Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway

DUTY

Palsgraf 1928

· Negligent actors are only responsible for what can be foreseen by the ordinarily prudent eye

Donaghue 1932:

· When do you have a new duty? The neighbour principle.

· You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour – persons who are so closely directly affected by my act that I ought reasonable to have them in contemplation

· Duty of care = proximity + reasonably foreseeability

Dorset Yacht 1970:

· HELD: liability

· Presumptively, D+S (neighbour principle) applies, unless there’s good reason for it not to apply. Public policy reasons are relevant

· There are clear cut cases where someone will be foreseeably be hurt by your actions, and yet you are not liable. What are these cases?

· If someone suffers economic losses due to my actions

· Not liable for providing others a positive benefit

· What are reasons for NOT holding the prison officers for the harm done?

· How can an autonomous person be held directly liable for the autonomous acts of another person?

· Potentially we could think of vicarious liability – but not this way

· Prison officers owe a duty to prisoners to protect them from other prisoners, and therefore have responsibility since they’ve taken control over the prisoners’ lives and control what they can/ cannot do (Q. How does this fit in – it seems contradictory)

· The danger of risk adverse decision making - prison officers need to make decisions and have discretion to do their best at their jobs, by imposing tort liability they will become risk adverse and then have worse political decisions made

· Lord Reid: in NY, this is accepted. But it’s not accepted in England – the court is not deterred from the idea of tort liability

· Not willing to immunize prison officers from tort liability, just because it interferes with their jobs

· NOTE: in the UK, however, immunized the police from tort liability and did not hold them liable for negligently failing to solve a crime

· In Canada, have not gone that route!

Jordan House 1973

· HELD: duty

· (Laskin)

· Discusses factors for determining whether there’s a duty, but doesn’t create a rule (very reluctant – can’t articulate a general principle)

· 1. If someone’s on your land for a commercial purpose and you’re engaged in a mutually beneficial project (ex. invitor-invitee)

· 2. Knowledge/ awareness (ex. that the person is inebriate)

· 3. Contrary to statute (ex. a public duty not to supply alcohol to drunk people)

· 4. Familiarity with the particular person

· 5. Instructions within the institution (ex. that no one should give more alcohol unless there’s someone to take care)

· 6. Foreseeability (ex. bar is close to highway and establishment knew he would have to cross it)

· 7. No big burden for establishment to provide care (ex. could put him in a taxi, allow him to sleep in a room until her sobers up)

· 8. But supplying alcohol is not enough

· Characterized the case as misfeasance, not nonfeasance

· Therefore saying that alcohol serving establishments owe a duty to take care of drunk patrons, not just not throwing them out

· Car key cases: where a drunk or child asks you for the keys and you give them, if the person hurts themselves you HAVE breached a duty!

· Not nonfeasance – it’s misfeasance

· No explanation why

· There are cases where someone leaves keys in the car and someone else steals it, gets hurt and sues car owner successfully

· If you control a dangerous object, you have an obligation to be cognizant of the potential harm that may occur!

· Intuitively: what factors matter in considering where we have a duty to provide a benefit?

· 1. Where you create a legit expectation that you will provide a benefit and the person relies on you

· Issue: when is an expectation legitimate?

· 2. Where you have undertaken to provide the benefit even though there’s no reliance

· We agree that when you start something and take on a responsibility, you have to finish it. But it’s not because of the undertaking – it’s because you’ve created a negative consequence for them! No one else will help now!

· 3. If there’s a dangerous situation you create/ control and allow people to enter the picture

· Why?!

· Why are we wary of nonfeasance?

· We want people to be self sufficient and take precaution

· Benefits should be governed by K (less convincing - could be struck down by duress) (unconvincing)

· Too onerous to be on the looking for situations in which you must provide a benefit (unconvincing)

·

Kamloops v. Neilson 1984:

The person building the house is a member of the city council. The building inspector issues a stop work order because the building foundation is problematic. The owner of the building goes to city council and tells them to stop interfering since he wants to be left to build the building he wants on his own property. The foundation is sagging, they sell the house to Neilson who finds the house is largely worthless and sues the city.

· Adopts Anns as the proper way to adopt D+S

· 1. ANNS 1: is there a neighbour relationship (D+S)?

· 2. ANNS 2: is there a reason for limiting liability in this case (policy reasons)?

· ISSUE: can a plaintiff hold a government official (building inspector) liable for not ensuring that housing foundation was dug to municipal/ provincial standards?

· DIGRESSION: building inspector issues are tricky.

· Two possible issues:

1) Statutory duty: Statute/ by law gives an officer (building inspector) the duty to ensure that a building is done according to code = a public duty to do their job

· If a badly built building causes personal industry, do we hold the building inspector liable to a PRIVATE duty in tort law when they owe a public duty to do their job

· YES – there’s a foreseeability and NO REASON not to recognize a private duty

· Prima facie we hold people to statutory duties

2) Statutory power: There’s a discretion given in the statute, the building inspector CAN inspect the foundation. They have a statutory choice to examine foundations

· In Kamloops: building gets built, building falls down, personal injury. Is the inspector liable?

· The inspector may legitimately inspecting only some cases, but not every case

· Ex. too expensive, taking too long

· Since no statutory duty, likely no private law duty

· Why do we separate these?

· There’s GOOD FAITH and BAD FAITH use of discretion

· Therefore prima facie, we hold someone with a statutory duty AND power to a private duty under part 1) of the Anns test

· BUT under part 2) we may excuse people form the private duty if there are good policy reasons (ex. cost efficiency) that can trump duty if discretion is exercised in bad faith

· HELD: Kamloops did not act in good faith, since they just let it happened. No one was personally injured, but there was an economic loss.

· Recognized that bad faith act of political power means they should be privately liable.

· UK rejects the Anns test

· It’s about economic losses, and there are too many good policy reasons to keep out economic losses (often rebutted)

· The purpose of government officials (building inspectors) is to protect people from harm and injury, NOT TO PROTECT AGAINST ECONOMIC LOSSES!

· Capitalism requires people to take risks, and (re: Dorset Yacht) will not hold other people accountable for your economic losses! Not even government officials!

