingencies and hazards of life'Conventional approach at the time, based on assumption that negative contingencies will outweigh positiveCA further discounted xx%, seemingly to reflect P's reduced 'duration of life'BADSCC: "duration of life" already accounted for under life expectancyConsistency is gooooood20% discount is speculative but acceptable because any other number would be just as speculativeSide notesAndrews did need hospitalization alterToday, courts tend to deal with contingencies on a case by case basisOften conclude it is zero - negative and positive likely to cancel each other outOr that discount should be much less than 20%Capitalization or discount rate (adjustment for inflation and rate of return on investment)Inflation - adjust upwardsCourt assumes that because damage award is intended to last for 45 years, it will be prudently invested by P Question is what rate of return should be assumed by the court? Take present rate of return on long-term investmentsSubtract inflation rateViewed flexibly: 10% less 3.5% --> 7%Capitalization discount on 45-year award is significant7% per year over 45 yearsAward would have been $2million without this discountAlso, Dr. Deutsch's prognostications regarding inflation rate turned out to be wrongWent up over 20%; P undercompensatedSome provinces have legislated the capitalization/discount rateRea and Bale excerpts critical of capitalization/discount rateAff'd by Dickon J in Lewis v Tood & McClureQ of fact: TJ has a great deal of discretion"Gross-up" for tax on the interest earned on the lump sumCount for the impact of taxation on the income generated from lump sum awards for cost of future careDiscount for return of investment, then add taxDickson J viewed tax burden as difficult to predict, and disallowed the accountingHowever, now accepted as a proper head of damageTypically increases by 30-40%?General damages - Pecuniary - Loss of earning capacityAKA Future income loss; prospective loss of earningsWe gaze more deeply into the crystal ballBut for the accident, what sort of career would Mr. Andrews have had? Not the same as past income loss - no extrapolation from PLNot the same as present earnings - head looks at loss of earning capacityLost capacity is a capital assetWhat is that capacity/asset worth? Conceivably worth more than present earningsCourt adopted valuation based on the current line of workNo consideration of possibility of educational advancementRather, SCC focused on his current work and mid-range salary in assessing earning capacityMethodology:FIRST: Estimate P's future earnings, then deduct from it the amount that P is still capable of earning (= 0 since P not capable of earning anymore)$0 because he's quadriplegic - so the number that comes up is what he'll have to get for future earningsTrial award: he was earning $830/mo as apprentice for CNMaximum for that line of work was $1750 CA/SCC: $1200 Conservative but reasonable estimateGross incomeWhy not give him $1750? Why not assume he'll cap out?OGBOGU thinks unfair award - would have awarded $1750SECOND: determine length of time over which the P would have earned incomeAndrews could have retired at 55 with a full pension Why not use 65? Why use expected working life span (55) rather than reduced post-accident life expectancy (45)? Lost capital asset is capacity prior to accident, not post-accidentWhat is the P's working life expectancy over the period between 23 and 55? 30.81 yearsTHIRD: Apply contingenciesIncome level is set ($1200) and the time level is set (30.81)Deduct contingencies such as 'unemployment, illness, accidents, and business depression'SCC sticks with conventional 20%Today, courts will look at positives as well - promotion, salary increases, possibility of earned income beyond retirement, age, etc. FOURTH: apply capitalization for return on investment (same as in cost of future care)?RECAP: TORT LAW DAMAGES FOR PERSONAL INJURY(1) Special damagesPast/pre-trial income lossPast/pre-trial care costsOther out-of-pocket expenses(2) General damagesPecuniaryFuture care costs: Annual cost * life expectancy ± [contingencies of life] - [Capitalization (rate of return on LTI - inflation) + Gross upLost earning capacity[(Lost future earnings - Residual earning capacity x remaining working life ± contingencies of life - [Capitalization (rate of return on LRI - inflation)]Non-pecuniaryPain and sufferingPermanent disability or disfigurementLoss of life expectancyLoss of "golden" years?Courts have also recognized two additional heads of pecuniary damage: (1) Loss of capacity to carry out homemaking servicesP, prior to injury was a stay-at-home spouse, or singleCalculated on the basis of the cost of replacement homemaking services(2) Diminished ability to establish a permanent relationship with another personP is catastrophically injured or disfigured or has suffered a head injury or some other type of injuryWhich reduces the likelihood of being able to establish a permanent relationship with another person Because two persons can live together more cost-effectively than separateAnd P has lost to some degree the opportunity to realize those savings?Please see textbook for Andrews damages calculationThe SCC didn't give him a gross-up?Non-Pecuniary LossesNot easy to determine the "quantum" (appropriate amount) of damagesYou