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Table of Contents TOC \o "1-4" \h \z \u Table of Contents PAGEREF _Toc35931785 \h 1Introduction PAGEREF _Toc35931786 \h 4Ewaniuk v 79846 Manitoba Inc. (Bar) [1990] PAGEREF _Toc35931787 \h 5Sources of Tort Law PAGEREF _Toc35931788 \h 5Should Tort Law be Replaced? PAGEREF _Toc35931789 \h 6Blum & Kalven, Public Law Perspectives on a Private Law Problem: Auto Compensation Plans PAGEREF _Toc35931790 \h 7Little, “Up with Torts” PAGEREF _Toc35931791 \h 7The Social Insurance Perspective: Sugarman, “A Restatement of Torts” (1992) PAGEREF _Toc35931792 \h 8Atiyah, “The Injuries in the Twenty-First Century: Thinking and Unthinkable” (1996) PAGEREF _Toc35931793 \h 8Civil Liability for Sexual Assault in Aboriginal Residential Schools: The Baker Did It PAGEREF _Toc35931794 \h 9INTENTIONAL TORTS PAGEREF _Toc35931795 \h 10ASSAULT PAGEREF _Toc35931796 \h 10Herman v. Graves, 1998 ABQB 471 PAGEREF _Toc35931797 \h 11Stephens v. Meyers, (1830) 172 ER 735 PAGEREF _Toc35931798 \h 11Babiuk v. Trann, (2003) SKQB 420 PAGEREF _Toc35931799 \h 11BATTERY PAGEREF _Toc35931800 \h 12Consent PAGEREF _Toc35931801 \h 12Informed Consent PAGEREF _Toc35931802 \h 13Allan v Mount Sinai Hospital, (ONSC, 1980) PAGEREF _Toc35931803 \h 14Bettel v Yim (1978 – Toronto) PAGEREF _Toc35931804 \h 14Malette v Shulman, (ONCA, 1990) PAGEREF _Toc35931805 \h 15H. (B.) v. Alberta (Director of Child Welfare), 2002 ABQB 371 PAGEREF _Toc35931806 \h 15Norberg v Wynrib (1992, SCC) PAGEREF _Toc35931807 \h 16E (Mrs) v Eve (1986 SCC) PAGEREF _Toc35931808 \h 16Reibl v Hughes (1980, SCC) PAGEREF _Toc35931809 \h 18Arndt v Smith, SCC PAGEREF _Toc35931810 \h 18Hollis v Dow Corning Corp (1995 SCC) PAGEREF _Toc35931811 \h 18SELF DEFENCE AND PROVOCATION PAGEREF _Toc35931812 \h 19Wackett v Calder (1965, BCCA) PAGEREF _Toc35931813 \h 19Gambriell v Caparelli (1974, ON Count Court) PAGEREF _Toc35931814 \h 19DEFENCE OF PROPERTY PAGEREF _Toc35931815 \h 20DISCIPLINE OF CHILDREN PAGEREF _Toc35931816 \h 20Canadian Foundation for Children, Youth and the Law v Canada (Attorney General) PAGEREF _Toc35931817 \h 20TRESPASS TO LAND PAGEREF _Toc35931818 \h 21Turner v Thorne and Thorne (Ontario High Court, 1959) PAGEREF _Toc35931819 \h 21STRICT LIABILITY PAGEREF _Toc35931820 \h 22Rylands v Fletcher (1865, England) PAGEREF _Toc35931821 \h 22Richards v Lothian (1913, PC) PAGEREF _Toc35931822 \h 23Read v J Lyons & Co Ltd (1947, HL) PAGEREF _Toc35931823 \h 23DEFAMATION PAGEREF _Toc35931824 \h 24Defences PAGEREF _Toc35931825 \h 25Globe & Mail v Boland (SCC, 1960) PAGEREF _Toc35931826 \h 28Defamation Act, RSA 2000 PAGEREF _Toc35931827 \h 28Awan v Levant (2014 Ontario Superior Court) PAGEREF _Toc35931828 \h 29Hay v Platinum Equities (2012 ABQB) PAGEREF _Toc35931829 \h 29Vander Zalm v Times Publishers (BCCA, 1980) PAGEREF _Toc35931830 \h 30WIC Radio v Simpson (SCC, 2008) PAGEREF _Toc35931831 \h 30Grant v Torstar Corp PAGEREF _Toc35931832 \h 31VICARIOUS LIABILITY PAGEREF _Toc35931833 \h 33London Drugs Ltd v Kuehne & Nagle Int’l Ltd (1992 SCC) PAGEREF _Toc35931834 \h 34Lister v Hesley Hall (2001, HL) PAGEREF _Toc35931835 \h 34VICARIOUS LIABILITY CLAIMS FOR SEXUAL ASSAULT/ABUSE OF INDIGENOUS CLAIMANTS PAGEREF _Toc35931836 \h 35Blackwater V Plint PAGEREF _Toc35931837 \h 35K.L.B v British Columbia (2003) PAGEREF _Toc35931838 \h 36NEGLIGENCE PAGEREF _Toc35931839 \h 38Nature of Negligence PAGEREF _Toc35931840 \h 38Defences PAGEREF _Toc35931841 \h 39FIRST ELEMENT: NEGLIGENT ACTS PAGEREF _Toc35931842 \h 39Vaughan v Menlove (1837, CP) PAGEREF _Toc35931843 \h 39Buckley v Smith Transport (ONCA, 1946) PAGEREF _Toc35931844 \h 40Roberts v Ramsbottom (QB, 1980) [WRONG: DO NOT CITE] PAGEREF _Toc35931845 \h 40Mansfield v Weetabix (CA, 1998) PAGEREF _Toc35931846 \h 40YOUTH PAGEREF _Toc35931847 \h 41McHale v Watson (HCA 1966) PAGEREF _Toc35931848 \h 41R v Hill (SCC 1986) PAGEREF _Toc35931849 \h 42McErlean v Sarel (ONCA 1987) PAGEREF _Toc35931850 \h 42STANDARD OF CARE PAGEREF _Toc35931851 \h 42Learned Hand Test PAGEREF _Toc35931852 \h 43Bolton v Stone PAGEREF _Toc35931853 \h 43Wagon Mound No 2 (PC 1967) PAGEREF _Toc35931854 \h 44Latimer v AEC (HL, 1953) PAGEREF _Toc35931855 \h 45Consolidation of Cases PAGEREF _Toc35931856 \h 45The Role of Statutes PAGEREF _Toc35931857 \h 45Saskatchewan Wheat Pool v The Queen (SCC 1983) PAGEREF _Toc35931858 \h 45Whistler Cable Television v IPEC Canada Inc. (1992 BCSC) – cannot use on exam (WRONG) PAGEREF _Toc35931859 \h 46YO v Belleville (City) Chief of Police (1991 ONGD) – cannot use on exam (WRONG) PAGEREF _Toc35931860 \h 47Custom and Reasonableness PAGEREF _Toc35931861 \h 47Trimarco v Klein (NYCA, 1982) PAGEREF _Toc35931862 \h 47The T.J Hooper (2d Cir, 1932) PAGEREF _Toc35931863 \h 48Malcolm v Waldick (1991 SCC) PAGEREF _Toc35931864 \h 48Ter Neuzen v Korn (SCC 1995) PAGEREF _Toc35931865 \h 48PROOF OF NEGLIGENCE PAGEREF _Toc35931866 \h 49Byrne v Boadle (Exch, 1863) PAGEREF _Toc35931867 \h 49Fontaine v British Columbia (SCC, 1998) PAGEREF _Toc35931868 \h 49STANDARD OF CARE IN MEDICAL NEGLIGENCE CASES PAGEREF _Toc35931869 \h 50Sylvester v Crits PAGEREF _Toc35931870 \h 50Tailleur v Grande Prairie General PAGEREF _Toc35931871 \h 50Wilson v Swanson (SCC 1956) PAGEREF _Toc35931872 \h 51LaPointe v Hopital Ve Gardeur PAGEREF _Toc35931873 \h 51DUTY OF CARE PAGEREF _Toc35931874 \h 53Winterbottom v Wright (Exch, 1842) [Pre-Donoghue] PAGEREF _Toc35931875 \h 53Donoghue v Stevenson (HL, 1932) PAGEREF _Toc35931876 \h 53Deyong v Shenburn (1946, CA) PAGEREF _Toc35931877 \h 55Palsgraf v Long Island RR Co (NYCA, 1928) (little weight in Canada – do not use in Canada) PAGEREF _Toc35931878 \h 55Home Office v Dorset Yacht Co Ltd (1970 HL) PAGEREF _Toc35931879 \h 56Anns v Merton Borough Council (1978, HL) PAGEREF _Toc35931880 \h 56Caparo Industries v Dickman (1990, HL) – Two-part test overruled Anns PAGEREF _Toc35931881 \h 57Cooper v Hobart (SCC 2001) PAGEREF _Toc35931882 \h 57Practice Case PAGEREF _Toc35931883 \h 58James v BC (2005 BCCA) PAGEREF _Toc35931884 \h 58Childs v Desmoureaux (SCC 2006) PAGEREF _Toc35931885 \h 59DUTY TO RESCUE PAGEREF _Toc35931886 \h 60Haynes v Harwood (CA 1935) PAGEREF _Toc35931887 \h 60PSYCHIATRIC HARM (NERVOUS SHOCK) PAGEREF _Toc35931888 \h 61Primary Victim PAGEREF _Toc35931889 \h 61Saadati v Moorhead (2017 SCC) PAGEREF _Toc35931890 \h 61Secondary Victim PAGEREF _Toc35931891 \h 61Alcock v Chief Constable of the South Yorkshire Police (HL 1991) “Hillsborough Disaster” PAGEREF _Toc35931892 \h 61GOVERNMENT LIABILITY PAGEREF _Toc35931893 \h 63Kamloops v Nielson (1984, SCC) PAGEREF _Toc35931894 \h 63Just v BC (1989, BCSC/SCC) PAGEREF _Toc35931895 \h 64CF Brown v BC (1994, SCC) PAGEREF _Toc35931896 \h 64Swinamer v AG Nova Scotia (1994, SCC) PAGEREF _Toc35931897 \h 65NEGLIGENT MISREPRESENTATION PAGEREF _Toc35931898 \h 66Hedley Byrne & Co Ltd v Heller (HL 1963) “Donoghue v Stevenson of pure economic loss” PAGEREF _Toc35931899 \h 66Deloitte v Livent (2017 SCC) [Canada application of negligent misrepresentation] PAGEREF _Toc35931900 \h 67CAUSATION PAGEREF _Toc35931901 \h 69Pre-emptive Causation PAGEREF _Toc35931902 \h 69Duplicative Causation PAGEREF _Toc35931903 \h 69Lambton v Mellish (Ch D, 1894) PAGEREF _Toc35931904 \h 69Corey v Havener (Mass SC, 1902) PAGEREF _Toc35931905 \h 70Barnett v Chelsea & Kensington Hospital Mgmt Comm (QB, 1968) PAGEREF _Toc35931906 \h 70Natural Cause + Tortious Cause PAGEREF _Toc35931907 \h 70Kingston v Chicago & NW Rwy (Wis SC, 1927) PAGEREF _Toc35931908 \h 70Sunrise Co v The Lake Winnipeg (SCC, 1991) PAGEREF _Toc35931909 \h 70Apportionment of Loss Among Causes PAGEREF _Toc35931910 \h 72Athey v Leonati (SCC, 1996) PAGEREF _Toc35931911 \h 72Factual Uncertainty PAGEREF _Toc35931912 \h 73Sindell v Abbott Laboratories (Cal SC 1980) – Do not apply, exercise to show courts made mistake PAGEREF _Toc35931913 \h 73McGhee v National Coal Board (HL, 1972) – Commonwealth Courts approach PAGEREF _Toc35931914 \h 73Snell v Farrell (SCC, 1990) – proof of causation with factual uncertainty in Canada PAGEREF _Toc35931915 \h 74Resurfice Corp v Hanke (SCC, 2007) – obiter, material contribution to the risk (confused – use Snell instead) PAGEREF _Toc35931916 \h 74Clements v Clements (SCC, 2012) – McLachlin clarifying reasoning in Resurfice PAGEREF _Toc35931917 \h 75Exam Application for Causation PAGEREF _Toc35931918 \h 75REMOTENESS PAGEREF _Toc35931919 \h 77Re Polemis (ECA, 1921) – Do not apply (WRONG) PAGEREF _Toc35931920 \h 77Wagon Mound (No 1) (PC, 1961) PAGEREF _Toc35931921 \h 77Mustapha v Culligan (SCC, 2008) PAGEREF _Toc35931922 \h 78Smith v Leech, Brain and Co (QB, 1962) – thin skull PAGEREF _Toc35931923 \h 78Cotic v Gray (ONCA 1981) – mental health and thin skull PAGEREF _Toc35931924 \h 79Novus Actus Interveniens PAGEREF _Toc35931925 \h 80Bradford v Kanellos (SCC 1973) PAGEREF _Toc35931926 \h 80DEFENCES PAGEREF _Toc35931927 \h 81Contributory Negligence PAGEREF _Toc35931928 \h 81Butterfield v Forrester (KB 1809) PAGEREF _Toc35931929 \h 81Davis v Mann (Exch 1842) PAGEREF _Toc35931930 \h 81Froome v Butcher (ECA, 1975) PAGEREF _Toc35931931 \h 82Voluntary Assumption of Risk PAGEREF _Toc35931932 \h 82Dube v Labar (SCC 1986) PAGEREF _Toc35931933 \h 82Crocker v Sundance Northwest Resorts Ltd (SCC 1988) PAGEREF _Toc35931934 \h 83Waivers and Volenti PAGEREF _Toc35931935 \h 83Lambert v Lastoplex (SCC, 1971) [Labelling] PAGEREF _Toc35931936 \h 83Illegality PAGEREF _Toc35931937 \h 84Hall v Herbert (SCC 1993) PAGEREF _Toc35931938 \h 84IntroductionTort law can turn on a number of good, compelling, argumentsIRACIssue, Rule, Application, ConclusionWhat issue are the parties fighting about? What brought them to court?Once issue spotted – what legal rule helps solve the problem?Conclude – that defendant is negligent/Charge acquitted for exampleCOMPLETE THE PRACTICE EXAMSOgbogu will mark and provide feedback if sent to himHow to Read a CaseNote the “style of cause”Who is Plaintiff and Defendant? Appellant and Respondent?What are the facts?The facts given in any case dealing with are the only facts available for resolve in that caseInterpretation of the facts is importantCannot add or remove the factsAppeal? What happened at lower court?How influential the reasoning isRatio is more influential/importantExtract reasoning to find what the course actually decidedTort: an unlawful interference with a person’s rightsOnly a tort if the law has defined it as a tortBuilt from rules dictated by judgesA new tort can be defined at any time (no boundary)What kind of rights do tort law care about?Personal / bodily integrity personal injury or harmProperty property damage / financial lossBecoming rare (stealing property is more pervasive in criminal court)Good reputation damage to reputationDefamationPrivacy (emerging area of tort) private affairs or concerns Tort law protects you from certain kinds of harms to these rightsTort law = body of legal rules and principles that govern CIVIL consequences of such interferenceTort law only cares about CIVIL natures – relations between two PRIVATE partiesEg. Punched in the faceCriminal law consequences through criminal lawPrivate (Civil) law consequences dealt with through tortCriminal?Of or relating to a crime an offence prosecuted (almost exclusively) by a branch of government punishable by lawTort law = “not criminal”Government can be involved in a tort law actionEg. Government sets up rules for commuting (ensuring safe roads) – negligent in maintaining the roadsCan sue the government if it is a matter that tort law governsPRIVATE LAW:Property law: governs the ownership of a right (acquisition or control)Contract law: governs the transfer of a rightTort law: governs the protection of a right (from interference that causes injury or loss)Tort Law vs. Criminal LawCriminalAdministration of criminal justice is a public matterCriminal prosecutions are conducted almost exclusively by a branch of governmentSeeks to punishGuilty – she/he is punishedBRD (Beyond Reasonable Doubt)TortLitigation is a matter between partiesAction is brought at the initiative of the person who has suffered injury or lossSeeks primarily to compensateVictim is compensated for injury or damage suffered as a result of the tortfeasor’s conductBOP (Balance of Probabilities)If the criminal law concludes and the defendant loses – can have great utility in civil claim for plaintiffMichael Jackson, OJ Simpson – got off on criminal trial, BUT settled in civil cliam because there is enough evidenceEwaniuk v 79846 Manitoba Inc. (Bar) [1990]FactsMs. Ewaniuk was forcibly removed by bouncers from a bar and thrown into the parking lot. Ms. Ewaniuk falls heavily and is injured.NotesLodge a complaint with the police?Bouncers may have committed a crime of assault causing bodily harmSTEP 1:Identify the particular tort that was committedTort law is made up of discrete wrongs with their own definitions and requirementsThis case: BATTERY – any indirect or intentional interference with the person of anotherSTEP 2 (Who do you sue?):The bouncers (employees)EmployerFailure to take reasonable care to select, train, supervise or control its employees (negligence)Tort committed in the course of employment (vicarious liability)ResultBouncers committed unjustifiable batteryEmployer found vicariously liableSpecial damages: $450 (drugs to combat suffering, etc.)General damages: $10,000 for pain and sufferingDefenceIf you represented the corporation (employer), what arguments would you raise in defending the vicarious liability claim? Show that the bouncer is not your employee (third party employee)Defences to battery claim?Was not intentionalDefence of a third party (show they are a serious threat to the bar)Was the judge right to award general damages in the case?Sources of Tort LawCommon law is the primary law for tort law.Occasionally legislatures have stepped in to modify the lawStatues have greater power and can overrule common law rulesPurpose of Tort LawCompensation – provide relief to the person subject of wrongdoerTypically monetarily compensatedDeterrence – helps individuals recognize risk, and deter them from the riskJustice – provides a forum for victims Redistrubtion of accident costs – spread cost of accidents across society. Advancing public policy – expression of public policy about taking care of yourself and others.Ombudsperson function – means of seeking justice against institutionsEducationShould Tort Law be Replaced?Not a tool for solving social problemsIt solves one particular problem: when there is a dispute between two peopleDoes not take a position on who erson A or B isIt’s essence is it is a tool for solving the disputeEssentionalist reasoningSome arguments: what’s the point if you have to hire a lawyer to solve a dispute?Compensation may not solve the plaintiff’s problemMay not solve the disability problem of the plaintiff“If tort law does not have a social conscience, we need to replace it”The essentialist: does not care about auto-compensation claims.Sorry, the system is set up this wayMost cases in medical negligence: proof is extremely challenging to come aboutTort law tries to solve disputes between two parties. It may not solve all the problems, but it will provide compensationEssentialist – tort law was not designed to solve these problemsDon’t like it when people interpret tort law as failing to solve problems beyond tort lawInstrumentalists oppose essentialistsBelieve tort law (law) can be used in an instrumental fashion (used to solve problems)Believe it is the primary goal to solve these problemsWhat’s the best way of avoiding wrongdoing?Any time you have the opportunity to do more (solve more problems with tort) you should do thatInstrumentalists on vicarious liability – they have the ability to pay, they are the ones who you can turn to to settle systems (accidents).Policy reasons – let’s make them pay because they have the means to solve these problems.(Aside: Sequential causation – prove that a defendant’s negligence links to the harm caused to the victim.)Failure of Tort Law Example:Medical malpractice (negligence) is extremely challenging to proveDoctor’s have established a defence through CNPA (organization of Doctor’s)New Zealand – system of no fault liabilityAn accident is an accident – the government will take care of you no matter the faultFaultThe “mind” of the tortfeasor and its role in tort liabilityIntentional NegligenceIntention to cause harm and/or Negligence FaultNo fault or strict liabilityEg. Janitor failing to put up a “slippery when wet” signNegligence (no intent)Set of facts can lead to an accidentFault as a criterion of liability:Criticism of tort law – difficult to bring cases before courts and prove faultEssentialist – Tort law funcitons on this idea of fault. It needs to balanace the interests of the victim and defendantInstrumentalist: let’s forget about fault and solve the problem at handBlum and Kalven – Big ideas of law (fault) are imprecise and have a core meaning which moves toward ambiguity at the marginInsurance premiums as a means to cure faultBlum & Kalven, Public Law Perspectives on a Private Law Problem: Auto Compensation PlansVarious objections to fault as a criterion for liability, schematized as 3 general points:We can never get enough facts about a particular accident to know whether fault was present or not;Lack of competent witnesses, split-second time sequencesEven if we had a full history of the event we would be unable to rationally apply the fault criterion because it is unintelligible;Even if we knew the history of the event and understood what fault meant, we would be deciding cases on the basis of an unsound and arbitrary criterion.Ie. Other factor’s when determining fault such as road engineering, traffic density, etc.Purpose of tort law is to compensate and not to punishKey concept for the law here is risk; what is constant in these situations is the amount of negligent risk taken – and this is a factor which is independent of the harm that actually occursThe drivers who take more risks of a given magnitude (ie. Driving 80 mph through the city) are more likely to be in accidents than those who take fewer risks of the same magnitudeThe basic difficulty with the common law fault rule in the auto world is that it leaves too many victims of auto accidents uncompensatedThe common law never has had info about the incidence of recovery which would follow from the application of its liability rulesIts commitment to fault as a basis for shifting losses is independent of any estimates of how many losses will thus be shifted.Little, “Up with Torts”The basis of the law of torts is to serve as a lawful civil mechanism to separate intolerable extremes of human behavior from the vast bulk of behavior that society mission of a wrong imports violation of rightTortious wrongs comprise intentional, wanton and malicious acts, negligent acts, and also “non-natural” acts that are perilous to neighbors.Once the line between liability and impunity has been drawn, what then?Restoring the status quo is the target of tort remedy once liability is established. Compensation by the award of money has become the typical tort remedy involving injury to persons and pensation the most practical remedial expression yet discoveredHowever, compensation is not the goal. Truncating moral wrongdoings of civilians is the goal.**Institute a comprehensive compensation system for all victims of accidental injury:Proportionality and mutuality:The ordinary person with self-help as his only remedy may be expected to confront the risks that are proportional to his capacity to protect himself against and that are also proportional to the risks he has the capacity to expose others to.More instutionalized activities become (complex societies):Self-help tort fades and personal accountability fades.This justifies more gov’t interventionOn one hand:Tort law is foundational to democratic governance (minimal government intervention, individual responsibility, personal accountability)Cultural and political values exceed the economic cost it may haveOn the other:Eliminate excesses,Institute nontort regulatory/compensation plans to regulate sophisticated societiesThe true purpose of tort law is to stop people from behaving pensation in the form of remedy is the most practical remedial expression yet discoveredIf tort law is not telling people how to behave properly.. what is its purpose?The Social Insurance Perspective: Sugarman, “A Restatement of Torts” (1992) Discussion of different methods to ensure proper compensation and behavior controlModels do not have to be thought of as mutually exclusive, but overlapping to a degreeFive Competing institutional arrangements for handling accidents:Libertarian ModelMembers of society rely primarily upon the market to determine standards of conduct and provide compensation for accidental injuries.Voluntary market transactions determine the degree of risk people will accept in the goods and services they consume.Conservative Model (historic tor law/liability insurance option)Gov’t establishes legal rights and wrongs with respect to risk-taking beyond those created by contract.Fault is the fundamental criterion by which both wrongdoing and the right to compensation are identified.Behavior is controlled through threats to assert rights via lawsuits claiming money damages.Law reinforces pre-existing inequalities in income and wealth that were upset by the eventBy compensating for intangible loss (pain and suffering), the law caters to individual feels of indignity and outrageLiberal ModelFocused compensation plans (ex. Workers’ compensation)Little weight on individual fault: larger institutional forces are thought to be responsible for causing most injuries, and institutions are obligated to compensateCompensation not meant to be fullCollective ModelMore interventionist than Liberal modelAccident individuals not singled out upon the type of accident suffered (auto, medical, product). Accident individuals are treated as a much broader class of citizensSocial insurance: compensate the protected class and its goal is to meet basic material needs Behavior control must be accomplished independent of compensation, through gov’t regulationThe Socialist ModelProtects accident victims and others by nationalizing health care and providing a minium guaranteed income for all.Behavior control: collective commitment to risk-sharing Less freedom for individual risk-taking Atiyah, “The Injuries in the Twenty-First Century: Thinking and Unthinkable” (1996)ARGUMENT: The action for damages for personal injuries should be abolished, and its replacement left to the free market.Distributive JusticeRedistribution of certain accident costs towards the higher paid classes.Movement to replace tort liability for personal injuriesNarrow option: deal solely with road accidents and establish a no-fault system of compensation for traffic related injuriesBroader movement: national accident compensation system.Civil Liability for Sexual Assault in Aboriginal Residential Schools: The Baker Did ItEssentialist vs. InstrumentalistLaw of torts ought to have been better able to address the harms to individuals of Residential schoolsResidential school abuse survivors have sought redress in three ways:Ordinary actions in tort as individual plaintiffSurvivors may also have claimed under a dispute resolution model negotiated with the feds, some churches and the Assembly of FNClass actionsThree issues: difficulties in establishing credibility, challenges in dmage assessment, and vicarious liabilityCredibility:Flexible standard for to prove on a balance of probabilities: “the seriousness of the allegations and the gravity of consequences require a high degree of probability that the allegations are true.”Plaintiffs face insurmountable difficulties in trying to prevail over a defendant in a civil action for sexual abuseResidential school students lack merit due to their criminal background, cultural differences, etc.Quantification of Damages:Enormous challenges result when quantifying the damages in sexual assaultTort law demands strict proof for past pecuniary (monetary) loss such as expenses or lost earningsDamage awards in such cases historically did not include pecuniary loss due to lost earnings/earning capacity. This is changing now on recent appeals.Restitutio in integrum – restitution to original position.Measuring the original position is also a challenge – restitution upon the point at which the defendant is found liable (rather than date entering residential schools)Vicarious Liability:Holding a master strictly liable for torts committed by its servant in the course of employment.Bazley v. Curry: employer (non-profit corporation) was found vicarious liable for sexual assaults perpetrated by an employee at a non-Aboriginal residential treatment facility for emotionally disturbed children.Blackwater v. Plint: hinged on decision in Bazley v. Curry – vicarious liability found for sexual assaults perpetrated by a dormitory supervisor at an Aboriginal residential school.“Vicarious liability is generally appropriate where there is a significant connection between the creation or enhancement of a risk and the wrong that accrues therefrom, even if unrelated to the employer’s desires.”E.b. v. Oblates of Mary Immaculate: employer (baker) sexually assaulted a Residential school student. Vicarious liability not found as the job description removed the baker from putting him in “a position of power” over the students.Sexual Assaults in GeneralLimitation periods:Results in a challenge. There is no limitation period for sexual assault. The longer you wait, the more challenging it is to prove the case.Standard for sexual assault:Standard is higher (between BOP and BRD)Government also sheds vicarious liability (we are removed from this)Question: Why are we using the tort system?INTENTIONAL TORTSAssault, battery and trespass to landOriginate from “writ of trespass”Accidental, Negligent and Intentional ConductDefine and categorize types of tortsWhat is the nature of the defendant’s conduct?Determines whether or not a tory has been committedIntentional conduct = intentional tortNegligent conduct = tort of negligenceNot intentional, or not negligent most likely not a tort (with the exception of strict liability)Strict Liability: some accidents give rise to strict liability. Can get a defendant to compensate under this categorization.Assessing the nature of the defendant’s conductWhat did that defendant know aand appreciate about the consequences of the act?Would a reasonable person have pre-meditation to the consequences?What steps did the defendant take to avoid such consequences?Accidental conduct: the D could not have reasonably foreseen or reasonably prevented the consequences of the actNegligent conduct: the D should have reasonably foreseen and avoided the results of the act but did not (ie. The defendant was careless)Intentional conduct: the D knew, with “substantial certainty”, the likely consequences of the act, or desired them**Think of these three forms as a continuum, rather than three distinct conduct natures.Negligent torts – much more difficult to prove than intentional torts.Example:Facts: Donkey escapes from enclosure and gets hit by a carResult: Not reasonably foreseeable that the donkey would escape as the donkey was placed in an enclosure (carefully done so)Good answer: Accident. However, if I knew more about the nature of the enclosure, it may shed light on the level of negligenceASSAULTAssault: The threat of imminent physical harmDirect and intentional act that causes a person to fear immediate physical or offensive bodily harmImminent is an essential element as well.The threat of battery (bodily harm)Pointing a gun or waiving a knifeAssault is an independent cause of actionActual physical contact is not requiredThe threat does not need to be carried out (just issued)Legal wrongdoing is interfering with the victim’s sense of securityProtects you from ever being violatedPsychological distress is harm: Psychological harm is the same as physical harm (SCC judgment)Assault is actionable (per se) – do not need proof of harmA D’s conduct must cause reasonable apprehension of imminent harm.D is still liable if the threat was condition (“I’m going to shoot you unless you do what I say”)Does not matter that the defendant did not have the actual ability to cause the threatened harm.Example: D breaks into home with a musket and club and said, “if you open your mouth, I will strike you”.Conditional threat – still liable for causing reasonable apprehension of imminent harmEven if a threat is conditional, it is still an assaultExample: D and P arguing. The D comes out and points the gun at the P. Found later at trial the gun was not loaded. Assault?Answer: liable for assault, because it does not matter if the defendant had the ability to cause the threatened harmAlso, caused reasonable apprehension of harm.Herman v. Graves, 1998 ABQB 471FactsJackson was using Graves’ truck. She chased and tailgated Jesse, drove the vehicle into the rear of the car and forced it to veer off the road to a vacant lot, where it stopped. Graves exited the truck and attacked Jesse. Jesse’s parents posted a notice at Graves and Jackson’s household. Jackson claims that she was unaware of the notice.ResultJackson used the motor vehicle as a weapon of assault. Jackson was not a joint tortfeasor in the assault and battery of Jesse (by Graves). PUNITIVE DAMAGES AWARDED.ReasonPoor conduct by Jackson (ignoring the notice by Jesse’s parents)Punitive damages awarded because Jackson seems to have the means to afford punitive damages.IssueDid Jackson use Graves’ truck as a weapon of assault so as to promote the “intentional creation of the apprehension of imminent harmful or offensive contact”?NotesNo physical contract is required for an action for damages for assault. Punitive damages can be awarded.Stephens v. Meyers, (1830) 172 ER 735RatioThe threat of assault is complete despite whether or not an individual has the ability to carry out the threat.FactsP and D were at a meeting, with the P as the chairman. D sat 6-7 persons away from the P and acted very vociferous (loud and forceful) during the meeting. The motion was made by the majority of the room to kick D out of the meeting. D advanced towards P with a clenched fist and was stopped prior to being close enough to strike P. D said, “he would pull the P out of his chair than leave the meeting”.ResultVerdict for the plaintiff. Damages awarded.ReasonAdvancing with the intent to assault amounts to assault in the law. There must be the means of carrying a threat into effect, which the judge believed to be true in this case.IssueDoes approaching one with the means of executing a threat, but physically unable to, constitute an assault?Notes(Defendant) No assault committed because there was no power in the D (being far away) to execute threat. No means to execute intention = no assaultBabiuk v. Trann, (2003) SKQB 420FactsBabiuk (A) and Trann (R) were opposing players in a rugby match. Although evidence was contradictory b/w the parties, the trial judge accepted evidence from R and teammates consistent. Some parties thought A intentionally injured R’s teammate (stepped on teammates face and “raked”). Some parties thought R unjustifiably “sucker punched” A. Trial judge accepted the former story as consistent. Nonetheless, R punched A in the face and broke his jaw in two places. R was charged with assault causing bodily harm. Trial judge found R’ actions reasonable and did not constitute assault.ResultAppeal dismissed. No damages.ReasonTrann only struck once, and the urgency to protect his teammate was justified. R was reasonable in his decision and use of force.IssueWas the defence of another (a teammate) a defence available at law in action for damages for assault?If so, was the force used by Tran in defending Soulodre reasonable in the circumstances?If Trann is found liable, what is the quantum of damages?NotesTrial judge: striking an opponent in the face does not fall within the scope of the implied consent of the players to the use of forceReferenced in decision: Salmond on Torts 13th ed.: “It is lawful for any person to use a reasonable degree of force for the protection of himself or any other person against any unlawful use of force. Force is not reasonable if it is either (i) unnecessary or (ii) disproportionate.”BATTERYDirect, intentional, physical, unwanted (and unlawful) interference with the person of another.Not every touching of a person as unlawful“The slightest touching of another without their consent”Generally, that is what it takes to amount to a battery“Intentional infliction of unlawful force on another person”Ancient and underused tort (formerly known as “trespass to the person”)Includes sexual assault, spousal and child abuse, incestOne of few torts that is actionable without proof of damage.Certain non-harmful inoffensive acts not batteryKissing (without consent, offensive) = battery by definitionGrey areas (don’t know if it is battery or not) – look at relationship between persons, surrounding circumstances, social conventionActual bodily contact not only basis for battery. (eg. Throwing a stone at someone)Directness is the key:Defendant’s interference with plaintiff must be directShared burden of proofPlaintiff = Prove direct, intentional, physical and not consented interferenceDefendant = prove conduct is not intentional OR that some defence appliesDEFENCESConsentComplete defenceCan be express (please beat me up)Implied from the P’s conductLooking at circumstances, any reasonable person would understand consent Eg. Physician does not ask “do you consent to be touched”. Rather, the P would have consented to wait in line, go into office, lie on the chairChallenge = “failure to resist or protest”Sexual assault cases – victims may not resist Plaintiff gave free, full consent. Consent vitiated by duress (force or threat of force), alcohol, drugs will exploit defence.Additional note: Eg. Plaintiff is in a place of weakness to defendant (employee to employer)Consent can be revokedConsent To BatteryVolenti: consent to be exposed to risk of harm. (Eg. Consenting to bungee jumping)NOT to be confused with volenti non fit injuriaConsent to battery is consent to actual harm, not the risk of harmTo Medical TreatmentAbsent consent, all medical treatment is batteryMedical treatment must receive free and clear consent to proceedTreatment provider must obtain consentCompetent patient can reasonably or reasonably refuse treatmentOr give conditional consentAnd revoke consent at any timeChallenge: If stopping will result in harm or danger to the person’s life.