Introduction to Torts - Cans DB



Introduction to TortsDefining Tortsareas of law recognized as tortsprivate wrongs other then contractsin terms of aims and objectivesTheory: Torts concerned with breach of obligations & restoration to previous state. Idea of overcompensation exaggerated by media and depends on other social nets (ex US)Scope of liability expands or contracts depending on legal, social, econ or philosophical circmTheory: Importance of definition: lets know which law to go to, affect each other so defined limits are important (ex concent that neg swallowing K).Torts v Criminal Compensation v Punishment (also restitution and retributive princ and sense of moral wrongdoing)Functional difference: Private v Public: Individual v CommunityStandard of proof: on the balance of probabilities v beyond a reasonable doubt Theory: Procedural differences: T empowers victim but money matters, protections in crim for DTheory: can pursue both with same facts, should we? Crim instrumentalises victim and functions on a created relationship between state and D.Torts v ContractSource of primary obligations: circumstances v by parties themselves (1ary: how ought to act, 2ary how act if 1ary broken)Privity: contract are voluntary so only parties which choose to be involved arePurpose of Compensation: backwards looking v forwards lookingMisfeasance v nonfeasance: T focus on Mis; K may find liab for NonTheory: boundaries blur when think about implied terms (in K law) and duties of care (in negligent T law)In both cases wrong arises out of obligation imposed by law regardless of relationship so this makes thinking of difference in terms of ‘idea of prior agreement’ tricky‘Death of a Contract’ Foundations and Objectives of Tort LawDescriptive AccountWhat does/ Coleman’s analytical theoryDoes torts do what it claims to do? (analytical)If max Comp (comp insurance scheme, calculations required by fairness are hard to do) then min deterrenceCompensation – T should restore PCorrective Justice: indiv has duty to repair wrongful losses that conduct causes. Return P to state b4.Jules Coleman – 1st order duties: not to injure; 2nd order duties: repairFlaws: a) only some cases in certain circumstances b) costly for p to start process c) tort law is inefficient mechanism (PS Atiyah argues comprehensive insurance better like QU)d) reward on basis of luck (lucky enough that someone was in the wrong for your harm, torts does not deal well with accidents)e) why have elements of torts if focus is damagesPunishment – damages as a sanction to reflect society’s disapproval. ?s as to whether best left to crim. (not punitive damages!)Deterrence – promotes social goalsSpecific Det – change behave of DGeneral Det – change behave of class of poten Ds,Market Det – change behave of producers to prevent harms and internalize costs to the cheapest cost-avoider. Tort law plays a role in determining who should bear internalized costs (ex manufacturers or drivers).Flaws: D must be aware and cost must be high Not proven effective in crim contextLong time delay in court systemAssumes D is one paying damages (vicarious liability)Assumes good rational decisions are being madeInstrumentalising people to make a pointGeneral: need to assume effective communiEducation – change behave of society at largeT as ombudsman focusing attn. of society on private wrong that would otherwise not be detected (Linden)Normative AccountWhat should doShould torts be about 1,2 or 3? (normative)Distributive Justice – critique of correctiveStatus Quo is not fair. Law should distribute wealth equally and be less sympathetic to claims of those who have. Current: distb may distribute equitably but method is illegal v may inequitable but distribute legally.Retributive Justice – impose liability on the blameworthy to penalize their moral fault. But prob in T is that D may not be the one paying (unlike Crim.)Also, mostly T do not look to motive/blameEconomic Theory – T should only be involved when it leads to rational econ behave and efficient allocation , of resourcesFeminist/Classist Critiques Analytical and normative approachesT is good at protecting economic interests but not psychological – this is gendered and indir favours men Ts assume prop ownership and require resources to bring a case to court – protects class systemBetter to have Public NegligenceNo luck, better justice in mass actions, accidents are a social problemBasis for Imposing LiabilityAs move down, gets less fair and punishments less extremeAbsolute Liability – liable since engaged in act, no defenses. (ex immigration)Strict Liability – liable since engaged in act, some defenses: act of god, lack of voluntary control. (ex dynamite or speeding)Negligence – failure to take reasonable care to prevent foreseeable harm (ex recklessness)Intention – P usually proves, if direct may shift to DNo Liability – even if intentional or careless (ex pregnant mother not responsible for harm to child)Some conflicting principles: ex duress can be defence but not duress of circumstancePrinciples of Liability- Volition and Intent required for intentional TortsIntentDefn: Desire to bring about consequences of act, rather then desire to do act itself (Subjective) does not have a moral elementexample: shooting can in forest and hit another person in steadConstructive Intent/Imputedincludes unintended consequences that are certain or substantially certain to resultexample: place bomb in building, intent to injure boss expanded to include other ppls injuries Theory – troubling because hold people liab for things they did not literally intend (forced objective thought on what is normally subjective). Assumes a baseline intellectual capacity. Interpretation is required. Looks more like strict liability.Opposite issue of Moral luck, where intended to commit but did not – should D be held Iiab?Issue of impossible crimes, where intended to commit and did so, but method chosen could not kill (ex thought pills were poison but they were not)Justify with need to protect public at large from people who do not think through consequences of their actions.Transferred Intentintend to commit T against one party but unintentionally commit against third party insteadalso applies when intends to commit one tort but ends up committing anotherexample: swing to hit one person and hit another insteadTheory – justified since D’s conduct is culpable and P is innocent. Should respond to wrongful intention and harm caused even if D does not achieve aimVolitionVoluntary – D exercised control over actSmith v Stone (1647) – volition not enough to establish liability- Stone chased onto Smith’s land involuntarily, no intent to be there, Court found in favour of Stone.Scott v Shepherd [1774] {English} – squib shows lack of volition for middle throwers, causalityCapacityD cannot be held liab if did not understand nature and quality of act (children and mentally disabled) – this is a crim testCan be held liab if did not realize that act was wrong or unlawfulMistake, Motive and AccidentMotiveDefn: Reason for action – not usually an element of Ts (IINS)May be an element of defence or in assessing punitive damagesDuress not defence – idea that harms should not be passed alongGilbert v. Stone (1648) – threats of harm do not act as defense to theft and trespass- Defence not allowed as there was not way for Gilbert to act against parties who threatened StoneMiska v Sivec (1959) – Provocation test – did P’s action cause D to lose self-control?- factor that may reduce damages, Sivec chased and shot Miska – Ruling: bad blood doesn’t count as provocation, needs to be right before shootingMistakeDefn: Intend Conc of acts but those concs have different factual or legal significanceNot recognized as defenceHodgkinson v Martin (1929) – mistake of law is not defence - nominal damages given as D thought that they could remove P from premises using reasonable force (mistake of law)Ranson v Kitner (1889) – mistake of fact is not defence- thought dog was wolf so shot him, responsible for cost of replacing AccidentDefn: harm caused unintentionally and without negligence, no Intent so no tortEpstein’s Theory of Strict Tort Liabilityif impose SL, would lead to efficiency gains (enough to outweigh fairness loss?) Simmons believes it is too broad as would catch accidents and mistakesWhere SL has harsh punishments, people tend to disagree on grounds of processAssaultElements: Holcombe v Whitaker (1975) {Ala SC) – elements of assault- Man threatened wife, words are not enough but may give meaning to act, banging on door was key for directness1. Direct and Intentional ActP proves direct and D has to disprove intentionalReverse onus arises from direct causal link between conduct and violation of P’s right to personal autonomyOnce held that D has intent and capacity, they can beheld liable even if jokeR v Ireland (1997) {english case} – silence is direct intentional act and psychiatric injury is harm- heavy breathing phone calls, could not tell where he was, not yet directly accepted in Canada2. Caused P to apprehend immediate harmful or offensive bodily contactDoes not need to be afraidUse ‘but for’ causationCapable of being carried out at onceOther Stuff:Apprehension must be reasonableThreats of future harm not sufficientConditional threats do not give raise:Police v Greaves (1964) {NZCA}– conditional threats are not assault- man threatened police to leave property or else he would knife themBattery Elements: Bettel v Yim (1978) {ON} – elements of battery- Shop owner shook P, did not mean to hit but ruling was that once intentional physical contact commenced, responsibility is for all ensuing harms1. DirectPractical question: traps and poisoning not batteryOnus on P to prove2. IntentionalIntend to bring about physical contact, not harmOnus on D to disprove3. Physical Interference with the person of anotherAnything with the person (clothing…xrays?)Malette v Shulman (1990) – Purpose of battery to protect bodily integrity not physical harm- doctor gave blood transfusion without permission, no physical harm or awareness at time necessary4. That is Harmful or offensiveTo right of bodily integrityOther Stuff:Concerned with protecting indiv dignityactionable per se – no proof of damage requiredNeed not be aware of event at time (ex if asleep, Malette)Onus of proving intent never on PSexual Battery & the Role of Consent- Not a tort, currently dealt with under BatteryElements:Non-Marine Underwriters, Lloyd’s of London v Scalera [2000] – absence of consent is presumed in sexual battery cases- D bears onus of proving consent, as it is their fault that resulted in violation of bodily security. Torts aim to protect bodily integrity so it is wrong to have to prove lack of consent. Violation is implication of intent.