· There are so many cases that fall into stage 2 (the economic losses etc.) that we have to throw out the two part test – not a good prima facie test because it’s often rebutted! Ends up just being a balance

· In Canada – Cooper v. Hobart

Crocker v. Sundance 1988

The defendant is in charge of the danger, the activity is inherently dangerous, the D feeds alcohol to the injured person (although not a vital element). Race is for profit reasons (seems if no money passed, it’d be harder to find liability but doesn’t explain why). Knowledge here is a necessary factor!

· (Wilson)

· Commercial hosts have a positive duty to prevent an injury where there is a relationship of economic benefit

· Creating a risk a failing to guard against it

· In this case, could have discharged duty by disqualifying him, physically preventing him from participating, cancelling the race – this is the standard of care (separate from a duty)

· Duty = questions of law: is your relationship close enough that we find a duty

· Standard = questions of fact: whether you acted reasonably to discharge the duty

· Moving away from the recognized categories of duty, towards whether it’s “just and fair” to hold someone to a duty

· Differentiates between misfeasance and nonfeasance

· Wilson: we are becoming more collectivist, recognizing we’re not just coexisting islands! We have social bonds – recognizing nonfeasance?

· Note: you can K out of tort liability, but must be done in CLEAR terms

· JUDGEMENT

· Court finds a duty

· Causation: lawyers of Sundance argue the intoxication didn’t cause the accident

· This is a terrible argument! We’re not saying it did – we’re saying they created a risk and failed to guard against it

· ONE ISSUE: Wilson discusses “placing” another in a position, but Galloway says there’s a difference between placing someone vs. admitting someone to a dangerous situation (in which there’s personal autonomy)

Stewart v. Pettie 1995

Commercial establishments serving alcohol have a duty of care to their patrons

Nothing more than the invitor-invitee relationships

· (Major)

· HELD: no duty – the establishment showed they met their responsibilities

· There were sober people at the table – therefore have no reason to believe the drunk would be driving (subjective knowledge)

· It’s not foreseeable that the drunk would drive

· Galloway: it’s bizarre that the establishment can be left off the hook by assuming the world would operate in a certain way (wife would drive)

· Major: accepts this as the standard of care

· Galloway:

· Not good authority! Go to Childs

· Just because you recognize a duty between a commercial establishment and a patron doesn’t mean you can extend it to 3rd parties out in the world

· Erroneously recognizes a reliance from 3rd party users of roads

· Pays much more attention to reasonable foreseeability and less to proximity (problematic)

· Re: voluntary assumption of risks – did Stewart waive her right by getting into the car with someone she knew had consumed a lot?

· NO! although likely contributorily negligent

Cooper v. Hobart 2001

Like Scalera – a clean up!

ISSUE: whether investors can sue a public official (registrar of mortgage brokers) for not investigating a fraudulent broker quickly enough

The registrar of mortgage brokers had a duty to inform the public when they suspect fraud and an investigation is underway

Involves 1) economic loss AND 2) government liability

· (MacLachlin and Major) – economic harm

· (1) For a neighbour relationship, there must be (taking over ANNS 1):

· 1. Proximity (a limiting factor) AND

· Certain established categories that put you in the realm of duty/ can you analogize to one?

· Unlikely Anns 2 will be applicable if yes

· If not, determine if the relationship gives rise to a duty based on (non-exhaustive factors):

· 1) Expectations

· 2) Representations

· 3) Reliance (ex. if P vulnerable)

· 4) Property or other interests involved (ex. personal injury vs. emotional/economic harms)

· = essentially asking, is it fair to impose a duty of care on the defendant (policy reasons relating to the relationship in question)

· When will proximity be recognized? Is it related to reasonable foreseeability or are the two separate? It depends:

· Personal injury damages, creation of risk (misfeasance) collapsed into one (ex. the language of injury!)

· Pure economic/ psychiatric harms, allowing risks to exist (non feasance) separate

· 2. Foreseeability

· (2) Policy factors relating to matters beyond the relationship (ANNS 2)

· Indeterminate liability

· Constraining government policy

· Interfering with judicial decision making

· SCC: CJ Mac completely reinterprets D + S, to be completely different than Dorset Yacht! She says that according to p. 162 in the notes (of D + S), there must be foreseeability AND proximity!

· HELD: no liability - nothing in the statute under which the Registrar is appointed to state that he would provide investors certain information or had their interests in mind – his duty it to the public

· Galloway: govt should be held liable for their mistakes in tort

Odhavji v. Woodhouse 2003

The Defendant is chief of police. Plaintiff are family of boy shot by policy. Police officers involved did not cooperate with the investigation into the death. Under s. 451(1) of the statute the Chief is required to ensure that police officers carry out their duties. Plaintiffs allege they suffered psychiatric consequences following on the investigation and sued the Chief

Case brought against a chief of police as owing a duty to the family of a victim of an accidental shooting by police. Police have a duty to the public (for many reasons) to follow their responsibilities – the question is whether they owe a much more specific duty to the Odhavji family

· (Iacobucci) psychiatric harm

· Treats reasonable foreseeability and proximity as independent

· Identified 3 factors when it’s “just and fair” to recognize a proximate relationship, retrospectively

· 1. Immediacy

· 2. Reasonable expectation and reliance by the public

· 3. Whether the expectation is constituted with the statutory duty of police

· HELD: Chief of police is held liable for the psychiatric harm suffered due to a failure of police to investigate in the accidental shooting of the Odhavji’s son

· Judgement:

· Treats the overlap proximity and reasonable foreseeability as independent since this is a case of psychiatric harm

· Is there a cause of action?

ANNS PART 1

· Flips the test and goes foreseeability proximity, because foreseeability is harder to show in this case

· Articulates 3 factors that suggest it’s “just and fair” to recognize a proximate relationship:

· 1. Immediacy (close causal connection between negligent supervision and injury)

· 2. Reasonable reliance (since vulnerable people are reliant)

· Issue: why wouldn’t the registrar of mortgage brokers in Cooper fall here?

· 3. Expectation (since statutory duty)

· McLachlin’s was about justness and fairness like Cardozo

· Iaco’s is more like Andrews: looking back, can we discern a close enough relationship?