“Providing care in good faith or with reasonable skill” is not a defence to failure to obtain consentVoluntariness of ConsentGeneral rule: Consent is not voluntary if obtained by force or threat of force, under the influence of drugs/alcohol, fraud, misrepresentationNorberg – SCC added one additional factor: exploitation of “power dependency” or relatively weaker plaintiffDoctor/patient relationship can fall under this “power dependency”Informed ConsentFailure to obtain consent is not to be confused with failure to provide and obtain informed consent:Failure to obtain consent = batteryFailure to provide and obtain informed consent = negligencePrior to obtaining consent, physician must ensure that patient understands:Basic nature of the treatmentThe risk of proceeding/not proceeding with treatment/benefitsAll that a reasonable patient in similar circumstances would want to knowStringent and expansive dutyIf you fail to do this, the consent obtained is still valid, it is just NOT INFORMED NEGLIGENCEFailure to informFailure to adequately inform prior to obtaining consent gives rise a distinct cause of actionNot to be confused with failure to obtain consentEven if consent is obtained, failure to inform patient to standard required by law is a tortBattery = failure to obtain consentNegligence = failure to informBattery or negligence?In medical treatment cases, battery confined to cases where there has been NO CONSENT at allOr where consent was EXCEEDEDGone beyond consent (eg. Consent to surgery, not being touched on arm)Or where vitiated by duress, misrepresentation, fraud, drugs, etc.Failure to disclose attendant risks goes to negligenceNegligence is not actionable need to establish harm (linked to failure to disclose information)Consent and capacityRule: Consent to medical treatment is only valid if given by capable individual“Capable” means ability to appreciate and understand:Nature of proposed medical treatmentPotential risks and benefitsConsequences of giving or refusing consentAge is NOT a determinant of capacity, just a factor to considerYou can have a presumption that a person is not capable Generally, there is no set age for medical decision makingPRESUMPTION: adults are capable of consenting, unless there is a reason to suggest they are notSubject to limits set by provincial statutes, capable minors can make their own medical decisionsMinors and capacity: special provincial rules (H.B v. Alberta follow-up)Quebec minors 14 or older can consent alone to “medically necessary care” (Ogbogu thinks strange criteria)New Brunswick Statutory age of consent to treatment is 16Manitoba minors 16 or older are presumed capable of consenting to medical care In ON, minors can consent to treat if they meet the test for capacity under s. 4 of the Health Care Consent ActWhere individual is incapable of consenting, a substitute decision make may act on his/her behalfThese rules amount to “presumption of capacity”Mental CapacityPeople tend to misinterpret mental illness with mental capacityDiminished capacity is a factual matterDependent on the actual circumstances at the time the treatment decision has been made. CONTEXT specificIf you lack the mental capacity cannot make the decisionSubstitute decision-maker must act consistent with patient’s past wishesOr consistent with good faith determination of patient’s best interestAllan v Mount Sinai Hospital, (ONSC, 1980)RatioMedical treatment must receive free and clear consent to proceed operation. Providing adequate and skillful care is not a battery defence. Facts P, Ms. Venita Allen, underwent D&C procedure at D’s hospital. D (anaesthetist), Dr. Hellman, administered the anaesthetic during procedure. Before procedure began, P told D: “Please don’t touch my left arm. You’ll have nothing but trouble there.” She has had some difficulty in the past with finding vein in left arm. D responded, “we know what we are doing”. D administered needle in her left arm. P subsequently developed unusual complications and suffered economic loss. Expert witness testified that D’s method was a “reasonable and customary one”.ResultOrdered special damages in full.$4000 for general damages (pain and suffering, future loss).Case overturned on appeal on technicality – P did not plead battery.ReasonNo negligence – D exercised reasonable skill in operation.Administration of anaesthetic is a surgical operation. To do so would constitute a battery unless the patient has consented to it.Without a consent, either written or oral, no surgery may be performedThis rule is an important aspect of the right to self-determination and individual right to have control over one’s own body.Physician’s duty to prove that consent was given. Clear from facts that P did not consent.Because responsibility is founded in battery, D is liable for consequences (foreseeable or not). Anything that flows from the battery!!IssueWhether a physician is responsible for consequences flowing from the lack of consent to be touched?Whether the absence of consent in a medical context results in battery?NotesEven if nothing had gone wrong with the P, D would still have to pay nominal damages.Lindel J: Cases of failure to obtain consent are distinguishable from reiblBettel v Yim (1978 – Toronto)RatioIf physical contact was intended, a wrongdoer is responsible for their actions despite whether the magnitude is intended. Law of negligence and “foreseeability” should not be imported into intentional torts.FactsP (Bettel), with a group of other boys, entered a store and went to the pinball machines. D told boys to leave the store. Half the boys left (including P). D saw P lighting matches and throwing into store. Matches set a bag of charcoal on fire, the D removed the bag from the store. The D did not see who had thrown the match which started the fire. The D saw P walking out and grabbed him by the arm. The D shook the plaintiff to obtain a confession. Eventually the D’s head struck the plaintiff’s nose. D phoned police.IssueIs there liability for accidental harm?Can an intentional wrongdoer be held liable for consequences which he did not intend?ResultYim successfully sues for battery. ReasonDefence: argued that the shaking and the striking of the P are two separate events. “The contact to the plaintiff’s nose was not intentional”If physical contact was intended, the fact that its magnitude exceeded all reasonable or intended expectations should make no difference.Law of negligence is a concept that ought not be imported into the field of intentional torts.The intentional wrongdoer should bear the responsibility for the injuries caused by his conduct and the negligence test of “foreseeability” to limit or eliminate liability should not be imported into the field of intentional torts.NotesMalette v Shulman, (ONCA, 1990)RatioInformed refusal still amounts to battery. FactsP was severely injured and taken unconscious to emergency department of D hospital. Examined by D physician, who ordered a blood transfusion. Nurse discovered card in P’s purse which read: “NO BLOOD TRANSFUSION! As one of Jehovah’s Witnesses…. No blood or blood products… I Fully realize the implications of this position…”. Physical deemed it medically necessary to save her life and proceeded with transfusion. P’s daughter arrived after transfusion commenced and strongly objected. Since the D was unaware of circumstances under which card was signed, he was not satisfied it still applied. Transfusion saved P’s life and she made good recovery from injuries. P brought suit for negligence, assault and battery.Resultgeneral damages of $20000 awarded.ReasonPhysician’s actions amounted to battery: “interest in the freedom to reject, or refuse to consent to, intrusions of her bodily integrity outweigh the interest of the state in the preservation of life and health and the protection of the integrity of the medical profession”.Doctor violated patient’s rights over her body by acting contrary to the card.“Honest and even justifiable belief” that transfusion was medically necessary is no rmed refusal is still battery. IssueWhether informed refusal still amounts to battery?Notes:Only exception = true emergency where it is impossible to obtain consentTrue emergency = serious risk of harm to the life or health of an individual, individual is in no position to give or refuse consent and it is not possible from the circumstances to deduce the individuals wishes. Harm has to be rmed refusal is not to be confused with informed consent.H. (B.) v. Alberta (Director of Child Welfare), 2002 ABQB 371RatioIn A.B., a capable child (or mature minor) can make her own medical decisions if not a child meeting need for protective services. If a child in need of protection or intervention, court or other SDM makes the decision. Capable child’s opinion may be taken into consideration in “intervention decisions”, but may not be followed.FactsB.H. is 16 and baptized member of Jehovah’s Witnesses (JW). She was diagnosed with leukemia at the Alberta Children’s Hospital in Calgary. B.H. advised medical staff she would not consent to blood transfusions. Provincial Court Judge attended hospital and commenced hearing. Director of Child Welfare was seeking medical treatment order. Father of B.H. eventually consented; B.H. still refused. Judge Jordan findings: (1) Dr. Coppes consulted doctors and results unanimous – recommended (transfusion) treatment was essential. (2) B.H. did not have life or developmental experience to refuse treatment (necessary to life). (3) Law governed by another decision. (4) Reasonable limitation of Charter – violated freedom of religion and right to equality.Issues(1) Is the treatment essential?(2) Is B.H. a mature minor?(3) Does s. 2(d) of the CWA replace the common law principle of mature minor so far as it relates to a child who is in need of protective services in the nature of essential medical treatment?(4) Subject to the answers to the questions above, have B.H.’s rights under the Charter been violated? Justified?What law governs? The common law “mature minor” rule or the CWA?ResultAppeal dismissed. (in favor of Alberta)Reason(1)Treatment is essential – B.H. has access to the best experts. The findings of the treatment for leukemia are of interest to the medical community. The treatment recommended is the only curative treatment available.(2) Judge adopts a new standard for assessing role of “certain” minors and deems B.H. was a mature minor in the common law sense – put aside the JW facts, B.H. is intelligent and sophisticated. If it is accepted that her religious views have “sheltered her,” we are opening up future dangerous circumstances.(3) CWA replaces common law principle of mature minor – language is clear, legislation occupies the field. Evidence also states that B.H.’s best interests is to have the recommended treatment. The child’s capacity becomes only one factor (not determinative).A capable child’s opinion is to be taken into consideration but not necessarily followed in intervention situations(4) CWA did not infringe on Charter or did so in a justifiable manner (s. 1 of Charter) NotesOgbogu opinion: this statute is ridiculous.Director of welfare will come to put child into state protectionIf parent refuses treatment (not taking care of child) will put child into Child WelfareStatue then describes rules of which a child in care of the state will be governed by“Mature minor” – minor who’s capable of making healthcare decisions based on the test articulated (V. arbitrary)Trial judge created an unreasonable standard for a “mature minor.” Required her to read the bible, assess life and reflect on decision based on religious views, etc..This case has arisen because trial judge has deemed the CWA rule to apply. If he/she did not make this decision would not have happened.Statutory framework “covers or occupies the field” – common law mature minor principle does not govern.Norberg v Wynrib (1992, SCC)RatioConsent is vitiated when there is (a) power inequality between parties, and (b) defendant exploits that inequalityFactsYoung female drug addict sued physician for, among other torts, battery. She was addicted to Fiorinal (codeine), a prescription only drug. She tries different doctors, then stumbles across Dr. Wynrib, who agrees to write her prescriptions in exchange for sexual favours. She agreed. At trial, Oppal J dismissed battery claim – ruled that she voluntarily submitted, so consent defence applies. BCCA agreed on basis that there was implied consent to sexual contact, and no force, threat of force, inducements, fraud, etc.IssueWhether the consent defence applies to a “power dependency” relationship (doctor/patient).ResultSCC reversed appeal.Reason(La Forest concurring) It is true that she did not resist or protestWhile this indicates consent.. it is not indicative of all cases. Consent must be voluntary. A position of weakness can interfere with the freedom of a person’s will.Voluntary nature of consent can be vitiated by something other than force, threats or fraudPlaintiff’s autonomy/free will was compromised by “power-dependency relationship”Two-step process: (1) proof of inequality between the parties. (2) proof of exploitationPower imbalance plus exploitation of that imbalance means NO meaningful consentNotesMcLachlin with majority decision – utilizes legal reasoning (breach of fiduciary duty)Fiduciary law trust in professional conductBoth concurring and majority reasoning is binding (not in conflict)E (Mrs) v Eve (1986 SCC)FactsMother applied for permission to consent to the sterilization of her mentally retarded (“mildly to moderately”) daughter who suffered from a condition that makes it difficult to communicate. The daughter = Eve. Mother was concerned Eve would get pregnant and she would have to care for the child.IssueIs it appropriate for the mother to consent for the sterilization of her daughter?ResultApplication was denied.ReasonsCourts looked to apply the parens patriae. Parens patriae is not applicable as the jurisdiction is to do what is necessary for the protection of the person for whose benefit it is exercised. The mother would become party to the benefit of this exercise.Further: the irreversible and serious intrusion on the basic rights of the individual is too great.Legislature is the appropriate body to determine whether sterilization of the mentally incompetent is to be adopted.NotesParens patriae = the government, or any other authority, regarded as the legal protector of citizens unable to protect themselvesReibl v Hughes (1980, SCC) RatioDoctor must inform their patients of all material risks before the patient can give informed consent (including discussion of serious or remote outcomes).FactsPlaintiff had serious (elective) surgery to remove an occlusion in an artery. Suffers a massive stroke after surgery, which leaves him permanently disabled. He consented to surgery, but claimed he was not told of risk of stroke/paralysis. This, he claimed, was a particularly pertinent thing to know because the surgery could have been deferred until after pension has vested and for daughter to get married. The plaintiff had 18 or 19 months to go before earning a lifetime retirement pension with extended disability benefits. At trial, plaintiff succeeded. CA reversed: what is relevant for informed consent purposes is best left to the doctor.IssueWhat does the court do with facts that are not present?ResultReasonDoctors are not the last word on what their legal obligations should be.Legal test of disclosure is an objective standard, but one that is sensitive to the particular plaintiff’s situationStandard: what would a reasonable patient want to know about the surgery in order to make a good decision?A reasonable person in the plaintiff’s position would have forgone (or at least delayed) surgery.NotesAt trial, plaintiff succeeded. CA reversed: what is relevant for informed consent purposes is best left to the doctor.Modified objective test: what would a reasonable person in the plaintiff’s position want to know?What would this reasonable person in the plaintiff’s position have done with the information, if properly disclosed?Eg. Even if the doctor knew life circumstances and doctor warns of all of the harms, what would a reasonable person do?Incumbent upon the surgeon to obtain life circumstances and warn of risks that may have an effect on patient’s life circumstances.Subjective element and objective elementArndt v Smith, SCCFactsPregnant woman sees doctor because she had chicken pox. Wanted to know general information about her situation. Doctor said it was “fine – no impact on child.” The child was born with deformities linked to chicken pox. Other alternative was abortion. Sued, claiming for costs of raising the child with disabilities (more expensive).IssueWhat would this reasonable person in the plaintiff’s position have done with the information, if properly disclosed?ResultReasonModified objective test applied. First question is not the issue, the second question is heart of issue. Based on evidence – on BOP, we do not believe that the woman would have aborted the child.NotesNOT INFORMED CONSENT LAW – this is just a lack of disclosure on the doctor’s behalfWhat would a reasonable pregnant woman want to know?Clear – they would want to know information about deformitiesWhat would the pregnant woman have done with the information?Courts have to look on BOP what the pregnant woman would have done.Woman argues: she doesn’t trust modern medicine and she would have aborted the child (second trimester)Physician opinion: given the risk that if I had given you a sense of what the risk was, no reasonable person would have aborted the baby on a 50/50 chance.This was a woman who wanted to have a child argues subjectively that she would not have aborted child on these groundsHollis v Dow Corning Corp (1995 SCC)RatioInformed consent is still applicable with a “learned intermediary.” Patient has the right to be fully knowledgeable of risks of undergoing and foregoing medical treatment.FactsHollis – a silicone breast implant ruptured approximately 17 months after it was implanted.IssueWhether a manufacturer of silicone breast implants may be held liable in tort to a patient who suffers injuries from an unexplained rupture when the manufacture has failed to give adequate warning to the patient or surgeon?ResultAppeal dismissed (in favor of Hollis)Reason“Informed consent” every individual has a right to know what risks are involved in undergoing or forgoing medical treatment and a concomitant right to make meaningful decisions based on a full understanding of those risks.Learned intermediary rule Manufacturers must satisfy its duty to warn the ultimate consumer by warning the learned intermediary of the risks inherent in the use of the product.Modified objective test would a reasonable woman in Ms. Hollis’ position have consented to the surgery if she had known all the material risks? NORight to informed consent was not respected. Manufacturers should be held to a high standard of care when dealing with such products.SELF DEFENCE AND PROVOCATIONRULE: a person is entitled to use reasonable force to repel, or in response to, a battery or assault**Objective standard Reasonableness of the force used is determined on a case-by-case basis, based on factors such as:Nature of attack, size and strength of opponent, degree of force required to repel the attack, whether a weapon was involved, availability of other means to avoid the attackCourts look less kindly on provocation compared to self defenceCould you have just walked away rather than being provoked?Wackett v Calder (1965, BCCA)RatioSelf defence is full or complete defenceProvocation is likely a partial defence (if there is opportunity to walk away or self defence cannot be proved). Successful provocation defence may result in reduction of damages.“Reasonable force” standard is fact-defendant.An attacked person defending himself is NOT held to measure with exactitude the weight or power of the attackers blows.FactsOutside of a hotel, P(R) Calder reiterated insulting remarks and invited D(A) Wackett to engage in a fight. The P tried, without success, to strike both the D and his brother. He lurched at them and hit their chests, doing no harm whatsoever. The P struck the D, D hit P in the face and knocked him to the ground. The P got up and tried to attack again. D hit him again to the ground (breaking a cheek bone of the P; P’s wrist was broken as well) and returned to the bar, leaving P wanting to continue fighting.IssueDid the D(A) use unreasonable and excessive force to defend himself?Was the D provoked and is the provocation enough to act as a self-defence?ResultAppeal allowed.ReasonThe plaintiff was capable of harming the defendantNo evidence the P/R was physically incapacitated or uncoordinated (incapable of harming D/A Wackett).The A was entitled to reject force with force (blow for blow).An attacked person defending himself is NOT held to measure with exactitude the weight or power of the attackers blows.NotesTrial judge: The D/A should have known the P/R was intoxicated and that he should have walked away to terminate the episode.Even if self-defence, defendant used excessive force to repel plaintiff’s attack.Ordered reduced damages to reflect the provocationSelf-defence and provocationThe difference between the two defences is distinct because:Provocation – no physical force is coming your waySelf-defence repelling an attackGambriell v Caparelli (1974, ON Count Court)FactsD’s son and P got into a fight in a back alley. D thought son was being choked and hit P over the head with a rakeResultD was defending a third person, and force used was reasonable.ReasonCase could be stronger if you actually have a relationship with the personThis defence operates on the concept of reasonable force (fact dependent)Defence is not restricted to cases whether third person is a family member (Babiuk v Trann)NotesDefence is something the defence has to prove on BOPA defence is technical DEFENCE OF PROPERTYIn circumstances, possessor of land may use reasonable force to protect land from trespassCannot shoot first and ask questions laterHave to make an attempt to get the trespasser to leave If trespass is “peaceful,” first request that the trespasser leaveIf not peaceful, no need to make preliminary request – force may be used immediately.DISCIPLINE OF CHILDRENWhether any force can be used to discipline children?Tort law mirrors Criminal Code defence s. 43 - Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances.The fact that the standards are different (BRD vs BOP) does not matter. Because a defence is available under criminal law, does not mean it cannot be used in tort.Ogbogu: thinks this section is an oversight. “If a parent cannot control their emotions, they should be penalized.”Reasonableness: makes sure the state has something to say such that they are not completely robbing parents of their ability to discipline children.Canadian Foundation for Children, Youth and the Law v Canada (Attorney General)FactsThe “Foundation” seeks a declaration that the s. 43 exclusion violates s. 7, s. 12 and s.15(1) of the CharterIssueConstitutionality of Parliament’s decision to allow children’s parents and teachers to use “minor corrective force in some circumstances without facing criminal sanction.” Criminal Code s. 265 – prohibits intentional, non-consensual application of force to another. Criminal Code s. 43 – excludes from this crime reasonable physical correction of children by their parents and teachers.ResultSCC placed limitations on the defence.SCC placing limitation on the defence:Must be for “educative or corrective purposes”Must relate to “restraining, controlling or expressing disapproval of the actual behaviour of a child capable of benefiting from the correction”“Benefiting from the correction” – if it’s a young child who does not understand why they are being corrected, this would be a not be a valid form of correction. At what age is this a valid form of correction?Defence applies to parents and teachersBinnie J’s dissent: CC provision violates children’s equality rightsYou cannot deny to children something that would be criminal if done to adultsBut saved by s 1 for parents, but not teachersAs a society, a judge can decide that we have sanctioned this notion that children can be treated in this way.Parents can because of proximity of relationshipArbour & Deschamps JJ: different dissenting opinions, struck down the lawNot clear if ruling applies to tort lawThe tort law defence will mirror the CC defenceTRESPASS TO LANDDirect, intentional and physical interference with a person’s right to possession in landRenter, licenser, any form of possession of landIntention is a low threshold if you walked into the land, that is enoughThrowing stones into land still trespassComplexity can come from how some people interpret intention.Actionable without proof of damageThree ways to commit trespass to land:Entering land possessed by plaintiff without permissionPlacing an object on land in plaintiff’s possessionContinuing trespass if object is not removedNew cause of action arises each day until object is removedPlaintiff (occupier) revokes defendant visitor’s permission/license to be on propertyDefencesConsentNecessityTrespass necessary in situations of danger or emergency to prevent harm to trespasser or othersWill this apply to a hiker seeking shelter from a severe storm?Courts will look at circumstance of this case very fact dependent. Did the hiker act reasonably?In borderline cases, courts look at:Imminence of the dangerAdvantage to be gained (comfort versus life?)Availability of other optionsDefence of legal authorization: statutory or other legal authority to trespass (example: executing warrants, reading utility meters)Turner v Thorne and Thorne (Ontario High Court, 1959)RatioTrespass resulting from innocent mistake (that is not intended) does not relieve the trespasser of liability.FactsD (Robert Thorne) operates a business (delivery/pickup of parcels on request), the driver was George Thorne (co-D). Delivery was to the Gas Machinery Co. (GMC). The entry to the GMC was reached by a passageway between two houses. The D inferred incorrectly on the place of delivery, and accidently delivered to P’s property. The D placed the delivered packages in the P’s garage, as nobody was home. P returned home later that day and tripped over the package, suffering serious injuries.IssueIs the trespasser liable for damages despite being unaware of the intrusion?ResultTrespasser liable. Damages allowed.ReasonThe trespass resulting from innocent mistake, and is not deliberate, does not relieve the trespasser of liabilityWhere the complaint for trespass to land and trespasser becomes liable not only for personal injuries resulting directly or proximately from the trespass but also for those which are indirect and consequential.The D owed a duty of care to the plaintiff not to trespass and place goods on the P’s premises. Further, the D owed a duty not to place the goods in a precarious location.NotesIntent to injure is not required for this tortSTRICT LIABILITYVery bad rule for assessing liability. Courts interpret and apply strict liability very narrowly.No obvious principle to apply, or even if there is an obvious rule to apply – it leads to unjust solutionDifficult facts lead to bad lawsReason why this is important(1) need to know law(2) remind judge that their job is actually apply law.