don't have anywhere to start from - have to do an estimateNo objective market value for NPLCourts ascribe a value anywaysMoney does not provide true restitutionIf nothing of market value has been lost, then question is what artificial value to ascribe to lossArea characterized by judicial concern for overcompensationIn Andrews, Dickson CJ notes wildly extravagant awards in the USStruggled with what numbers exactly to put to themNot down to do what is done in the USUS awards aren't that extravagant - oddball jury awards are actually infrequentOften reduced on appealMainly punitive damages, which are tightly controlled by Canadian courts and rarely exceed $100,000Liebeck v McDonald's RestaurantsLady in NM ordered 49c cup of coffee from McDonald's drive thruSpilled coffee on her lap; gets scalded; suesJury awarded her $160000 (20% contrib)PLUS $2.7 million in punitive damagesOverall award was reduced to $640000 by TJOverall parties appealedCase eventually settled out of court for undisclosed amount[hot coffee documentary on netflix]Actual facts: She suffered 3rd degree burns covering 16% of her bodyRemained in hospital for 8 days and underwent skin graftingFollowed by two years of txEvidence that McDonald's required franchises to serve coffee at 82-88?C (180-190F)Which would cause 3rd degree burns in 2-7 secondsCompetitors served coffee at substantially lower temperaturesTheir QCM testified that goods hotter than 140F were a burn hazard, and coffee would burn the mouth and throatWitnesses testified that McD didn't plan to reduce temp of coffeeDocuments showed a number of complains between 1982-1992Including prior complains of burnsSo - overall award is at least understandable and even reasonableExample of good advocacy on P's part - to up the punitive damages Facts provide informed judgment - avoid snap/unfounded judgmentDickson CJ probably overstates US situationDickson's approach in Andrews - place CAP on non-pecuniary awardsUninformed?Non-pec awards have a functional basis - $ to provide solace for P's non-pec damagesAndrews is a mentally alert but catastrophically injured young manThat is as bad as it gets (well, we don't know that)Says this is worse than being a vegetable - he is aware of circumstancesAs such, he needs solace for his injuriesBut the award can't be limitless or over-compensatoryGot the cap - $100,000 [OGBOGU THINKS UNFAIR]Lindal v LindalCAP should be adjusted for inflationJan 2017: $368,946 - current capstatisticsCourt will award less for lesser damagesIs a cap on non-pecuniary damages a good application of judicial discretion? Matter for legislature? Is the cap justified? Lee v Dawson - BCCA hinted that CAP was a bad ideaIndicated it might limit CAP to catastrophic injures in the futureIn AB, non-pec damages have been limited by statute in certain circumstancesMinor Injury Regulation, Reg 123/2004Minor injuries (sprain, strain, whiplash, etc)Capped at $4000, adjusted for inflation from 2007Currently $5020 (Jan 1 - Dec 31, 2017)Constitutionality of minor injury cap challenged in: Morrow v ZhangP was diagnosed with grade 2 whiplash following MVA, would have received non-pecs in excess of capTJ ruled that minor injuries distinction was based on a personal characteristicAmounted to discrimination of grounds of physical disability in violation of s 15 of the CharterABCA reversedRE: Non-pec awardsJuries (rare in AB, more common in BC, ON) tend to award less than judges for relatively minor injuries (ie whiplash) But award more, sometimes above the cap, in cases of catastrophic injuryCourts of Appeal reduce award to CAP on appeal Collateral BenefitsWhat happens where accident victims receive benefits from third party sources? EI, ECB, private disability insurers (sick pay; group insurance plans)That is, benefits that are 'collateral' to the damage awardShould courts deduct the amount of the benefit received from the damage award?[Will likely be on EXAM]Two scenarios: Scenario A:X paid into a disability insurance plan that reimburses 80% of regular income in the event of injury that prevents her from workingIf injured by Y and unable to work, should a court deduct that amount from income losses? Scenario B: What if X's plan was paid for by her employer? If X is allowed to recover as if no collateral benefits existed, then we have a problem of DOUBLE recoveryIf collateral benefit is deducted and D pays only NET LOSS, then D has the windfall benefit of X's foresight or employer's generosityAllow X full recovery, but require her to pay back collateral benefit to insurerAll three approaches have been used by courtsGeneral RuleP is entitled to full compensation, but no more. No double recovery. No windfallUse this rule on the examPrivate insurance exception If P paid out of pocket for the collateral benefit, then the value of benefit should not be deductedP is entitled to full recovery of damages from D + full value of collateral benefits funded out of pocketDoes the exception extend to employer-paid insurance? P notionally paid for it as it is part of an agreed compensation packageRatych v BloomerPolice officer injured in MVA due to D's negligenceContinued to receive full salary while off work for several months pursuant to terms of collective agreementAlso, did not lose any accumulated 'sick credits' Should employment benefits