- McLachlin rejects formal equality of P and Ds in T; instead she recognized power imbalance and gendered roles as being important considerationsConstructive Consent:Objective: would it have been reasonable for D to think that P was consenting to battery based on her conduct? P’s demeanor and surrounding circumstances will be considered.Seen as a victory by feminists as it also rejects that subjective belief can be used as a defenceProblems:Does D need to give evidence of attempts to ascertain consent?P’s perception and experience is irrelevant provided D can prove reasonable basis for consentCould lead to situations were courts blame victims for failing to resist or inducing Ds – shift of focus onto victim rather then accused (Adjin-Tettey)Based on ideas about ‘normal’ and ‘reasonable’ – these are discriminatory (Adjin-Tettey)Could find someone liable who honestly did not believe they were committing a wrong – big stigma hereSue in Tort? (as compared to crim)AdvantagesP chooses case, facts, expert evidence and can end it (not instrumentalized)Therapeutic benefits for P and promote healing Standard of Proof: lower in civilDisadvantagesCost, delay and stress may make it worse (how much burden on society via legal aid funds?)If action is defended, may be secondary victimization (possibility of successful defence of constructive consent)Civil lit is expensive and P may not receive damagesmyths and stereotype about women’s sexual behavior –systematic stereotypes underlie institutions (Adjin-Tettey) New Tort?Under battery, victim must prove unwanted contact but does not need to prove intentNew would mirror Crim law which has limits on implied consent (response to Scalera)Ewanchuk (1999) – CRIM CASE: Mistaken belief in consent can only operate to negate the mens rea required for sexual assault where the accused can show that they believed the complainant communicated consent to the sexual contact in question.For: makes important crime public (Feldthusen)if belief in wrongfulness of crime is enough to occasionally convict innocent in crim why isn’t it for TAgainst: consistent with corrective justice model at heart of Torts (indiv against indiv) (Feldthusen)False ImprisonmentElements:Bird v Jones [1845] – elements of False Imprisonment- P stopped by police, could have gone any other direction, must be compete imprisonment1. Direct Intentional Imprisonment of another personP prove direct imprisonment. D has burden of disproving intent or negligenceActionable w/o Proof of DamageIt is a violation of personal libertyRestriction must be competeOnly expected escapes are reasonable escapes, unclear just how much harm is expectedOther Stuff:Does not need to be physical spaceBarriers, threats of force, psychological restraintDo not need to know it occurred in English Law, Canadian likely to take same approachRemedy likely avail for kidnapped infants and Alzheimer adultsCan be liab if order someone to restrain (indirect FI)Turns on relationship between parties (authority)Roberts v Buster’s Auto Towing Service Ltd (1976) – indirect False Imprisonment- Employee (E) directed police to arrest P. Police had little or no discretion, so E liab for FI. If info had been given to JP, then no FI for E since JP exercises own discretion. E may be liab for Malicious Prosecution Whether imprisonment was lawful is treated as defence – so must be raised by DFalse ArrestWhere restraint placed in name of legal authorityCampbell v SS Kresge [1976] – false arrest, psychological imprisonment- Off duty police ask suspected shoplifter to come with him in order to avoid a scene- if go freely then no FAConsensual Arrest- Consent to restraint under certain conditionsHard v Weardale Steel, Coal and Coke Co Ltd – enter a place with limited exits and you have consented to exit under conditions of entry- Mine refused to let worker use cage to exit until end of shiftMalicious ProsecutionElements:Miazga v Kvello Estate (2009) – Elements of Malicious Prosecution- Prosecutor had subjective doubts about validity of children’s sexual assault claims against their parents, but court ruled he was right to continue based on the objective reasons1. D initiated Crim proceedings against PMust be driving force (not just providing evid)Not appli to Tort as punishments in Crim more serious and so this warrants MP tortAlso liable for continuation2. The crim proceedings terminated in P’s favourConviction =guilt and innocence is foundation3. No reasonable or probable cause for the proceedingsUsed to need subjective belief in guilt and objective basis for belief, this caused problemsNow objective only (Miazga – professional not personal belief)4. Malice on the part of the DSpite, ill will or improper purposeFinding lack of probable cause is not malice, could be honest mistake or misapplication of prof judgment (Miazga)Proulz v Quebec [2001] inferred malice- From lack of reasonable or probable cause and evidence prosecutor’s hiring of former police officer who was being sued by D for defamation.Nelles v Ontario (1989) – no more immunity for prosecutors, if deliberate and malicious then will be held accountable- Very public charge and pretrial for death to 4 babies then charges were dropped. Hard to prove malice and that there was no reasonable or probable cause.5. P sustained DamagesDifferent from other torts in that it is not actionable per se (need to show loss of reputation, liberty…)Interests at Play:Freedom of individuals from groundless criminal prosecutions that may result in harm Public Interest in effective and uninhibited prosecution of wrongdoing - Imposing liab on mistakes would inhibit helpful citizensBalance favours Pub interest with this tort offer reliefIntentional Infliction of Nervous ShockElements:Wilkinson v Downton [1897] – Elements of Intentional Infliction of Nervous Shock- Message that wife should go collect broken husband from pub resulted in wife needing medical attention1. Outrageous or extreme conductQuestion of fact, reference to standard of reasonable peopleCourt more likely to find if P was vulnerable and D was aware of thisClark v R – conduct in IINS can be a course of conduct not just isolated incidents- series of sexual harassment incidents against female police officer by male colleagues 2. Intent (or constructive intent) to causeMust have intent to cause impact on psycoIntent can be inferred based on seriousness of conduct (constructive intent ok)3. Nervous ShockNot actionable Per SeAnguish, worry and emotional distress are insufficientRadovskis v Tomm (1957) – emotional distress is not sufficient for IINS- Mother had no evidence of illness due to sexual assault on daughter, pre-existing bad nervesSamms v Eccles (1961) – aggravated conduct allows court action- Series of sexual propositionsRahemtulla v. Vanfed Cridit Union (1984)– can have IINS if there are symptoms of depression and behavior was outrageous-Fired after false accusation of theft, suffered from depression and could not find workDifficulties:Assessing Damages in absence of physical harm: Evidential worriesConcern with false and numerous actions: flood gate Concern that socially acceptable conduct may cause harm for sensitive individuals : Extreme pre-existing vulnerability Innominate Intentional Tort Idea: - all unjustified, intentionally inflicted bodily injuries, would not fall within usual nominate torts, so would give courts recourse without disturbing other tort principlesDiscrimination- Not a TortCovered by s15 of CharterIf covered by Statute, courts have been taking position that it is not normally covered in TortsBhadauria v. Board of Governors of Seneca College of Applied Arts and Technology (1979) – Discrimination is covered under statute already- Teacher applied and did not receive interviews. - CofA (Justice Wilson) thought there should be a tort action as commissions often do not have the resources. Common law right to non-discrim.- “The mere fact that the claim is novel will not of itself operate as a bar to the remedy.”