- There are times as a lawyer or judge to let go. No need to create laws that have no justification.Strict Liability: liability without a finding of faultNo intentional act or negligence or recklessnessCanadian courts stick to strict liability, however many other countries have rejected thisLiability is imposed on the “responsible” defendantEven if that person is not at fault, they are still to be blamedPlaintiff required to prove:that harm or loss occurredthe defendant is responsible for the harm or lossStrict liability torts (no longer apply)Scienter action: strict liability for damage caused by animals that the owner knows to be dangerous (eg. Keeping tigers in your yard)Cattle trespass: owner of cattle is strictly liable for damage caused by the escape of the cattle onto land possessed by the plaintiffEscape of something that is likely to cause mischiefRequirement of “mischief” rendered somewhat superfluous by “non-natural use” doctrineRequirement of “escape” still essential to liabilityRule for Rylands v Fletcher:D found liable without fault (intention, negligence) if:Accumulates on her land something that is likely to do mischief if it escapesOrmakes non-natural use of land (special use OR use that poses increased danger OR is of no general benefit to community)Thing likely to do mischief escapes OR non-natural use results in escapeEscaped thing causes harm or loss to plaintiffDEFENCES (TECHNICAL)Blackburn J: “Defendant can excuse himself by showing that the escape was owing to the plaintiff’s default; or perhaps that the escape was the consequence of vis major, or the act of God.”Plaintiff’s default: fault of the plaintiffVis major (force majeure) irresistible urge – superior force beyond defendant’s controlAct of God “interference in the course of nature so unexpected that any consequence arising from it (cannot) the foundation for a successful legal action.”Similar to vis major. Ogbogu: ABANDON Act of GodRylands v Fletcher (1865, England)RatioA person who brings onto her land and collects and keeps there, anything that will not naturally be there, and which is likely to do mischief if it escapes, liable for all damage which is the natural consequence of the escape.You collect and keep dangerous things at your own peril.FactsFletcher was working coal mines. Rylands (and Horrocks) owned a mill near the land under which Fletcher’s mines were being worked. Rylands constructed a reservoir in order to supply water to their mill (employed engineers and contractors). No negligence on behalf of D, contractors encountered old shafts while building the reservoir and found that reasonable care was not used to reseal the old mine shafts. Contractors continued with reservoir work anyways. One of the old shafts gave way and the water in the reservoir and flooded Fletcher’s workings.IssueWhat is the obligation on a person who lawfully brings on his land something which (though harmless in nature) will naturally do mischief if it escapes out of his land?ResultRylands held liable for strict liability.ReasonFirst Ruling:Fletcher has the right to be free from foreign water. Rylands had no right to pour/send water on Fletcher. There is no difference that Rylands did so unwittingly.No negligence, no trespass, no vicarious liability, no nuisance – no liability foundSecond Ruling (Exchequer Chamber, Blackburn J):True rule of law: the person who brings on his lands and collects and keeps anything likely to do mischief if it escapes, must keep it in his peril. IF that person does not, they are answerable for all the damage which is the natural consequence of its escape.No liability found…Ogbogu: “Let’s find a tort”Third Ruling (House of Lords):If a person brings, or accumulates, on his land anything which, if it should escape, may cause damage – he is responsible, however careful he may have been.Non-natural use requirement. (No strict liability for natural occurrences – natural run-off from rain water)NotesTHIS IS A BAD LAWSubsumed strict liability tortsIt DOES NOT MATTER that the escape and consequent loss was not initiated by defendant’s intentional or negligent act.Non-natural, cause mischief/harm if it escapes, even if escape is not your faultDefendant “is responsible, however careful he may have been, and whatever precautions he may have taken to prevent damage.” Rule = BRING onto land. If something existed on land prior to purchase – would not be held liable for strict liabilityRichards v Lothian (1913, PC)FactsP operated a business on second floor of building owned by the defendant. An unknown person maliciously plugged the sinks in the fourth-floor bathroom and turned on all taps, resulting in flood. Damaged P’s propertyIssueDoes strict liability apply in this circumstance?What is the definition of “non-natural use”?ResultAppeal allowed. No strict liability.ReasonNo liability – Rule in Rylands v Fletcher does not apply.No “non-natural” use of land “provision of water supply to various parts of the house is.. reasonable.. and necessary”Defendant, by having water supply, is “using… premises in an ordinary and proper manner”It would be unreasonable to hold him responsible in the circumstances for the malicious acts of anotherNotesRedefined “non-natural” use – use that is special, posing “increased danger”, and of no general benefit to the community.Sympathetic plaintiff in this circumstanceMost consistently applied factor in interpreting “non-natural use” is the creation of increased danger.Read v J Lyons & Co Ltd (1947, HL)FactsP worked in defendant’s munitions factory during WW2. A highly explosive shell detonated, causing injuries to plaintiff.ReasonAccident – plaintiff could not prove negligenceTrial court applied Rylands v Fletcher and found for plaintiff on grounds that the defendant was engaged in “ultra-hazardous activity” and were under strict liability to take successful care to avoid causing harmCofA reversed the decision, stating that there was no “escape” = preventing a thing which may inflict mischief from escaping from the area which the defendant occupies or controls. House of LordsRylands v Fletcher does not applyTwo prerequisites of the doctrine of Rylands v Fletcher: there must be the escape of something from one man’s close to another man’s close. That which escapes must also have been brought on the land from which it escapes in consequence of some non-natural use of that land. Neither exist in this case.DEFAMATIONElement 1:Communication that reduces the esteem or respect to which the plaintiff is held by others in the community“A defamatory statement is one that has a tendency to lower the reputation of the person to whom it refers in the estimation of right-thinking members of society” Awan v LevantLargely objective testA reasonable person would believe that there is a tendency to lower someone’s reputationAll that matters is that it has a tendency to (CAN) lower someone’s reputation. Not that it HAS lowered someone’s reputation“..cause the plaintiff to be regarded with feelings of hatred, contempt, ridicule, fear, dislike or disesteem”Something that would cause people to lose respect for him or herProof of defamation:Proof of ACTUAL loss of esteem NOT requiredObjective test: Did the statement lower the esteem or respect for the P in the minds of “right-thinking members of society?”It is up to the court to infer that the statement would or would not lower the esteem or respect for the PProof is not necessary, it is SUFFICIENTStrict Liability TortIt does not matter that D did not intend to defame POr that reasonable care was taken to ascertain the truth of the statementSubjective feelings about the accused feelings are completely irrelevantAny communication can be defamatoryHistorically, used to be two types of defamation torts: libel (written) and slander (spoken)Libel: viewed as more serious (permanence, greater likelihood it was premeditated, capacity for wider dissemintaiton)At common law, libel is actionable per se, but slander requires pecuniary loss (special damages)Defamation and social attitudes Is it defamatory to allege that a member of a golf club blew the whistle on illegal gambling activities at the club?Yes – it CAN have a tendency to lower their reputation. Illegal activities can objectively lower one’s reputation“X is a sick son of a bitch.”Spencer J: Defamatory because can convey impression that plaintiff is “mentally-ill, unstable or unbalance… perverted, unwholesome or morally corrupt… unfit to hold public office or to practise his profession as a barrister and solicitor”Element 2:Must reasonably understood as referring to the plaintiffMust identify plaintiff in some way – by name, description or context.Can you defame a group?The more specific the group, the higher the chances If there is enough to identify the plaintiff in some way, it could be sufficient for a claimElement 3:P must demonstrate that the defamatory statement was published to a third partyOr that a third party heard itThree elements to the tort of defamation (P must prove all three): (1) the words complained of are defamatory (lower P’s reputation in the eyes of reasonable members of society); (2) the words complained of refer to the plaintiff; (3) the words complained of were published to a third person(2) and (3) are relatively easy to establish. Difficult to assess whether the statement can lower reputationOnus then shifts to defendant to establish a defenceTest (Element 1):Would the words tend to lower the P in the estimation of right-thinking members of society generally?DefencesJustification, Absolute privilege, Qualified privilege, Fair comment (on a matter of public interest), Consent, Apology and retractionNot a defence:D’s reputation (as troublemaker, pot stirrer, controversial person, “shock jock”)A defamatory statement does not lose its defamatory character simply “because of the known characteristics of the speaker”Or the defendant’s reputationExample: John was described by his colleagues as a “petty thief”… Defence will succeed if prove on truth of words “petty thief”JustificationComplete defenceIt is not defamatory if it is substantially truePractically, even if it is justified defamation, it is usually not worth the time going through cumbersome legal procedure ConsentComplete defenceUnusual defence – usually arises where plaintiff seeks to refute rumours or allegations about herA broadcast of the refutation is not actionableApology and retractionPartial defenceOperates to mitigate damagesStatutorily adopted through Canada – applies to media Absolute privilegeDefence provides COMPLETE IMMUNITY from defamation, even if statement is maliciousComplex and difficult to establishDefence based on overriding public interest in promoting full and frank communication without threat of lawsuitFocus is not on who speaker is, but on the occasion where impugned communication is made.. Nobody consistently carries around absolute privilege – situation basedIs it an occasion where it is necessary, in the public interest, to speak candidly and without inhibition?Qualified privilegeDefence provides COMPLETE IMMUNITY from defamation, except for malicious statements“… can be defeated in the dominant motive for publishing the defamatory statement is actual or express malice.”No list of clear, predictable occasions/communicationsCourts look for compelling public policy reason to permit honest but defamatory statementsApplies to occasions where the maker of the statement has an ‘interest or duty, legal, social or moral to make it’; and the recipient has a “corresponding interest or duty to receive it”Courts look for public utility / social desirabilityEX: reference letter, communication from parent to adult child about conduct of intended spouseQualified privilege defence not available to media except if fair, accurate and non-malicious report of judicial or quasi-judicial proceedingsFair CommentDefendant must establish that (PROVE ALL ITEMS):(1) Defamatory statement is based on true facts(2) Though based on fact, the statement is recognizable as a comment or opinion by the ordinary reader or listener(3) The comment is on a matter of public interest(4) The comment is an honest expression of the maker’s opinion(4a) Statement was not made maliciouslyFair comment does not apply to factual statements a comment in fact should turn to justification. Fair comment applies on an assertion of opinion.**Honest belief requirement:Objective test (RP test)Does not matter that D subjectively believes comment is honest heldTest is whether anyone, however opinionated or prejudiced, could honestly express the defamatory comment, on the proven factsDefence fails if P proves that the D was motivated by express malice in making statement.What type of occasions are protected by the doctrine of absolute privilege?Legislative proceedings, including legislative committee proceedingsDocuments submitted to court to initiate proceedings, etc.Judicial or quasi-judicial proceedings, including complaints by which such proceedings are initiatedSolicitor-client communicationsCommunications between carbinet ministers and high-level civil servantsCommunications between spousesMedia reports? – Sec 10 of Defamation Act:YES – only to “fair and accurate reports” published in newspapers or by broadcastOpen legislative or legislative committee proceedingsMeetings of commissioners, boards, local authorities constituted by law PUBLICATION WAS NOT MADE MALICIOUSLY (similar to qualified privilege, but distinct – statutory defence, not common law defence)Defence will not apply if the D fails, on request by P, to publish a “reasonable letter or statement of explanation or contradiction.” D has to give P a chance to publish this letter.Malice?Spite, ill-will, indirect motive, ulterior purposeIntentional or reckless regard of the truthCan be proved by intrinsic or extrinsic evidenceResponsible publication (communication) on matters of public interest (Grant v Torstar Corp)Modification of the law of defamation to provide greater protection for “factual statements published in the public interest”Journalist hears about a story, fact checks, acts responsibly – but why no defence?? Courts will be sympathetic“…allow publishers to escape liability if they can establish that they acted responsibly in attempting to verify the information on a matter of public interest”Law of defamation is supposed to strike a balance between maintenance of reputation and free speechTEST:Is the ENTIRE publication on a matter of public interest?Was the publisher diligent in trying to verify the allegation, having regard to:Seriousness of the allegationPublic importance of the matterUrgency of the matterStatus and reliability of the sourceWhether the P’s side of the story was sought and reported accuratelyWhether the inclusion of the defamatory statement was justifiableWhether the defamatory statement’s public interest lies in the fact that it was made rather than its truthAny other relevant circumstancesGlobe & Mail v Boland (SCC, 1960)Qualified privilege: does not apply to media/press communicationsWeight of judicial authority against extending defence to media / press communicationsContrary to “common convenience and welfare of society” as plaintiff risks loss of reputation if malice cannot be provedP do not have the resources to establish malice risk of loss of reputation is so high, the defence cannot applyDefence also reject in Banks v Globe & Mail (SCC, 1961)Defamation Act, RSA 2000Sec. 1: Defamation means libel or slander Sec 2(2): When defamation is proved, damage shall be presumedSome jurisdictions have labeled TV communication as libelPresumption of damage: An action lies for defamation when defamation is proved, damage shall be PRESUMED.Plaintiff may allege that the matterApology in mitigation of damages: if the D has pleaded denial of the alleged defamation, D has suffered judgment by default, or judgment has been given against the defendant on motion of judgment on the pleadings:D may give in evidence to mitigate damages that D made or offered a written apology to P for defamationDefence: Fair comment – if D published an opinion expressed by another person, other than an employee or agent of the D, a defence of fair comment shall not fail by reason only that the D did not hold that opinion.Defence of fair comment is not available to a D if it is proed the D acted maliciously.Defence: Privileged publications: Fair and accurate report published by a newspaper or broadcast of public meetings, proceedings (HofC, Senate, etc.), commissioner meetings, etc., is PRIVILEGED, unless it is proved that the publication was made maliciouslyNotice of intention: no action lies unless the plaintiff has given intention to bring an action for:Within 3 months after the publication of the defamatory matter has come to P’s notice or knowedgeDaily newspaper = 7 days’ notice Any other newspaper = 14 days’ noticeMitigating damagesDefamatory matter was reported or broadcasted without malice or without gross negligenceFull and fair retraction, apology, before commencement of the actionBroadcast the retraction and apology from the broadcasting station for defamatory matter on at least 2 occasions on different at the same time of day as the alleged defamatory matterSpecial damagesDefamatory matter was published in good faithMaterial was of benefit to the publicDid not impute to the P the commission of a criminal offenceMistake or misapprehension of the factsRetraction and full apologyAwan v Levant (2014 Ontario Superior Court)FactsAction challenges nine publications by the defendant on his blog. These blog posts generally relate to the events leading up to and including a hearing of the British Columbia Human Rights Tribunal in 2008. The plaintiff claims that the words complained of in the nine blog posts are false and defamatory of him. Although other defences were also pleaded, the defendant relied mainly on the defence of fair comment, and to a limited degree the defences of justification (i.e., truth) and qualified privilege. The defendant also takes the position that due to his reputation as an outspoken provocateur and troublemaker, none of what he said would be understood as defamatory in any event.Awan, a law student at the time, alleged a book excerpt published in a magazine was Islamophobic. Awan testified to this affect at a British Columbia Human Rights Tribunal in June 2008. Levant is a conservative blogger on hate speech in Canada who wrote about Awan’s testimony on his blog. Levant targeted Awan because of Awan’s connection to the Canadian Islamic Congress’ President, against whom Levant felt ill-will. In nine different blog posts, Awan claimed that Levant’s statements were defamatory and false. Levant published these blog posts between 2008 and 2010, and the posts have remained on Levant’s blog ever since, with some later alterations by Levant. Titles for Levant’s relevant blog posts included “Khurrum Awan is a serial liar” and “Awan the liar, part 2.” Though Awan had considered a defamation suit in 2008, he waited until 2009 after Levant posted “Awan the liar, part 8,” Issue1) Does being a “shock jock” show that the general public would not take his words seriously?2) Did the impugned words have a tendency to lower the plaintiff’s reputation in the eyes of a reasonable person?ResultHeld with costs for P – D take down defamatory words from blog. If D wishes to only remove part of the posts – D and P shall try to agree on what should be moved. If not, D must submit proposed approach.ReasonLevant’s blog posts all contained language which was considered defamatory and would lower Awan’s reputation in the eyes of “ordinary right-thinking members of society.” The blog posts also had a number of factual inaccuracies. Awan defended himself arguing that his special reputation would stop his readers from taking what he said at face value (WIC Radio defence). The court decided to use the ordinary meaning of the words, not taking into account the D’s special characteristics. Though the Court acknowledge similarities between this case and WIC Radio, it agreed with the majority in that case that plainly defamatory statements were not neutralized because of a “known characteristic of the speaker.”Levant relied on the defenses of justification, fair comment, and qualified privilege. The latter two could be defeated by malice, for which a plaintiff has the burden. Some posts were protected by fair comment. Extrinsic evidence showed that Levant had malice towards Dr. Elmsary, which he redirected at Awan. Intrinsic evidence in some of the blog posts also demonstrated malice, which was further indicated by the numerous errors and Levant’s decision to do minimal or no fact-checking.Justification and fair comment:“a little bit of taqqiya that Awan et al. has told the press”Levant claimed words were comment, not factNot required that he prove “intent to deceive.”D not able to prove that P made statements at hearing with intent to deceiveAn incorrect statement is not necessarily a lie – the best you can say is that “you made incorrect statements” because Awan made incorrect statementsDefence of justification failsFair comment also fails because words not comment but factsQualified PrivilegeP argued does not apply to mediaJudge cites exception: fair and accurate report of judicial or quasi-judicial proceedings (Hill). Subject only to maliceEven though these exceptions apply, it is defeated by the clear malice shown by AwanNotesObiter: “…some speech may be so widely known to be false or unbelievable that its otherwise defamatory meaning is lost”Hay v Platinum Equities (2012 ABQB)FactsHay was a chartered accountant. Platinum is a commercial real estate syndication corporation. Platinum was attempting to close a property purchase and needed quick financing to close the deal. Platinum looked to obtain financing through a bank (RBC) and needed RERs (Review Engagement Reports) to be considered for financing. An employee at Platinum looked to obtain RERs through an outside accounting firm. The bank received the RERs and labelled them as fraudulent. The bank later called Hay inquiring about the RERs issued, and Hay stated that he had nothing to do with them. Hay called the ICAA (Institute of Chartered Accounts of Alberta) to report matter. Hay wrote a demand letter to Platinum, later issued their statement of claim and served Platinum. Platinum wrote to ICAA asking it to investigate the matter (quasi-judicial proceedings). Platinum filed official defence as well as a counterclaim against Hays alleging Hays had conspired to injure Platinum.IssueWas Hay defamed as a result of the submission of the RERs to the bank?Were the Hays defamed as a result of Platinum’s letter to the ICAA?ResultNo defamationReasonSecond and third elements of a tort have been proved: P argues they were defamed by innuendo. The defamation is established because the RERs were not filed in accordance with general accepted accounting principles (GAAP), and this implicates that the plaintiffs were dishonest or incompetent as chartered accountants. Third element not proved as the financial statements attached to the RERs did not contain evidence that they were not in accordance with the GAAP.Letter is not found to be defamatory:The plaintiff had already reported the issue to the ICAA,This was a serious matter which Platinum was justified in investigatingAnd the words themselves do not lower the reputation of the plaintiff in the eyes of reasonable personsFurther, the letter is protected by the doctrine of privilege. Defence did not statue absolute privilege as a defence, however it is implied in their factum.Absolute privilege applies to the letter of complaint, as it was addressed to the ICAA, which is governed by the Regulated Accounting Profession Act. (quasi-judicial proceedings) The right is reserved that any person can make a written complaint such that to “protect the interests of the public.”The letter is protected by qualified privilege because:The serious allegation of fraudulent RERs made for a duty to bring the matter to the attention of the ICAANotesVander Zalm v Times Publishers (BCCA, 1980)FactsPlaintiff was the 28th Premier of BC. Held several Cabinet portfolios in the 70s and 80s, including Minister of Human Resources (at time of dispute). Newspaper published political cartoon depicting Vander Zalm gleefully picking the wings off flies. Cartoon rendered by Bob Bierman to depict P’s attitude and views regarding welfare recipients. P claimed cartoon depicted him as a “person of cruel and sadistic nature who enjoys inflicting suffering and torture on helpless human beings..”P openly disliked welfare aidIssueIs the fair comment defence applicable in this scenario?ResultTrial judge awarded damages of $3500. BCCA reversed – fair comment defence appliesReasonD pleaded fair commentTrial judge reasoning: facts pleaded as basis for complaint could not fairly lead to imputation arising from cartoon. “Drawing him picking wings off a fly is too far.” Should be using justification defence.BCCA reversed – FAIR COMMENT APPLIES.. “Reasonableness not required, just a factual basis.”(1) Defamatory statement is based on fact and is recognizable as comment(2) P’s statement “sufficiently publicized” as to enable ordinary reader to recognize cartoon as a commentary on the statements(3) Comment or opinion is on a matter of public interestMatter of considerable public interest – concerned with P in his public capacity(4)The comment is “an honest expression of the real view of the person making the comment”Cartoon represents the “honest opinion” of Mr. Bierman. No evidence of malice or ill will.WIC Radio v Simpson (SCC, 2008)FactsOne of the As is a controversial radio talk show host. Involved in a spat with R on the purpose of introducing materials dealing with homosexuality into public school curriculum. A compared R to Hitler, KKK, etc. (imputation of violent conduct or condoning violent conduct). R brought defamation suit; appellant pleaded fair comment.Issue1) Were the defamatory comments based on fact?2) Does it matter that the A did not testify that he had an honest belief in the innuendo or associated imputation?ResultReasonTrial judge: accepted defenceCofA: reversed on grounds that there was “no evidentiary foundation” for imputation of violence / condoning violenceThere needs to be a connection between factual basis and defamatory statement / imputation of violenceHeld that A did not testify that he had honest belief that R would condone violenceSCC (Binnie J for Majority):Issue 1:Yes – the general facts of the dispute between the parties was well-known to the listening audienceThe facts need not relate specifically or reasonably to the alleged imputation – it is enough if it provides a basis for the defamatory statementYou don’t have to have an imputation, or the defamatory statement has to be on completely factual basisAs long as there is a link (some basis) of factIssue 2:No, does not matter – the test is whether anyone could honestly express the defamatory statement on proven factsGrant v Torstar CorpFactsGrant wanted to build a 9-hole golf course on his lakefront estate. To do so, he needed to purchase adjacent Crown land and get government approval. Opposition from local residents over environmental concerns. At public meeting, residents expressed concern about transparency of government approval process. Toronto Star published article by Report Bill Schiller follow tipoff by a individual who attended the meeting.**Fill in restIssueResultReasonTrial judge rejected argument qualified privilege : Not public interest (too local)Tone was negative (expressed malice)Justification rejected – there was no way to PROVE it was a done dealFair comment rejected – maliceCofA reversed – holding that responsible journalism defence appliesPublic interest is present (does not matter if it is narrow)Trial judge used a test that was rejected in WIC Radio (trial took place prior to WIC decision)Also, defamatory statement (“done deal”) was not made by Schiller but by ClarkSCC – sidestepped both points and instead recognized a NEW defence: responsible publicationTwo factors supporting rationale:Defence based on Charter-guaranteed freedom of expressionThe need to avoid chilling effect on responsible reporting of factsApplication of test below:Defamatory statement “done deal” could be viewed as opinion or fact – if opinion: fair comment appliesOpinion: idiomatic expression of an opinion about the likelihood of government approvalCould be factual statement that government approval has been received formally behind the doors: triggers responsible publication defenceNotesResponsible publication test:Was the publication on a matter of public interest?Matter for judge to decide – primarily a question of lawBased on argument on what you see as “public interest”Judge must consider the publication as a WHOLE, not just the defamatory statementNot synonymous with what interests the publicNot TMZ, gossipCourt gives two indications for test or standard for public interestPublic interest could be:Invites public attention or concern because it affects the welfare of citizens and is associated with “considerable public notoriety or controversy”A matter for which a segment of the public has a genuine stake in knowing about – there is a democratic interest in wide-ranging public debateWas publication of the defamatory communication (impugned defamatory statement) responsible?Factors are “non-exhaustive but illustrative guides”VICARIOUS LIABILITYProof of fault not requiredNot fault-based tortVicarious: “performed, exercised, received or suffered in place of another”Defendant is innocent – but liability is imposed on that defendant “just because”Legal artefact – does not make much sense in the light of tort lawThe Paradigm: An employer is vicariously liable for the torts of his/her employee, committed in the course of that employee’s employmentClassic rule Only form of VL courts have recognized thus far… does not mean it cannot be expanded to other contextsDo not argue for another form of vicarious liability (exam)Expanding categories is not what courts want to doOnly VL tort supported by doctrine is employment context.Three components of the doctrine:An individual commits a tortThat individual is an employeeThe tort is committed in the course of that individual’s employmentPlaintiffWill traditionally sue both employee and employerDefendant TortfeasorEmployee“Deep pockets” theory of liability: Assured means for getting compensationDefendantVicarious liabilityEmployerStrict or fault-based liability?No amount of reasonable care on employer’s part will serve as defenceLiability still imposed regardless of any actions imposed by employer to avoid liabilityLack of proper training is basis for direct, not vicarious liabilityIf there is fault, look to other torts (negligence)Foundation of action is a tort – the doctrine broadens liability to include innocent defendantEmployee, not independent contractorVicarious liability applies to torts committed by employees, not independent contractorsHow then do we distinguish between employees and independent contractors??The Control Test (Yewens v Noakes – 1880 QB)Did the employer tell the tortfeasor what to do and how to do it?