be taken into account in assessing damages for loss of earnings? SCC: deduct employment benefits to avoid double recoveryBasically, let D goMeasure of damages should be 'actual loss'Private insurance exception does not apply absent evidence that employee contributed to the fund from which benefits were paidNo evidence, no exceptionCf: Cunningham v WheelerP received disability benefits from employer under terms of the collective agreementBasically accepted a lower wage to get the benefitsAs benefit goes up, wage goes downNo deduction from his pay for the disability benefitsTJ accepted evidence that collateral benefits was an important aspect of collective agreement negotiationsIf benefits increased, hourly wage goes down and vice versaHeld: 4-3 - no deduction as benefits fall within private insurance exceptionIf you can show that you offered something up then this worksBecause some type of consideration was given up by employee in return for the collateral benefitThe bargaining trade-offs between wages and benefits constituted such considerationOther kinds of consideration: Direct contribution by employeeP gives up some money (eg, EI) in return for benefitBenefit is part of employee's work package/wages - employee worked for itTrial courts decline to deduct if there is the slightest evidence of some consideration or contribution from employeeSection 570(3)(4): Awards must be reduced by aggregate of (inter alia): Certain no-fault benefits received under a vehicle insurance KAlberta Health Care Insurance benefitsPrescribed income continuation or replacement benefitsDisability pension benefitsWorker's compensation benefitsNB: Net of tax, contributions and premiums paid by the employeeRegardless of private insurance exception, in AB you will have damages reduced to account for what you're getting from this list of benefitsBut you get back your premiums and the tax you paid in relation to those premiumsLump sum or periodic payments? Bottom line is lump sumIssue: should damage awards be paid by D as a lump sum or periodically, as it is incurred? At CL: damage awards must be single lump sumAdvantages of periodic payments: adjustable to contingencies; removes guesswork; avoids overcompensationPeriod payments in some provinces but lump sum is the general rule (avoids the disadvantages of periodic payment)Disadvantages: administrative costs: lack of finality or certaintySCC rejected periodic payments and ruled in favour of lump sumsA matter for the legislature, not the courtsCL perspective: lump sumON, MB, and BC have enacted legislation providing for periodic payment alternativeWhat do you think of a publicly-funded no-fault scheme for damages resulting from negligence?Perhaps this scheme is better?Young plaintiffsAndrews formula particularly difficult to apply to young plaintiffsEspecially as relates to lost earning capacityYoung plaintiffs typically don't show aptitudes that allow us to assess that head of damageArnold v Teno: P was 4 YO rendered quadriplegic when struck by D's car on way to purchase ice creamTJ relied on educational level and vocational circumstances of parents/older siblingsP's mother was a teacher; court awarded $10,000 per yearONCA agreedSCC: NOSpence J: We can't assume she will follow her mom's leadOr that she will be a washout or public chargeReduced award to halfway between trial award and poverty line - $7500Plus 20% deduction for contingencies of lifeIs this fair? (No)?Occupier's LiabilityLiability of an occupier of land to persons who enter onto the landSomeone in control of landNeed not be an owner or lessorCould be a tenantSomeone with authority to grant or refuse entryLargely governed by statuteCases typically involve personal injury suffered by plaintiff while using defendant occupier's propertyWhy create a special area of tort law to deal with such cases? Is negligence law not enough? Occupier - Proximate relationship - VisitorDuty of care - negligent act - causation - no remoteness - damageOL easier to prove than negligence CL developed as a discrete area of tort lawPrior to when general tort of negligence was recognizedGrandfathered! Ps invariably bring claims in both areas - if one fails, the other might succeedStatutory cause of action may be limited ('using' language in AB and BC statute)OL under the CL (in SK and NB)Four graduated standards of care (cf two under AB statute)Matters whether visitor is a trespasser, licensee, invitee, or contractual entrantTrespass vs Kual entrant (less to more onerous care)TrespasserOriginally, no duty owed by occupier to make premisesSafeHowever, occupier to refrain from intentionally or recklessly injuring trespasserIn 1970s, HL introduced duty of humanity standard to be applied on a case-by-case basisDuty of Humanity determined by looking at:Gravity and probability of injuryCharacter of the intrusionNature of the premisesForeseeability of the trespasserLicensee: Visitor who has express or implied permission to be on landExpress: social guestImplied: Mail carrierOccupier has a duty to prevent injury to licensee from hidden dangers that the occupier has actual knowledge ofAll you'd have to show is that D was aware of hidden dangers and did nothing to prevent that injuryInvitee: someone with permission and in whose visit the occupier has an economic interest - ie, store