- Already recognize respect for fundamental human rights in statute so why not in tort? Statutes reflect development in common law?- SCC appealed to floodgate argument (but could frame it!)Freestanding tort of discrimination:Statute could help courts balance equality with other legal interests (ex freedom of contract) Empowers individuals and frees up govt commissionsRights Discussion:If rights are fundamental, makes sense law and tort recognizes themIf see rights as created by law, then tort not necessary, ‘right’ becomes an argument to use at commissionNon-derogable rights – perhaps torts only protects these, but who decides which are which (white man who has never experienced discrim)Stalking- Not a TortS 264(1) Crim Code defines it: person intentionally or recklessly harasses another in a manner that leads them to fear for their safetyIdea is that you can sue under other remediesCounter idea for an independent tort:Piecemeal approach does not address real nature of wrong – the indiv acts may appear insignificantLabeling question – if not assault don’t call it such. Law looks out of touch and people lose confidence.Symbolic reassertion of rightsCompensation question – position of celebsTiming – if T faster then Crim could get injunction faster then restraining orderHarassment- Not a TortDistinction between Stalking and HarassmentAction causing fear for safety is stalking, action causing distress/annoyance/disturbance/upset is harassmentNot really covered by traditional torts (maybe IINS)Courts only willing to consider when P is clear target and suffers severe mental distressThis leads to confusion:Chapman v 3 M Canada – No tort if claim covered under a collective agreement- Wrongful dismissal based on discriminationStatutory Protection of Privacy protected by charter, prov and fed legHollinsworth v BCTV – statute protects BCTV- Awkward TV clips released, BCTV told consent had been givenIntentional Interference with LandElements:Entick v Carrington (1765) –every invasion is trespass regardless of damage, onus on D to prove defence 1. DirectIndirect may be actionable in negligenceEvidential requirement to simplify cause of action and provide solutions to everyday problemsGet rid of: Unique problems cause artificial distinction, would simplifyKeep: Fairer, indirect should not be punished, action through negligence2. Intentional or NegligentBurden of proof on D once P prove direct interferenceNo intent of harm necessaryConstructive intent appliesTurner v Thorne (1960) ON HC - Mistake is not defence- delivery to unlocked garage where used to deliver is trespass3. Physical IntrusionSmog, fumes, smoke, noise or odour are notActionable per se – no damage necessaryOnto land in Possession of another.DefensesConsent (Licence)Express or ImpliedGratuitous licences revocable at will, Contractual licences revocable upon misconductTo indiv or group or worldNecessityEmergency and T necessary to prevent harm to: Public, Trespasser, possessor of land or a third partyPrompted by imminent peril and necessary in the light of the advantage to be gained and the absence of other available options.D must show danger must significantly outweigh the damage or loss caused to PLegal AuthorityStatutory authority given to gov agentsLand: Surface area and everything attached to it and below to a reasonably useable depthReason for TortCivil remedy to help protect possessor of land from violent intrusion or eviction and protect peaceful enjoymentPower to control entry is essential in order to use land in whatever way possessor wantsWithout power to control entry – would have to keep fit for others to useThree Basic Forms:Enter land in possession of another without permissionPlace object on P’s property (doctrine of continuing trespass – allows successive actions)Possessor revokes a visitor’s permission or licence to be on propertyActionable by Person in legal possession Not: Owner of leased property or person with only a licence to be on property (ex hotel guest)Exception: doctrine of trespass by relation: P can sue it they were not in possession at time of interference, provided that no one else was and they subsequently take possessionHarrisson v. Carswell (1976) – Possessory interest in common areas held by owner of mall- private owner has absolute right to deny entry to anyone and revoke licence of entry - Malls are privateTrespass v NuisanceT is actionable per se where nuisance requires proof of lossT protects possession, N protects quality of possessionN concerned with effect of D’s conduct on P’s use and enjoyment of land not with the nature of conduct: indirect intrusions (snow blowing, trees growing (but natural uses that do not pose foreseeable risk usually are not actionable), pollution) may be actionable under nuisance but are not under trespassKerr v Revelstoke Bld Materials Ltd – 1976 – ABSC – distinction between trespass and nuisance - physical invasion of sawdust and ash from new mill across street = trespass; noise affected enjoyment of land and business = nuisanceIntentional Interference with ChattelsDefences same as Trespass to Landa. Trespass to ChattelsElements: (1) Directly and intentionally interferes with chattel in (2) possession of P.Usually: damage, unauthorized movementAim: Protect from damage to items in physical control – avoid wrongful taking, avoids self-help by taking it backFouldes v Willoughby (1841) – authority on Trespass to Chattels- movement of chattel without intent to make further use of it was not serious enough for conversion so is trespass to chattelsProtects possession, so wrongful possessor may sueCostello v Chief Constable of Derby shire Constabulary [2001] – possession is entitled to same legal protection whether obtained lawfully or not- stolen car must be returned to unlawful possessorP – prove interference with possession; D – prove absence of intentMistake is no defence (A: 384238 Ontario Ltd (1983))Remedy – always damages – reduction in market value or cost of repairActionable w/o damages? Yes: no touching valuable items, remedy for moving or temp useNo: damage should be essential: dignitary interest in the inviolability of chattelsb. DetinueElements: (1) P with right to immediate possession requests item and (2) D refuses to return itUsually: unique goods or not easily replacedAim: protects the plaintiff’s right to the chattel and focuses on the defendant’s denial of the plaintiff’s rights by refusing to return itRule: P must ask and D must refuse; return: action endsRemedy:Order to return (dif from trespass and conv)Damages for it’s value and retention - Assessed at time of judgment (continuing tort)Aitkin v Gardiner (1956) ON HC – fact that no longer in possession is not a defence – authority for Detinue- shares converted, can sometimes also claim consequential losses c. ConversionElements: (1) intentionally interferes with the chattel in such as way as to (2) seriously harm the plaintiff’s rights to it.Usually: severe interference so seeking damagesExamples: taking, withholding, transferring, destructionIntent – not avail for negligent interferenceKey Test: Damage is such that D is responsible for full value: forced judicial sale to D so no returning requiredMackenzie v Scotia Lumber Co (1913) Is a conversion but D cannot have both full damages for conversion and property back.- rafts returned to their owner with one additional one by mistake. Fouldes v Willoughby (1841) – Not sever enough damage for ConversionMistake no Defence: innocent seller and purchaser both liableException: packing, storing, carrying with no knowP must replace as soon as practicable (mitigate loss)Court will consider:The duration of the interference The kind of interference The purpose of the interference (motive/mistake no defence but will be considered in remedy)The amount of damage inflicted Damages calculated at time of takingAitkin v Gardiner (1956) ON HC - sharesd. Action on the case to protect a reversionary interestElements: (1) chattel has been destroyed or permanently damaged by the intentional or negligent act of DP does not have possession or immediate right to possession but wants to protect goods from damageOther Points:ReplevinNot a tort, is a procedure for speedy recovery to the P pending results of trial when timeliness importantRecaption Not a tort, limited legal right of self-help: person with strongest possessory right may use reasonable force Remedy of Distress Damage FeasantOwner of land can seize chattle if it is causing damage, cannot sell but can demand compensationII with Economic Interests Not role of torts to protect from market losses (econ argu: force actors to internalize own costs) – contrary to usual corrective justice model, Idea is to protect fairness, line btw autonomy & deceita. DeceitPurpose: Protect P from fraud and protect D from unfair stigmaDerry v Peek (1889)– Authority on Deceit: if reckless as to truth, you couldn’t have believed it was true; Mistaken Belief may be Defence (does not have to be reasonable)- tramway shares sold on steam belief- Statement is false due to lack of care (not) vs. Statement is false and made without care (deceit)1. D made false statementusually written or spoken but may be for actionsAbel v McDonald [1964] – silence is not actionable in deceit, but there may be an obligation to speak- Seller of house, obligation to disclose if dangerous or uninhabitable 2. D had knowledge that statement