(Does the employer control all aspects of the job/service??)Test has been modified and refined to account for contemporary employment arrangementsAffirmed by SCC as showing essential characteristic of employment relationship in 67112 Ontario Ltd v Sagaz Industries Canada Inc (2001)Non-exhaustive list of factors other circumstances may yield additional factors to be consideredSCC also stressed need to account for “other factors”Example: Prof at university control their aspect of work and therefore, although told to teach 12 credits a year, would not be able to sue employer for VLWill NOT WORK FOR MOST MODERN PROFESSIONAL RELATIONSHIPSThis is not the only test – primary testControl Test - OTHER FACTORS (Montreal v Montreal Locomotive Works Ltd – PC 1947)Lord Wright’s FOUR FACTORS:1) Control2) Ownership of the tools3) Chance of profit4) Risk of lossProfessor – more factors count in FAVOUR of the professor being an employee. NOT all elements proven necessarySafely conclude employee Lord Denning’s Tests (Stevenson Jordan & Harrison Ltd v MacDonald, CA 1952) Organization Test:Is the tortfeasor part of the business?Integration Test:Is the tortfeasor’s work integral to the business?ALWAYS good to go through all of these tests to reach a conclusion.Can an employer who has been found to be vicariously liable seek indemnity against the employee tortfeasor?Generally, yes.. most employers do not exercise this right.. it is easier and faster to fire the employeeLister v Romford Ice and Cold Storage (1957, HL) YESDespite not paying the losses (covered by insurer) can the employer still sue employee?Employer claimed right of indemnity was an implied term of the contract with negligent employee (truck driver)Notwithstanding legal obligation to maintain liability insurance“An action for damages, whether the tort or breach of contract, has, even if rarely used, for centuries been available to the master”To preclude indemnity would promote “irresponsibility” among employeesRationale: holding employees responsible grant employers right to recover from negligent employeesIn practice employers and their insurers rarely seek to enforce this rightIs the employee liable for damages beyond what employer has undertaken to cover / beyond insured amount?London Drugs Ltd v Kuehne & Nagle Int’l Ltd (1992 SCC)FactsLondon Drugs stored a transformer in D/R’s warehouse. D/R’s employees negligently damaged the transformer, causing $33000 worth of damages. Contract between London Drugs and D/R limited latter’s liability to $40.IssueWhether the D’s employees were liable for damages beyond the amount stated in the contractual limitation clause ($40)?ResultNO – plaintiff cannot cover beyondReason1) Dube, Spoinka, Cory and Iacobucci: NO – employees covered by limitation clauseException to the doctrine of privity of contractPrevents persons who are not privy to the contract to exercise rights over the contractContract was for the benefit of employer and employees 2) McLachlin J: Theory of “voluntary assumption of risk” permits an employee sued in tort to rely on a term of limitation in his employer’s contractP voluntarily assumed the risk – DEFENCE TO NEGLIGENCEExtends the thinking to this situationBy agreeing to the $40 recovery, the risk was voluntarily assumedUbaka: destruction of doctrine as it is the voluntary of assumption of negligence3) LaForest J: No liability for loss at all – elimination of employee “loss-bearing” more consistent with vicarious liability doctrineEmployees are not responsible.Person’s with deep pockets should bear the risk – it is vicarious liability, take it or leave itFILL IN CLASS SIDES + SUPPLEMENTAL NOTESLister v Hesley Hall (2001, HL)VICARIOUS LIABILITY CLAIMS FOR SEXUAL ASSAULT/ABUSE OF INDIGENOUS CLAIMANTSDeepest pockets is the government of CanadaAny time gov’t is on the other side, claims are tough to succeedActions that are statute barred – there is an issue of exceeding the statute of limitationsClaims are no longer actionableServes the perpetrators and governmentCONTEXT:Abuse, including sexual assault, in residential schools and foster homesSchools operated by the gov’t of Canada alone or in partnership with various churchesPerpetrators “judgment-proof” (financial insolvent or otherwise unable to satisfy judgment) at the time of trialClaimants were either dead or insolventInfluence of BazleyCourts are able to apply “enterprise risk” and “strong connection” testsSignificant connection between the risk created or enhanced by the employer’s enterprise and the employee’s wrongdoingServes the policy goals of providing an adequate and just remedy, and deterrenceCan come up with policy arguments that “we are cognisant of our history and want to amend”Much like Joacbi, SCC has struggled with applying Bazley to abuse by foster parentsTwo issues with cases of foster parentsAre they employees of the gov’t?We can recognize another paradigm – yes the employee paradigm is still relevantHow do we apply the strong connection?Foster Care CasesReliance on classic basis for VL and test for establishing an employment relationship a bar to recovery in some cases (eg. KLB)Other cases suggest that the employer’s responsibility derives from tasks specifically assigned to perpetrator (and not just from the fact of employment)Blackwater V PlintFactsAppellants are indigenous claimants who, as children, were sexually assaulted and abused in residential school in BC. Respondents – gov’t of Canada and the United Church – operated the residential school. Assaults and abuse commited by the employee of the residential school. Claimants alleged VL against the church and the gov’t.Negligence was alleged, however, challenging to establishIssue VL present?ResultReasonTrial judge:Found for P for all claims that were not statute-barred (sexual assault)First step of unfairness in legal systemLiability apportioned 75% (Canada) and 25% (United Church)CofA:Exempted church from liability on doctrine of charitable immunityDoctrine no longer applies according to SCCHeld that Canada was MORE RESPONSIBLE and in a better position to compensateSCC:Appealed on the grounds of the exclusion of statute-barred claimsCanada appealed application of doctrine of charitable immunity to caseREJECTED application of charitable immunity and upheld trial judge’s findings on VLMcLachlin’s ruling in Bazley is used and was constructed due to its resiliencyApply Bazley: “there is a significant connection between the conduct authorized by the employer or controlling agent and the wrong”Employer or operator of the enterprise “created or enhanced the risk of the wrongful conduct”It does not matter that the wrongful act “may be contrary to its desires”“the fact that wrongful acts may occur is a cost of business”Factors to consider – restatement of BazleyINSERT factorsDegree of control over church by Canada does NOT negate conclusion that church had sufficient control to establish employment relationshipChurch played significant role in running school; hired, fired and supervised employees for Canada and its OWN endsCanada had an important role, but the Church was NOT a mere agentArgument by D: Can two D’s be held VL?YES – where there is a partnership“No compelling jurisprudential reason… to justify limiting VL to only one employer”CA wrong to rely on Bazley to conclude that charitable immunity appliesReasoned incorrectly that Bazley test (strong connection b/w enterprise risk and harm) required imposing liability on party more responsible and best able to bear the lossBoth Church and gov’t held VL for non-statute-barred claims75%/25% apportionment reinstatedK.L.B v British Columbia (2003)Issue: Is the employment relationship essential to establish VL?Majority opinion (delivered by McLachlin):Summary: The nature of a foster parent relationship is not an employment relationship. Foster parents are like contractors. This is because foster parents act independently (no directive, social workers are not present all the time). Therefore, we are not going to impose liability on the gov’t of Canada. This could have gone the other way if the foster parents were acting under specific directive by the gov’t. No suffficent connection between gov’t policy and foster parent actions.Relationship between gov’t and foster parents neither established nor sufficiently close for purposes of VLEssentially, not an employment relationshipWas the court right to confine the analysis to employment relationships?Majority also reasoned that relationship b/w gov’t and foster parents was not sufficiently closeBut argued through the lens of an employment relationshipGov’t had strategy to re-educate through different mechanisms (foster parents and churches)Majority applied tests for determining whether an employment relationship exists, and associated policy rationalesFoster parents “discharge [their goals] in a highly independent manner, free from gov’t control… provide care in their own homes…. Use their own equipment…. They have complete control over the organization and management of their household…. The gov’t does not supervise or interfere”Ubaka thinks this can be challenged.A second basis for liability is where the tortfeasor’s wrongdoing is “sufficiently connected to the tortfeasor’s assigned tasks”This is a partial softening of the positionSuch that it can be viewed as “materialization of the risks created by the D’s enterprise”Do not know what to make of this…If this is the case, this wording can place liability on a contractor… “if the enterprise risk exists, we don’t need an employment relationship”????Sum up:The tortfeasor (foster parents), like independent contractors, were acting on their own behalf.It is not fair to impose liability in the circumstances“given the independence of the foster parents, liability is unlikely to result in heighted deterrence”Ubaka does not find this very compellingGov’t cannot supervise when social workers absentDissent opinion (Arbour)Summary: Employment relationship is just one context of VL. Because the situation demands it, it is warranted to create a new form of VL. Outcome is the same, but reasoning diverges. VL is supposed to provide compensation in circumstances. Government is the ward and offloading responsibility to the parents. Policy goals of fair and just compensation and terrence exist in this case (Ogbogu = correct).VL applies but no liability because underlying torts are statute-barredAgrees with majority’s characterization of VL but disagrees on applicationHolds that tortfeasor was acting on behalf of gov’t “Foster parents do in fact on behalf of the gov’t when they care for foster parent”Ubaka likes because it simplifiesPolicy goals – fair and just compensation and deterrence – also applyUbaka: good, not confusing, not a slave to employment doctrineIf VL exists, lets go straight through the employment relationshipIt is fair to compensate where the risks inherent in the “faultless person’s” enterprise materializes and causesUbaka wishes this is the lawVL “encourages employers and others who may be subject to it to take extra measures beyond what is required to avoid negligence”Others may do things that create a VL.Starting point for how Arbour J started the analysisAlthough employment relationship is most common form, the categories are not closed or exhaustedA functional inquiry is required: (use the function of a law to solve problems in new contexts)Tests for establishing if there is an employment relationship are not determinative in all cases.“This case marks the first time the court has been called upon to consider the relevant factors for determining whether foster parents are acting on behalf of the gov’t for VL purposes… the factors relevat to this inquiry will not be the same as the factors… relevant to [establishing an employment relationship]”Ogbogu: this is great. Use VL to address policy goals… where necessity calls for it, we can use it.Most important factors in this case are control and “victim and community’s reasonable perception of who is ultimately responsible for safety of foster children”Gov’t had sufficient control over foster parent’s activities for vicarious liability purposesQuestion is not extent of gov’t intervention in day to day affairs of foster parentsRather, it is the extent the gov’t has the power to control the foster parents.The imposition of VL in these circumstances can deter harmThis is quite clear – place responsibility on the gov’t Evidence shows that gov’t responds when it becomes aware of risks in foster care system by imposing rules and restrictionsThis is a very regulated system. Gov’t will react and address if VL is foundGov’t has taken measures in the past to reduce risk of abuse, including mandatory standards that govern behaviour of foster parents in detailTakeaway: Arbour J is right.NEGLIGENCENature of NegligenceAccidental conduct: The defendant could not have reasonably foreseen or reasonably prevented the consequences of the actConsequences unpredictableNegligent conduct: The defendant should have reasonably foreseen and avoided the results of the act but did not (i.e. the defendant was careless)Careless about consequencesIntentional conduct: The defendant knew, with "substantial certainty", the likely consequences of the act, or desired themDeliberate intent to inquireNegligence: “failure to take proper care in doing something” (closest synonym: “Carelessness”)About NegligenceMost prevalent cause of action in the law of tortsBoth in terms of number of claims and attention it receives from lawyersExpanded in recent decades as a result flexible judicial interpretation/application of core elementsCore Elements:1) Negligent ActDetermined by identifying the appropriate standard of care to which D should have adheredStandard set by law? What would a reasonable, prudent person do?Then, that standard of care is applied to the facts of the case to see if D adhered to it2) CausationDetermined by showing a causal link between D’s negligent act and the P’s damage“On a BOP, it was a defendant’s actions among these causes that resulted in the consequence”Factual uncertainty – case law to help determine thisAsk: Did the D’s negligent cause the plaintiff’s injury? Or is there some other cause or way to explain the injury?3) DamageVital element that triggers the claim and launches the entire litigation processNO HARM NO FOULNo negligence if any element is not provedMUST PROVE LOSS OR HARMControl Devices (show that these things exist after meeting 3 elements)Important that although you have prima facie negligence – work to limit liability (fairness, justice, policy)3 elements are linked to the facts – these devices have less to do with facts and more with fairness, justice, etc. to limit scope of recovery for negligenceExistence of three elements does not automatically translate to liabilityCourts have developed control devices to keep negligence liability within appropriate boundaries1) Duty of care2) Remoteness of damageDuty of CareUnless D owes a duty to take reasonable care of P’s interests, harm to P cannot result in liability to DLooking at the reasons why courts should or should not impose a duty on a defendantExample: doctor owes their patient a duty of careWe can exclude certain persons from the scope of the D’s responsibilitiesRemotenessSimilar to duty, it excludes liability for certain kinds of lossesOn the basis that they were utterly improbable consequences of D’s negligent act or responsibilityExample: a reasonable and prude person would shovel their sidewalk during the snow season. If someone slips and falls, they would be responsible for their negligenceOutrageous example with person slipping, cat, heart attach: “facutually speaking, there is a causal link between the negligent act and consequence” “However, defendant may succeed in proving remoteness” Some consequences are reasonably foreseeableUnfair to impose liability on all of the lossesANALYSIS (Not the only way to approach negligence problem – depending on issue)Step 1: Does the defendant owe the P a duty of care?Step 2: Did the D’s conduct fall below the standard of care?Step 3: Did the D’s negligence cause the P’s injury/loss?Step 4: Did the D’s conduct result in actual injury or damage to the P?Usually a right in property or bodily integritySometimes, pure economic loss – where the P is claiming lost money onlyExample: negligence when drafting a will (do not receive money as should have been set out in will)Step 5: Was the damage reasonably foreseeable? (Remoteness)Defence: Are there any defences that might shield the D from liability in whole or in part?DefencesIf P establishes elements, D may still assert a defenceContributory negligenceVoluntary assumption of riskIllegalityContributory NegligencePartial defence“Your negligence contributed to the loss sufferedApplies where P was also negligentCan also be 2 defendantsReduces amount of damages D is liable forVoluntary Assumption of Risk (volenti)Total defence – ends the lawsuitDefendant asserts that the P was aware of the risk of their actions and voluntarily accepted that riskAccepting the physical risk and legal riskNo negligence on part of DIllegalityOperated as a full defenceBut scope severely restricted by SCCBurglar example (getting injured while stealing): it is possible for the D to recover for personal injury, but not lost wages P was engaged in illegal conduct when the negligent act occurredExample: trespasser getting injured on a property FIRST ELEMENT: NEGLIGENT ACTSDid the D’s conduct fall below the standard of care (that the law expects)Generally, the standard of care required of Ds is objective, not subjectiveVaughan v Menlove (1837, CP)RatioStandard of care required of D is OBJECTIVE.FactsD built haystack with chimney to prevent risk of fire. When warned of possibility of fire, said “he would chance it”. Haystack caught fire and destroyed P’s property.IssueIs the act negligent? Does it meet the requisite standard?ResultAppellant found liable.ReasonTrial court found D liable on the basis of failing to meet standard of ordinary prudence“Reasonable caution as a prudent man would have exercised under the circumstances”On appeal, D argued his conduct should not be measured by that standard. Because, really, he is a dull boy – does not possess “highest order of intelligence”Contended standard is whether he acted bona fide to the best of his own judgmentThe standard is objective. No allowances for personal quirks or idiosyncrasiesThe standard provides certainty – cannot fluctuate based on subjective judgment of each individual – a reasonable level of conduct is expected by allNotesDoes the law, in fact, accommodate some allowances from the general rule?Buckley v Smith Transport (ONCA, 1946)RatioException to the general rule: D’s who are mentally incapable of discharging the objective standard of care should not be held liable.FactsD’s truck hit a streetcar. P alleged that D, a corporation, was vicariously liable. At the time of accident, employee had syphilis of the brain and was under delusion the truck was being electronically controlled by head office.IssueIs the company vicariously liable for the actions of the employee?ResultNo negligence.ReasonP had to prove that D’s employee was negligentEmployee had insane delusion. Even though there is an objective standard of care, he was incapable of discharging objective standard of care. He neither understood not was able to discharge the duty to take care because of the diseaseNegligence law penalizes D for careless actions.The law assumes D is capable of exercising reasonable care or discharging duty of careOr of understanding and controlling actions and consequences.NotesHow about diminished physical capacity?Roberts v Ramsbottom (QB, 1980) [WRONG: DO NOT CITE]RatioFactsD, while driving, suffered minor stroke (no previous strokes). Felt “queerness” and “impaired consciousness”. D kept driving and had two accidents. Kept driving, had serious collision with P, damaging her car and injuring P’s daughter.Issue:Did the D fail to meet an objective standard of care?ResultNegligence found.ReasonDespite impaired awareness, D had some sense of what he was doing and of his surroundingsHe clearly was able to control the car through deliberate and voluntary movements (even if inefficient)“One cannot accept as exculpation anything less than total loss of consciousness.”NotesIs Roberts consistent with Buckley?Courts stated he had some sense of what he was doing (deliberate and voluntary, even if inefficient)Mansfield v Weetabix (CA, 1998)RatioFactsD’s employee had a condition that caused brain to malfunction when blood sugars were low. He did not know he had this condition. Caused a series of accidents by driving after having little to eat.IssueDid the D fail to meet an objective standard of care?ResultNo liability. Roberts is wrong.ReasonMansfield ruling: standard is that of a reasonably competent driver unaware that he is or may be suffering from condition that impairs drivingIt does not matter that he retained some control over the drivingTotal loss of consciousness rule is wrongHe is not liable for damage resulting from impaired consciousness caused by the conditionNotesIf there is some mental, physical impairment that affects ability to discharge objective standard of care – could be usefulNote that if he KNEW of this condition then this would be a totally different case – he would have not taken care and be found liableBut this is not the case hereDon’t need total loss of conscious, just need to know if your actions were in your control or notYOUTHMcHale v Watson (HCA 1966)FactsWatson (age 12), after a game of “tag”, threw sharpened piece of welding rod at a post. Bounced off the post and hit Susan McHale, a few years younger, in the eye. Susan was rendered permanently blind.Windeyer J: True that standard of care doctrine does not allow for the “idiosyncrasies of the particular person”. But, childhood is not an idiosyncrasyIssueDid the trial judge err in applying a different standard?Was the D liable on the lowered standard?If he was correct to lower the standard, then did he apply this new standard correctly?ResultReasonHCA: McTiernan ACJ: Semi-subjective duty of care.Childhood is not a peculiarity/idiosyncrasyThree levels of standards are applicable to children:1) babies (essentially) – manifestly incapable of perceiving risk. Incapable of negligence.2) young adults (essentially) – haven’t attained majority age. Nonetheless, are capable of foreseeing risk/probable consequences of actions. Held to usual standard of care of reasonable personCan’t look at the child as totally subjective, thinking what children in that age group do in these circumstances? What would a 14-yr-old in same situation with same age, IQ, experience do?3) In-between group (children) – capacities to appreciate risk vary with age, intelligence and experience. Held to standard of a child with same age, intelligence and experience. Semi-subjective as standard accounts for intelligence and experienceKitto J (concurring): No room for subjectivityWe can simply deviate from the adult standard to account for childhoodNo answer to say D is abnormally slow-witted, quick-tempered or inexperiencedThis does not mean age is irrelevantCan be relied on as a limitation to capacity that is not personal, but a general characteristic of stage developmentNOT IDIOSYNCRATIC – but considers what is reasonable for a 12-year-oldDid D do anything that a reasonable 12-year-old noy possessing and exercising foresight and care expected of 12-year olds would not have done?Any normal boy would have thrown the spike“A piece of wood and a sharp instrument have special affinity” for a 12-year-old who would not have weighed risk of hard vs soft wood and the likelihood of the spike stickingMenzies J (dissent): No deviationReasonable person applies – no room for variationsRP would not have thrown dart at head weight with another standing close byEven on lowered standard, D still liable – not reasonable for boy to throw…Ogbogu disagreesNotesDid Kitto J frame the issue correctly?True to say no 12-year-old would ask: is that post birch or pine?But should the boy not be expected to think: maybe I should not throw a sharpened welding rod at all?Example of courts giving more leeway to boysWhat happens when a minor commit something that could be a negligent act – how do we apply the general rule to minorsAssess minors according to their ageAs minors age, their ability to approach their actions in a reasonable prudent way grows with their age – but courts struggle with thisConsider age – effects standard of careBut doesn’t mean just because you are a minor you don’t need to meet a standard of careHow do we judge Barry’s actions? Reasonable prudent person would do?Trial judge said not liable – he lowered the standard b/c he is a child – made a different standard for children**Not precedent in CanadaR v Hill (SCC 1986)“The law does not attribute to individuals in the developmental stage youth the same degree of responsibility… attributed to fully adult actors” (Wilson J in dissent)On the road to objectivity, standard should be “adjusted incrementally in accordance with ageMcErlean v Sarel (ONCA 1987)FactsTwo teenagers were involved in trail bike accident (collision).IssueWhat happens when a minor is engaged in an activity we associate with adults?ResultReason“when a child engages in… an ‘adult activity’, he or she will not be accorded special treatment”1) Operating a motor vehicle is different from playing ball“One cannot know whether the operator of an approaching automobile is a minor or adult”2) Machines are capable of high rates of speed regardless of operator and inherently dangerous in wrong hands3) Where the activity is insured, the minor is protected from ruinous liabilityNotesA minor who is carrying as an adult will be treated as an adult (act like an adult be treated like one)They want to protect the plaintiff and the rest of societyOgbogu agrees with thisShould the law hold the person who granted the minor access responsible instead?Liability insurance leads courts to be even more inclined to impose liability to childrenInsurance are going to pay it outCases where there is no insurance, courts may be inclined to do something different (but prof doesn’t think so)Child acting like an adult will be treated like an adultSTANDARD OF CAREStandard of care applicable in negligence cases is assessed objectivelyD is negligent if conduct does not accord with that of a reasonable or prudent personNo allowances for low or less than average intelligence (Vaughan)There are exceptions to this general rule – courts sometimes accommodate or allow lowered standardPhysical/Mental ImpairmentD may be excused if acting under insane delusion and unable to appreciate risk or consequences (Buckley)Physical or mental incapacity = cannot have the objective standard of careDefendant may be excused if unable to discharge duty of care due to physical impairmentEven if still conscious – total loss of consciousness not required (Mansfield, overruling Roberts)And provided D was unaware of condition that triggered the impairment (Mansfield)Example: if you know you have bad eye sight and drive without glasses – will successfully suePhysically impaired D liable if she knew or ought to have known of triggering condition AND failed to take reasonable steps to address the condition before engaging in risky activity (Mansfield)YouthFor young persons (minors), age matters – adjust standard of care in accordance with age (Wilson J in Hill, Kitto J in McHale)Intelligence and experience also matter (McTiernan ACJ in McHale, McEllistrum (SCC))No adjustment for minors engaged in adult activity (McErlean)Fleming, Law of Torts1) “Reasonable person” standard eroded over time by policy considerations and adoption of semi-subjective standards2) Objective standard is necessary for general welfare of society (compensation of injured plaintiffs)3) But often changed when it does not meet or hinders this objective4) Cases sometimes make adjustments to reasonable person standard based upon specific factorsAdjustments Include…Knowledge/ExperienceNo allowances for substandard knowledge/experienceBut converse is not trueIf a person has a higher level of experience, s/he may be judged according to that experienceA lawyer with specialized skills may be held to a higher standard than a general practitionerCan’t lower the standard if you are low experience/IQ, but we can raise standard if you have more experience/IQPhysiciansA physician is held to the standard of the average (reasonably skilled) practitioner of the class to which she belongs or holds herself out to belongThese are adjustments courts have recognized over timeBeginnersNo lowered standard of care: held to standard of reasonably skilled and proficient persons in that callingTake on file in your first years you are treated as a competent lawyerSaying “I just started” is not a defenceYou will be judged according to a reasonable, prudent lawyerLayperson engaged in expert activityWhere a task demands expert skill, especially if public safety is implicated, a layperson undertaking the task will be judged by the standard of the expertLaw student acting like a lawyer – will be judged as an expertPhysical and intellectual impairmentsPhysically disabled persons are often judged by standard of reasonably prudent person with same disabilityNo allowances for intellectual or emotional characteristicsIf negligence is not linked to your physical disability then it does not matterIssues with the Learned Hand testIf cost of precautions (B) are very high, then it is not negligent to inflict harm on PSo, okay to sacrifice the P’s wellbeing for the social (or economic good without any compensationTest is based on the assumption that everything is reducible to money/financial considerationsBender, “A Lawyer’s Primer…”Economic analysis turns people into abstractionsWeighed against profits or benefits to be earned from injury-causing activity – rather, no one should be hurtB can never be high enough to absolve D of taking precautionsOgbogu thinks this is too far…RP test is one of conscious care and concern of a reasonable neighbour under similar circumstancesPosner’s Response to BenderThe ‘caring person’ does not really get us anywhereThis is fairMost neighbours really couldn’t care less about each otherOgbogu agreesLearned Hand TestBolton v StoneFactsP 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 and landed in lane that was back entrance into row of houses.IssueNegligent for not building a fence?ResultReasonTest: D’s actions are to be assessed on the reasonable person 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: D not liableWe must draw a distinction between unforeseeable risk and foreseeable real riskUnforeseeable risk arises from events so bizarre and freakish no one could reasonably foresee the outcomeIf the probability of this is so low that no reasonable person would have ever expected this to happen – then you should only consider that probability.Foreseeable risk is risk one can foreseeTo impose a foreseeable risk on another can be a breach of the standard of careP’s argument: But, once an unforeseeable risk occurs once, it is now foreseeableResponse: refine to account for degree of risk:Foreseeable but small or infinitesimal risk; versusForeseeable and substantial riskThe law does not seek to protect people from all risksWe live in crowded society, and even the most careful person creates riskDs are only required to refrain from creating foreseeable substantial risk“I do not think that a reasonable man, considering the matter from the point of safety, would or should disregard any risk unless it is extremely small”D must also consider seriousness of the consequences (Sounds like L)NotesBut where is B (cost of remedial measures)?“The test to be applied… is whether the risk of damage… was so small that a reasonable man… would have thought it right to refrain from taking steps to prevent the danger. In considering that matter I think it would be right to take into accound not only how remote is the chance that a person might be struck (P), but also how serious the consequences are likely to be if a person is struck (L). BUT I do not think that it would be right to take into account the difficulty to remedial measures.”