customerOccupier's duty has duty to take reasonable care to prevent injuries caused by foreseeable or unusual dangersContractual entrant: person who enters land under the terms of a contractual agreementTicket holder to Oiler's gameAbsent contractual terms to the contrary, and reasonable notice of those terms: Occupier has duty to make premises as safe as can be made with reasonable skill and careStatutory reform has simplified standard by creating broad overarching duty of care that applies to all or almost all entrantsD must make premises safe unless there's something on the ticket excluding liability?Occupiers' Liability ActBRING THE ACT INTO THE EXAMNote: definitions of occupier and premisesTwo categories of entrants: trespassers (ss12-13) and visitors (everyone else) (ss 5-11)Occupier: Person who is in physical possession of premises, or, who has responsibility for, or control over, condition of premises, activities conducted on the premises and persons allowed to enterThere can be more than one occupier (co-owners, owner + tenant)Premises: Extended definition - goes beyond the usual suspectsExcludes aircraft, motor vehicles and non-specified vehicles and portable equipmentVisitors: ie non-trespassersEntrant as of right - person permitted by law to enter without occupier's permission Contractual entrantAny other lawful entrant (guest, licensee)Trespasser in retreat: Person whose presence becomes unlawful after entry and who then takes reasonable steps to exitSection 5 - common duty of careOccupiers owe visitors a common duty of care to take reasonable care to see that the visitor will be reasonably safe in using the premisesPractical effect is to impose common law duty of negligence on occupiersProvided visitor is using premisesOther effect is increasing CL duty owed to licensees and decreasing corresponding duty owed to Kual entrantsTrespassers(in BC: no distinction between trespassers and visitors - general duty owed to all)AB statute distinguishes between visitors and trespassersHow trespassers are treated ends on whether they are regular/ordinary trespassers or childrenNO duty of care owed to ordinary trespasser, unless injury or death to trespasser results from occupier's intentional or reckless conductChild trespassersIf the occupier knows or has reason to know: (1) that the child trespasser is on the occupier's premises, and(2) that the condition of or activities on the premises pose a danger of death or serious bodily harm to the childThen occupier owes duty to take reasonable steps to see that the child will be reasonably safe from dangerFactors to consider in determining if duty has been discharged: (1) Age of the child(2) Child's ability to appreciate the danger(3) Burden of removing the danger/protecting child versus risk posed by the danger to the childCullen v Rice P, 16-yo high school student, went to a restaurant for dinnerRestaurant had a well-known rule - teenagers must leave promptly after finishing mealNo hanging around, punksP, who was aware of rule, refused to leave when asked to do soIn a bid to evict P, employee pushed him towards/into restaurant door, made of glassGlass door failed to open, shattered, and cut PIssue: what duty was owed to P under OLADepends on if he is a visitor, regular trespasser or child trespasserVisitor: common duty of care (s 5)Regular trespasser: no duty unless injury results from wilful or reckless conduct (s 12)Child trespasser: common DOC - but depends on age of child; ability to appreciate the danger; burden vs risk (s 13)Held: NOT a child trespasserRegular trespasser, but P's injury not the result of wilful or reckless conduct by DWilfulness of pushing directed at eviction, not injuryWhich legal regime is better for ordinary trespassers?CL: duty of humanity - individual circumstances of caseSection 7: Volenti [legal and physical risk?]General duty owed by occupier does not apply to risks willingly accepted by visitorSection 9: WarningA warning, without more, does not absolve occupier of duty to visitor, unless enough to enable visitor to be reasonably safeRoasting v Blood BandP ventured into a construction site (bleachers in a grandstand)Bleachers were off-limits because of absence of guard railingsP had been specifically warned not to go thereIgnored warning, went to bleachers, fell off and was seriously injuredIssue: did the occupier satisfy statutory duty under s 5 of the Act?Romaine J:Do the premises present reasonably foreseeable risk to persons exercising ordinary care and diligence? YES - unprotected bleachersDid the occupier take reasonable steps to ensure that users of the premises were reasonably safe? Occupier (D) argued that warning amounted to reasonable stepHeld: Warning was sufficientReasonable steps need not be physical barrierSection 8: variation of duty of careLiability to visitor may be extended, restricted, modified or excluded by express agreement or noticeOnly if reasonable steps are taken to bring the extension to the visitor's attention??Government liability?Used to be immune from tort actionPetition of right procedure required permission from Crown to sue Crown [pt][t]Federal and provincial governments have adopted legislation permitting legal proceeding against the CrownProceedings Against the Crown ActConsistent with other provincesSection 5Crown can be sued