was false (or was objectively reckless to truth or falsity of stmt)P show D acted dishonestly or objectively recklessHonest mistake is denial of recklessness3. Statement made with intent to mislead P (or substantially certain it would)Merely intention to mislead, do not need cheat/injureOnus on P to show that D intended P to act or relyIf reasonably foreseeable – constructive intent4. P suffers loss from reasonable relianceReasonable People: recognize salespeople exaggerate, less likely to rely on predictions of the future (no one can tell the future), less likely to rely on opinions (they are subjective and open to interpretation)D show P would have acted anyways, deceit failsDoes not need to be sole reason for P’s actions, but should be materialGraham v Saville [1945] – deceit w nonecon losses - pain of preganancy, he said he was singlePasley [1789] - deceit depends on reasonability of reliance; remedy against deceitorP v B [2001] – Deceit may apply in family relationshipsb. Passing OffPurpose: Protect reputation and good will of producers and prevent consumers from being deceived (unregi trademks)Ciba-Geigy Canada Ltd v Apotex [1992] – Authority for Passing Off; Protect producers and consumers- drugs look same as P should confuse someone1. Existence of GoodwillMay be for brand name, trade descript or labelingPower to attract customers and retain loyal custExists where goods or services may be identified as Ps 2. Deception of the public due to misrepresentationMay be intentional or not, leads public to believe that goods are those of the PDoes not apply when only people misled is a ‘moron in a hurry’ (Morning Star Coop v Express Newspaper [1979])3. Actual or Potential Damage to the PExamples of misreps: goods of D are goods of P; goods of P are goods of D; origins of goods; quality of goods; business relationship with Pc. IntimidationJust identify – focus on contractOnly need show threat was made, not carried throughCentral Can Potash v Gov SK (1979)- Two Party Intimidation – A threatens B (with tort yes, with contract no, has remedy already in contract)Rookes v Barnard [1964] – Three Party Intimidation – D threatens A with breach of contract unless A causes damages to P (who has no contractual remedies)1. ?Defendant threatened to commit an unlawful act, such as a crime, a tort or, in some circ, a breach of contract2. ?The defendant’s threat was effective in that it induced someone to act in a particular way; and 3. ?The plaintiff consequently suffered a loss. d. ConspiracyPurpose: act indep and not push out better for businessAllen v Flood (1897)– not tortious to destroy a businessCanada Cement LaFarge v BC Lightweiget (1983) – Authority for Two Types of Conspiracy1. Conspiracy to Injure (Dom Purpose to hurt P)2. Conspiracy to Commit an unlawful actScheme directed at plaintiffShould have known scheme would harm PNot limited to business dealingsOnus on D: DefencesNot mutually exclusivea. ConsentNon-Marine Underwriters v Scalera [2000] – Consent is freestanding defence-For D to prove not for P to disprove as elementNeeds to be specific to the tortFreely and voluntarily givenComplete defence (justification not excuse)Can be explicit or implicit (from behavior, participation or demeanor, or where P fails to object or withdraw)Implied Consent: Look to all factsWright v. McLean (1956) – consent to take ordinary risks of sport in which engaged (no malice or illwill)-mud fight in which a stone was thrown at the P Elliott v Amphitheatre [1934] – Consent when P aware of the risks- Amateur hockey player hit by puckExceeding Consent:Consent exists but action goes beyondAgar v. Canning (1965) – sport players consenting to ordinary risk of injury but there should be a limit on player’s immunity. Heat of the game actions cannot be judged on polite social intercourse- Exceeded Consent when illegal check in retaliationCompetency to Consent:Capable of understanding nature and consequenceC (JS) v Wren (1986) – necessary capacity and maturity for minors.- parents attempted an injunction abortionFactors: age, physical or mental illness, intoxicationConsent to criminal act:Hall v Hebert [1993] – purpose of principle that person cannot recover for conc of illegal or immoral act is to protect the integrity of the legal system- Rarely applies for P seeking comp for injuries, but will apply if attempting to profit financiallyConsent to medical treatment:Full and frank disclosure, more then just a formMay be withdrawn at any timeMarshall v Curry [1933] - implicit consent to necessarily incidental treatments (testicle)Malette v Shulman (1987) –refusal does not need to be informed, it may be absoluteb. Self-DefenceComplete defence (justification not excuse)Social contract theory (give up rights, but if protection fails, right re-emerges)1. Honestly and Reasonably believed that Assault was ImminentHonest: subjective, Reasonable: objective, Imminent: modified objective test2. Amount of force was reasonable in the circumstancesLook to nature of force and all surrounding circumstances, should be proportionate (minimal)Wackett v Calder (1965) – D does not need to measure exact force of blow (given immediacy, not much time for reflection); Diss: requirement to walk away- Bar fight, second punch enough to end the fight- Walk away: Law holds ppl to ideal, duty to leave problematic, role to stop bad not encourage good, self assertion: why walk away from infringement on right to bodily integrityBrown v Wilson (1975) – if force reasonable, do not need to consider consequences (debate on this last)- Bear hug is reasonable even if led to death (trip)Beckford v R [1987] – test is from perspective of D and then whether a reasonable person would have used the same level of forceR v Lavallee [1990] – evidence on battered wife syndrome is admissible & appropriate to consider a woman’s experience and perspective when deciding on a reasonable person’s self-defense.Defence of Third Party1. Same elementsGambriell v Caparelli (1974) – Honest mistake of fact does not preclude defence of self-defense- Mother hits son’s attacker with reasonable forceDefence of Real PropertyMacdonald v Hees (1974) – Elements of def of property- Enter hotel room believing they were invited, excessive force usedBird v Holbrook (1828) – Intent to capture not acceptable- a gun was rigged to protect tullips, fence hen 1. Request to leave and opportunity given to do so2. Reasonable force used to removeOnus on P: Factors Vitiating Consent:Fraud 1. D must be aware or responsible for P’s misapprehension2. Fraud must be directly related to the nature of the act (not a collateral matter)R v Williams [1923] – deceived as to nature of act, so no consent- Thought sex was singing lessonHegarty v Shine (1878) Ireland – fraud to harmful conc of D’s act would not vitiate consent *rejected*- consent to sex not negated by transmission of STDR v Cuerrier (1998) – fraud vitiates consent where there is concealment of significant risk of serious bodily injury- Consent to sex vitiated by undisclosed HIV status in crim contextMistake1. D must be responsible for creating the beliefToews v Weisner (2001) – D’s mistaken belief that P consented, is different from P’s consent due to mistaken belief- nurse gave injection to child under belief that parents consentedDuressLatter v Braddell (1880) – consent as a result of duress is not validPublic PolicyLane v Holloway [1968] – cannot consent to being killed or seriously injured- Clear that elderly person no match for fight R v Jobidon [1991] – no D of consent if serious physical harm was intended and caused- even in fair fightNelitz v Dyck (2001) – two part test to determine where a power imbalance vitiates consent1) proof of inequality (usually power dependency) 2) proof of exploitation (in light of community standards)Defence of Reception of ChattelsNot applicable if already dispossessed, too risky and puts D in position of aggressorElements 1) be in possession 2) attempting to immediately regain possession or in hot pursuit 3) if innocently picked up, must be requested before force usedDefence of Provocation1. Conduct that causes a reasonable person to lose control and act in way they didexam, flag it as an issue, run through the issue and state that it is unlikely to be relevant in torts as courts very loath to allow provocation in Defence of DisciplineCommon law rule and section 43 of cc (according to Solomon, CDN courts tend to use crim for civ)“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.”Force used by way of correction (educational)Force used was reasonable in the circumstancesR v Dupperon (1984) – Authority for Defence of Discipline- Was educational but not reasonable for this childR v Baptiste (1980) – interpret s 43 in light of prevailing social standards and customs rather then those of D- Drop out of use for battery? Still use for false I.Canadian Foundation for Children, Youth and the Law [2004] – Section 43 is constitutional within limitssober, reasoned, and address actual behaviourchild must be able to understand and benefit (not <2yr)the force must be transitory and trifling, must not harm or degrade the child, and must not be based on the gravity of the wrongdoing. (so no teens as that may encourage aggressive or antisocial behave)not be applied using objects or to the head. not reasonable in schools, although teachers may use force to remove children from classrooms