“If cricket cannot be played on a ground without creating substantial risk, then it should not be played at all”This is a fair middle groundWagon Mound No 2 (PC 1967)RatioA reasonable person would not disregard a foreseeable but small/infinitesimal risk, if that risk could have been avoided without difficulty, disadvantage or expense (Sounds like B)FactsA tanker, the Wagon Mound, was docked to take on oil. Due to bad fitting, oil was discharged into the harbour by the D, covering part of the harbour. Dock owner was welding at the time. Piece of molten metal fell on the water and ignited the oil on the surface, causing fire, which burned dock and boats. Shipowners sued Wagon Mound.Trial decision: there was a foreseeable but infinitesimal risk, hence no liability.IssueNegligent?ResultTrial decision overturned.ReasonLord Reid:In Bolton, the 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!Inconsistent with BoltonLord Reid is correcting himself from Bolton reasoningIf burden is low/high, factor that in In case at hand, no avoidance costs, all it will take is to tighten the fittingTherefore, reasonable person would not create the riskNotesBolton correcting himself – consider the burden of eliminating riskLatimer v AEC (HL, 1953)RatioIf risk is foreseeable and substantial, cost of precaution is irrelevant. But relevant consideration if risk is foreseeable but small.If risk is foreseeable + small, but cost of precaution is low, D may be found to have acted without reasonable careFactsExceptional rainfall floods factory floor; P slips, falls and suesIssueLiable for negligence in this case?ResultNot liable – cost of avoidance would have been to shut down the plantReasonNotesForeseeable + substantial – consider and do everything to try to avoid loss.Consolidation of Cases1) If risk is unforeseeable, no liability2) If risk is foreseeable, is it small or substantial?If small, consider:Seriousness of consequences Cost of precautionsIf low, D may be liableIf substantial:Consider seriousness of consequencesDo not consider cost of precautionsThe Role of StatutesIF statute says X and D does not abide by statute – can we classify as negligent?Is evidence that a D has breached statute determinant that their act was negligent?Consider the following hypothetical case:FactsClient struck by the D’s truck on her way to workThe truck had a statutory cargo limit of 5 tonnesThe truck was in excess of limitExcess weight contributed to accident as it affected driver’s control of the truckIssueDoes the breach of a statutory rule amount to a breach of a standard of care?Is the D liable merely on the basis of the breach of a statute?In assessing the reasonableness of a D’s conduct, is the fact that such conduct breached a statute relevant consideration?Why is the question important?Tort law and statutory regulation are distinct legal devicesTort law developed exclusive of state regulation of hazards, which came laterThree possible answers/approaches1) Breach of statutory duty is determinative of liabilityBreach of stattue is breach of standard of careThe statutory rule is the standard of careThe breach of statute is itself a tort2) Breach of statutory rule is totally irrelevantSuch cases deal with the interaction between two private parties – P and DNot between D and the stateIn determining the standard of care, obligations owed by defendant to the state does not matter3) Somewhere in betweenCorrectCan be considered, but not determinativeSaskatchewan Wheat Pool v The Queen (SCC 1983)FactsD (Sask Wheat) stored and transported P Canadian Wheat Board’s grain. D loaded a quantity of grain from its elevator into a ship. It was later discovered that some of the grain was infested with rusty grain beetle larvae. As a result, P was required to divert ship to Kingston, unload and fumigate grain and ship holds, and then reload grain. At a cost of nearly $100k, which it sought to recover from D.Sidenote: P did not allege negligence or any other specific tort.Alleged breach of section of Canada Grain Act that prohibited delivery of infested grain to the Board(Breach of statute = tort (argument 1 above))IssueNegligent for not abiding by statute?ResultReasonDickson JNo general principle or rationale can be identified from existing casesFrom England, the “painful emergence” of a “new nominate tort of statutory breach”Involves a search for “non-existent” Parliamentary intent to create a civil cause of actionExcruciating tests developed to determine whether duty is owed primarily to the state and only incidentally to the individual, and vice versaIn US – some confusion in the cases (dominant position is that violation of statute is per se negligence)In Canada:1) (Sidenote) – None of this applies to “industrial statutes” (eg. Worker’s comp), which historically involve absolute liability – no fault requiredScheme has been worked out2) Canadian 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 actionInstead, the fact of a statutory breach should be considered within the context of a claim for negligence“Civil consequences of breach of statute should be subsumed in the law of negligence”“…the violation of the statute should be evidence of negligence on the part of the D”Rule: Evidence of breach of statutory requirements is a relevant consideration in assessing whether the D breached the standard of careOther considerations: (statute, custom, what D did and did not do)Whether D…Operated the terminal to accepted trade standardsMade regular checks for infested grainTested samples and carried out visual inspectionsNotesSummary: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 careAnd a breach of that statute as evidence of breach of that standard of careFill in remaining slide!Affirmed in Holland v Saskatchewan (2008 SCC 42)But question remains…Intentional breach of statute?Dickson J ruled that the fact of statututory breach is to be considered within a negligence claimIf breach was intentional, P won’t sue in negligenceCases exist where courts have treated a breach as forming the basis of a private right of action by attempting to distinguish Sask Wheat Pool as applying only to cases of negligenceWhistler Cable Television v IPEC Canada Inc. (1992 BCSC) – cannot use on exam (WRONG)FactsP operated a cable TV system. D operated an unlicensed cable system, thus cutting into P’s business. IssueAbsent a statutory breach, has D committed a tort?ResultNo – to compete is not to commit a tortReasonBraidwood JSask Wheat Pool confined to negligence law claimsDoes not eliminate “tort of breach of statute”!NotesBraidwood ignores what SCC saidBroadcasting Act – made it an offence to broadcast without a licenceFine of up to $200k per day – not paid to plaintiffs, paid to regulatorWhistler Cable wrong on point that there is a tort of statutory breach for intentional conductBreach of statute is evidence of breach of standard of care in negligence actions. It is not determinativeYO v Belleville (City) Chief of Police (1991 ONGD) – cannot use on exam (WRONG)FactsPolice breached provision of Young Offenders Act by revealing P’s criminal record to potential employer. Penalty for breach was criminal prosecution. P sued police for negligence resulting in lost income.Trial: judge referred to Sask Wheat PoolNo tort of breach of statutory dutyCase should be determined on negligence principlesBut….“all Ds had a duty to the P to use reasonable care to keep his youth record confidential”Ds were negligent and breached that dutyNotesWhat tort was committed?Tort of giving out information?Not a tort, but a breach of statutory duty for which the penalty appliesAlso, appears the trial judge treated the breach as determinativeCustom and ReasonablenessTrimarco v Klein (NYCA, 1982)FactsP injured when glass enclosure door of a bathtub shattered. Practice of using shatter proof glass common since the early 1950s. P also cited sections of NY’s General Business Law that made it a crime not to use shatterproof glass for new installations after 1973. Door was installed prior to 1973, so criminal sanction did not apply. However, statutory provisions reflect custom.IssueShould evidence of custom influence standard of care? YESResultYES – it is influentialReason“When certain damages have been removed by a customary way of doing things early, this custom may be proved to show that the defendant has fallen below the required standard”Conversely, proof of an accepted practice and conformity by D may establish due careWorks both waysWhy?1) Custom shows collective judgment of many people on the issueBetter than having a judge make it upThe community generally thinks that acting reasonably (assuming they are acting reasonably) entails the customary practice – surely must be the case that if community thinks something is reasonable, who is the judge to disagree?Collective judgment2) Shows that precautions that the court is imposing on D are feasibleIf everyone can do it, then D can as well BOTTOMLINE:When certain dangers have been removed by a customary way of doing things, this may be considered in determining whether a D has met (or failed to meet) the standard of careTwo questions:Must the custom be universal? NOIt is enough that it is fairly well defined and in the same calling or businessSuch that D either knows about it or conversely, is negligently ignorantIs the evidence conclusive? NOFinder of fact must still be satisfied that the custom itself is reasonableJust because everyone is doing it does not mean it is reasonableFocus is not just on what everyone else is doing, but also on what is reasonableLearned Hand J!NotesBreach of custom is not determinative – piece of evidence to show standard of care has been breachedThe T.J Hooper (2d Cir, 1932)RatioCustom is often helpful in the standard of care analysis, but only if the custom itself is reasonable.FactsP’s barges towed by D’s tugs were caught in a storm and sank. Tugs were alleged not to be seaworthy because they did not carry radio receiving sets. NO general custom requiring use of radio sets. Even though they could be obtained at little expense, fairly reliable with maintenance, and offers “great protection”. D’s held liable at trial, but appealed on the basis that use of radio sets was not customary in the industry. USED custom as a SHIELD.IssueWas the fact that the use of radio sets not customary negate standard of care?ResultReasonLearned Hand for PThe custom itself is unreasonableBarges are unmaneuverable ships – sets are their “ears” and are really quite necessarySummary (CAN)Evidence of custom is never determinative or conclusive in the standard of care analysis (Trimarco)It is influential, but only if it is a reasonable custom (TJ Hooper)Malcolm v Waldick (1991 SCC)FactsWaldick slipped on ice on D’s driveway and fractured his skull. Ds neither salted or sanded driveway. Claimed this was local practice in their rural community. Trial and ONCA ruled D’s failure to salt driveway was negligent, regardless of local custom.IssueNegligent? Custom reasonable?ResultReasonIacobucci J: dismissed D’s appeal in which he claimed local custom was not taken into accountDs are mistaken: local custom was taken into account but it is not determinativeBecause it was not applied does not mean it was not consideredD’s did not offer sufficient proof of this so-called local customRelied only on testimony of one DWe need to hear from your neighbours maybe?Local standard (if it did exist) is itself negligent“No amount of general community compliance will render negligent conduct reasonable”NotesSalting driveways is easy to diss – how about a more complicated practice?Say there is evidence of a practice adopted by most or all *astronauts*, which exposes others to riskHow do we determine reasonableness?Ter Neuzen v Korn (SCC 1995)RatioIf matter is so technical, such that the complexity is beyond the competence of the trier of fact, the trier of fact cannot judge on reasonableness of custom. (one exception – custom is fraught with obvious risks)FactsD physician failed to warn P of the dangers of contracting HIV from artificial insemination procedure. At time of infection, virtually no knowledge among specialists of danger of HIV transmission. Only one letter in a journal that was not heavily circulated warned of risk. No practice of screening donors or warning anyone of risk. Physician, in not warning P of HIV transmission risk, complied with standard medical practice. Physician did screen donors, but one donor was not completely forthright about sexual practices.At trial – jury found D was negligent. CA – overturnedIssueNegligent conduct in light of standard medical practice?ResultUpheld CA decision.ReasonSopinka JOnly two ways jury could have found D to be negligent1) The jury could find that D violated the custom (not the case here)Evidence of custom in case was unambiguousDs actions complied with that customDid slightly more even by screening donorsNo jury acting judicially can correctly reach a conclusion that D failed to conform to custom of the profession2) Jury could find that the custom itself was negligentThis was an impossible conclusion for the jury or judge to reach in case at handThe case involved a highly complex area of practice and studyHighly technical and scientific and beyond the competence of a trier of factIt is therefore not open to a trier of fact to find such custom or standard practice negligentOnly ONE EXCEPTION:Custom or standard practice is fraught with obvious risksThe standard practice fails to take precautions that are readily apparent to anyone with the experience or knowledge base of the trier of factNotesBottomline:As a general rule, where the standard practice or custom involves complex, scientific or highly complex 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, unles the standard practice or custom is fraught with obvious risks that any reasonable layperson can detect.PROOF OF NEGLIGENCEThe P in a torts case must prove his or her case on a balance of probabilitiesEvidence can be direct or circumstantialRES IPSA LOQUITUR (“the thing speaks for itself”)BAD DOCTRINE – Do not cite!Mechanism for dealing with circumstantial evidenceTraditionally, RIL was considered to be sufficient evidence where:1) The thing that caused the damage was under the D’s control2) The event would not have occurred without negligence3) There is no evidence as to why or how the event took placeMorphed into interpretation that burden of proof shifted to D to disprove negligenceRIL is an anomaly because it reverts the burden to defendant (rather than the asserter having to prove negligence)Byrne v Boadle (Exch, 1863)FactsBarrel of flour rolled out of D’s shop; struck and seriously injured the plaintiff.IssueNegligent? What kind of evidence can D use to rebut RIL?ResultRIL - NegligentReasonBarrels of flour do not just get up and walk out of buildingsCan only result from negligenceAccident either reveals evidence that D can either rebut or be found negligentNotesCircumstantial evidence, however, not even strong circumstantial evidence Fontaine v British Columbia (SCC, 1998)FactsAppellant’s husband was travelling in car driven by hunting companion. Car veered off the road in very poor weather. Both were killed – no one saw the accident, and no one knew precisely when it occurred. 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 (poor weather; worn/damaged tires).IssueDo the alternative explanations negate RIL?ResultRIL does not apply.ReasonRIL no longer applies. It is technical, confusing and unhelpfulIntended as a way of dealing with circumstantial evidenceNEW TEST for dealing with circumstantial evidence:1) Trier of fact must weigh circumstantial evidence against any existing direct evidence to determine whether P has established, on BOP a prima facie case of negligence2) If P successfully establishes a prima facie case it falls to D to present evidence to negate the P’s evidence or P will succeed on the prima facie case.STANDARD OF CARE IN MEDICAL NEGLIGENCE CASESStandard of care: apples to apples, oranges to orangesIf you put yourself as an expert in a specific field – you will be held to that standardBeginner – held as a normal, reasonable, prudent practitionerPrinciples:Typically assessed by looking at conformity of D’s conduct with accepted or approved standard practiceCourts will not overrule approved practice unless “clearly unnecessary or unduly hazardous” (fraught with obvious risks)Sylvester v CritsFacts5-year old P injured during medical operation when anaesthetic exploded. Anaesthetist created a highly explosive mixture of oxygen and ether. Also placed ether can on operating table, close to P’s head. The explosion was caused by static electricity igniting escaped ether-oxygen mixture accumulated near P’s head.IssueNegligent? What is the standard of practice?ResultFound negligence. Failure to meet standard of care.ReasonCourt found there was a “minimum of evidence” on approved standard practiceObvious to non-technical person that turning off oxygen tank would have prevented accident“It does not require a technician’s understanding to see that a dangerous volume of the gaseous mixture had build up in the immediate area in which the flash of flame appeared.”NotesApproved standard of practice: typically determined through expert testimony or 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 appropriateTailleur v Grande Prairie GeneralFactsP sustained an injury to her heel and achilles tendon. Her doctor referred her to Dr. Sendziak, an orthopaedic surgeon, for repair of the achilles tendon. Dr. Sendziak applied a cast running from above the toe to below her knee. Two days later, notice discolouration of the skin above the cast. Later diagnosed as gas gangrege requiring immediate above the knee amputation. GG is a rare infection caused by clostridia perfringens.P sustained injury after swimming in an earthen dugout full of runoff water on an acreage.GG progresses rapidly. Diagnosed if crushed, dead or devitalized tissue, or other sign of contamination at the wound site. Treatment includes cleaning, leaving wound open , monitoring, antibiotics.IssueNegligent? What is the standard of practice?ResultAppeal allowed. No breach of standard.ReasonEvidence accepted at trial was that Monica’s wound was a “clean wound”Experts agreed that Dr. Sendziak followed proper practice in treating woundOrthopaedic experts testified they would have done the same.Agreed that cast did not cause gas gangreneWhile cast could delay detection, it would not contribute as a causeMost likely cause was inoculation of the bacteria when the wound was sustainedTJ held that Doctor breached standard of care because he failed to consider and react to the risk of infection in circumstancesReasoned Dr. should have used an alternative cast to make lower limb visible, aiding visual inspection and detection… essentially substituted expert facts with hisAppeal overturned:No evidence to support the fact that:A) risk of infection increased by circumstancesB) Doctor breached standard of care by selecting the wrong castC) Earlier detection was possible by visual inspectionNotesIf it did not spread as rapidly – Doctor may have been able to correct initial mis-diagnosisTJ did not have the expertise to comment on technical mattersAccepted 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 finder of fact to conclude that such a standard was inherently negligent.”However, “matters falling within the ordinary common sense of juries can be judged to be negligent.”Error of JudgmentMedical professionals should not be held liable for mere errors of judgment that are distinguishable from professional fault“reasonable mistake” – mistake every professional in that field would makeDifferent from a mistake that most professionals would not makeError that is made when a health care provider picks one of many reasonable optionsReasonable, prudent practitioner might make the same EoJTunnel vision – negligence – failure to reassess diagnoses when patient is not getting better.Professional negligenceTypical example of EoJ: misdiagnosis that is consistent with approved standard of practiceComes down to REASONABLENESS:Could a reasonably competent and similarly skilled professional have made the same error?An error of judgement is an error made in the context of the exercise of reasonable care.Wilson v Swanson (SCC 1956)FactsD, highly skilled surgeon, found growth in patient’s abdomen during surgery. Test by pathologist showed growth was “probably malignant.” D made judgment call to remove organs that would have been untouched in the surgery. Did not wait for confirmatory test and turns out growth was benign. Patient sued.IssueNegligent? Error of Judgement?ResultEoJ – no negligence.Reason“EoJ has long been distinguished from an act of unskilfulness or carelessness or due to lack of knowledge.”Evidence suggested an EoJThe honest and intelligent exercise of judgment has long been recognized 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 Hopital Ve GardeurFacts5-year-old cut her elbow, resulting in severed artery and severe blood loss. Attended to by emergency GP, who realizing he could not fix artery, made judgment call to send her to PEDS. Did not perform blood transfusion, but communicated gravity of case to PEDS, including possibility of shock. Patient suffered massive cardio-respiratory arrest due to oxygen loss upon arrival tin PEDS. Left with irreversible brain damage.IssueError of Judgment? Negligent?ResultReasonDoctor made an EoJ – exercised proper judgment in ordering transferDecision to transfer without giving her a transfusion was reasonableD stopped bleeding and replaced lost fluidsInsertion of intravenous drip took almost an hourD had to balance delays in transferring patient with waiting for bloodSummaryA medical professional is held to a standard of care expected of a prudent, diligent and reasonably skilled practitioner of the same standing and experienceA 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 errors of judgment that are distinguishable from professional fault.DUTY OF CAREDifficult to examine – need strong policy argumentsUnless a D owes a duty to take reasonable care of the for the plaintiff’s interests, breach of standard of care resulting in harm to plaintiff is not enoughLiability 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 plaintiffBased on precedent for the most part – well-established duties of care (example: doctor and patient)QUESTION OF LAW – the judge determines if the duty existsNot a question of fact Donoghue v Stevenson: seminal decision. Leading decision for duty of care.FLEMING: Courts consider many factors in the duty of care analysisHistory, ideas of moral and justice, social norms, administrative convenienceWinterbottom (and Abinger’s reasoning) 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 lossesEvolution of Duty of Care Analysis Since Donoghue v StevensonHome Office v Dorset Yacht Co Ltd (1970 HL)Focus is on whether there are reasons to exclude the duty of careAnns v Merton Borough Council (1978 HL)Focus is on whether there are policy reasons that negate or limit a prima facie (foreseeable) duty of careCaparo Industries v Dickman (1990 HL)3-part test: foreseeability, proximity and whether it is fair, just and reasonable to impose a duty of careWinterbottom v Wright (Exch, 1842) [Pre-Donoghue]FactsD is a coach manufacturer. Contracts with postmaster to maintain coaches in good working order. Postmaster contracted with third party, Atkinson, to deliver the coach. Atkinson contracts with P to drive coach to its destination. En route, coach broke down due to latent (hidden) defects. P was seriously injured; sued D (manufacturer).IssueWas a duty of care owed?ResultNo duty owed.ReasonCourt: NONo precedent for this. No privity of K between P and DGranting P relief will open the floodgates. Anyone injured by the upsetting of a coach could sue the manufacturerBaron Rolfe:“duty” flows ONLY from contract. P’s contract was with Atkinson, and D’s contract was the postmaster No duty between P and D. Only basis for a duty to exist in contractual linkDamnum absque injuria – loss without a violation of legal rights.NotesNo K between manufacturer and coach driver… only has connection through several degrees of separationPrivity of K: only parties to a K have rights under that KBar to recovery in situationsCourt’s explanation is a classic, doctrine-based, reasoningCourt’s did not consider carelessness of the manufacturer (as done in Donoghue)Donoghue v Stevenson (HL, 1932)FactsP, Donoghue, and a friend, go out for drinks. Friend purchases a bottle of ginger beer for P. Bottle was opaque – P could not see contents, and bottle contained decomposed remains of a snail. P claims she got gastro-enteritis from consuming drink. Trial court held that no duty was owed. Affirmed by Court of Sessions. P appealed to HL.IssueDid the D manufacturer owe the P a duty of care?ResultMajority (Lard Atkin)Duty of care has been determined based on precedent or established classifications (contract, bailment, transfer of custody of chattels)This approach results in denial of claims that do not fit established categories.Approach is inconsistent with common law methods of adjudication. Rather than relating the specific facts of a case to establish categories, we should relate them to a general principle.That general principle is (what is now known) as “THE NEIGHBOUR PRINCIPLE”: (biblical context) “love your neighbour becomes in law, you must not injure your neighbour.”People who are close to you – have to contemplate actions that may affect themWhat duty flows from this general principle?“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”Reasonably foresee injuryWho is my neighbour? To whom do I owe a duty of care?“Persons… so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected”ProximityD owes P a duty to take reasonable care to avoid acts that will result in an injury to the plaintiff’s life and property.That is, injury to plaintiff’s legal rightsMisfeasance: interference with legal right (injury of someone’s legal rights – property, life, bodily integrity)Nonfeasance: failure to confer a benefit (does not affect legal rights)ApplicationD intended the product to reach the consumer in the form it left the factory. No real possibility of other inspection. No contractual relationship but a direct relationship exists. D intended the product to be consumed and D can foresee that negligence on his part will cause injury to P’s legally protected interests (example: property, bodily integrity)Concurring (Lord MacMillan)Claim in tort is not precluded by the absence of contractual privity (Winterbottom does not apply)P in Winterbottom sought to impose contractual liability on D (sued in contract)Agrees with application of NEIGHBOUR PRINCIPLEDissent (Lord Buckmaster)Winterbottom is the lawAbsent a contractual relationship between P and D, there is no duty, with two exceptions:1) Inherently dangerous articles (eg firearms)2) Articles that are dangerous by reason of hidden defects known to the manufacturerFloodgates will open! If yes, then D will eventually owe duty to all persons who consume the product regardless of contractual privityNotesWhat about Winterbottom?No duty alleged in Winterbottom other than that arising out of contract. Does not apply or govern. (Reading down)Summary (two main/intersecting ideas flow from Neighbour principle)1) Close and direct relationship (proximity)2) Contemplation or foreseeability (foreseeability)Emphasis not just on foreseeability of harm, but also on foreseeability of harm to a person who is proximate to the defendant.Queries: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?Three approaches/interpretations:1) Classic/current English position – need both2) NZ (formerly CDN) position – foreseeability alone is sufficientFirst, ask if risk of harm is reasonably foreseeableIf yes, then ask if there are policy reasons to limit: scope of the duty, class of persons to whom it is owed, or quantum of damagageAnns formula 3) Foreseeability + proximity – policy limitations (Cooper v Hobart)Cooper v HobartStage 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). If yes, go to stage 2(ii) Proximity and internal policyStage 2: “external” policyDeyong v Shenburn (1946, CA)FactsP, actor, had his clothes stolen from dressing room during rehearsal. Argued producer owed him duty of care to safeguard property. Because it was foreseeable that producer’s negligence would lead to theft of clothes.IssueDuty of care owed?ResultNO duty.ReasonDid D interfere with P’s legal rights?No legal right against the world to have clothes looked afterThere may be harm to a protected interest (clothing), but no legal right entitling P to claim protection of that interest from DReliance on guarantee by D would have produced a different resultModern employment statutes may impose an obligation of safekeepingPalsgraf v Long Island RR Co (NYCA, 1928) (little weight in Canada – do not use in Canada)Ratio:Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right.”FactsPackaged dropped by a passenger when D’s employee pushed him onto train. Package contained fireworks, which detonated. Shock from explosion knocked over scales at other end of platform; one fell and injured P.IssueDuty of care owed? Whether Mrs. P is in a proximate relationship? Whether reasonably foreseeability? Mrs. P have any legally protected rights?ResultNo dutyReasonMajority (Cardozo – incorrect reasoning/application)“The conduct of the D’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 the plaintiff must show is a ‘wrong’ to herself; ie. a violation of her own right” – not merely a wrong to someone else or wrongful conduct because “unsocial”No duty of care if Mrs. P is not within the ambit of risk created by D’s employeeDuty cannot be derived from risk posed to another“If no hazard was apparent to the eye of ordinary vigilance…” Negligence requires close and direct relationship between doer and sufferer AND risk to P must be seen to be in guard’s contemplation when he created it.Dissent (Andrews J)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 holder of package, he is liable for outcome where there is injury to someone else.To confine breach to the person owed the duty is too narrow: “Not only is he wronged to whom harm might reasonably be expected to result, but also who is in fact injured, even if he be outside what would generally be thought the danger zone”D not absolved from liability merely because he did not injure “closes and most direct person”But rather, a more remote person.NoteSure, it is possible to say bodily integrity affected… however, is this something that you can blame the guard for?Confused reasoningOgbogu’s preferred reasoning (broad reasonable foreseeability): Mrs. P legally rights were violated, however, 1) it was not foreseeable (chain of events) and 2) Too remote Inquiry instead was: is it foreseeable that anyone might be harmed by pushing a passenger?Foreseeablity as the “specific harm”Home Office v Dorset Yacht Co Ltd (1970 HL)FactsSeveral “borstal” boys escaped while guards were sleeping. Damaged a yacht.IssueWere guards/home office liable for tortious acts of competent adults?ResultD owed owners of yacht a duty of careReasonHO argued duty not recognized OR should not be recognized for reasons of public policyMajority applied Donoghue to reach conclusion that D owed owners of yacht a duty of care.Outcome/damage is foreseeable and no public policy reasons to deny liabilityLord Reid: Donoghue is a milestone and Lord Atkin’s speech a “statement of principle”. However, the principle is not a “statutory definition…” “It will require qualification in new circumstances” (policy reasons)… “ought to apply unless there is some justification or valid explanation for its exclusion.”NotesTwo-step argument: “this has never happened before… no duty of care”Injected something new here (foreseeability and proximity