ANNS PART 2

· Two reasons to not recognize duty suggest, both rejected:

· a) it would interfere with independence of investigation (Iaco: no direct connection between chief doing hob and independence of investigation)

· b) there are other avenues of remedy available

Childs v. Desormeaux

2006

· (McLachlin) Leading case and social hosts and alcohol

· Public establishments owe a duty to 3rd party drivers on the road because they expect it

· Galloway: this is not true - just an application of Stewart, which is bad law and ex post factos reasoning and legal fiction!

· HELD: no duty in this case

ANNS TEST PART 1

· 1. No established duty of care since alcohol at a private party

· Different than commercial hosts:

· 1. Capacity to monitor consumption

· Keeping a tab to charge you, employees trained to recognize

· Issue: clients may drink in several places, social parties are smaller and easier to monitor

· 2. Government regulation shapes public’s expectations

· Issue: don’t we still take care of ourselves at commercial establishments? Don’t we feel like we have social expectations that our friends wil take care of us?

· 3. Profit and K change the nature of the relationship

· Incentive to oversell

· Galloway: likely the strongest, but assumes instrumentalist view of tort law! That torts are needed to prevent K from being antisocial

· Also, social host may want guests to drink and be merry

· 2. Should we recognize a new duty (proximity/ foreseeability)?

· NOTE: addressing foreseeability first is problematic – how can you ask what’s foreseeable if you haven’t established the relationship?

· 1. Foreseeability

· Trial judge: social host had knowledge – knew this person had driven drunk the past, therefore ought to have foreseen this

· SCC: NO! Just because someone’s done something wrong in the past doesn’t mean they’ll do something wrong in the future

· Also, non-feasance – no duty to act

· 2. Proximity

· Is it just and fair? Cases in the past that gave rise to duty of care (not established categories, just relevant factors):

· 1. Intentionally inviting a person to an inherent risk that you create/control (like in Cooper)

· 2. Paternalistic relationships: parent/ child, teacher/ student, captain/ guests. One party is vulnerable – position of dependency

· Must be balanced with personal autonomy

· 3. Public function/ commercial enterprise that includes implied responsibilities to the public at large

· Due to reasonable reliance (Stewart)

· ISSUE: public function doesn’t give rise to a tort just because people rely (Cooper)

· There are 2 things going on in the Childs proximity analysis:

· 1. Asking when you owe a duty to provide a benefit to another person (Crocker, Childs)

· Ex. when you owe a duty to a guest as a private host?

· 2. When are you implicated in the wrongdoing of another person?

· It’s not really about nonfeasance/ providing benefits

· It’s about how much you have to do to implicate yourself in the wrongdoing of another person: like Cook v. Lewis!

· If you JUST give a party – there’s no reason to hold you liable for the wrongful consequences

· BUT if you wilfully supply alcohol to a guest knowing they’re going to drive/ failing to monitor their actions, that’s different!

· If you’re more involved though, you might be liable!

· Proximity shouldn’t be based on reliance by the world, should be based on the involvement and complicity of the host

· = complicity of wrongdoing

DUTY TO WARN

Defective Products

· 1. The shoddy deficient (not functional, bad) product

· Should tort law be involved when the harm is purely economic?Nno

· 2. The dangerously defective product that causes harm

· Tort is clearly involved (Donoghue)

· 3a. A defective product which is dangerous because people rely on it to provide some form of protection/ safety

· Tort is involved

· 3b. The product that is discovered to be dangerously defective after sale

· Getting into realm of knowledge and information

· Tort law imposes a “continuing” duty to warn people about the danger (Rivtow Marine cite on page 224)

· After you warn people, your product ceases to be a dangerous product, and is now just a shoddy product! Repairing/ replacing is pure economic loss which isn’t covered by tort

· Product is so dangerous you have a duty not to market it

· 4. A product that is not dangerously defective, but may cause harm unless used properly

· Duty to warn consumers about how to avoid the harm, how to use something properly so that it’s not dangerous to them

· This is VERY different than 3b because it’s not dangerously defective

· Although you may discover only after putting something on the market that people are using it wrongly/ that there’s a harm of improper use

· At this stage, have a continuing duty to those who’ve already purchased it to warn them and a duty to warn future consumers

· Some items are inherently dangerous, but not sufficiently so to justify a duty to not market it (since they’re not defective)

· You just have a duty to warn about hidden (non-obvious) dangers

· But not a duty to warn about every possible danger that could happen

· What do we have to tell consumers? How much is enough information?

· Need to tell consumer the dangers that the manufacturers know and that the consumers likely won’t know (imbalance in knowledge)

· Ex. Breast implants

Lamber v. Lastoplex

A case of a product that carries dangers when used improperly

Floor sealant, used in basements, very highly flammable!

·

· The duty to warn of the inherent danger should specify the attendant dangers

· It’s clarity and content will vary in accord with the seriousness of dangers

· This is a HIGH level of danger

· Manufacturer has expertise (knows level of flammability), regular user has know expertise

· HELD: Given this is being used in basements, it’s not good enough for manufacturers to say that it’s flammable

· Need to say “remember your furnace” AND “remember your pilot light”!

·

· The Learned Intermediary

· Via learned intermediary devices, duty can be discharged by warning an intermediary

· In Stewart and Pettie – this is leaving the drunk driver with sober people

· The learned intermediary rule is only applicable where:

· Product is highly technical in nature and is intended for use under supervision of experts or

· Where it is unrealistic to expect a direct warning (28)

· This is a very narrow construction given by the court

· This means you can only delegate to someone who approximates your own level of expertise (between manufacturer and Dr)

· In Stewart – does the alcohol server and the alcohol consumer have the same level of expertise? No!

· Consumer has primary reliance on the judgment of the learned intermediary

· This suggests that the manufacturer can discharge all their duties by contacting all the Drs that have implanted/ will implant their products

· But Dr can’t be used as a learned intermediary if they can’t answer all the questions (have the same level of knowledge at the manufacturer)

· Ex. Obligations re: contraceptives are different than obligations re: implants

· Questions about contraceptives are not just questions of health – include questions of reproductive freedom, etc.