or to ensure that they follow instructions. Extra Judicial Damages (used as defences):Recapture of Chattles – can use reasonable force to regain when someone takes if from them tortiouselyReentry onto land – needs to be a reasonable force to reenter land and regain possessory interest in land - reasonable infringement of property rightsAbatement of uses – reasonable force to stop or prevent a nuisance ex remove a dead tree branchc. Assertion of Legal AuthorityDefence in a range of statutesCriminal Code and Charter s495(1)(b) CC - authorizes peace officers to arrest (without a warrant) anyone whom they have reasonable grounds to believe has committed or is about to commit and indictable offence.S25(1) CC (if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose)S25(3) (force intended or likely to cause death or grievous bodily harm limited to self preservation of preservation of indiv in protection)S25(4) (as much force as necessary in preventing flight – including deadly per solomon)s1 (limits in free and democratic society) s8 (unreasonable search and seizure) s9 (arbitrarily detained or imprisoned)s24(1) (any remedy court sees fit)s24(2) (exclude evidence if bring admin of justice into disrepute)Rights in Arrest ProcessKoechlin v Waugh and Hamilton (1957) – rights in arrest process(1) No general right to ask individuals to identify themselves. Must rely on a recognized power, such as that inferred from S450 (need to have reasonable and probable grounds to suspect).(2) Police need to tell the individual why they are being arrested – i.e. they are entitled to know on what charge or on suspicion of what crime they are being arrested.(3) Failure to inform the individual of the reasons for arrest can give rise to a claim for false imprisonment.(4) If the individual is not informed, they are entitled to resist the unlawful arrest.CL power to Search following Lawful ArrestR v Caslake [1998] - search only justifiable if purpose of the search is related to the purpose of the arrest (this applies to item limits and temporal limits)CL power to Enter to Search for Wanted PersonEccles v Bourque [1975] - Broad princ of sanctity of home subject to exemption upon proper demand Elements: 1) need reasonable and probable grounds for the belief that the person sought is within the premises (hearsay is ok) and 2) proper announcement is made prior to entry (otherwise could give rise to violence)Remediesno great detail – just indicate that you are aware of what remedies are available – will not be central issue in fact patterns1. DamagesAims: Retribution, Deterrence, Vindication/Educative/ Upholding Law & Fostering RespectJudges should give reasons according to aimsGeneral/non pecuniary – damages for non monitary harms: physical and emot suffering, loss of rep…Special/pecuniary – damages for monitary losses Nominal – The Mediana [1900]Compensatory - Dodd Properties Ltd. v Canterbury City Council [1980]Punitive – not about harmWhiten v Pilot Insurance Co [2002] – principles in punitive damages- Only serious misconduct; appellate courts may reduce; not limited to specific categories of cases; fact of crim puni just one factor to be considered…Disgorgement (restitutionary)Aggravated Damages - Recognition that 1) malicious, highhanded or outrageous action of D may have 2) resulted in additional humiliation, loss of dignity and embarrassment (Rookes v Banard [1964] accepted in Vorvis v Insurance [1989])2. InjunctionProhibitive – stop (ex nuisance: damages/fines are license after the fact, so injunction more useful)Mandatory – do something (ex specific performance in contracts)equitable remedies – need clean hands3. Declaration give a preliminary ruling on a point, clarify a legal position without litigatingEx: insurance policy – declaration whether the policy covers x or notEx: declaration of paternity – want to do a paternity test and have the court declare results4. Order of Specific Restitution/Disgorgementcourt tries to prevent someone from profiting from a wrong, asking for delivery up of profitsB.(P.) v. B.(W.) (1992) - non-p Comp Dam (victimization, shame, loss of self-esteem); Aggravated Dam (gross breach of trust); Punitive Dam (rape when she was 20)DefamationActionable per se (strict Liability)Function: Protect Loss of reputation (often a commercial interest in reputation) Balance with Freedom of expression (easy to prove but lots of defences avalib)Damages based on loss of reputation (need one)Old: Libel written and actionable per se & Slander spoken and needs damagesElements: Sin v Strech [1936] – Elements of Defamation- Fact that a ‘small debt is owing to servant’ is not 1. Material is Defamatory? (Question of Law)in the mind of a ‘right thinking person’ (list on p936)Plain meaning – includes normal meaning and those things that an ordinary person would infer (b&c)Ref to extraneous cirs (legal innuendo) – special knowledge of P or circ required (he is married)False innuendo – ordinary person without special knowledge could infer Slim v Daily Telegraph [1968] context important: courts view pub as a whole incl headlines, photos.Vogel v CBC [1982] – facial expresssions, gestures and tone of voice part of contextColour your World Corp (1998) – right thinking is prob ordinary in CanadaDennis v Southam (1954) – not intended and good motive irrelevant2. Reference to the P burden on Pnot usually for large groups, ord person would not belieKnuppfer v London Express [1944] – Reference may be sastified in two conditionsStatement capable of ref to P (Q of law)Statement would lead reasonable person to thing it ref to P (Q of fact)3. Publication must be communicated to 3rd party who understandsLambert v Thomson [1937] - Every repub is actionableWennhak v Morgan (1888) no pub where about spouseMcNichol v Grandy [1931] no pub where overheard entirely by accidentOriginator not liable unless: i) gave express or implied authority ii) made the remark to someone who they knew had a moral or legal responsibility to publish it iii) republication is the natural and probable consequences of their actionsb. Defences- D has burden of proof1. Justification Whole of statement is substantially trueMotive irrelevant (truth should not be actionable)Meier v Klotz (1928) – substantially trueWilliams v Reason (1983) – judge rules what capable of meaning and evidence to disprove this allowed - Took boot money before allegation of hypocrisy2. Absolute PrivilegeStatement falls into protected category: value candid sa) by executive officers relating to affairs of the stateDowson v the Queen (1981) – executive ab priv Autho: i) made by one officer to another ii) relate to state matters iii) made in course of official duty b) made during parliamentary proceedingsc) in course of judicial or quasi-judicial proceedingsStark v Auerbach [1979] – Judicial Ab Priv AuthoHung v Gardiner (2003) – protection to person providing info to quasi judicial body (pwr to determine legal rights and affect status of members)3. Qualified PrivilegeMoral, social or legal dutyNo def if maliciousPublic DutyProtection of own interests (Adam v Ward [1917])Protection of another’s interests (Watson v Longsdon [1930] – P’s infidelity told to wife)Furtherance of common interest if there is reciprocal interest (McLoughlin v Kutasy [1979] doc report)Not usually media – need reciprocal duties: publish and receiveProtection of public interest (Campbell v Jones (2002) lawyer can report on racial motivation for search)Fair and Accurate Reporting – reports of proceedings that are open to the publicHill v Church of Scientology [1995] – Need Active Malice in Def; Q priv attaches to occasion of communication not commu itself & right to proceedings is pre-trial information too- lawyer made statements at press conference4. Fair Comment Reflects importance of free speechEarly Case: Cherneskey v Armadale [1979] – editors need to agree with letter and writer must submit in good faith. Diss: Chilling effectWIC Radio v Simpson [2008] – fair comment is an Objective honest belief test: elements and notes- Stated factual basis of comment helped (tape)Material was a comment (not an accusation of allegation of fact)Which any person could honestly expressBased on facts that are truePertaining to a matter of public interestNote: Court not required to assess proportionality of statementFairness not an element (in eyes of beholder)Honesty test is a low threshold (just needs a base in the facts)Evidence of malice may defeat the defence (hard to find malice in media)5. Responsible communication on matters of public interest To plug Gap, if making a statement of fact (not opinion) that could not be proven true on BoP, and not under dutyGrant v Torstar [2009] – elements of resp commu on matters of pub interest, justified on basis of democratic discourse and truth-findingPublication must be based on public interest (decided by court)D must show publication was responsible (or was diligent in trying to verify the allegation)Will look at seriousness, public importance, urgency of matter, status and reliability of source, P’s side sought and reported accurately, inclusion of defm justifiable, where pub interest lay in fact that it was made (rather then truth)6. ConsentNarrow to protect from nonconsensual republishingWhen stmts put into circulation by P or P’s agent, or where reasonable to conclude that P consents, or where P asks D a question where def