in tort as if it were an ordinary person, for: (1) Torts committed by its officers, agentsDirectly or via VL(2) Breach of duties owed to servants and agents as their employer(3) Breach of duties linked to ownership or possessory interests in property(4) For actions taken under statute, regulation or bylawMunicipalities did not have immunity at CL Typical actionsMisfeasance in a public officeNegligence(all you really need to know - hey yes you can sue the Cr)Misfeasance in a Public OfficeNew emerging tort - most actions against public authorities based on negligenceDeals with claims of intentional misconduct by Cr through its agentsIntentional, not negligent conductTough to find situations where Cr intentionally hurts someoneThree requirements(1) Actor must be a public officialDefined widelyUni-Jet Industrial Pipe Ltd v Cana (AG)RCMP officer divulged information to media regarding details of searches prior to execution of search warrant(2) Activity in issue must relate to an exercise of a statutory authority or powerIE: statutory expropriation schemesWhat if the alleged misfeasance relates to a failure to perform a statutory duty? Is such failure an activity relating to the exercise of a statutory authority or power?Odhavji Estate v WoodhousePolice officers failed to cooperate with an investigation into a fatal shooting involving the officersONCA drew distinction between failing to perform a statutory duty and improper exercise or abuse of powerSCC: NONo basis for the distinction(3) Wrongdoing must be intentional(A) Public official knowingly acts beyond his power or jurisdiction (ultra vires)(B) Public official acts within power/jurisdiction, but for improper purposeRoncarelli v DuplessisSee slidesAdmin law tooWhere D is an elected official, BCCA has cautioned against imputing bad faithHave to find evidence of wrongdoing!! First national Properties Ltd v Highlands (District)Developer sued Mayor for frustrating efforts to develop landMayor wanted land preserved as park [nothing inherently wrong here]Mayor surreptitiously disclosed information obtained by virtue of his position to third party purchaser (NCC)Developer's planning and zoning application delayed and deniedBecause NCC had purchased some tracts of landTJ: found against Mayor for abuse of public officeBCCA reversed on grounds that mayor acted IV and his advocacy for land preservation was well knownMayor acted without malice or motive to gain private advantage (ie not bad faith)No confidential information disclosed by Mayor to NCCPreservation of land a proper municipal purposeWhat if government official doesn't know or care if they have exceeded their authority?Then, that 's enough to prove intention - to act for an improper purposeCourt doesn’t care if you didn't knowThree Revers District Council v Bank of Englad (HL, 2000)Alberta v Nilsson (2003)?Government NegligenceMost government activities are judged according to the ordinary principles of negligence lawSame analysis as with private bodiesSlight difference: public official causing MVA in the course of their dutiesOr, gives out negligent advice on which others relyPublic officials owe duties of care like everyone else, and must conform to the legal standards of careWhat applies to us applies to themIssues arise where governmental conduct relates to political activity, policy-making, budgetingSeparation of powers - accepted principle that executive to make decisions without having the courts scrutinize them at all timesIf those things are subject to judicial review, then governments wouldn't be able to actCourts reluctant to impose negligence law on these kinds of activities unless statute requires them to do soPronouncements generally made with respect to legal matters or implicationIe where charter breachWhy?(1) Democratic concern: government officials should be exclusively accountable to those who elected them - no second guessing by courtsIE if gov makes a budget that doesn't offend the law then they won't interfere Hinders democracy(2) Pragmatic concerns: Courts lack access to expertise and resources to get involved in such activities(3) Floodgates concerns: Litigation might proliferate if such decisions are reviewableEX: if government makes a law requiring vaccinationYou can challenge that law on the basis that it offends Charter rightsThat's the end of it though if the courts find to the contraryRe: efficacy - not up to the courts - they don't have the expertise for that evaluationCooper v Hobart (2001, SCC) Stage 2: "External" PolicyThis is contrary to what's above! This kind of analysis is the same kind that courts don't like to do / outside purview! Don't use CvH in examQuestions around the competency and legitimacy of courts second-guessing political and policy decisionsPolicy-operational distinctionWay to determine what matters are reviewable or notBottom line: if court characterizes it as a true policy decision by the government, then no evaluationIf operational, then it can be reviewed by the courtsAmounts to operational decision/actionNo liability to government if it's pure policyCourt's cannot review it!Liability if operationalPolicy decisions: questions about whether and how to implement a government program (discretionary)Not reviewableOperational decisions: questions around actual operation or delivery of the