· In this case, cannot rely on the Dr to provide all the advice

· Therefore, pharmaceutical companies have an obligation to communicate directly with the consumer

Hollis v. Dow SCC 1995

the duty is to protect the consumer by alerting them to the inherent risks

· Dow aware of unexplained ruptures to breast implants

· We’re not saying that they can’t manufacturer this (risky product but hasn’t reached a level of danger to be taken off the market – consumers can choose)

· Not so many ruptures that product needs to be discontinued

· But manufacturer has duty to tell consumer about risks inherent to the product

· According to Childs, this respects their autonomy to choose whether or not to take the risks and allows risk avoidance

· We don’t impose strict liability in realm of consumer protection – we can protect consumers sufficiently by letting them know the full level of risk in cases of risky products

· Medical products have special duties

· Extra high standard of care attaches to duty to warn about dangers attached to medical products (because ingested or implanted in body, so serious level of danger)

· BUT is it proper to single out medical products for diff treatment?

· With medical products, must include “clear complete and current informational disclosure” concerning the risks inherent in use and instructions on proper use (Hollis Para 26) – onus is heavy

· Dow: okay, maybe we failed to warn the Dr about risks in this case, but failing to treat someone autonomously is not a wrong in itself in tort law

· P has to prove that the Dr would actually have passed on the warning

· Dow: this Dr is a poor Dr, and we have no reason to believe he would’ve passed it on

· Court: NO! IF you rely on the Dr being a learned intermediary to discharge your duty, then you are relying on their expertise!

· Therefore you cannot demand that causation be shown!

· Court: there are some cases where the P doesn’t have to show a causal link between the harm suffered and the failure to inform – this is exceptional

Why is there a duty to warn?

· 1. Knowledge imbalance between manufacturer and consumer

· Inequality, dependency

· Allows consumers to make “informed decisions”

· 2. Is it “reasonable and just” to require a complete warning about risks (26)

· These are policy factors like in Ann’s test

· These are social expectations

· 3. Promotes public health by facilitation a more meaningful doctor-patient relationship (26)

· This is SUPER policy factor related – this is for public health reasons

· Why should tort law be involved in this?!

· 4. Does not impose an onerous burden (26)

· Like Jordan House – could easily get a taxi, put the person up for the night

· There’s something more missing from this analysis that makes it sufficient to justify a duty to inform: Childs got it

· Childs (para 35): These cases are akin to those in which someone invites another person to a danger which they control. Where you are materially implicated in the creation of a risk you owe a duty to others “to protect against the risk materializing” (Childs 38)

· You can protect people by warning them how to avoid the risk

· Galloway: it’s NOT just due to the knowledge imbalance – that’s not enough

MEDICAL MALPRACTICE

· In Hollis, courts compare manufacturer’s duty to warn with Drs duty to inform patients about risks

· Galloway: neither is really about the inequality in the relationship (the knowledge imbalance)

· DR’S DUTY ARISES BCUS Drs are in control of your body – they perform the procedure, have a hand in creating the risk!

· They’re not just giving medical advice – they’re talking about risks in a procedure that they’ll be performing – THIS is key

· DOCTOR’S DUTY TO WARN (Reibl)

1. Duty to warn patient of all material risks

a. Compacting probability of the risk with seriousness of the consequence

i. Explained in Brito as the “low risk – bad consequences” approach

b. Mere possibilities don’t have to be disclosed

c. But serious consequences (death, paralysis), the risk is always material

2. Duty to disclose the nature of the operation

3. Duty to disclose the gravity of the proposed operation

4. Duty to disclose special or unusual risk

5. Duty to answer any specific questions posed by the patient

= Duty to tell you the risk they know pertain to you and also the risks they ought to know pertain to you

· Is the duty a question of law or fact?

· Brito: doesn’t differentiate duty and standard – question of law

· Creates an objective Dr

· Videto, Reibl: question of fact

· Therapeutic privilege: if a Dr can justify on medical grounds not letting a patient know the consequences of an operation because it’s medically appropriate to do so, they have therapeutic privilege

· ISSUE: can you ask the Dr about their experience? Success rate? Can you request a new or different Dr? Issue of patient autonomy!

RESCUERS AND GOOD SAMARITANS

· If a person exposes another to danger and a third party tries to rescue him, there will be a finding of a duty of care owned to the rescuer

· We often this of contributory negligent: original creator of danger is negligent. The third party may be contributorily negligent however (apportionment of damages)

· The only qualification is if the rescuer was “foolhardy” (Videan pg 249, 250-1)

· The duty the rescuer owes is quite different than the duty the original wrongdoer owes

Horsley (next friend of) v. MacLaren

Operator of a ship owes a duty to passengers falling into the water, no matter what the danger is

· HELD: not the best rescue possible, but not negligent

· Captain has a legal duty (not a good samaritan)

· Van Valkenburg - lower courts ruled that ship operators don’t have to come to the aid of people who’ve gone overboard due to their own negligence

· Laskin (diss): No! Because of the necessary dependency of the passengers on the ship operator to return to shore, the ship’s operator has an obligation to provide positive duty to the passengers! Ship operator must help anyone who's gone over board

· The statutory duty is a relevant factor (like in Jordan House, also Laskin) and aids in supporting this view, but that’s not the basis of the duty!

· Laskin (diss): someone falls overboard and ship’s captain tries to fulfill the duty owned to passsengers

· BUT he’s doing badly (error in the rescue procedures)

· Laskin (diss): the error is falling below the measure of negligence

· If you elect to be the first rescuer and are terrible and someone else has to come rescue you, the first rescue may be liable to the second - all people who in their actions put other people in a situation where they take on a danger, may have an obligation!