remark is invited or anticipatedJones v Brooks (1974) – communication of def to an agent in response to an inquiry is consent- Secret agents asked for the Def to be communicated to themc. Remedies1. InjunctionGiven pretrial rarely if: a) clearly defamatory and b) D does not plead justification or it is impossible for def of justification to succeedCanada Metal v CBC (1975) – injunction criteria for defamation2. DamagesHill v Church of Scientology [1995] – damages for defamation may be General, Aggravated and Punitive – no cap, up to the juryHistory of NegligenceWrits:Trespass vi et armis - strictly liable for direct, forceful interferences with another indiv’s person or propertyTrespass on the case - the award of a remedy where the interference was not direct or forcefulOnus on p to prove that the loss was a direct result of the intentional or careless conduct of the dHarmonization: later also needed to show failure to meet standard and that harm was a direct resultCategories: user of public roads, doctor, keeper of animal or other inherently dangerous thingLimitation: only categories previously acceptedDonoghue v Stephenson – source of modern negligence law; liability based on the foreseeable plaintiff; reasonable reliance and inspectionLord Aitkin – must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour: judicial law making based on Christian principles or recognition of underlying princ in other cases?Buckmaster D – floodgatesTomlin D – remoteness: scope of liab and where there is a direct causative linkMod Neg from (Winfield):NuisanceHow limit exposure:Failure to meet pre-existing dutySome other limiting factor (interest in land)Aitkin is revolutionary since based on foreseeable claimant not physical neighbourhoodControl of dangerous things (Ryland v Flecther)Duties voluntarily assumedDuties on bailees and those in common callingDunsmore v Deshield (1977) – contributory neg defence. Distributor accepts neg liab when fails to test but could haveBroken glasses were not impact resistant versionElements of Action in NegligenceThe Duty of CareDid the defendant owe a duty of care to the plaintiff? Existence, nature and scope of obligation determined by courtThe Standard of Care and BreachWhat was the standard of care owed by the defendant to the plaintiff, and did the conduct in question fall short of that standard?Usually that of a reasonable person, except some professionalsCausationWas the loss suffered by the plaintiff caused by the defendant’s failure to meet the required standard of care? Was the breach the cause of the loss?Remoteness of DamageWas the loss suffered sufficiently proximate? Was the loss reasonably foreseeable, or was it instead too remote?Usually limited to foreseeable consequences of actions (unlike I torts which is all damages)Actual Loss; andWas the loss in question recognised by the courts as recoverable? Death and grief are not recognizable in common law but are under legislationDefencesIs there a defence available to the defendant - such as contributory negligence or a voluntary assumption of risk on the part of the plaintiff?Other considerations, general defencesDuty of CareQuestion of LawFunctionsEstablish liability: overall framework for range of sits where liab could arise Limit on liability: boundaries of liab for concs of careless behaveAllocates risks in societyNova Mink v Trans Canada Airlines [1951] – conc of law is really a conc of policy: neg decides risk allocation. Liab only imposed if it can deter harmful behav not just for compensate people deservingDamage to minks unforeseeableReasonably Foreseeable P Test: (Donoghue’s) Reasonably foreseeableProximity: Would be closely and directly affected 2 stage good per G: not restricted to those physically close & proximity important within range of things that affect reasonably foreseeableAnns v Merton London Borough Council [1978] – duty of care factorsCouncil could owe duty for cracked walls and floorsCritique: starts with assumption of duty of care then looks to negate itCounter: Cdn judges happy to balance policy; did not actually lead to flood of casesAnns Approach (is not really a test):There is a sufficient relationship of proximity based upon foreseeability; andThere are no principled reasons why the court should not recognise a duty of care: a) scope of duty b) class of ps c) damages to which a breach may give raiseCaparo Industries v Dickman [1990] – British Approach: adds third limiting factor that it must be ‘fair, just and reasonable’ for court to impose a dutyFalse statement, loss after buying more sharesPresumption shifts against finding of dutyReturn to conservative and incrementalist approachKamloops v Nielsen [1984] – Canada accepts 2 stage Anns testCity did neg house inspectCooper v Hobart (2001) – SCC accepts 2 stage Anns test; not required if existing categoryCombo of foreseeability and proximity in stage 1 have practical effect of shifting onus to P? SCC favour incremental approach?Approach in Canada (Anns as accepted in Cooper v Hobart)Harm reasonably foreseeable and sufficient degree or proximity to justify imposition of duty of care? (P)RF: Objective since not concerned with blameMoule v NB Power (1960) – coincidence of events very unlikely means less foreseeable. Foreseeability relevant to duty, standard, and remotness.Chain involving high climbing unforeseeableAmos v NB Power (1676) - foreseeable risk of injury due to inactionLack of preventative actions by d are keyPalsgraf v Long Island Ry Co (1928) – Neg is breach of duty to a particulare class of personsP unforeseeable to guards when they pushed Nespolon v Alford (1998) – unforeseeable that dropping intoxicated teen off would eventually cause nervous shock to someone in P’s positionHaley v London Electricity (1964) – probability alone is not determinant of foreseeability.Owe duty to blind manProximityOdhavji (2003) – Prox: commonsense notion of linking btw the partiesCommon sense connection between low quality of invest into police shooting and family’s harmPolicy: situation on in which a new duty of care should be recognized?Law already provide a remedy? (Martel)Spectre of unlimited liab to unlimited class? (Osterlind)Other reasons of broad policy? – operational not political.Just v BC [1989] – gov can make policy decision not to implement, but if do implement must not be negAffirmative ActionHesitation to impose liability on non-feasanceOffends against personal autonomy/individualismIdeological commitment to capitalist notions of choice + obligs to act more intrusive then - obligs not toJust a linguist diff bet non and mis – failure to apply breaks just as harmful as failure to save from drown. Resolve misf=worsening P’s position; non=failing to improve.Duty to RescueOsterlind v Hill (1928) – no duty to rescue in clLet man drown per autonomy argumentStevenson v Clearview (2000) – no duty on off-duty ambulance. Policy: onerous, would avoid career.Arguments in favourReflects common sense understanding of moralityRemoves inconsistency (why special but not gen?)Utilitarian argument (Bentham) – benefit out weighs cost = net gain for societyExceptionsDuty Established by statute & once commencedMatthews v Maclaren (1969) – duty to rescue from statute and where special relationships exist 1) once commenced rescue duty exists 2) drunkenness of passengers irrelevant 3) onus on P to show d’s neg was effective cause of harmMaster of vessel has statutory duty to rescueZelenko v Gimbel Bros (1936) – once undertake a task such as first aid, cannot then omit to do what an ordinary person would (such as summon aid)Voluntary assumption of duty/duty to control actions of othersJordan House v Mewnow (1973) – do not owe a duty of care to drunk people may find duty where a) there is a prexisting relationship (invitee/invitor) or B) statutory duty existsInvitor-invitee relation btw hotel and patronCrocker v Sundance (1988) – liability for the intoxicated: apply Anns duty not to place another in a position where it is reasonably foreseeable that they could suffer injuryChilds v Desormeaux (2006) - duty of care in social hosts negated by policy. Proximity: 1) com greater ability to monitor 2) soc not regulated 3) soc no profit from saleJane Doe v Metro Toronto Police (1998) – duty to warn depends on the facts of the caseDuty owed to RescuersHorsley v MacLaren (1969) – duty when fault creates new danger that induces rescuer to actDuties owed to unborn childrenPre-conception wrongs – injury to parent causes harm to child before conception. Child must then be born.Paxton v Ramji (2008) – Rule: no duty of care to child which has not yet been conceived 1) insuff proximity btw phys and potential child 2) woman has complete autonomy, cannot sue herself. A) duty can never be owed from phy to child of patient, conflict of interest b) women do not owe a duty to their future children Winnipeg Child and Family Services v G [1997] – woman has compete autonomy, child separate at birthWrongful birth and wrongful life – doc fails to warn of high likelihood of child with disabilities and so she cannot make informed decisionRule – dealt with in duty of doc to inform of risksWrongful pregnancy – careless abortion or sterilizationRule – general princ of med liab1) what damages 2) cost of child until when? 3) more for disabled child?Joshi v. Wooley (1995); Suite v. Cooke [1995] – can award damages for healthy childKrangle