program once it is implementedReviewableKamloops v Nielson (SCC 1984) Brought Anns test into CanadaMunicipality failed to enforce bylaws and prevent completion of a house with defective foundationsInspected twice, two 'stop work' orders, not built according to approved plansFailed to actual halt the completion of the houseBuilder, to the building inspector's knowledge, completed the buildingOwner city alderman and builder's father) moved inSold house to P, who discovered defects and sued the city...but what's the harm here? Pure economic loss - no actual harmAll that was lost was the cost of fixing the defective buildingOne class that's allowed in Canada (1 out of the 2 of 5 that you can get relief for)Majority of SCC imposed liability on Kamloops on grounds that the matter was largely operationalWhy? (Wilson J)Municipalities have statutory authority to enact bylaws to regulate construction of buildings, and to ensure enforcement via inspectionDeciding whether or not to act on that authority by enacting bylaws and setting up an inspection system is policy matterThe way the bylaw is actually implemented is operationIe decided to act/not act upon the Once said bylaws are enacted and inspection system set up, manner in which it is operated is operational matterPolicy-operational distinction not the last word on the matterGov can still my liable for failing to consider whether or not stat power should be exercisedCity might still be liable in the absence of bylaws and an inspection systemFor failing to consider whether it should have instituted bylaws and systemIn making policy decision, decision-maker must act in good faithIE: no improper purpose or unreasonable decisionsIf there's evidence of this to disadvantage someone specifically in bad faith then this is reviewable by the courtsBad faith/improper purpose = reviewablePre-policy is reviewable by the courtsPolicy is not Policy decisions are not justiciable in tort law - cannot expose government to liabilityDifficult precedent to apply(Policy vs operation will not be on exam)Just v British Columbia (SCC 1989)Winter, Highway 99 - major commuter road from Whistler to VancouverTraffic at standstillLarge boulder which had come loose from steep wooded slopes above crashed down on P's carKilled P's daughter and severely injured PEarlier rock falls - plus freezing and thawing and heavy snow buildup on treesAll creating a high risk of rock fallsThere is a system set up by the Dept of Highways fro inspection and remedial workRock work engineer carried out visual inspection for risk of rock instabilityReported findings and recommendations to District Highways ManagerWho submitted requests for provincial rock scaling crew to be sent itIssue: is the decision to adopt a visual inspection system a policy decision? McLachlin J (BCSC)Says policy decision, not reviewable by courtGovernment, as a matter of policy, adopted a system of visual inspectionsUnless it can be shown that Mr. Oliver conducted visual inspection negligently, then no liabilityCA affirmedSCC reversed (Cory J)Allegation of negligence here fell within the operation aspects of governmental ____That is, the initial decision about WHETHER (NOT HOW) something will or will not be donePolicy decisions usually made at high levels of authorityAnd involve considerations such as budgetary allocations or other political mattersBeyond this, everything else (manner and quality) is operationalChanges the meaning of operationalDecisions about how to implement are under 'operational'Manner and quality includes resource allocation and other discretionary mattersSopinka J dissentingExtent and manner of inspection program is policyOgbogu thinks Sopinka is rightCf Brown v BCP driving from Gold River to Campbell River30 mins out, skids off icy patch on highway and over embankmentSuffers catastrophic injuriesThree other accidents occurred on same stretch of highway that morningBC Dept of Highways had instituted program for snow and ice maintenance on highwayTwo work schedules - winter and summerAccident occurred in November - fell in 'summer'Highways Department crew still on summer maintenance scheduleWas the department's decision to maintain summer schedule a policy or operational one? Cory J: POLICYDecision to maintain a summer schedule, with all that is entailed in terms of reduced service, was one of policyInconsistent with earlier decision in JustInvolved classic policy considerations of financial resources, personnel and significant negotiations with gov unionsCan only be impeached if an improper or irrational exercise of discretion or made in bad faithBut, is it really a threshold decision as per Just? Not matter of whether something should or should not be done about snow/iceBut more one of how to go about itBottom line: threshold decisions - definitely policy: Never call it operationalManner and quality of system established by threshold decision: Definitely maybeSwinamer v AG Nova ScotiaDeals with pre-policy, same year as brown 1994P injured when tree along highway, which had Dutch Elm disease, fell on P's truckProvince had initiated a preliminary program of identifying and flagging trees with the diseaseWanted to make decision on policy once it had established the scope of the problem - such as immediate removal, gradual removal, etc. PRE-POLICYAccident