Videan

Railway company did not put up barriers to prevent children from getting on the railway tracks. Child walks onto railway tracks (clear breach of duty). Dad sees child, and runs into the danger, saves the kid but gets hit by the train and is killed

· Railway company’s argument: may have breach the duty against the child, but did not have a duty a to the father

· Court: Absolutely not! By failing in one respect, you’ve created another duty

· Laskin: where people negligently imperil themselves, they will owe a duty to people who come to their rescue (the person creating the situation)

·

· Good Samaritan Act

· A person who intercedes to render aid in an emergency will be held only to a standard of gross negligence

· UNLESS it your job to provide aid (ex. paramedic, then you’re held to normal standards of negligence)

· OR UNLESS you provide the person with a view to gain

· If you ask, after the recovery, “well, what about giving me something?” we might hold you to a lower standard of negligence

· This applies likely to the person you’re rescuing, but it doesn’t really say anything about a second rescuer

STANDARD OF CARE

· Duty v. standard is often an artificial difference – sometimes we collapse the two together or just assume duty so we can move onto standard (like in Bolton

· Duty = question of law

· Standard = question of fact – “reasonable care”

· 1) Was it justifiable to expose the plaintiff to this level of risk?

· 2) If it was unjustifiable, how do we deal with the claim that the D did not appreciate the risk/ was unable to meet the standard? AKA that there’s an objective standard but no fault

· Corrective justice theorists: we give the trier of fact the opportunity to determine what kinds of dangers are okay

·

Bolton v. Stone

HL 1951

· (Reid)

· Primarily we think about the rights of individuals (what are Mrs. Stone’s expectations)

· Secondarily we think about the social context (what are the social reasons we should allow the cricket club to continue)

· And we balance them – how important is this social relationship in the context in which we place it?

· In this case:

· Corrective justice model can’t work because the Mts. Stone has rights but cricket is a socially valuable entity!

· In cricket, you want to hit the ball outside the pitch

· Cricket ground was there first, but sold part of the land where Stone’s house was and didn’t recentre it (found not a bit difference)

· Very few balls hit out in the firs plat

· We will only hold those liable who show breach the “standard of substantial risk”

· Difficulty of remedial measures is not something we should take into account! Ex. if we require them to put up a big net

· ISSUE: is tort creating rules of public or private law?!

EMPLOYER/ EMPLOYEE STANDARDS

Paris v. Stevne

HL 1951

Appellant employed as a fitter in the garage. At the time he was employed, had the use of only one eye. Using a hammer to remove a bolt on a vehicle, chip of metal flew into his good eye, and he became totally blind. Respondent employer did not provide goggles for the appellant to wear.

· HELD: employer liable – should have provided goggles

· Higher standard of care to those who are vulnerable

· Facts: worker has one eye, so the consequences are particularly grievous

· Does the fact that employer doesn’t give goggles to other workers mean employer has no duty to give goggles to this particular worker?

· Don’t think of this as social utility (are we better off as a society)

· The question is: what is the meaning of this relationship

· Corrective justice model: let’s let a jury figure this out

· Court: there’s a relationship of dependence by the worker on the employer

· ISSUES: employers are not going to employ one eyed people! Costs of goggles will start to add up!

· Instrumentalist:

· Post 1952: legislatures get involved, now companies can’t discriminate

· Instrumentalist view of tort law: learned hand formula

· If the costs of taking precautions are less than the cost you’re imposing, the you should take precautions

· Ie. cheaper cost avoider must avoid the harm

· Worker should bear the cost of the goggles. Socially, it’s much more expensive to have a system of work discrimination than a requirement that the worker provides for their own needs greater than their own

· Bolton should have worn a helmet!

· Corrective justice view of tort law (Reid in Bolton)

· When you’re looking at the level of risk that you can/ can’t take, you need to take into consideration the number of people you’re affecting: social consequences, not just the relationship between the parties

· The likelihood of people getting hurt matters – a person’s interest in safety is more basic (and more important) than a cricket player’s interest in playing!

· This can be about cost avoidance too – that we treat people with disrespect if we can avoid harm to people that are no cost to us

· McLachlin in Cooper

· Rejects BOTH the corrective justice and instrumentalist views

· The relationship between the parties is primary! But sometimes we’re willing to discount the relationship based on social reasons

Rentway Canada v. Laidlaw Transport

OCA 1989

Facts: truck has a blowout, at night, a bit of the tire hits the headlight of the truck, impact causes light to short (these are all normal occurrence), both headlights are on the same circuit

· (Granger)

· ISSUE: shouldn’t the designers have thought about putting the headlights on different circuits due to this risk?

· HELD: yes! They should! Because the cost of creating a separate circuit for each headlight is so small in relation to the whole truck – we’re going to hold that they were negligent in design - instrumentalist

· ISSUE (Lord Reid): in some circumstances, this means you can justify your risk by the fact that you cost too much! Means social utility can trump individ rights

· Galloway: retrospectively this seems an easy fix …

Watt

Volunteer firefighter

· HELD: no liability, volunteer firefighters have high utility

· Balancing the risk against the end to be achieved – it’s a reasonable risk to injury firefighting employees in an effort to save lives

INDICES OF REASONABLENESS: CUSTOMARY PRACTICE

· Over time, customs develop that are more than just practices or habits

· It’s people trying to work out what people want to do, and how they do behave. This makes sense because we want juries to make these anyway – to impose values reasonable to the community in which they belong

· Customs can “crystallize” the vague standard of reasonableness

Waldick v. Malcolm

SCC 1991

Someone slips on another person’s property and injures themselves. Property owner: in these parts, no one shovels their snow or salt or sands! I’m just living by normal community standards (Alberta)

· HELD: liable – unable to show that his practice was a customary practice

· How can we determine if conduct based on a community standard is sufficient to meet a standard of care?

· SCC: just stating that something is standard practice will not suffice

· 1. There must be expert evidence of the custom

· Courts shouldn’t take judicial notice of custom (34)

· Some obvious facts we don’t have to prove

· But experts will be required, especially when it’s a little known or contentious issue

· Especially because customary evidence is so probative that it will often decide the case – it should be rigorous evidence

· Therefore instead of asking juries to decide, we’re asking them to look at how people actually behave

· This means this tort action is hugely expensive

· Sociologists involved – crts say this is important!

· ISSUE 1 – the court doesn’t give a standard of prevalence that has to be shown to establish a practice

· How prevalent must the custom be to count as a custom? How long in duration must it be? We leave these questions open.