exists)Policy reasoning has nothing to do with doctrinal analysisPolicy must be considered because you can’t just impose a duty of care based on proximity and foreseeability. Look at what impacts the duty has on society (both sides for P and D)Step 1: proximity and foreseeabilityStep 2: policy reasons Anns v Merton Borough Council (1978, HL)FactsPs were tenants in a block of flats (owned by council) which developed structural defects because foundations were too shallow. D responsible for inspecting blocks of flats during construction.IssueDid D owe Ps a duty of care?ResultYes – council owed Ps a duty of careReasonDuty of care analysis based on two-part test:1) Is there a prima facie duty of care? (Legal question – solved by looking at facts)Is it within the reasonable contemplation of D that his carelessness will likely cause damage to P? (Foreseeability question)Focus is more on foreseeability, rather than proximity 2) Are there any conditions which “ought to negate… reduce or limit…”Policy considerations: Scope of the duty, class of person to whom it is owed (proximity), quantum of damagesPolicy, not legal considerations!Held: no policy reasons to prevent duty in AnnsNotesYou do not have to show the court precedent, all you have to do is establish the existence of a two-stage testProximity matter moved over to second stage of test (class of person to whom it is owed)D ought to have a contemplation that P was proximate and subject to danger of negligence?This test was extremely wide open compared to any duty of care definitionOvertime, HOL retracted from this openness to restrict it Canadian courts have adopted and held to this test – continued reiteration of this test for DoC in CanadaIs there a sufficient relationship of proximity neighbourhood such that, in the reasonable contemplation of the D, carelessness on his part may be likely to cause damage to the P?If yes, are there any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach may give rise?Caparo Industries v Dickman (1990, HL) – Two-part test overruled AnnsMain difference is retreat to foreseeability + proximityRescue proximity from the second stage of the analysisRetreat to Donoghue – look at proximity very clearlyFair, just and reasonable standard arguably same as second part of Anns testCooper v Hobart (SCC 2001)Ratio:Facts:1997, D (Registrar of Mortgage Brokers) suspended a registered mortgage broker’s license and froze its assets because broker allegedly used investor’s funds for unauthorized purposes. Named P was one of over 3k investors who lost substantial investments due to broker’s misconduct. Sued D claiming he breached standard of care correlative to a duty of care owed to investors. Ps alleged that D became aware of broker’s offences in mid-1996. Should have acted earlier to suspend licence and to notify investors that broker was under investigation. If he had done so, their losses would have been avoided or mitigated. Ps applied to have action certified as class action and had to show that action discloses a cause of action (common complaint of negligence). Component: there must be a duty of care owed by D to investors.Below:TJ – pleadings disclosed a cause of action (CA reversed)Issue:Did D owe P a duty of care as an investor to protect him from economic loss?Result:No duty of care (unanimous)Duty unrecognized, and this is not a proper cause to recognize a new duty.Reason:“We attempt to clarify the distinctive policy considerations which impact each stage of the Anns analysis”Stage 1 of Anns Test: Prima facie duty of care(1) Foreseeability: was the harm foreseeable?Reasonably foreseeable that the D should have taken care to not affect P?If no, analysis ends (no duty of care)(2) ProximityFocused on the factors that arise from the relationship between P and DClose and direct relationship… ask bystander “should I have considered this person?”Restated from Donoghue Are investors in a class of person that would be in the Registrars mind? (Public is paramount)Includes broad application of policy considerations (policy internal to proximity analysis)Are there reasons that are apparent, in absence of the facts, to accept or reject relationship?Statute – explicitly drafted such that investors should/should not be on registrar’s mind?Relationship – what are all the factors that tell us about the nature of the relationship?Prong 1: Analogous categories of proximityAsk: Are there analogous categories of cases where proximity (closeness and directness) has previously been identified?Analogous/recognized categories:(1) Physical harm to P or P’s property(2) Nervous shock – create risk that affects P who was not present/direct target of risk(3) Negligent misstatement(4) Duty to warn of risk of danger(5) Relational economic loss(6) Government liability for economic losses and physical damage arise from failure to inspect property (Kamloops)If there is an analogous category, prima facie case established. Go to stage 2If no analogous category, go to prong 2 of proximity analysisProng 2: Full proximity analysisFactors that allow us to evaluate the closeness of the relationship between P and D and 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 or other interests.Side-note: when dealing with public authority, as in Cooper, proximity must be grounded in statuteGOAL: establish new categories – “The categories are not closed and new categories of negligence may be introduced.”If new category is found, prima facie case established: go to stage 2 of Anns TestIF no new category, inquiry ends – no prima facie caseStage 2 of Anns Test: “External” Policy InquiryAsk: Are there policy reasons to limit the duty of care?This policy analysis is not concerned with proximity (ie. relationship between P and D)Rather, concerned with effect of recognizing duty on other legal obligations, legal system and/or society more generallyNotesThe court is now considering different policy considerations at both stages of the analysis. Ogbogu: great to have SCC decision that sets out our own unique path on duty of care analysis. However, a very confusing case.Problem 1: Scope of “internal policy”Insufficient proximity between Registrar and investors:“Such a duty…would come at the expense of other important interests, or efficiency and…public confidence in the system as a whole.”Sounds like stage 2 (residual or external policy) analysisConcerned with the effect of recognizing duty on other legal obligations, the legal system, and society more generallyProblem 2: Confusing on issue of policyInternal policy (“questions of policy, in the broad sense of that word”)Better to say balancing the rights of individuals against the need to co-exist with othersDo policy considerations really add anything at this stage?Leaving a concept at the mercy of policy and at the mercy of the judgeProblem 3: Analogous Categories?How analogous do the categories have to be?Does Cooper not fit into government liability of economic loss?Problem 4: When dealing with public authority, as in Cooper, proximity must be grounded in statuteRare to find express statement of proximityQuestion is whether statute, which is designed to protect public, can be read as creating a right in the plaintiff as an individualForcing plaintiff to decipher legislative intentSK Wheat Pool, per Dickson J: “We must refrain from conjecture as to Parliament’s unexpressed intent.”Practice Case Foreseeability – reasonably foreseeable that the lack of the deleted clause could result in loss in employmentProximity – reliance, representation, expectation – binds the employees to the Minister. Could further be argued that the proximity is grounded in statute.MUST be grounded in statutePolicy?Advocating duty of care – trust in the public, etc. Against duty of care – slippery slope, as soon as you establish a duty of care, there’s a danger of enabling people to sue governmentJames v BC (2005 BCCA)FactsSawmill permanently shut because Minister and staff inadvertently removed from tree farm license clause that would have prevented mill closure. Plaintiff claimed pure economic loss. Two sub-categories: (1) the independent liability of statutory public authorities, (2) negligent performance of a service.RJ: (1) inapplicable. Duty imposed by statute is to public as a whole, not to workers in forestry industry. Case is indistinguishable from Cooper. Duty established. Cause of action disclosed. Class action certified.IssueResultReasonWhat about category 2?Negligent performance of a service – 3rd party beneficiary can recover for negligence (eg. Beneficiary in will)Draws analogy: minister and licensee, 3rd party is forestry workers.BCCA: Prima facie duty of care: foreseeability + proximitiy (YES)TJ wrong – case is distinguishable from CooperMinister has discretion – Registrar in Cooper did notLegislation required Minister to balance competing interests in implementing conditionsNegligence was operational in nature – not arising from policy but from implementation of the policy“It can be safely 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 (negligent performance of a service):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 unti he reached a decision on policy grounds to remove it.”Even if analogous categories did not exist, we would still find this meets full proximity analysis based on “expectations, representatsion, reliance…”NotesHead scratchersIf Minister had discretion to withdraw the clause at any time, how could P have reasonably relied on it?Cooper may be confusing, but what effect has it had on the cases?Vast majority of cases – Ds win where courts are called upon to recognize a new duty of careMajor shift from pre-CooperChilds v DesmoreauxChilds v Desmoureaux (SCC 2006)FactsDwight Courrier and Julie Zimmerman hosts a BYOB party. Guests drink alcohol. Inebriated Desmoreau (D) drives away, causes accident, injures P. Only alcohol served by hosts was “three-quarters of a bottle of champagne in small glasses at midnight.” Hosts knew D was a heavy drinker – had 12 beers – left party with very high BAC.IssueDoes a social host owe a duty of care to a person injured by a guest who has consumed alcohol at his/her party?ResultReasonIs there an analogous category?Canadian law does not provide a clear answer on whether duty is owed by social hostsDuty recognized for “commercial alcohol providers” (Stewart v Pettie)This is not the same thingThree main differences in “proximity” relationship:1) Commercial hosts are better able to monitor consumptionEasy and expected by host, patrons, publicThey ensure paymentRegulators require training in monitoring2) Sale and consumption of alcohol strictly regulated3) Duty is necessary to suppress “perverse” incentive that CAPs have to encourage over-consumption for profit.Bottom-line: Not an analogous category.New duty? NOInjury to Ms. Childs was not reasonably foreseeable on the factsTJ did not find that hosts knew or ought to have known D was too drunk to driveShould they have reasonably foreseen injury to road users based on D’s past historyHistory of alcohol consumption and impaired driving does not make impaired driving and consequent risks to motorist foreseeable! Frail hypothesis?No proximityNonfeasance, not misfeasance – “wrong alleged is a failure to act or nonfeasance in circumstances where there was no positive duty to act.”NotesOgbogu: does not understand reasoning. Should be RF that hosts knew or ought to have known D was too drunk to drive.Should have recognized a dutyDuty of care not every deserving plaintiff ought to recoverPerhaps there was a middle ground that the courts should have pursued.DUTY TO RESCUEScenario:Person A rents a boat to B. A’s negligence in maintaining the boat resulted in the boat to take on water. C comes to rescue B, and in the event the rough seas swamp C’s boat and she dies. C’s family wants to sue AIssueIf owing to D’s negligence, a Person (B) is put in the position of danger, does the D owe a DoC to a 3rd person (C) who suffers harm when attempting to rescue B?NotesPre-20th century, little sympathy for rescuersViewed as meddlesome busybodies. Authors of their own mistofrtune. Claims rejected on grounds that duty to rescuer was not foreseeable OR that the rescuer consented to the risk OR that the incident necessitating rescue was novus actus interveniensHaynes v Harwood (CA 1935)RatioIf the injury to the rescuer is foreseeable, then D owes a duty of care to the rescuer.FactsD negligently left horses untied on busy street. Horses were aggravated by young boys, who threw rocks at the horses. Horses scampered off, endangering the lives of several pedestrians. Police officer, seeing the danger, attempted to rescue pedestrians by stopping the horses. Rescue was successful, but he was injured in the process, he sued D.IssueDuty owed?ResultBoys owed a duty ReasonGreer JD owes a dury of care to all those who could lawfully use the road, including the police officerNo novus actus, because startling of horses by children o na busy street is foreseeable. It is the very thing to be expected. Intervention by boys did not break chain of causation – it completed it.Also, no volenti, act not based on consent because ofMoral compulsion to act (not consent – not accepting the risk)Time constraints (heat of the moment)Notes(Injury) within the ambit of the riskSince Haynes, rescuer actions almost invariably succeed:Corothers v Slobodian (SCC 1975)Rescuer left site of MVA (motor vehicle accident) caused by D’s negligence. Ran down highway to seek assistance. Hit by oncoming vehicle and successfully recoveredUrbanski v Patel (MNQB 1978)D, surgeon, negligently removed one kidney from P’s daughterP then donated his kidney to daughter. Sued D for loss of his kidney. D held liable on basis that P was a rescuer.How far is the rescue/injury really RF?Reasoning for rescuers allowed to recover:Cordozo J:“Danger invites rescue… the wrong that imperils life is a wrong to the imperiled victim; it is a wrong also to his rescuer”“The wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had”Why is it important that the duty to rescuer is independent of duty to person in danger?Rescuer’s ability to recover is not affected by defences that D may have against person in dangerNo injury to person in dangerVolentiContributory negligenceBottomline:Duty owed to rescuer is independent of any duty owed to the subject of the rescueThe only limit to rescuer’s ability to recover is that the intervention must not be so foolhardy as to be unforeseeableIs a person who injures herself liable to a rescuer?PSYCHIATRIC HARM (NERVOUS SHOCK)Cases where the alleged damage cannot be tested or assessed by way of visual inspectionNot objectively verifiable – issues take us to subjective recesses of aspects of science that are less intuitiveTypically pose remoteness problems regarding whether specific kind of damage was foreseeableTwo categories of claimants:Primary victim: claimant’s psychiatric harm arose directly from D’s negligenceSecondary victim: claimant’s harm arose indirectly from D’s negligenceTend to raise DoC and remoteness issuesPrimary VictimSaadati v Moorhead (2017 SCC)FactsMVA, second in a series of five, involving P and D. TJ found that second accident caused psychological injuries.CA reversed because finding based on testimony of friends and family, and not to expert evidence of medically recognizable or recognized psychiatric harm. Also, that S did not specifically plead or argue mental injury.ResultSCC restored trial decision.ReasonBrown JOn sufficiency of pleadings:Rule of procedural fairness – cases would not be decided on ground not raisedEach party entitled to know and respond to case that it must answerHowever, “in claims of mental injury, it is generally sufficient that the pleadings allege some form of injury”Plaintiff should have pleaded psychological injury. Just because they do not explicitly state “psychological” does not mean it is not pleaded. Rule satisfied by many allegations of psychological reaction in oral and written submissions combined with broad heads of damage in pleadings.On whether proof of recognized psychiatric harm required:NO. Recovery for mental injury depends on criteria applicable to any negligence actionThe law of negligence accords identical treatment to mental and physical injuryClaimants alleging physical injury do not have to prove a classificatory label – same applies to claimants alleging mental injury.Focus is on symptoms and their effects, and a trier of fact is entitled to reach a conclusion on this based on any relevant evidence.Secondary VictimAlcock v Chief Constable of the South Yorkshire Police (HL 1991) “Hillsborough Disaster”FactsLiverpool and Nottingham. High steel fencing placed between spectators and pitch due to hooliganism concerns. Fans arrived early and there was considerable buildup of fans concentrated outside turnstile at one end of the stadium. Bottleneck develops around turnstiles involving around 5000 fans. Police opened outer exit to relieve the bottleneck. Results in thoursand of non-ticket holders spilling into stadium. Led to a crush at the front where spectators were pressed against the fencing (Crush – 95 persons died, over 400 injured). One P was at stadium and saw whole tragedy, he knew his two brothers were in the crush and was later informed they died. Another P, Alcock, brother-in-law was in another section. He later identified his injured brother-in-law at the morgue. All unfolded on live TV and recorded broadcasts. However, as per broadcast guidelines, scens showing suffering or dying of recognizable individuals were not depicted – no close ups. 16 Ps brought action claiming “nervous shock” alleged to have been caused by seeing or hearing news. Police claimed no DoC owed to nervous shock claimants.Below:TJ found in favour of 10 Ps, including Harrison and Alcock, and against 6. CA overturned – no recoveryIssuesAre the Ps sufficiently close to the victims? Can a brother recover? Brother-in-law?Does viewing a simultaneous broadcast of the incident qualifying as witnessing by sight or hearing? Is shock caused by viewing broadcast enough?Does it matter that P did not witness “immediate” aftermath?ResultHL affirmed – no duty of care owedReasonClaims under this category have very specifc features – absence of those features disqualifies the claimAs with every negligence claim, the risk of psychiatric illness resulting from shocking event must be reasonably foreseeableTo limit volume of potential claims from shocking events, only “proximate” Ps can recover. That is, Ps that are “proximate” to primary victim and to the accident or its immediate aftermath.Nature of claim1) Shocking event must result in recognized psychiatric harm. Mere grief not enough2) Only psychiatric harm induced by shock can be the basis for recoveryPsychiatric harm caused in other ways, such as from caring for disabled relative, not enough3) Shock and resulting psychiatric illness must arise from seeing or hearing the shocking event.Not enough to merely be informed of, or to read or hear about it4) Shock must be sudden appreciation by sight or sound of horrifying event, which violently agitates the mindSlow accretions of grief not enoughDuty of care analysisCaparo: RF + proximity + no policy reasons negating dutyForeseeability:Not really an issue: RF that the psychiatric injury suffered by the Ps would affect persons of ordinary fortitudeProximity:Control mechanism – only proximate plaintiffs can recoverThree elements of the proximity analysis (all required):Relational proximity: is the P within a class of persons whose claims should be recognized?Locational/temporal: Is the shock suffered by the P close both in time and space to the accident or its immediate aftermath?Visual/aural: Did the P actually see or hear the shocking accident or its immediate aftermath?Relational 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 she is sufficiently close to primary victimRebuttable presumptionCase-by-case decision basisLocational/Temporal“Shock” must occur close in time and space to the accident or its immediate aftermathShock from subsequent identification qualifies, but not too long after!Eg. Mcloughlin (1 hour after incident) can recover. Alcock (8 hours) cannot recoverVisual/auralP must actually see or hear incident or immediate aftermathCould be in person or through simultaneous broadcast (eg. TV)If TV, suffereing of primary victim must be portrayed (generalized portrayal won’t do)Why none of Ps in Alcock succededAll elements of proximity must be presentRelational: Not established at trial that there was close relationship between primary and secondary victimsPlaintiffs did not attempt to prove they were “close” with the primary victimsLocational/Temporal: Only Harrison and Alcock present, but did not find out about fate of relative until laterVisual/aural: Harrison heard on phone hours later / Alcock found out in morgue 8 hours later / all others watched on BBCGOVERNMENT LIABILITYAt common law, Crown (gov’t) was, for all practical purposes, immune from tort liabilityPetition of right procedure required permission from Crown to sue CrownUnclear if petition of right applied to tort actionsPowers and privileges accorded to Crown under common law (prerogative) could only be affected by express statutory authorityFed and prov governments have adopted legislation permitting legal proceeding against the CrownCrown can be sued in tort as if it were an ordinary person, for:Torts committed by its officers, agentsBreach of duties owed to servants and agents as their employers Breach of duties linked to ownership or possessory interests in propertyFor actions taken under statute, regulation or by lawDirectly or VicariouslyNote: Municipalities did not have immunity at common lawActions against Crown:1) misfeasance in a public office Intentional tort 2) NegligenceMisfeasance in a Public OfficeNew emerging tort – most actions against public authorities based on negligenceDeals with claims of intentional misconduct by crown through its agents“Abuse of public office”NegligenceMost government activities are judged according to the ordinary principles of negligence lawPublic official causes MVA in course of duties OR gives out negligent advance on which others relyPublic officials owe duties of care like everyone else and must conform to legal standards of care.Issues arise where governmental conduct relates to political activity, policy-making, budgetingInvolves a complex matter and is considered non-justiciable (outside of Courts power)Courts reluctant to impose negligence on these kinds of activitiesDemocratic concern: gov’t officials should be exclusively accountable to those who elected them – no second guessing by courtsPragmatic concerns: courts lack access to expertise and resources to get involved in such activitiesFloodgates concerns: Litigation might proliferate if such decisions are reviewableCooper v Hobart: Stage 2 – “External policy”Questions around the competency and legitimacy of courts second-guessing political/policy decisionsPolicy = non-reviewable (no liability)Operational distinction = reviewable (liability)Policy decisions: questions about whether and how to implement a gov’t program (discretionary)Operational decisions: questions around actual operation/delivery of the program once it is implementedKamloops v Nielson (1984, SCC)FactsMunicipality failed to enforce bylaws and prevent completion of a house with defective foundations. Construction not built according to approved plans and was subject to two stop-work orders. Despite this, builder, to building inspector’s knowledge, completed building. Owner (city alderman and builder’s father) moved in and subsequently sold hose to P, an unwitting purchaser, who discovered defects and sued city. PURE ECONOMIC LOSS.IssueIs this a operational distinction? Is the government liable?ResultSCC imposed liability – matter was largely OPERATIONAL.ReasonMunicipalities have a statutory authority to enact bylaws to regulate construction of buildings, and to ensure enforcement via inspection.Deciding whether or not to act on that authority by enacting bylaws and setting up an inspection system is POLICY matterOnce 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 matter!Gov’t authority may still be liable for failing to consider whether or not statutory 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 faith (eg. No improper purpose or unreasonable decisions)Bottomline: policy decisions are not justiciable in tort law – cannot expose gov’t to liabilityJust v BC (1989, BCSC/SCC)FactsWinter day on busy highway. Traffic at standstill. Boulder came loose from step wooded slopes above crashed down on P’s car. Killed P’s daughter and severely injured P. Earlier rock falls nearby, plus freezing and thawing and heavy snow build-up on trees all creating a high risk of rock falls. There is a system set up by the Dept of Highways for inspection nand remedial work. Rock work engineer, carried out visual inspection for risk of rock instability. He then reported findings and recommendations to District Highways Manager who in turn submitted requests for the provincial rock scaling crew to be sent it.IssueIs the decision to adopt a visual inspection system a policy decision?ResultPolicy decision.CA affirmedSCC ReversedReasonBCSC (McLachlin):Policy decision – not reviewable by courtGov’t as a matter of policy, adopted a system of visual inspectionsUnless it can be shown that Mr. Oliver conducted visual inspections negligently, no liabilitySCC (Cory J):Allegations of negligence fell within the operations aspects of governmental activityPolicy is limited to threshold decisionsThat is, the initial decision about whether (not how) something will or will not be donePolicy decisions are made usually at high levels of authorityAnd involved considerations such as budgetary allocations or other political mattersBeyond this, everything else (manner and quality) is operational!“Manner and quality” includes resource allocation and other discretionary mattersNotesSopinka J (Dissent): extent and manner of inspection program is policyCF Brown v BC (1994, SCC)FactsP was driving from Gold River to Campbell River. 30 minutes out, skids off icy path on highway and over embankment and suffered catastrophic injuries. Three other accidents occurred on same stretch of highway that morning.BC Dept of Highways had instutted program for snow and ice maintenance on highway. Two schedules – Winter and Summer. Accident occurred in November (which fell in summer). Highways Department crew still on summer maintenance schedule.IssueWas the department’s decision to maintain summer schedule a policy or operational one?ResultPolicyReasonDecision to maintain a summer schedule, with all that it entailed in terms of reduced service, was one of policyInvolved “classic policy considerations of financial resources, personnel and significant negotiations with government unions”Can only be impeached if an improper or irrational exercise of discretion or made in bad faithQuery: But is it really a threshold decision as per Just?Not a matter of whether something should or should not be done about snow/iceBut more one of how to go about it (manner and quality)NotesBOTTOMLINE: threshold decisions – DEFINITELY POLICYManner and quality of system established by threshold decision: Definitely maybeIf Ogbogu tests – it will for sure be a clear policy Swinamer v AG Nova Scotia (1994, SCC)FactsP was injured when tree along highway, which had Dutch Elm disease, fell on P’s truck. Province had initiated a preliminary program of identifying and flagging tress with disease. With the aim of deciding on a policy once it had established the scope of the problem (such as immediate removal, gradual removal, etc.). Accident occurred during pre-policy period.IssueWas the decision to conduct survey a policy decision?ResultReasonTwo interpretations:1) Decision to determine the cope of the problem before making a policy decision was in and of itself policy (Cory J)2) No provate law duty on a public authority until it makes a policy decision (McLachlin and LaForest)Pre-policy is not subject to private/tort law duties/liability unless in the exceptional circumstance where the gov’t should have (at least) adopted some policy in the interim.Exception does not apply here as province was acting reasonably in first trying to inform itself about the scope of the problem before deciding.NotesOgbogu likes McLachlin reasoning moreNEGLIGENT MISREPRESENTATIONCandler v Crane (1951)Lord Denning ready to recognize tort of negligent misrepresentation to impose duty on professionals retained to make reports. Owed to anyone to whom the report is shown OR anyone to whom they know the report will be shown. For PEL arising in the very transaction for which the reports was prepared or shownMajority, “timorous souls”, said NOHedley Byrne & Co Ltd v Heller (HL 1963) “Donoghue v Stevenson of pure economic loss”FactsP inquired into credit-worthiness of third party company to which it was contemplating extending credit. Inquiry lodged with 3rd party company’s bank, who respond “in confidence and without responsibility” that their client is “good fir its normal business engagements.” When told amount under consideration was 100k, responded, “without responsibility”, that “figures are larger than we are accustomed to see.” P extends credit based on statements and lost $17,600 when third party went belly up. Sues bank.IssueWhether negligent misrepresentation can create liability?ResultNo recovery – but only because of disclaimerReasonLord Reid:Rule against recovery for negligent misrepresentation is wrong because words are more dangerous than deedsWhile the law cannot ignore negligent misstatements, liability cannot be imposed without something moreNo reason “something more” cannot be negligence, provided parties are proximateDegree of proximity?1) D must have assumed/undertaken responsibility to employ a skill for the assistance of another person2) P must have reasonably and detrimentally relied on D’s undertakingLord Pearce:Same arguments as ReidWords have greater potential for injury than deeds (affirming Denning)A special relationship (proximity?) extends to people who assume responsibility in a way that attracts reasonable and detrimental relianceHowever, disclaimer prevented duty of care coming into existence.Lord Morris:“My lords… it should now be regarded as settled that if someone possessed a special skill undertakes… irrespective of K, to apply that skill for the assistance of another person who relies on such skill, a duty of care will arise.”Duty also arises if a person who “others…reasonably rely on his judgment or skill… or ability to make a careful inquiry” gives information or advice to, or allows his advice to be passed on to, another who he knows will rely on it.Lord DevlinProblem in such cases is a by-product of the doctrine of considerationIf P paid even a token (1c) for the information, we could call it a K and be done with it.