occurred during pre-policy period - is this reviewable? Two interpretations(1) decision to determine the scope of the problem before making a policy decision was in and of itself a policy decisionCory J, etc(2) No private law duty on public authority until it makes a policy decisionBecause it's pre-policy, no private law duty [McLachlin and LaForest]Ogbogu thinks this is rightPre-policy not reviewable unless it fails to make a decision with respect to whether or not they should carry out their actionsNo pre-policy liability unless government should have at least adopted some policy in the interimException does not apply here as province was acting reasonably in the first trying to inform itself about the scope of the problem before decidingPOLICY: NOT REVIEWABLEPRE-POLICY: NOT REVIEWABLE - unless government should have at least adopted some policy in the interimOPERATIONAL: REVIEWABLE?NERVOUS SHOCK (PSYCHIATRIC HARM)Courts are suspicious of claims based on psychiatric harm, especially if a secondary victimJust another type of negligence claim - do usual negligence analysis - varies with remoteness and proximityTestable on exam, re if DOC is owedSecondary persons - didn't suffer direct physical or psychiatric harmPsych harm affecting 2? victim NB - have to spot thisCases where alleged damage can't be tested or assessed by way of visual inspectionPsych injury can be damaging tooLargely some suspicionNot objectively verifiable - issues take us to subjective recesses of aspects of science that are less intuitiveTypically pose remoteness problems regarding whether specific kind of damages was foreseeableVictorian Railway CommissionersCoultas was in a horse-drawn carriage with husbandApproached a level railway crossing, railway employee negligently lifted barrier to allow them cross, which led them into path of an oncoming trainThey cross, but Mrs Coultas faintsMedical evidence shows she suffered severe nervous shock from fright of being in the path of the oncoming trainFound for P, PC overturnedReason: all nervous shock is too remoteSince Coultas... Expansion/contraction - FLUXLiability if P is also physically injured (kinda expansion?)If you have physical injury and psychiatric harmLiability if P is in a zone of danger (expansion)Liability for reasonably foreseeable shock (contraction)Liability for reasonably foreseeable shock suffered by proximate P (contraction)Why suspicious? (1) Little agreement on what nervous shock is: Dependent on physical injury? Mental reaction to physical stimuli? Purely psychological reaction? (2) Lack of scientific consensus on how the mind interacts with the bodyLaw reflected prevailing scientific opinion(3) Divergent opinion in the Commonwealth on how to apply DOC to NS claimsProximity between D and P? McLoughlin v O'BrienP learned her husband and three children were in a car accidentShe visits them at hospital where she is told one of the children passed awayShe sued the negligent driver for nervous shock [she is the secondary victim here!]Say: There is a secondary victim on the factsTell him if they recover or notLower courts: injury was not foreseeableCA agreedHOL reversedMajority applied Anns - foreseeability + no policy reasons for negating dutyAnns does not require proximity - only foreseeability!Injury was RFDirect injury to P or directly witnessing accident not necessaryEnough that victim is P's spouse or child, and P witnessed, by sight or hearing, the immediate aftermath of the accident?Alcock v Chief Constable of the South Yorkshire Police [CITE THIS]Hillsborough Disaster of 1989FactsSoccer game at Hillsborough stadium in Sheffield, South YorkshireHigh steel fencing placed between spectators and pitch due to hooliganism concernsFans arrived early and there was buildup of fans outside turnstiles at one end of the stadiumBottleneck, about 5,000 fans involvedPolice decided to open outer exit gate that didn't have turnstilesThousands spilled into stadium - crush - about 95 dead, 400+ injuredAnother died 4 years later16 plaintiffs bring action claiming damages for nervous shock alleged to have been caused by seeing or hearing news of the disasterAll of them are secondary victims! Police admitted negligence and liability to those injured or killed, but argued that no DOC was owed to NS claimants2 plaintiffs were actually there; 14 was on TVTJ: found for 10/16 PsCA: none could recoverHL: affirmed CA - no DOC owedIssues:Are the Ps sufficiently close to the victims? Can a brother recover? Brother in law?(Just because someone is your brother doesn't determine the matter) Relational proximity is importantDoes viewing a simultaneous broadcast of the incident qualifying as witnessing by sight or hearing? Is shock caused by viewing a broadcast enough? Visual or aural proximityDoes it matter that P did not witness 'immediate' aftermath? Locational/temporal proximityLord Ackner: Claims under this category have very specific features - absence of those features disqualifies the claimAs with every negligence claim, the risk of psychiatric illness resulting from shocking event must be reasonably foreseeable(Anns)To limit volume of potential claims from shocking events, only 'proximate' plaintiffs can recoverPlaintiff's that are 'proximate' to primary victim and to the accident or its immediate aftermathWe impose