· 2. Not all practices will be accepted as custom

· A whole community might be negligent

· Perhaps the implied principle is that only a custom that reflects considered judgment about safety should be relevant

· 3. Courts will give different weight to custom depending on the situation

· Depends: Warren = lots, Brown = little

Warren v. Camrose

ACA 1989

Plaintiff made an injuring dive into the swimming pool marker – the lane marker was much closer to his launching point than on earlier visits. Experts testified that the standard of swimming pool operation changed in the 1970s away from the use of warning signs to encourage people to be safer on their own

· Municipality found 40% liable, appeals

· HELD – appeal allowed, no causation –customary practice established/ accepted as reasonable due to expert evidence

· Applying common practice/ customs to indicate reasonableness

· Customary standard is very strong evidence in this case to indicate reasonable behaviour!

· If you’ve lived up to the normal conduct in your sphere, when you can’t be found negligent

· P relied on pool experts (water purity engineers) = people who’ve never seen the pool in question before …

· Normally we don’t expect courts to override expert opinion (DEFERENCE to expert standards)

· Galloway: but the COA has missed something the trial judge picked up on

· Experts thinking about pools in general may not have given sufficient consideration to THIS pool and THIS user

· Maybe social benefits of training people to use their own judgment is not relevant in this case!

· Overall: experts cause courts to adopt more public models of tort law!

Brown v. Rolls Royce

Employee’s hands constantly in contact with oil in the course of his employment, and contracted dermatitis. Respondent didn’t apply barrier cream, which was a common practice.

· HELD: not at fault for not providing hand cream (low deference to common practice) (high deference to common practice)

· Failing to follow customs does not prima facie establish negligence – although it may indicate it

· Onus does not shift onto defendant just because there’s a customary practice – it’s still on the plaintiff to show negligence

· In this case, P only has evidence that the practice is common

· Drs are divided about the value of the cream

· This is not sufficient evidence

· NOTE: this is very different in Warren – in that case judges deferred to expert evidence which showed the necessary standard

· At this early time in tort law, courts were very confident in the power of torts and the triers of fact. Later on much more deferential

INDICES OF REASONABLENESS: STATUTORY STANDARDS

· Statutory breach doesn’t necessarily confer a right to civil action, unless there’s an intentional/ negligent failure to meet the statutory provisions

· Courts show much more reluctance to rely on statutory standards than on professional or customary standards! Ex. Ryan v. Victoria

Canada v. Saskatchewan Wheat Pool

SCC 1983

Wheat provider breaches statute by sending beetle infested wheat to buyer. Is the seller liable in tort to the buyer?

· (Dickson)

· ISSUE: wheat provider breaches statute by sending beetle infested wheat. Liable to buyers?

· HELD: no statutory breach of tort law

· Does a statutory breach confer a right to civil action?

· NO - not prima facie (Odavji), only if intentional/ negligent failure to meet statutory provisions

· No tort of breach of statutory duty

· The statutory breach is an absolute liability offence – so there’s no fault involved and fault is central to tort!

· Historically in Canada and UK – if the leg intends to create a tort via legislature, then it could be the tort of Breach of Statutory duty

· Galloway: this is made up. There might be an exception for only industrial statutes – we don’t know if they exist

· Dickson – let’s just use the tort of negligence

· The statutory standard may just be useful as evidence of breach

· No onus shift in breach of statutory standard!

Gorris v. Scott

EQ 1874

Sheep shipper loses sheep, which are washed overboard. Defendant didn’t comply with the Contagious Diseases (Animal) Act, which requires sheep to be attached to prevent them being overcrowded. Complying with this may have saved the sheep being washed overboard

· HELD: no liability

· The purpose of the statute was for disease control, not for preventing the sheep being washed overboard, therefore the purpose of the statute was not to protect plaintiff against this issue, and e statutory standard doesn’t apply

· In order for a statutory standard to apply

· D’s conduct must be in violation of the statute

· The purpose of the statute must be to protect persons like the P against the loss suffered

· ISSUE: this can lead to bizarre arguments of statutory interpretation re: purpose

· People may rely on statutory standards even where the statute is created for other reasons

· In Odavji, you can rely on statutory standards even when they creat public expectations

Ryan v. Victoria

SCC 1999

Flanges on railways wide, meet statutory standards, but a Motorcyclist gets a wheel caught in it and is thrown off and injured. Is there tort liability despite the fact that the railway met the statutory standard? Standard was for 90 deg highway crossing whereas in this case the railways were parallel with the road

Action was brought against the railway and also against the city of Victoria (for failing to warn)

· Most authoritative case on statutory standards in tort

· HELD: negligence – meeting statutory duty was insufficient to meet CL duty. Statutes do not overrule CL, but may be surrogate in some instances

· There’s a floating level of weight that statutory standards may have – there are times when some may have much more weight than others depending on the situation and the wording on the statute

· PARA 28: we usually determining whether someone’s met a standard a care based on values not facts:

· 1. Likelihood of known or foreseeable harm

· 2. Gravity of Harm (Bolton and Stone)

· 3. Burden or cost which would be incurred by preventing the injury

· 4. External indicators of reasonable conduct

· a. Custom

· b. Industry practice

· 3. Statutory/ regulatory standards

· PARA 39-40 are very important

· 3 elements are identified as being relevant to the weight that statutes warrant:

· 1. Ordinary v. Unusual

· Statutory compliance will have more relevance in “ordinary” cases (ex. cases clearly within the intended scope of the statute) than in cases involving special or unusual circumstances

· Ex. Gorris v. Scott!

· This is an “unusual” case

· 2. Specific v. General standards

· Specific standards stronger than general standards

· If legislature has involved itself to a high degree of detail, the situation is different than general standards

· 3. Required v. Authorized

· The closer you are to statutory duty and the farther you are away from authorization, the greater the weight that will be allocated to the legislation

· Also, the less discretion the state permits, the greater the weight will be allocated to the legislation

· Overall, where statute strictly defines the precautions, it is ore likely that compliance constitutes reasonable care

· NOTE: Courts are MUCH LESS deferential to statutory standards than they are to common practices are articulated by professionals in a field – even though both have public policy implications

· Courts defer strongly to technocrats/ experts

· Courts want to hold onto the ability to assess whether statutes are appropriate

· WHY is this?