v Brisco [2002] – damages for pain and suffering of giving birth to disabled child to majorityPre-natal injuriesBourhill v Young (1943) –no special duty of care to pregnant women (not forseeable p)Duval v Seguin [1972] – preg women are foreseeableMontreal Tramways v Leveille [1933] - Born alive rule: once born can look back to damages which occurred during pregDobson v Dobson (1990) – mother owes no duty Health Professional’s Duty to WarnHaughian v Paine (1987) – duty to inform of material risks a) high risk/low harm or low risk/high harm b) to particular p c) p must show they resonable person would have refusedManufacturer’s duty to warnHollis v Dow Corning Corp (1995) – warnings must be communicated as to risks of normal use since manu has more know (more risk/more duty). Learned intermediary rule: interm same know as manu.Duty of Care owed by BarristerDeMarco v Ungaro (1979) – reasonable care, skill and knowledge in the conduct of litig and must be properly diligent in prosecution of the case.Pure Econ LossCategories not closed but reluctant to expand (Martel)Negligent Misrep –Anns w/ Hedley in 2nd per HerculesGenerally hesitant to comp for neg misstatementsChilling effects on social relationshipsIndeterminacy problemLaw expects business people to protect from losses by using contracts and insurance Ultramares v Touche (1931) – Primary policy consideration: liability in an indeterminate amount for an indeterminate time to an indeterminate classMurphy v Brentwood (1991) – injury to person or property requires remedy, economic loss does notHedley Byrne v Heller (1963) – authority for neg misstatement. Court still looks to other facts when establishing a duty of care.Take away waiver and duty would have held5 stage test for neg misstatement: (Hedley per Hercules)There must be a duty of care based on a “special relationship” between partiesthree-stage Reid test Possession of a special skill by the defendant;Reliance on the exercise of that skill by the plaintiff; Knowledge or awareness of the possibility of reliance on the part of the defendantThe rep must be untrue, inaccurate or misleadingThe rep.tor must have acted neg.ly in making the repThe rep.tee must have relied on the repThe reliance must have resulted in detriment/damages Hercules v Ernst & Young (1997) – Canadian position: 1) neg misrep is not separate area so should use Anns 2) consider the Hedley rules in the 2nd stageKnowledge of the P is dealt with in the policy stageIndependent liability of statutory public authoritiesMartel Building v Canada (2000) – tort should not be avalib in pre-contractual settings for five reasonsAlways winners and losers in nego. No econ loss to society, just movement of wealth. Observed that useful social and economic relations might be discouraged: “hard bargaining” is good. Argued that tort law should not be used as an insurance scheme for unsuccessful negotiations.Argued it would result in the courts examining every detail of pre-k nego while doctrines of undue influence and economic distress deals with this.Court worry: encouraging unnecessary litigation.Negligent performance of a service – apply Anns in 2nd consider whether there has either detrimental reliance or voluntary assumption of responsibility, duty if yesBCD v Hofstrand (1986) –normal Anns, not denied on policy if there is sufficient proximityHere prox fails – unforeseeable plaintiff to deliverJames v BC (2005) – if no detrimental reliance, voluntary assumption of responsibility on the part of the defendant is sufficientNegligent supply of shoddy goods or structures: AnnsUsually where loss but no privityWinnipeg Condo v Bird (1995) – apply Anns, no indeter issue with establish duty from subcontractor to condo inhab based on foreseeable losses. Caveat emptor does not apply (reason is to encourage inspection).a) class restricted to inhabitants b) amount limited to reasonable fix c) time limited to life of buildingRelational economic loss: closed, open, closed cyclePure econ loss relating to 3rd partyCPR v Norsk (1992) – Anns will protect from indeterm. Diss: should be denied except in very limited casesBow Valley Huskey v Saint John Shipbuilding (1997) - Recovery only avalib in 1) claimant has a possessory or proprietary interest in damaged property; 2) General average cases (averaging out loses involved – very specific to throwing goods in water); and 3) joint venture. Not closed but changes will be incremental.Negligent Infliction of nervous shockGenerally – no coverage a) Suspicious of psyco injury b) Flood gate worries c) Assessment of damages difficult d) Psyco harms some how less then physInjury must fall into category of nervous shockManifest as physical disord or recog psyco ill; not upsetRsb Fsc and sufficient degree of ProximityNo indeterm or flood worries if harm direct to pMore issues in cases of relational victim: floodgates!Alcock v Yorkshire Police [1991] - British: Proximity conditions 1) Temporal 2) relational 3) locational1) need immed aftermath, forecloses on gradual shock 2) ‘close ties of love and affection’ (family, spouses), prove others 3) ‘own unaided senses’, mediated info not necess less shockPage - rejected in CND – psyco injury does not need to be fsb or materialise for primary victims Mustapha v Culligan (2008) – rsb fsb damage to person of ordinary fortitude: alcock criteria should be brought into second stage of anns testStandard of CareQuestion of Fact & LawGeneral Standard: that expected of a reasonable person in like circumstances ObjectivePublic protection over fairnessFeminist critique – rsb manObjectivity critique – rsb judgeBlythe v Birmingham Waterworks (1856) – rsbl personArland v Taylor (1955) – cdn authorityRoe v Minister of Health (1954) – assessed at time of breach not hindsightQualifications/Limits of RsbnessProbability and severity of the harmGreater risk/potential harm: greater standardBolton v Stone (1955) – take all rsb precautions in the circumstances to avoid likely damageCricket: don’t have to guard against far fetched; there are always risks in lifeIf risk too high and unavoidable, then prohibitParis v Stepney Borough Council (1951) – rsb prob of harm and severe injury then it is unrsb riskOne eyed man should have goggles: lo cost, hi riskThe cost of risk avoidanceVaughn v Halifax-Dartmouth Bridge Comm (1961) – cost of precaution law, likely find negPaint blowing on carsSocial utility or value of the conductWatt v Hertfordshire County Council (1954) – social utility outweighed costssaving life justifies riskSpecial Standards1) ChildrenModified objective: care to be expected of child of like age, intelligence and experience (about capacity not culpability)Elderly: stigmatizing, don’t lack experience, variationMcEllistrum v Etches (1956) – modified standardJoyal v Barsby (19565) – accepts modified standardHeisler v Moke (1971) (ONHC) – Tender age: not capable of appreciating rsb risk (Tillander v Gosselin) and Above Tender Age: modified standardRyan v Hicksson (1974) – child held to adult standard when engaging in adult activityThomas v Hamilton (1994) – caregiver only liab if injury is a result of failure to control child’s conduct: rsb parent of ordinary prudence2) People with DisabilitiesMod Obj testCarroll and Carroll v Chicken Palace (1955) – rsb person with same disability. Recog physical limitations and not take unrsb risks.fell on way out of restaurantFiala v cechmanek (2001) – sudden mental illness: 1) no capacity to understand duty of care 2) no meaningful control over actions to discharge dutyHudchins – meeting with god is no m controlRoberts – knew of stroke, drove any way: liab3) ProfessionalsWhite v Turner (1981) – standard of professionbreast reduction without standard checkLayden v Cope (1984) – GP: rsb competent GP incl knowing when need a specialistTer Neuzen v Korn (1995) – specialists in light of other specialistsJury cannot know to tell profs how to behaveLaw Estate v Simice (1994) – duty to patient outweighs duty to budgetCausationFactual – P show that D’s acts caused harmTest: Would loss have occurred but-for the neg?:Relies on hypotheticalsKauffman v Toronto Transit (1960) – no evidence that an alternative would have stopped harmBarnett v Chelsea & Kensington Hospital (1969) – neg delay did not cause/avoid more harmReeves v Commissioner of Police (2000) – mere conditions (no agency) not but-forCottrell (2003) – no loss of chanceRintoul v X-Ray (1956) – D could not avoid accidenCausal Indeterminacy ProblemEvidential Insufficiency – impossible to determine Walker Estate v York-Finch (2001) – Material contribution test: outside de minimis rangeHIV screening pamphletsMultiple insufficient Causes – no single cause suffAthey v Leonati (1996) – thin skull rule allows D to take 100% liab – but for accident, no harmPre-existing back problemsMultiple Suff Causes – either could have causedLambton v Mellish – significant or subs factor testMaterially increased Risk – inference of causation where scien imp to prove cause & know with docSnell v Farrell (1990) – inference of causation may be drawn unless rebutted by defendentOptic surgery breach standard, cause blindness?RemotenessLegal – limitation of liab for fairness and policyIs the loss reasonably foreseeable? Separation from Duty:Btw parties (limits neigh) fsb, indeterminacy VSBtw act and loss (limits causation) – directness, immediacy, fairness, probable outcomeDuty