“If it were possible…to construct a K without consideration…”But contract is not the end of liability:“A promise given without consideration…cannot be enforced as a K…but if the service is…performed…negligently, the promisee can recover…in tort.”NotesOn what legal principle is the tort action founded?A special relationship “equivalent to K”Where there is an “assumption of responsibility” which, but for the absence of consideration, would be a KWhen can we infer “assumption of responsibility” or “reasonable reliance”?The more formal and professional the relationship…Is the advisor acting purely out of good nature or in response to some indirect incentive or benefit?SUMMARY:Basis of liability for negligent misrepresentation1) An undertaking or assumption of responsibility by the maker of the representation (OR “invitation to reply”)Whether they are professional or not does not matter2) Actual, reasonable, detrimental reliance by P, typically demonstrated by having used information for which D assumed responsibilityDeloitte v Livent (2017 SCC) [Canada application of negligent misrepresentation]FactsLivent’s directors manipulated company’s financial records to enhance success (fraud). Deloitte, as auditors, failed to discover fraud. In August 1997, Deloitte identified irregularities in the reporting of profit from asset sale. Deloitte and Livent disagreed on irregularities. Rather than resign, Deloitte helped Livent prepare a press release for the purpose of soliciting investment. The press release misrepresented the basis for the reporting of the profit. In October 1997, Deloitte provided a comfort letter for a public offering. Deloitte also prepared Livent’s 1997 audit. Fraud was discovered by new management appointed by new equity investors. In Nover 1998, Livent filed for insolvency protection and in 1999, went into receivership and sold its assets. Livent, on behalf of its shareholders, sued Deloitte for negligent misrepresentation.Purpose of misrepresentation in press release/comfort letter vs audit criticalPress release/comfort letter was for purpose of informing investors of Livent’s financial position or helping Livent solicit business.IssuesDoes Deloitte owe Livent a duty of care and what is the nature or scope of that duty?Is Deloitte liable for losses to the extent claimed by Livent?Below:Trial:Deloitte owed a duty of care to provide accurate information to Livent’s shareholdersDuty breached either when it failed to discover fraud or when it signed off on the audit Deloitte is liable for losses flowing from when it should have resigned to insolvency dateReasonMcLachlin, Wagner, Cote (Dissenting in part)“Three purposes of Livent’s audit statements are discernable”1) To provide Livent with accurate view of finances for purpose of attracting investment2) To uncover errors or wrongdoing for purpose of enabling correction3) To provide reports that shareholders could rely on to supervise managementPerfectly reasonable for reliance hereIn essence, Livent never relied on press release or comfort letter to oversee management or to uncover any wrongdoingNot the purpose of the auditDeloitte could not have reasonably foreseen use for both purposes and could not have reasonably relied on both for both purposesLivent’s claims:Livent relied on misrepresentations that arose following failure to resign after discovery of irregularity in reporting.Would have allowed shareholders to infer that there was something wrong and discovered sooner(ie. including press release, comfort letter, and statutory audit) – masked the wrongdoing, led shareholders to believe everything was okay.Misrepresentations “impaired its ability to oversee its operations” and supervise managementLivent would have gone belly up sooner, or become unable to attract further investment. Deloitte therefore responsible for losses amounting to differeince in value from time it should have resigned to insolvency date.Deloitte’s claims:The alleged misrepresentations had nothing to do with the loss sufferedSpecifically, the misrepresentations did not impair Livent’s ability to oversee its operations or supervise managementGascon and Brown JJ:“This appeal provides the court with an opportunity to affirm the analytical framework by which liability may be imposed in cases of negligent misrepresentation.”Anns/CooperApplies to pure economic loss arising from auditor’s negligent misrepresentationWe have never applied the refined Anns/Cooper analysis in a case of auditor negligence, so here goesStage 1:Courts flip order of proximity and reasonable foreseeability for some reason…Proximity:In negligent misrepresentation cases, proximity assessed by reference to two factors;1) D undertakes to provide a representation in circumstances that invite reliance by P (undertaking)2) P reasonably relies on the representation to her detriment (reasonable reliance)No proximate relationship previously established between auditor and client for purposes of soliciting investmentPress release/comfort letter:Undertaken for purpose of helping Livent solicit investmentLivent was entitled to rely on Deloite to carry out this service with reasonable careRelationship of proximity exists for losses within the scope of this undertakingDeloitte “never undertook to assist Livent’s shareholders in overseeing management”Livent had no right to rely on these representations for that purposeReliance for this purpose was not reasonable (hence no proximity)Statutory audit?Prepared to allow shareholders “to collectively supervise management” and to oversee operationsProximity in this case is an established category (Hercules)Reliance is both reasonable and reasonably foreseeableNotesComfort letter in contracts – not intention to create legal relations. HOWEVER, important in terms of representations made in tort law.“You (Deloitte) did not provide enough information to properly oversee management.”DissentAgreed largely – but issued dissent on one pointNo factual basis for conclusion that Livent relied on audit to supervise management or oversee operationsOgbogu believes this to be trueThat was never pleaded or argued at trialBut we agree with duty of care analysis“The factual basis for establishing loss on the basis of shareholder supervision [is] entirely lacking.”Ogbogu agreesCAUSATIONFactual causation, or “cause in fact”Purely factual causation of whether, the unreasonable risk created by D, as a matter of fact, caused the injury suffered by PCause in fact is a straightforward concept. Requires that we simply like D’s conduct with the P’s injury.Did the D’s conduct, on a BoP, cause the P’s injury?Exception:1) Courts have struggled with what legal test to use in determining cause in fact2) Evidence often unclear on what happenedEspecially where there are several possible causes, including D’s negligenceDetermining Proof of Causation – “But For”“But for” (i.e. without) the D’s negligence, would the P have suffered the injury?IF no – D is liableP would not have suffered the injury without D’s negligenceIF yes – D is not liableP would have suffered the injury regardless of D’s negligenceThe test generally works well in the vast majority of casesWhat is the problem?In some situations, the “but for” test leads to perverse results and the conclusion that causation is not established.When, 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 courts to invent other tests for causation where necessary Two examples:1) Pre-emptive causation2) Duplicative causationPre-emptive CausationTheoretical problem – no case lawExample: P is just about to drink a cup of tea that X, a third party, has 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 tea)D merely pre-empted death by poisonDuplicative CausationD and X each independently start fires. P’s house is destroyed by fire. Not clear from evidence which fire triggered 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 negligence)But for X’s negligence, damage to P’s house would have also occurred (Because of D’s negligence)Where more than one party independently but concurrently cause the P’s damageResulting in none liable under the “but for” testLambton v Mellish (Ch D, 1894)Facts:Nuisance case, but reasoning relevant. Two companies catering to visitors in common area by providing games, rides, organ music, etc. This generated a lot of noise, which was found to be a nuisance. D argued that noise can only be factual cause of nuisance if, and only if, the nuisance would not have occurred but for their activities.ReasonThat is, not liable because without the noise generate 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 fullCorey v Havener (Mass SC, 1902)Facts:P was riding his horse-drawn carriage. Two Ds came up from behind on two loud and smoky motor tricycles which backfired as they passed him. P was injured as a result of the horse being startled. Jury found both Ds contributed to P’s injury.Notes:Notwithstanding the “but for” test, two (or more) tortfeasors who jointly or concurrently cause or contribute to the P’s injury are each fully liable for damages.Barnett v Chelsea & Kensington Hospital Mgmt Comm (QB, 1968)Facts:Night watchman (P’s spouse) and two co-workers drank som tea around 5am. They became sick and went to the hospital when the day workers arrived. Nurse informed doctor-on-call the patients were vomiting. Doctor told them to go home and did not admit or treat them. P’s spouse died.Reason:First – D owed a duty of care and breached the standard of careBut did the D’s negligence cause the P’s spouse’s death?Evidence was that even if 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 time.Neild J:Evidence is significant – even if D had responded properly, there would not have been enough time to save P’s spouseBut for D’s negligence, P’s spouse would still have died, so no liability.NotesDoctor’s failure to admit/treat would have been cause in fact if, and only if, the P’s spouse would not have died without the failure.To figure out the “but for” test, ask:1) What happened?P’s spouse died2) 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 diedThus, since injury would have still occurred regardless of D’s negligence, no causation and no liabilityNatural Cause + Tortious CauseWhat if one of the causes is a natural cause?A negligently pollutes a riverRiver is also polluted by non-negligence circumstances (eg. A natural disaster)Is A liable?A would argue that pollution would have occurred without her negligenceKingston v Chicago & NW Rwy (Wis SC, 1927)Facts:Damage to P’s property united fire – from D’s locomotive of unknown origin.Notes:If, in situations of duplicative causation, one of the causes is a natural cause, then there is no causation and the tortfeasor will not be liable. But the D must demonstrate that the other cause was a natural causeWhat happens if the other cause is of unknown origin?Doctrine DOES NOT APPLYDuplicative causation = Cauess occur contemporaneously or concurrentlyWrap up:Where the D’s negligence cause or materially (and concurrently) contributed to the P’s injury, D is fully liable.Except where the D can demonstrate that the other contributing (and concurrent) cause was a natural causeWhat happens if the causes are not concurrent, but sequential?Two unrelated, sequential events cause damage to PWhich D is liable?“Independent intervening cause”Sunrise Co v The Lake Winnipeg (SCC, 1991)Facts:P’s boat was grounded two consecutive times in unrelated accidents. First grounding resulted from D’s negligence. After this accident, on way to anchorage area, boat was grounded again either through owner’s negligence or force of nature – not clear. Each incident alone would have necessitated detention in dry dock for repairs. Repairs for both incidents in dry dock was completed in 27 days. Repairs for first incident alone would have taken 27 days. Repairs for second incident alone would have taken 14 days.IssueWho is responsible for the loss of earning resulting from the detention for 27 days?ReasonL’Heureux-DubeWhen 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, the nature of 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 loss, regardless of whether or not the second accident was caused by the owner, a third party or by no one.McLachlin (dissenting)The purpose of damages is to restore P to position he would have been in but for D’s tortious conduct.Where a second intervening incident necessitates repairs at the same time as repairs resulting from first incident, a court can conlude that because the second incident would have put the ship out of commission anyway. The person who caused the first incident is not responsible for the entire loss (ie. period of time it would take to carry out repairs from second incident)Events which subsequently and independently diminish the loss caused by the first tortfeasor must be reflected in damage awards. We have to recognize the causal contribution of the second intervening cause.This approach produces fairer results and it 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 to best accomplish this.Two approaches:1) Full diminishment where second incident is a non-tortious caseDiscount completely the loss occasioned by non-tortious causeD (who caused the first incident) is responsible for only the differenceIn 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 daysNotesApplying the “but for” rule to the facts of Sunrise CoWhy?Two accidents in the case are not concurrentBut for is the traditional ruleBut for the defendant’s negligence (first accident), would the plaintiff have suffered damage (loss of earnings for 27 days) – NO, so D is liableBut for the second accident, would the P have suffered damage (loss of earnings for 27 days) – YES, because of D’s negligence, so second incident is NOT a causeCausation is not a question of fairness, but of factA finding has to be made on causation before the question of damages.Bottomline: first cause, full cause, full responsibility for lossCausation 1011) But for test for most cases2) Material contribution for multiple tortfeasors who materially and concurrently contribute to cause on a BoP**when deviating from but for – use doctrinal approach – do not make up apportioning liabilityStill go through but for analysis, then introduce additional doctrinal approachApportionment of Loss Among CausesAthey v Leonati (SCC, 1996)Facts:P suffered back injuries in two successive MVAs. Soon after he experience disc herniation during a mild stretching exercise. Herniation caused by combination of injuries from two MVAs and pre-existing condition.Cause 1: MVAs – TortiousCause 2: Pre-existing condition – non-tortiousBelow:TJ: Herniation caused bt a combination of MVAs (25%) and pre-existing condition (75%)Result:Reason:We will not apportion losses between tortious and non-tortious contributing causes.If D’s negligence is cause of injury, presence of non-tortious contributing causes will not reduce D’s liability because 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 (Lambton; Correy)2) Divisible injuries: separate and distinct injuries not true apportionment – each D liable on but for rule3) Independent intervening events: non-tortious event is sequential to or occurs after tortious eventFailing to apportion or account for IEEs in reducing D’s damages will make P’s position better than original one (Baker)Responsible up to a time – responsibility gets discounted however upon circumstantial eventDisc herniation in present case is not independent intervening event. It is the product of tortious and non-tortious events.The pre-existing condition is not a sequential or IIE either4) “Crumbling skull” ruleRespondent’s strongest submissionApplies where a “pre-existing condition is inherent in the P’s original position”That 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 original positionTherefore, D’s liability ought to be reduced to account for the measurable risk of the pre-existing conditionHowever – [“Crumbling skull”] is a good argument, but does not apply because the TJ did not find that there was a “measurable risk that [injury] would have occurred without [MVAs]”(Ogbogu thinks this is a cop out)NotesHerniation would not have resulted but for the MVAs – necessary to establishSCC: Do the but for question!Discernable difference between thin skull rule and crumbling skull ruleThin skull – there is nothing wrong at the time of event.Crumbling skull – something wrong, event expedited the injuryLoss of chance – Courts will not apportion losses between causesWrap up:Where the D’s negligence aused or materially and concurrently contributed (alongside another tortious cause) to the P’s injury, D is fully liableD cannot 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 pre-existing condition which existed before the D’s negligence (crumbling skull)A non-tortious independent intervening event occurs after the D’s negligence, which affects or worsens P’s original positionFactual UncertaintyCourts are unable to make a finding of fact about what actually caused the accident.Not a question of which cause to blame, but who or what in fact caused the accidentEvidence is inconclusive, even scientists cannot provide answers or the events are such that we don’t know exactly what happened.Sindell v Abbott Laboratories (Cal SC 1980) – Do not apply, exercise to show courts made mistakeFacts:P develops cancer and pre-cancerous lesion from drug called DES ingested by mom during pregnancy to prevent miscarriage. Drug manufactured by over 200 companies – impossible to say which one made the does ingested by mom. Ds were six manufacturers with 90% of the market share.Defendants moved to strike claim on the basis that P cannot prove causation.ResultCourt held for PReasonWhere 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 court.This 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 get rid of this rule.Rule: if P sued enough manufacturers such that their combined market share is a substantial percentage, burden shifts to Ds to disprove causationIf Ds cannot disprove causation (by showing who made the DES in question), causation will be assumed to be proportion of their market share.Dissent:Approach taken by majority to resolving this problem is not tort lawIt resembles the “deep pockets” theory of liability. But, wealth cannot be equated with causation. We cannot have one rule for the rich, and another for the poor.Market share is, in fact, not a stable thingNotesOgbogu thinks causation is impossible to prove and claim should be thrown out.US created new rule – do not make the same mistake the courts made in this case!!!McGhee v National Coal Board (HL, 1972) – Commonwealth Courts approachFacts:P is covered in coal dust and sweat (non-negligently) at work. No showers provided at work, so has to ride bicycle home to wash off dust. He developed dermatitis. Alleged negligence was employer’s failure to provide adequate shower facilities.Could not be determined on medical evidence if delay in washing off dust contributed to disease. All that could be said was that exposure created risk of dermatitis. P could not proved dust was the specific cause.ResultCausation is provedReasonLords Reid and Simon: “Interference of causation”Where the D materially contributed to or increased the risk of the injury occurring, we can conclude that D contributed in fact to the injurySo P just has to prove that D increased the risk of the injury.Lord Wilberforce: Reverse the burden of proofBurden shifts to the tortfeasor who created a risk that led to the expected injury to show some other cause or face liabilityNotesWhich opinion is better?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 (HL, 1988)In 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 case – degree of uncertainty did not permit drawing an inference of causationIn Fairchild v Glenhaven Funeral Services (HL, 2002)Where the cause of the injury (disease) is scientifically uncertain:P need not prove that the D’s tortious conduct caused her injury. Rather, P only has to prove that the D materially contributed to the risk of the injury suffered by herProgression is not creating a new rule – still using a but for approach, but draw an inference based on material contributionSnell v Farrell (SCC, 1990) – proof of causation with factual uncertainty in CanadaRatio:In cases where factual uncertainty exists, and a reverse onus cannot apply: Inference of causation – finder of fact can take a robust and common sense view of the facts.Facts:P was undergoing cataract surgery. Developed retrobulbar bleeding (bleeding behind eyeball, which can create pressure behind the eyeball). Surgeon noticed outward signs of bleeding but continued with the operation. Nine months later, when blood in vitreous chamber cleared, surgeon was able to see that optic nerve had atrophied – resulted in loss of sight. Experts testified at trial that when such bleeding occurs, operation should be stopped (breach of SoC). But that there are many causes for atrophied condition, including P’s comorbidities. High blood pressure and diabetes are potential non-negligent causes. None of the experts could say what caused the atrophy – complete uncertainty.Below:TJ applied Wilberforce in McGhee to rule in favour of P. P has shown that D’s negligence created a material risk of a type of injury which then occurred, so burden of disproof shifts to D.Issue:What is the correct standard of proof of causation where we have factual uncertainty?ResultThe traditional test of causation (but for), although based upon common sense inferences from the evidenceReasonSopinka JBasic rule of evidence is that onus is on the party who asserts a proposition to prove it. However, where the subject matter lies particularly within the knowledge of one party, that party may be required to prove it. However, those circumstances don’t exist in factual uncertainty cases – no reverse onus on proof. The traditional test actually applies in these types of cases if you don’t apply it too rigidly.Causation does not require scientific certainty, just a common sense approach (McGhee application)A common sense approach allows courts the room to make common sense inferences, which obviates the need for reverse onusThe P’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 adduced. Consistent with balance of probabilities NotesBottomline in Snell: Inference of causation – finder of fact can take a robust and common sense view of the facts.Applying rule to Snell, finder of fact drew a common sense inference by concluding that it was more likely that the injury was a result of the negligence. It did not matter that medical evidence did not go far enough as to support inference. It is possible to draw inference while giving due regard to available medical evidence, especially since the medical evidence did not contradict the inference. TJ reached the right result but applied wrong test.Standard of proof is not certainty, but balance of probabilitiesOgbogu likes this – best solution to allow both sides to have an equal opportunity to assert a compelling argument“what we are alleging is a likely cause”WILL BE TESTEDResurfice Corp v Hanke (SCC, 2007) – obiter, material contribution to the risk (confused – use Snell instead)Facts:P is Ralph Hanke, arena operator employed by City of Edmonton. Injured in Donnan Arena when water hose was placed into gasoline tank rather than adjacent water tank of Zamboni. Mixture of water and gasoline led to release of vapourized gasoline into the air in the arena. Gas ignited by overhead heater, causing explosion and fire. P was severely burned and received WCB no-fault benefits. Alberta WCB commenced subrogation action against manufacturer of ice-resurfacing machine alleging design defects – D should not have put water tank next to gas tank. Similarity of appearance cause confusion, which was the cause-in-fact of accident.Below:TJ ruled cause was P’s dreadful mistake of operating machine after having observed hose in gas tank.CA reversedResult:SCC restored TJ based on finding of fact that the design defects did not confuse P and so did not cause his injuries.ReasonMcLachlin (in obiter)Basic test is the but for test, even for multi-cause injuries.Never been displaced, remains the fundamental test.In special circumstances a material contribution test is used instead where it is impossible for the P to prove causation using the but for test and the D breached a duty of care owed to P, thereby exposing P to unreasonable risk of injury, and P suffered from that injuryApplying the but for test to deny liability would offend basic notions of fairness and justice.NotesSo while in Snell, the court opted for the inference of causation…McLachlin brought in material contribution as a way to estimate causationNo need for an inference – causation is estimated if D materially contributed to the riskNo – Snell was clear that you prove the D created that material risk. This is creating a confusion.But is proving a contribution to risk same as proving cause of actual harm or contribution to actual harm?McLachlin’s obiter means that P does not have to prove causation in causes 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’s language is confused. However, she is still getting at the rule established in SnellIt is not about risk – it is about causationThis is utterly confusing. Ignore Resurfice – this case is not helpful for determining factual uncertaintyShe is saying, if you create a risk, then you are responsible. Skipping the step that 1) if you create the risk, and 2) that the P must prove that it is a likely cause. Clements v Clements (SCC, 2012) – McLachlin clarifying reasoning in ResurficeFacts:Ms. Clements was riding pillion on a motorcycle driven by husband Mr. Clements. Motorcycle 100 pounds overloaded (negligent act). Nail punctured rear tire. When D accelerated to pass another vehicle, nail fell out, tire deflated rapidly, and motorcycle began to wobble. Mr. Clements was able to slow down, but not enough to regain control or to permit him and Ms. Clements to get off without significant injury. Motorcycle crashed and Ms. C was thrown off. Ms. C sustained severe traumatic brain injuries. Sues, through litigation guardian. Mr. Clements did not dispute he was negligent driving an overloaded bike too fast.Below:TJ invoked material contribution test as stated by McLachlin in Resurfice. Impossible for P to prove causation on but for test, and D materially contributed to P’s injury.CA reversed on basis that “but for” test not satisfied – material contribution did not apply.Issue:Whether his negligence caused Ms. C’s injury/tire puncture and deflationResultNew trial orderedReasonSCC (McLachlin)Basic rule is “but for” test – scientific proof or precision not required – TJ can take robust and pragmatic view of the facts (Snell application)As an exception, P may succeed by showing D’s conduct materially contributed to risk of P’s injuryBut there is need to flesh out the “impossibility” criterion for the latter rule.Material contribution rule applies where:P has established that her injury would not have occurred “but for” the negligence of two or more tortfeasorsEach possibly in fact responsible for the injury, andP is unable to show, through no fault of hers, that any of them is the “but for” causeTJ committed two errors:Required scientific proof of “but for” causationEssentially followed the obiter in Resurfice by applying material contribution to risk test in a case that was distinguishable from the fact patter n to which the obiter ought to applyNotesThis is the material contribution test as we know it. She overrules herself in ResurficeTwo rules: 1) but for test modified for Snell in factual uncertainty cases and 2) material contribution (two or more Ds) and the two or more have a hand in the cause.In essence, back to the two-part test – “but for” and material contribution test.Exam Application for Causation- What kind of causation is this? Multiple causes, sequential, etc.?1) Begin with or use the “but for” test (Barnett, Clements)Unless case involves joint tortfeasors or multiple causes contributing to P’s harm2) If multiple tortfeasors, still start with “but for” and conclude it is convoluted, use material contribution test (Corey)Each is liable in fullCan sue all of them together and recover (Clements)3) If one cause is negligent and the other is natural cause, no causation (Kingston)4) If first cause is negligent and responsible for full loss, second subsequent cause (whether tortious or not) is irrelevant (Sunrise Co)First D is fully liable, no apportionment5) If first cause remains concurrent cause together with a second tortious intervening cause, first D remains liable for losses linked to her negligence (Baker)Personal injury cases6) If one cause is negligent and the other is non-tortious, negligent D is fully liable (Athey)No apportionment 7) If there is factual uncertainty, and one of the possible causes is negligent, an inference of causation can be drawn that the alleged negligence caused the actual harm by taking a robust and pragmatic view of the facts (Snell, Clements, Lord Reid in McGhee)8) If multiple causes, all negligent, assess multiple contribution to risk of injuryCausation:Plaintiff provesNot the defendantP’s actions not assessed in the inquiryWait for contributory negligence to discuss P’s actionsEither the D caused it or did not cause it REMOTENESSRemoteness inquiry:ASSUMING a duty of care owed, and that the duty was BREACHED (i.e. breach of standard of care);Was the resulting injury (or the mechanism by which it occurred) a natural or sufficiently direct consequence of the negligent act?Assuming:That the P is someone foreseeably affected by the D’s negligenceThat the P’s relationship with the D is sufficiently close and directIs the specific injury suffered by the P foreseeable?General thoughts on remotenessCourts 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 fairnessDuty and remoteness overlap (share concept of foreseeability):Duty:Focused (in part) with whether any type of injury to a particular person is foreseeableForeseeability of harm, not foreseeability of the actual harm arising fom the factsHarm in an abstract senseRemoteness:Focused on whether the type of injury actually sustained by plaintiff is foreseeableForeseeability of specific harm suffered by PHarm in an actual senseNot a freak eventTo satisfy remoteness, must the P show that the type of damage suffered is 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 (ECA, 1921) – Do not apply (WRONG)Facts:D chartered ship from P for use in transporting petrol. Due to rough conditions some petrol leaked and filled ship hold with petrol vapour. Stevedores employed by D dropped a plank into the hold. This caused a spark, which caused a fire, which destroyed the ship.Arbitrators: Stevedores acted negligentlt, but D contended the damage to the ship was too remote. That is, this kind of damage was not foreseeable.ResultReasonAs long as some kind of injury was a foreseeable result of the negligent act, D is liable for any kind of injury that results.Weird rule – Court trying to find liabilityThe fact that the damage caused is different than expected is immaterialRule:If a RP can foresee that an act would cause damage, and the damage caused is directly traceable to the negligent act, it does not matter that it is not the exact kind of damage expected.WRONG – this is not remoteness NotesCorrect rule: is the harm (actually) suffered foreseeable? Wagon MoundWagon Mound (No 1) (PC, 1961)Ratio:Correct Remoteness Inquiry: damage suffered by the P must be of a kind that is reasonably foreseeable.Facts:P, wharf owners, are carrying on welding operations. D, an oil-burning vessel, leaks oil due to shipowner’s negligence. Through discussions, everyone agrees oil cannot be lit on fire on water surface, so P (manager) keeps on welding. Some molten metal, wood and cotton cause a fire which destroys dock and several ships. P and D agree this was not foreseeable, however, P suffered some other foreseeable damage, such as congealment of spilled oil on slipways.Issue:Was this type of damage remote and what is the proper test for remoteness?ResultForeseeability is the test for remoteness. Re Polemis is overruled.AnalysisDo we ask whether the fouling and congealment was:A) directly traceable to the oil leakage; ORB) a reasonably foreseeable consequence of the oil leakage“The essential factor in determining liability is whether the damage is of such kind as the reasonable man should have foreseen”Damage suffered by the P must be of a kind that is reasonably foreseeableUnder Re Polemis, negligent actor is held liable for “all consequences, however unforeseeable” as long as direct (traceable to) negligent actNotesIf applying Re Polemis – any damage is directly traceable, and the defendant would be responsible for any harm that occurred.Not how the law is supposed to work.