· Perhaps because legislatures decide what they think would be a good idea

· While the customs reflect what people actually do

·

PROFESSIONAL STANDARDS

Brenner at al. v. Gregory et al.

HC On 1973

FACTS: Lawyer sued for failing to conduct certain practices (ex. a survey of land)

· HELD: not negligent, there was an error in judgment but not negligence

· Lawyers are held to the standard of an ordinary and competent solicitor (reasonableness standard)

· The standard requires “effort, knowledge and insight of the reasonable competent lawyer”

· What about where a professional works with limited facilities? Does this reduce our expectations?

· Arguably, yes

· Ordinary approved practices will determine the appropriate standard – unless the practice is inconsistent with prudent precautions (ie. there are special considerations)

·

· Negligence is not an error of judgment for professionals, it’s saying that someone is not competent to do their work

·

NOTE: what about NOVICE DRs? INNOVATION?

· Courts have not explicitly lowered standards for novices

· Claim there’s a single standard across the board

· But they have tended to fudge the issue in application

· It takes time to gain competency

· Expertise: if you hold yourself out as a specialist, you will be held to the standard of the ordinary specialist (ter Neuzen)

· This should apply in law as well as in medicine

· In the past, lawyers were immune from tort liability due the “challenging nature” of their work

· Now holding lawyers to the same standards as other professionals

· Does this create issues re: innovation?

· What if a Dr is trying something new … if you abandon an established medical procedure, do you have to be held negligent?

· Perhaps you can be acting as a prudent or diligent Dr, and creatures of intelligence instead of habit

· In any case, as triers of fact, courts and juries shouldn’t be wholly divested from these situations! Because all Drs are novices every time there’s a new innovation

· There’s a lot of conflicting values – perhaps it involves: safety, deference to expertise

Ter Neuzen

SCC 1995

Dr was not aware that HIV was transmitted sexually and that it was an STD, but unaware what the process of spreading involved. There was some preliminary medical evidence in journals, but it was unconclusive.

· HELD: Dr not liable for allowing patient to contract HIV via AI

· Practices can be found negligent “only where the standard practice is ‘fraught with obvious risk’ such that anyone is capable of finding it negligent, without necessity of judging matters requiring diagnostic or clinical expertise …”

· Where there’s divergent opinion by physicians and there’s controversial questions of diagnosis/ treatment, the courts do not have jurisdiction to settle the dispute!

· In retrospect that should have realized, but this was an error in judgement, medical profession didn’t realize

· SCC: you can’t ask more than the standard of the branch of medicine being accepted, even though the could have known

· PARA 33 “It is well settled that physicians have a duty to conduct their practice in accordance with the conduct of a prudent and diligent Dr in the same circumstances”

· Galloway: which circumstances are relevant or irrelevant?! This allows differentiation on a case by case basis!

· But Sopinka is talking about the ordinary Dr – not a technical notion of average

· “In the case of a specialist, the Dr’s behavior must be assessed in light of the conduct of other ordinary specialists, who possess a reasonable level of knowledge, competence, and skill expected of professionals in Canada, in that field

·

DETERMINING REASONABLE BEHAVIOUR

Vaughan v. Menlove

ER 1837

Def constructed a hay rick, warned about its flammability, said he would chance it. He made a chimney through the rick, but then the rick burst into flames, spread to his property and then to the plaintiff’s property (cottages). Def acted to the best of his judgment – is he liable for the plaintiff’s losses?

· The law is deaf to defendant’s excuses: I did my best, I used my bets judgment, you cannot demand any more from me

· The law is also deaf to his argument: judging me according to the standard of “a man of ordinary prudence test” is to judge me according to a totally uncertain rule – therefore OBJECTIVE standard

· WHY IS THIS? Incompetent people should take responsibility for their lack of competence!

· Negligence is a fault standard – you can escape it by acting like a reasonable person on an objective standard

· EXCEPTIONS that we see later on – physical/ mental disability, childhood

SPECIAL STANDARDS: CHILDREN

· There are some people who are incapable of meeting the standard of care

· They can’t do what we are expecting, we can’t blame people if they don’t have the ability

· Is this the issue of the novice? There’s a general problem: as a society, we each have different intellectual and physical skills

· “I used my best judgment, you cannot expect anything more than that”. Courts usually say “we don’t care” and hold you to the objective standard

· Only gradually do the courts waiver

· 1. If you’re a child, we’ll hold you to a lower standard

· 2. If you have a physical disability

· 3. If you are temporarily/ permanently mentally incompetent

INFANTS

· Child Stage 1: “infant”

· Children are given a grace period during which they are subject to reduced standards

· In the first part of the grace period, they are held to be “incapable of being found negligent” because of (lack of) age, intelligence, experience general knowledge and alertness. A very subjective test (Addy J. in Heisler at p. 48)

· No specific age that marks off this period

· Why? Because they don’t have the ability to self regulate

· Child Stage 2: “child”

· Addy J: Judging (1) this particular child (2) based on what we could expect from a child of the same age (comparative group) = “the reasonable child of that age”

· However, the SCC has held a different and more subjective standard: child should be judged by the care to be expected from a child of like age, intelligence and experience (Heisler v. Moke)

· Is this like saying that this child is a beginner, and we hold them to the standard of a beginner? Yes

· The argument “I didn’t know better, and I couldn’t have known better as a child of my age/ experience”

· We take this to be a good argument in this case, even though it was deficient in Menlove

· EXCEPTION – ADULT ACTIVITIES (Nespolen)

· The adult activity exception – applies only to the Child Stage 2

· Children who engage in adult activities should be given no special privileges!

· Two related questions (Pope):

· 1) What is an adult activity? A number of answers given (as a lawyer, would want to argue all of these):

· A) An adult activity is one where the public expects the individual to be an adult

· B) Where the activity is very dangerous (guns, snowmobiles, cars, motor boats)

· C) Where the activity is regarded as a “right of adulthood” – like golf

· As a judge – is there one that appears more acceptable than the others?

· 2) Why is the child held to the adult standard?