limits scope; Rmt limits logical imp of causatOld Directness testUnfair: resp for all direct losses, like strict liab, not resp for fsb indirect losses/stress remot not fsbRe Polemis (1921) – close, temporal and spatial conn btw d’s breach and p’s lossCurrent test: Type of harm reasonably foreseeable?Wagon Mound No1 (1961) – fairness from foreseeabilityFire damages unforeseeableWagon Mound No 2 – rsb fsb: rsb person in d’s position would have foreseen as a real risk, especially if action to remove easyIncreasing Flexibility – easier for PShift from manner of accident to type of harmHughes v Lord Advocate (1963) – outcome, not sequence, to determine rsb fsbDepends on how characterize harmTreat as sequence of discrete events and ask whether each step is f/s: AC if ABCAssiniboine South School Division v Winnipeg Gas (1971) – dangerous item run large: broad fsbDepends on how you slice the actionIncreasingly focused on fairnessFew cases stop here, incoherent rule, get rid?Thin Skull RuleIf rsb fse injury, then full recovery for all harms of extra sensitive – speaks to quantumSmith v Leech Brain (1962) – victim irrelevantBurnt lip gives cancerMarconato v Franklin (1974) – harm trigger predisposed psyco illnessCrumbling Skull: onset hastened: resp to extent that worsened (Athey)Intervening CausesTraditional Last Wrongdoer Doctrine: convenient, understandable, common sense, accords w/ linear model - But: unfairNext: Category approach: (define 2&3? Moral Luck?)Naturally occurring: liab as long as fsb (not unusual)Neg intervening acts: breaks chainDelib wrongful or illegal: always breaks chainCurrent Intervening Causes: within scope of risk/fsb test: Could original rsb fse the intervening act?Bradford v Kanellos (1973) - More culpable, less foreseeable – use to make policy decisionsPrice v Milawski (1977) – first liab for new damages from 2nd when rsb fsb conc of orig negXray foot; used fsb as poss but same reallyHewson v Red Deer (1976) - deliberate, illegal and wrongful may still be rsb fsbtractor on dirt pileDefencesContributory NegligenceOld: if P could have prevented, then 100% liab. Easy for judges, but now mechanisms to be consistent. Not fair. But they were last but-for. No good reason to make all for nothing – so must be unfairLegislation allows courts to divide faultNegligence Act: apportionment based on faultFault cannot be deter=equal (s1)Damages offset if both parties at fault (s2)Legal costs apportioned as well (s3)Bow Valley Husky – abolished rule regardless of legislationConduct carelessly contributed to harm suffered:P did not take reasonable care of him/herselfLack of care contributed to injuryWalls v Mussens (1969) - rsb is what is expected in the circumstances – maybe not if fail to solve emergCan’t judge actions in emergency from rsb if noGagnon v Beaulieu – rsb is all precautions of ordinary prudence (objective)Seatbelt beliefs irrelevantMortimer v Cameron (1994) – lack of maintenance not within rsb fsbVolenti (Vol Assumption of Risk)Complete, but rare since inflexible; maybe sportKnew of and understood precise risk occurringVoluntarily assumed the riskDube v Labar (1986) – Informed express or implied consent to both physical and legal rare in CanadaPublic Policy/Criminal ActComplete, so narrow interpP stands to profit from illegal activityComp would amount to avoidance of crim sanctionHall v Herbert (1993) – better to deal in defences then negate dutyInevitable Accident – deal with in causationLiability of Public AuthoritiesNot generally liable for Legislative or Judicial (Wellbridge Holdings (1970)May be liable for administrativeLegislative: Statutory immunity to parliament; Court given immunity for margin of legit error in bylawsHarm always occurs when legislatingJudiciary: Immunity if acting in good faithBroad protection for tribunals, jps…BC Prov Court Act s 27.3 and s42Landslide: but could set standard at gross negAdd to or take away from institution trust?Don’t give to anyone else, why just here?Bradley v Fisher (1872) – judges immune as required by indep of judiciaryAdministrative and Operational: only liab is here Decision made to fulfill statu dutyLiab only if carelessly or fail to do (clear leg intent)Decision with statu discretionLiab for operational not policyJust v BC (1989) – Policy is broad allocation of funds, narrow so as not to block suitsLook at in 2nd branch Anns, look at budget in standardBrown v BC – Considerations informing the decision, not who is making it, is key to characterizationOrganize shifts according to resourcesMisfeasance in Public OfficeConduct specifically intended to injure a person or class of personRoncarelli v Duplessis (1959) - Misfs is a tortConduct where the officer knows their action is outside of the power granted by the public office and that it is likely to injure the plaintiffOdhavji Estate v Woodhouse (2003) – 1) deliberate and unlawful 2) aware that it is and that will injurePolice violated statutory duty to cooperateStatutory Torts and Duties1) Statute may create an indep cause of actionCreates a duty or describes a standardTrachsler v Halton – statute defined scope2) Statute may change/limit the operation of cl duty/tortIndirect, SP CLDC CLCA (Canada – allows Anns policy considerations and no strict liab)Inferred, SP CLCA (UK) – not in CND SK WheatR v Sk Wheat Pool (1983) – not a nominate tort, deal with if cl duty of care existsGalaske v O’Donnell (1994) – statute indicates unrsb conduct to be considered in dutyDuty on driver supported by motor vehicle actRyan v Victoria (1999) – standard of care may be stricter then statutory standardImpact of the Chartera) May inform CL causes of action and defencesb) Rights violates = express statu CA under s24(1)Vancouver v Ward (2010) – damages under 24(1) if appropriate and just and fulfill compensation, vindication or deterrenceOccupiers’ LiabilityDoes not fall under Neg historically 1) Occupier – direct controlPalmer v St John (1969) – defn occupier2) Premises 3) VisitorTrespasser – no permission – refrain from intent or reck injuring (children usually licensee)Veinot v Kerr-Addison Mines (1975) – ought to have fsn a trespasserDuty not onerous, not to inspect; depended on degree of danger, age, reason, knowledge of occupier, cost of preventative measuresLicensee – permission, no bene – protect from unusual or hidden dangers which occupier has knowledge ofMcErlean v Sarel (1987) – unusual is objective – not usually found in carring out taskBlind curve in gravel pit not usualBartlett v Weiche Apts (1996) – licensee, now dangers which ought to know tooInvitee – Permission, bene – unusual dangers knows or ought to know – closest to NegContractual entrant – premises fit for purposeFinigan v Calgary (1967) – visitor practice rsb care tooOccupiers Liability ActStatic, predictable, harmonize w/ negligenceS1: defn occupier (can be >1) and premise (moveable)S3: Standard: rsb care in the circ to ensure entrants are rsb safe on the propertyConsiders: 1) f/s of damage 2) degree of risk of injury 3) gravity of threatened injury 4) kind of premises 5) burden of preventative measures 6) practice of other occupiers 7) purpose of the visitLimit: Rural, CriminalS4: Contractually restrict rsb notice, only privy – 3rd party/no priv=s3 stdnot for those empowered to enter w/o consentS5: Duty to indp contractorsNo liab if rsb to have retained ic to do the work and rsb care taken in selection and supervisionS6 – landlord is occupier, liab if not do lease repairsWaldick v Malcolm (1991) – statutory – circ do not incl local customStrict LiabilityMovement to fault based, so getting rareAdvantages: admin efficient, powerful deterrent, predictable, consistent with compensatory model, promotes enterprise liability (intern costs)Problems: imprecision of elements and fairnessDangerous Item on LandRylands v Fletcher (1868) – strict liability if bring something dangerous onto land and it escapesElements – see changes to mitigate harshnessNon-natural use of land – ‘danger’: extraordinary and not of benefit to the communityWater in bulk, explosives, nuclear, biologicalDegree of danger, utility and normality, circ of time and space = looks like negliEscapes and caused mischiefRead v Lyons (1947) – escape means from place where D had controlDamage – fsb conc of use (Cambridge Water)DefencesConsent – Liberal interp, suff that knew and stayed, may be implied Peters v Prince of Wales Common benefit – Carstars v Taylor (1871)Default of the P – partially fault of p: no liab for d. (like old Neg) Dunn v Birmingham Canal Act of God - so unfsb that d could not have guarded - Nochols v Marsland – contra strict liabAct of Stranger – deliberate and unforeseen – Rickards v Lothian (1913)Statutory authority – Benning v Wong (1969)Vicarious LiabilityMechanism where one person becomes liab for the actions of anotherAnswer Neg, then deal with thisEmployee/EmployerElementsEmployee or Contractor? Direct control671122 ON v Sagaz (2001) – Key test is Perf business on own account: equip, subk, op profit, op for lossHarm during course of employment?Broad Interp: Emp best able to regulate; more likely to recover; emp gets benefitExpress prohibitions only effective when prohibit, not regulate, activity (Lockhart)Brazley v Curry (1999) – Emp can be liab for int torts if they place employee in sit that increases risk of wrongful act ................
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