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 they can be said to be direct”Argument against Re PolemisArgument: it is unfair, such a freak loss that no one should be liable for such damages. Draw the line where you see fit.Aside: Mechanics of the accident (Civil procedure and framing arguments)Example: A did not shovel sidewalk. B slips, knocks over C and injures C.The more you tell about a story, the more it seems unforeseeable. Framing the argument broadly likely results in a viewing that the accident was a freak event.If you frame the facts narrowly, and build less facts into the argument, less likelihood of viewing the accident as a freak event.Mustapha v Culligan (SCC, 2008)Facts:P, Waddah Mustapha, saw a dead fly in an unopened bottle of water supplied by Culligan. Neither he not his family members consumed water, although all members of his family had consumed D’s water for past 15 years. Mustapha became obsessed with what he had seen and with potential implications of past consumption for his family’s health. He was diagnosed with major depressive disorder, with associated phobia and anxiety. He could not get the fly in the bottle out of his mind, he had nightmares. Unable to drink water, lost sense of humour, constipated, sexually frustrated, lost clients at work due to change in mood.Below:TJ said “objectively bizarre” reaction. But “clearly foreseeable” that supply of water with dead flies would cause P to suffer some degree of nervous shock. Awarded damages for past and future damages + past and future economic loss.CA: “…whether a D 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”IssueWas this type of remoteness enough to shed liability?ResultReasonCulligan owed Mustapha a duty of care. Standard of care breached.But were the P’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 waterNotesOgbogu would not have worded the way CofA did… shows unawareness and lack of empathy for mental health issuesHypothetical: But what if Mustapha had been diagnosed with and was being treated for sever OCD prior to incident? Even if vulnerable, still too remote.Hypothetical: Your negligence results in a weight that won’t hurt a fly being dropped on me. Turns out I am an acute hemophiliac and I suffer massive and severe internal injuries.Even less foreseeable.Should not matter – too remote if we follow MustaphaIn these kinds of cases – Courts allow recovery through the thin skull rule. P’s vulnerabilities will not be an avenue for the D to shed liability.Consider the following rules then:The D is liable where the P is unusually or uniquely prone to an unusual or unpredictable degree of injury as a result of the D’s negligent actIf D’s negligence injures a plaintiff with a unique or unusual predisposition to unforeseeable harm, the D is liable.Smith v Leech, Brain and Co (QB, 1962) – thin skullFacts:Workers at D’s plant must dip stuff into a molten metal bath from behind a small metal corrugated shield. D’s employee is splashed on the lip, resulting in a bad burn. Burn becomes malignant, and he dies of cancer some years later. Deceased employee was suffering from “pre-malignant changes” prior to incident due to nature of his job – burn was a promoting agent. Family sued. We 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.IssueIs this specific type of injury (cancer/death) foreseeable?Is it foreseeable that a small splash would cause a burn that would in turn cause a lethal cancer (and death)?ResultWM #1 does not apply to this type of fact patternReasonLord Parker CJ:WM #1 did not address thin skull casesThin skull rule:“A tortfeasor takes his victim as he finds her/him”It is no 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”i.e. a vulnerability or predisposition that led to the degree or type of injury suffered (will not blame the victim)Nagging problem: the cancer and death are clearly not foreseeable – whether viewed as specific types of injury or degrees of injury arising from burn“The test is not whether these defendants could reasonably have foreseen that a burn would cause cancer and that Mr. Smith would die”“The question is whether these Ds could reasonably foresee the type of injury which he suffered, namely the burn”“What, in the particular case, is the amount of damages which he suffers as a result of that burn, depends on the characteristics and constitution of the victim”Burn was foreseeable. That is all the matters. The extent of the injury caused by the burn is irrelevant… particularly so where the P’s vulnerability or predisposition led to that degree of injuryThe rule then is:If the threshold injury is foreseeable, injuries that flow from it are irrelevant BUT ONLY as applies to thin skull plaintiffsNotesIn essence – remoteness does not apply to thin skull casesThe case turns on the P being able to show they were especially vulnerableRe Polemis is applied for thin skull casesMustapha:“Once a P has established the foreseeability of a mental injury would occur in a person of ordinary fortitude… the defendant must take the P as it finds him for the purposes of damages.”Not a general ruleIf initial injury to P is foreseeable, D is liable for linked injuries that only arose because P has a thin skull, regardless of foreseeabilityQueries1) Is the think skull rule too harsh on defendants?The ultimate consequence suffered by Smith (death) is disproportionate to threshold injury (burn)2) What do you make of reduction of damages in Smith because deceased “might have developed cancer without burn”?3) Should 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?Cotic v Gray (ONCA 1981) – mental health and thin skullFacts:P, a man with history of mental problems, committed suicide after surviving car crash. His mental condition deteriorated after crash because of guilt feelings over death of negligent driver and of his son. Wife of P brought suit.ResultThin skull rule applies – P can recoverNoteAs 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 a predisposition to depression and flows from threshold injuryWright Estate v Davidson (1992):As a general rule, a victum 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 harm.…the extent of injury need not be foreseen, only the type of injuryThis is a restatement of the thin skull ruleNovus Actus InterveniensWhat 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 D’s negligence and P’s injuryCOMPLETE DEFENCETest is reasonable foreseeabilityIf intervening act is within the scope of foreseeable risk created by original D’s negligence, that D is still liableThe more culpable the intervening act is, the more likely it is to be deemed unforeseeableBradford v Kanellos (SCC 1973)Facts:Gas grill in D’s restaurant caught fire. Extinguishers activated, producing a hissing sound. A patron heard hissing sound and yelled “Gas, there’s going to be an explosion!” Panic ensues and P is pushed or fell from her seat and was injured. D argued that there may have been negligence with respect to cleanliness of grill. But actions of hysterical third party were novus actus.Trial court held for P third party’s actions were foreseeable. Natural consequence of an emergencyCA reversed third party’s actions were novus actus – broke chain of causation. D could not have foreseen intervening acts.IssueWhether the actions of the hysterical restaurant patrons a novus actus?ResultReasonInjuries 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 fireNotesLaskin J dissentIt was reasonably foreseeable that 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/probable/ordinary consequence of original negligent actBOTTOM LINE = reasonable foreseeability is everywhere Characterization matters in remoteness/NAI analysisDEFENCESWhat actions of the P might disqualify or limit her recovery?Defences:1) Contributory Negligence2) Voluntary assumption of risk3) Illegality1) Contributory negligenceP’s failure to take reasonable care for her own safety which contributes to her loss/damagePartial defenceD remains liableAbsolves D of liability to the extent of P’s contributionStatute – Contributory Negligence ActApportionment of liability – s 1When by fault of 2 or more persons damage or loss is caused 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 equally2) Voluntary Assumption of RiskP is taken to have consented to the risk of harm generated by D’s negligenceVolenti – consented to risk of harm (both legal and physical)Example: getting in a car with a person drinking at the wheelContributory negligence – partial defenceVolenti – full defence3) IllegalityEx turpi causa non oritur action: “out of a base [immoral, illegal] cause, no action can arise”P engaged in illegal conduct in the course of suffering damage should not be permitted to recoverExample: you break into someone’s house, then fall down a flight of stairs in state of disrepairComplete defenceContributory NegligenceButterfield v Forrester (KB 1809)Facts:D obstructed highway with a pole while making repairs to his home. P left the public house at dusk, on his horse which he was riding “violently”. Struck the obstruction, was thrown from his horse and was seriously injured. Witness said he would have seen obstruction if riding slower. Witness said he would have seen obstruction if riding slower.TJ instructed jury that if P could have avoided the obstruction by taking reasonable care, they should find for D.IssueWas this instruction correct?ResultReasonBayley J: Yes – instruction correct. P was riding too fast and he would not have been hurt if he employed ordinary care.Lord Ellenborough: P should not be able to take advantage of another’s fault if he fails to use ordinary care.NotesComplete defence approach no longer the caseLiability is apportionedDavis v Mann (Exch 1842)Facts:D “driving at a smartish pace” negligently ran over and killed P’s donkey. Argued that P was also negligent for tying the donkey facing the highway with forefeet “fettered”. IssueContributory negligence?ResultCourt held not contributory negligence because: D could have avoided injuring the donkey if he had exercised “proper care”ReasonParke B: “Although the ass may have been wrongfully there, still the D was bound to take actions to prevent mischief.”Donkey did not cause injury – D’s negligent driving didTo be contributorily negligent, P’s negligence must contribute to the injury, not merely the accident. D could have avoided injuring the donkey if he had exercised “proper care”NotesSection 3.1: Last clear chance rule This 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 consequence of that act or omission and failed to do so.Froome v Butcher (ECA, 1975)FactsP was driving at speed limit, but not wearing seatbelt. Head on collision with D, who was passing illegally. P suffered injuries to his ribs, and a broken finger. Finger injury could not have been prevented by wearing seatbelt. P testified he did not wear seatbelt because he thought he was better served by being thrown from car. Not necessary if you are driving in cood conditions below speed limitTJ awarded 450 pds, and would have reduced award by 10% if required to do so.P argued that D caused the accident, not his failure to wear seatbelt.IssueShould damage be reduced for failing to wear seat belt?ResultNotesQuestion is not what caused the accident, but what caused the damage: Both the accident and failure to wear seatbelt caused the damageNot a criminal offence to fail to wear seatbelt.No. 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 objective.Forgetfulness?Sorry. Too bad. Also negligence Wearing a seatbelt is sensible thing to do.What share of liability should fall to the plaintiff?If failure to wear a seat belt made no difference, no contribution, no reduction of damagesIf failure made all the difference, then 25% reductionIf failure made considerable difference, then 15% reductionIn Canadian seat belt cases, courts all over the map. Failure to wear seat belt generally unreasonable, but sometimes accept flimsy excuses that run counter to FroomeEg. “it was a fine day” “I am cautious” “I thought it would affect me” “The belt was uncomfortable” Question: should a legislative requirement to wear seatbelts be determinative in such cases?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 onself 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 negligenceDube v Labar (SCC 1986)Facts:P and D, friends, were on all day binge drinking. Driving back from Whitehorse, they stop to pick up hitchhikers and car stalls. P driving, D passenger. After brief exchange, P and D switch places, car flips, P is injured, so sues D. D argued volenti, among other things.Jury accepted defence, Yukon CA upheld.Issue:Is the defence of voluntary assumption of risk valid in the circumstances?Result:SCC upheld jury verdict, but restricted scope of volenti defence.ReasonD must show that P, knowing of the virtual/certain risk of harm (knowledge of physical risk)Bargained away her legal right to sue 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 for P and P agreed to thisVolenti applicable in most drunken driver/willing passenger cases? Lack of awarenessContributory negligence is still an optionNotesCrocker v Sundance Northwest Resorts Ltd (SCC 1988)Facts:Grossly intoxicated P participated in inner tube race down a mogul run on a ski hill. Seriously injured. Ignored advice from D to withdraw from race. D argued volenti.IssueVolenti applicable in the circumstance?ResultNo volenti, but 25% contributory negligence.ReasonGiven P’s level of intoxication, he could not have appreciated and accepted physical and legal risk of injuryWaivers and VolentiFrequently used in commercial, sporting and recreational eventsAs a lawyer, responsibility to make sure your client has an air-tight waiverValidity determined by applying the law of contractsNot enforceable unless reasonable notice was given to P’s in terms of its waiverIssue: 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 raceBut see Dyck v Manitoba Snowmobiling Assoc. Inc (SCC 1985)P, snowmobiler crashed his machine at a race sponsored by DSigned waiver gave rise to volenti defenceHow do we reconcile both cases?P in Dyck had read waiver and had better understanding of its terms.But did he have a clear understanding of what the waiver really meant?Really need your clients to know that they must make it clearBottomline: For a waiver to apply, there must be reasonable notice and clear understanding (and acceptance) of its termsLambert v Lastoplex (SCC, 1971) [Labelling]Facts:P, an engineer, was using a special fast-drying lacquer to seal the floors of the basement. Furnace, in adjacent room, had pilot light. Lacquer + pilot light = fire. P tried to exit but explosion caused burns and property damage. Lacquer came with warning label that substance should be kept away from open flames and high heat. But was it adequate? It was very general, and court held that was not sufficient. Competing product had much more specific warning. Risk of explosion/fire from pilot light and light switches.Below:TJ held P – no volenti or contrib.CA held for D – volentiIssue:Is the warning on a product label sufficient to allow a manufacturer to say that user voluntarily accepted the physical and legal risks of product?ResultHeld for P – full recoveryReasonJudgment principally focused on duty to warn. Duty requires explicit disclosure from manufacturerBecause of failure to warn, D cannot argue volenti. That is, D had to prove that P appreciated the (legal and physical) risk of leaving pilot light on, and willingly took that risk)Without proper warning, knowledge of that risk cannot be established. No proper warning or failure to warn, so no volentiNo contributory negligence either, even though P had some specific knowledge, at least in general terms, of inherent dangersNotesWaiver must cover terms of the risk – full proof – must cover all aspects of riskManufacturers 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 nature and degree of danger posed by product – whatever the danger is you think.IllegalityLike volenti, but restricted considerablyEx turpi causa non oritur actio “out of a base [immoral, illegal] cause, no action can arise”Plaintiff engaged in illegal conduct in the course of suffering damage should not be permitted to recoverComplete defenceHall v Herbert (SCC 1993)Facts:P and D, young gentlemen, spend the evening drinking too much, including in a field, into early hours of the morning (drinking in a field is illegal). They then take a drive in a “Souped-up muscle car” down road that was so bumpy that the keys fell out of the ignition. D turned car around and suggested that they do a “rolling start”. P asked if he could drive; D says sure. P tries to jump start vehicle but gives it too much gas. Car goes off the road into a gravel pit, landing upside down. P sustains significant head injuries; sues D alleging various acts of negligence. D argues ex turpi – accident happened in the course of committing illegal act.Below:TJ: ex turpi does not apply.Only crime jointly committed was drinking in a public place, and that was not causative of damageBut it is defence of illegality, not criminalityWhat matters is what P was doing at the time of damageP was operating vehicle under the influence of alcoholCA: Ex turpi applies.Issue:How does the illegality affect liability?Result:SCC reversed and severly restricted doctrine.Reason:Cory JFocuses on second arm of Anns test – question best dealt with as part of public policy inquiryShould be dealt with under Duty of Care analysisPublic policy does not bar the plaintiff’s recoveryWhat?Permitting his recovery would not shock the conscience of right-thinking members of society fully apprised of facts!Ogbogu: Who are these right-thinking members of society that will think it is okay?“[T]he doctrine of ex turpi causa should be eliminated from application to tort cases”Rather: Illegality 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?In case at bar, noMcLachlin J (MAJORITY)Illegality should work as a defence as long as P is seeking compensatory damages (outside of exceptions below)Used to be based on intention to prevent a person from profiting from his/her wrongIF this is a basis of the rule, then it should have little impact on tort law, because tort law is compensatoryTo be contrasted to windfall or profit (ie. exemplary or punitive damages)Don’t want people to profit beyond how they were damaged.So, the plaintiff could recover compensatory damagesFew classic exceptions:1) Claim for damages for lost earnings based on illegal profession or activity (burglar/bookie, etc.)2) Bar to recovery where a claim for exemplary damages might otherwise be granted – no windfall damagesNo role for ex turpi besides these exceptionsClaim in Tort law is generally not a claim to a profit, rather for compensation – aims to restore P to original positionTraditional rationale – to prevent persons from profiting from wrong (murderer collecting on life insurance). If this is the basis of the rule, then it does not apply to tort law because tort law is compensatoryTherefore, defence of illegality can be used to bar windfall damagesProfit 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 for 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 incoherenceFor example, P caught committing burglary due to negligence of fellow criminal cannot successfully recover cost of imposed fine.Because this allows criminal P to off-load punishment that society has deemed he should receiveWhat type of analysis will achieve the purpose of protecting the legal system from incoherence?Cory J: matter of public policy determined in the duty inquired per AnnsMcLachlin disagrees, for three main reasons:1) Duty is about relationship between P and D, and is predicated on foreseeability, not morality of P’s conduct. Defendant’s character is irrelevant; Plaintiff’s character is (who could be injured by defendant’s actions).Illegality 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 suspended Because of concerns for the integrity of the legal system2) Dealing with illegality at duty stage creates new problemsBurden of proof – if illegality goes to duty, then P will have to disprove the 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 damages3) Under contract, D has to prove illegalityWould be ironic to impose burden on D for a breach of contract part of the case;While imposing the burden on P in tort portion of case.In present case, P is seeking only compensatory damagesNot seeking to profit from wrong, so no possibility of incoherence in the lawTrial judgment upheldNotesUltimately, neither approach is greatSay there is a sexual assault, and criminal contracts HIV from the victim…what do you do.What if criminal sues the victim?Obviously should not be successful, but to allowSo, ex turpi does not generally apply to tort law, save where P is seeking to profit from illegal activityHow about the following cases?Burglar who falls down stairs in state of negligent disrepairMurderer, fleeing from police, slips on icy sidewalkShould we let criminals claim assistance from Tort law?Murderer who sues manufacturer or murder weapon for defect that injured him in the course of committing offenceSeems like more sympathy for the two murderers? Because anyone could have slipped on ice or misfired?Notes (McLachlin)1) Damages linked directly to illegality2) Windfall – damages beyond to return you to original position (aggravated damages) (punitive – punishment)Examples (using McLachlin judgment):Murderer, fleeing from police, slips on icy sidewalkMcLachlin says yes – compensatory damages applyMurderer who sues manufacturer of murder weapon for defect that injured him in the course of committing offenceMcLachlin says yes – compensatory damages applyLimitations Act – expiry of limitation period (another defence as defendant)More in Civ ProP must bring action within specified time limitsOtherwise, the action has expired.Generally, 2 years from time P knew or ought to have known of claim Discovery RuleOR 10 years from when claim arose (whichever expires first)Time stops for P under disability – functional disability, dependent adult, minor not under actual custodyFraudulent concealment may stop clockRationale:Fairness to DWitness memoryDAMAGESPECUNIARY LOSSNegligence requires proof of actual damageUnlike some torts, which are actionable without proof of damage (eg. Trespass)Arises mainly in personal injury casesLiability will be admitted in vast majority of cases – only question is what is claim worth?Point of tort law is to compensate plaintiff – restore him/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 despicable such that it warrants a severe reprimand.Ex. 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 quoDamages for wrongful deathSpouse or children of deceased victim sue for supportNo common law cause of actionProvinces have adopted fatal accidents legislationConfers on surviving spouses and children (and in some cases, parents) right to sue for losses arising from wrongful death of relativeFatal Accidents Act, Family Compensation ActDamages to propertyChattelIf altered or no longer available (eg. Lost, damaged, destroyed), measure of damages is the value… but what is the 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 valuePecuniary – I don’t fucking knowEncompasses various costs associated with treatment or care that are yet to be incurredNursing, personal attended services, user fees, home or automobile modification, drugs, transportation to treatment, prosthetics,Anything arising from treating the injury or associated with an ongoing disabilityProbably the most important head of damage for PsCourts typically most generous on this oneEx: Future costs of home care - $4135/monthOnly alternative is institutional care, assessed at $1000 per monthTJ awarded home care; CA awarded institutional care; SCC awarded home careLoss of earning capacityBut for the accident, what sort of career would Mr. Andrews have had?Not same as past income loss – no extrapoliation from PILNot same as present earnings – head looks at los of earning capacityLoss capacity is a capital assetWhat is the capacity/asset worth?Conceivalby worth more than present earningsCourt adopted valuation based on current line of workNo consideration of possibility of educational advancementRather SCC focused on his current work and mid-range salary in assessing earning capacityMethodology:1) estimate P’s future earnings, then deduct from it the amount that the P is still capable of earning=Zero (P not capable of earning anymore)Trial award:He was earning $830 per month as apprentice for CNMaximum for that line of work was $1750CA/SCC = $1200 conservative but reasonable, gross income2) determined the length of time over which the P would have earned incomeAndrews could have retired at 55 with a full pension (why not 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 age 23 and 55?30.81 years3) apply contingenciesIncome level is set ($1200), and the time level is set (30.81)Now 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.4) apply capitalization for return on investment (same as in cost of future care)Two additional heads of pecuniary damages courts have recognized1) 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 services2) 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 personBecause two persons can live together more cost-effectively than separateAnd P has lost some degree the opportunity to realize those savingsNON-PECUNIARY LOSSNot easy to determine the “quantum” (appropriate amount) of damagesNo objective market value or non-pecuniary lossCourts ascribe a value anywaysMoney does not provide true restitutionIf nothing of market value has been lost, then question is what artificial 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 US. But are they really?Oddballl jury awards – infrequentOften reduced on appealMainly punitive damages, which are tightly controlled by Canadian courts (rarely exceed $100,000)Dickson CJ’s approach in Andrews: place a CAP on non-pecuniary awardsUninformed judgment?Non-pec awards have a functional basis – to provide solace for P’s non-pec damagesOgbogu does not think the cap is fairAndrews Facts:Mr. Andrews is mentally alert but catastrophically injured young man. This is as bad as it gets. But actually worse than being a vegetable, as he is aware of his pathetic circumstances. As such, he needs solace for his injuries. But the award cannot be limitless or overcompensate.Is the cap a bad idea?In AB, non-pec damages have been limited by statute in certain circumstancesMinor Injury Regulation, Reg 123/2004Minor injures (sprain, strain or whiplash injury that does not result in serious impairment)Capped at $4000 (adjusted for inflation from 2007)Currently at $5296Constitutionally on minory injury cap was challeneged in Morrow v ZhangP, 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 reversedInteresting observations about non-pec awardsJuries (rare in AB, more common in BC and ON) award less than judges for relatively minor injuries (eg. Whiplash on MVAs)But award more, sometimes above the cap, in cases of catastrophic injuriesCofA reduced award to CAP on appealGeneral Rule (Canadian Courts)P is entitled to full compensation, but no more. No double recovery. No windfall.Private insurance exceptionIf P paid out of pocket for the collateral benefit, then 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?Where P notionally paid for it as it is part of an agreed compensation package (Ratych)Ratych v Bloomer (SCC 1990)Facts:Police office injured in MVA due to D’s negligence. Continued to receive full salary while off work for several months pursuant to terms of collective agreement. Also, did not lose any accumulated “sick credits”.IssueShould employment benefits be taken into accound in assessing damages for loss of earnings?ResultSCC said deduct employment benefits to avoid double recoveryReasonMeasure of damages should be “actual loss”Private insurance exception does not apply absent evidence that employee contributed to the fund from which benefits were paidNotesCompare with Cunningham v Wheeler: P received disability benefits from employer under terms of collective agreementNo deduction from his pay for disability benefitsTJ accepted evidence that collateral benefits was an important aspect of collective agreement negotiationsIf benefits increased, hourly wage goes down and vice versaHeld: No deduction as benefits fall within private insurance exception.Some consideration was given up by employee in return for the collateral benefitBargaining trade-offs between wages and benefits constituted such considerationOther kinds of consideration:Direct contribution by employeeP gives up some money in return for benefitBenefit is part of employee’s work package/wages – employee worked for itTrial courts often deduct if there is the slightest evidence of some consideration or contribution from employeeS 570(3)(4) Awards must be reduced by aggregate of (inter alia):Certain no-fault benefits under a vehicle insurance contractAlberta Health Care Insurance benefitsPrescribed income continuation or replacement benefitsDisability pension benefitsWorker’s compensation benefitsImportant: Net of tax, contributions and premiums paid by employeeLump sum or periodic payments?Issue: should damage awards be paid by D as a lump sum or periodically, as it is incurred?At common law, damage awards must be single limp sumAdvantages of periodic payments: adjustable to contingencies; removes guesswork; avoids overcompensationDisadvantages: administrative costs; lack of finality/certaintySCC rejected periodic payments and ruled in favour of lump sumsA matter for the legislature, not courtsON, MB, and BC have enacted legislation providing for periodic payment alternativeYoung Plaintiffs:Andrews formula particularly difficult to apply to young plaintiffs, especially as relates to lost earning capacity.Typically do not show aptitudes that allow us to assess that head of damage.Arnold v Teno (SCC, 1978): P was 4-yr old 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 $10k peryearONCA agreedSCC said noSCC: can’t make assumption she will follow mom’s lead or that she will be a washout or public chargeReduced award to hallway between trial award and poverty line = $7500 + 20% deduction for contingencies of lifeThe problem that I have is that “following the parent’s lead” is just a way of perpetuating stereotypes. Children that are in a privileged position (where their parents are well off) are heavily advantaged. Is there any income amount that Courts will draw the line on? Ex: parent’s earning capacity is $500k/year ................
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