· ISSUE: if we’re willing to get rid of fault – how far are we willing to go?

· Cannot know if a driver is a child and cannot take precautions to avoid it

· Dangerous to the public to hold them to a lesser standard with dangerous activities

· If you are given the rights when you assume the responsibilities

· But is it fair?

· Is the law relating to the liability of children coherent or does it reflect a haphazard compromise of policies?

Heilser v. Moke

OSC 1971

Child warned against jumping. Child by jumping causes 2nd injury to plaintiff.

· “Reasonable child of that age, intelligence and experience” – no specific age

Pope v. RGC Mgmt Inc

AQB 2002

12 year old boy hits woman on a backswing using a golf club at a golf club.

· Golf is an adult activity (AKA things other than motor vehicle driving or insured activities with licences and reasonable expectation can be considered an adult activity)

· Held: child not liable because the woman walked into the golf club

· There was a duty but child did not breach it

Nespolon v. Alford

Two kids are in charge of one drunk kid (Snider). Trying to drive him home, let him out at a house he recognizes. Snider stumbles around, and gets hit by a car. Driver of the car (innocent) suffers from extreme post traumatic stress from hitting the kid, sues the friends

· Held: no liability – not an adult activity therefore standard of a child

· Abella: When deciding whether the activity is an adult one we need to characterize the wrongful action narrowly:

· The activity in question is not driving but is dropping the friend at the side of the highway

· Not characterized as getting drunk – an adult activity

· In this case, allowing this kid out of the car without helping them into the house

· ISSUE: is letting a drunk kid be by themselves outside where they may be in danger an adult activity? No it’s not – so let’s hold them to the child standard.

SPECIAL STANDARD: THE MENTALLY ILL

Fiala v. Cechmanek ACA 2001

Wrongdoer experiences a manic attack due to bipolar disorder type 1, attacks a person’s car, causes it to move forward to hit another car, attacks the first car’s driver. First car’s driver sues.

· Creating a much more nuanced conception of fault than Vaughan v. Menlove

· Instead of comparing a person with a physical disability with someone with without that disability as a template, should routinely look into the personal situation of the person without a disability

· What does this mean?

· Just because you have a disability, doesn’t mean you’re absolved of responsibility of your physical disability

· You have to bear some of the costs of being disabled

· BUT it’s not irrelevant that you were disabled – we want to take it into account to ensure we’re being fair to you

· Ex. if you suddenly go blind while driving, we assess your ability to have done otherwise – whether you would have known before hand that that would have happened

· If you had no idea you’d go blind, then we don’t hold you responsible for this

· Strict liability (liability without fault) is a notion that should have the narrowest application in the law

· We should apply it when you’re engaging in profit and selfish conduct and exposing other people to risks while doing this – if you’re going to engage for your own benefit in activities that expose other people to excessive costs, THEN you should bear those costs!

· This is why we should only hold children to the adult standard if we have reason to think that they can meet that adult standard, and in the same way we should only hold disabled people to the objective person standard if they can meet that

· THE ISSUE THOUGH: were you on alert that you would be disabled and did you prepare to account for it?

· Have you taken adequate notice of your dysfunction? If you’ve taken charge of your situation adequately, then we can ask nothing more for you?

· This is a subjective and personal inquiry

· Holding mentally ill to the strict objective standard would essential create a no-fault regime

· Also – CAVEAT. We don’t want to relieve from responsibility those who have minor difficulties only! Must be a complete mental incapacity!

· This is obiter

· You have an obligation to show that you did do enough (what the reasonable person with that deficiency would have done) – showing responsibility for your own weakness, not imposing your costs on somebody else

· It comes down to our expectations from the person

· A) The modern law of negligence is founded on the principle of fault and therefore must take account of the incapacities and (maybe) the diminished capacities of the defendant

· B) Such a view may lead to some infelicitous consequences but we should deal with these consequences through some other means

· Wittman J in Fiala: dimished capacity is in itself not enough, need a complete mental incapacity

· This means that we might be applying our standards of fault to people we shouldn’t apply it to (where it isn’t really fair)

· Linden (instrumentalist) – fault can be dispensed with sometimes where it’s worthwhile to dispense with it: para 22 – “Persons suffering from mental illness may not have to comply with the reasonable person standard, the theory being that it is unfair to hold people liable for accidents they are incapable of avoiding”

· C) Some argue: Where two innocent people are involved in an accident the person who caused it should pay (24)

· Wittman: This doesn’t accord with how the law has dealt with children and the physically disabled (32) (nicely summarizes how physically disabled have been dealt with)!

· D) Some argue that there are practical difficulties with distinguishing people who feign mental illness. (25)

· Wittman: But practical difficulties plague most law suits. (34)

· E) Some argue holding mentally ill liable would encourage caregivers to take better precautions (26)

· Wittman: But this will be ineffective (35) – this social benefit would only occur if we held care givers liable

· F) Some argue that allowing mentally ill a lower standard will reinforce the stereotype of mentally ill as dangerous (36)

· Wittman: Don’t pander to fears “mired in ignorance” (36)

· Strict Liability v. Negligence (revisited – and v. different than in Vaughan v. Menlove)

· Liability in Negligence is based on a fully developed modern notion of fault

· Fault is MORE than failing to live up to an ordinary standard

· NOW WHAT ABOUT THE NOVICE DOCTOR?

· This is a difficult case to deal with! Because why don’t we hold novice doctors at a lower standard and have more sympathy for them

· They’re engaging on this long and arduous road ahead to success … not motivated by subsistence, but motivated by profit making and success

· Perhaps we’re saying that if you’re down this path going down this ambitious role, that we’re responsible for all the costs of going down it down

· Does strict liability apply?

· Maybe, because you voluntarily accept the costs of going that role

· We know why it’s hard … because “I couldn’t do better” is a different claim from a Dr than from a blind person

· In this situation, if a novice Dr asks an expert Dr to say “can you come watch me perform surgery in case I do something wrong”, then perhaps we take that they did take the reasonable precautions

· Overall, we want to be an inclusive society. But we just want to allocated risk to compensate for that.

Compensation

Fault is first

Then knowledge etc.