this to limit the volume of potential claimsIn nervous shock cases, you have to show proximity!! (EVEN ON EXAM)Nature of claim - the following must be present in the facts or else the claim won't succeedPre-negligence analysis for nervous shock cases(1) Shocking event must result in recognized psychiatric harm - grief isn't enough(2) Only psychiatric harm induced by shock can be the basis for recoverPsychiatric harm caused in other ways, such as from caring for disabled relative is not enough(3) Shock and resulting psychiatric illness must arise from seeing or hearing the shocking eventNot enough to merely be informed of, or to read or hear about itIe reading about it in the paper is not enough(4) Shock must be sudden appreciation by sight or sound of horrifying event, which violently agitates the mindSlow accretion of grief not enoughDuty of Care analysis: Caparo - reasonable foreseeability + proximity + no policy reasons negating dutyAt the time the cases was decided, Caparo was still law so proximity fell under DOCForeseeability - not really an issue in AlcockIs it RF that the psychiatric injury suffered by the Ps would affect the persons of ordinary fortitude? Proximity AnalysisControl mechanism - only proximate plaintiffs can recoverThree elements of the proximity analysis - all requiredRelational Proximity: Is P within a class of persons whose claims should be recognized? Relationship to 1? victim? Locational/Temporal Proximity: Is the shock suffered by P close both in time and space to the accident or its immediate aftermath? Visual/Aural Proximity: Did P actually see or hear the shocking accident or its immediate aftermath? Primary vs Secondary victimsPs are not "primary victims" - ie they were not directly affected by the incident resulting from D's negligenceThey are secondary victims - affected by virtue of a relationship with a primary victimDistinction taken into account in proximity analysisRelational ProximityIs P's relationship to the primary victim sufficiently close such that it is reasonably foreseeable that P would suffer nervous shock if primary victim is injured? P must prove they are sufficiently close to the primary victimRebuttable presumptionD can challenge itDecided on case-by-case basisCloseness not assumed by actual relationshipFactual matter that must be proven! Locational/Temporal ProximityShock must occur close in time and space to the accident or its immediate aftermathShock from subsequent identification qualified, but not too long afterMcLoughlin - 1 hour after - fineAlcock - 8 hours after - NOVisual/Aural proximityP must actually see or hear incident or immediate aftermathCould be in person or through simultaneous broadcastIf TV, suffering of primary victim must be portrayed (generalized portrayal isn't enough)Why nobody in Alcock succeededRelational: Not established at trial that there was close relationship between primary and secondary victimsLocational/Temporal: Only Harrison and Alcock, present, but didn't find out about the fate of relatives until much laterVisual/Aural: Harrison heard on the phone hours later/Alcock found out in morgue 8 hours laterAll others watched on TVP's couldn't prove all three elements of proximityIn the UK, Alcock is still good law?Reception in Canada?Rhodes v CNR P's son killed in train crash in AB; CNR admitted negligenceP hears of death from third party days later in Vancouver - didn't see bodyHeld: no locational/temporal/visual/aural proximityBut what if P saw newspaper photos of accident immediately after the crash?Might meet some proximities ?Vanek v Great Atl. And Pac. Co 11 year old Eva consumes contaminated juice at school, is fineParents are not; develop stress related complicationsHeld: DOC analysis based on foreseeability and recognizable psychiatric harm (Anns/Kamloops)P did not witness actual eventNot extremely distressingComplete normalcy in immediate aftermath?Why Ogbogu likes AlcockIt's very clear re: what it wantsCan be clearly appliedIs it an NS case? Does it meet the 4 criteria? Then,Is a DOC owed? Proceed with proximity?Cf MustaphaCA/SCC: NOCulligan owed Mustapha a DOCSOC was breached, but P's injury was too remote to warrant recoveryNo person of ordinary fortitude would have foreseeably suffered this kind of injury from seeing flied in an unopened bottle of waterDifferences between Mustapha and other casesPrimary vs Secondary victimHow do we handle the duty of care (foreseeability/proximity/policy) analysis for primary victims?Does P have to prove specific injury (NS) or simply personal injury of whatever kind? Is it enough to say you suffered some harm, or psychiatric harm? Majority in Page v SmithIt should not matter that the physical illness suffered by the P operated through the medium of the mind or nervous system without physical injuryIf you can show some kind of injury, it's good enoughYou've shown damageIf you're Mustapha and you have physical injury to show as well, psych may be too far, but let's say he gets sick - that's closer DonoghueSaw the snail - if the NS claim didn't succeed then she can fall back on her having gotten sick from the beerIf both, discuss Alcock and also standard analysisIf nervous shock, don't forget about the physical injuryYou can address both? ................
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