history of the law of torts and negligence

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History of the Law of Torts and Negligence

Table of ContentsHistory of the Law of Torts and Negligence3Donoghue v. Stevenson4Elements of the Tort of Negligence4Duty of Care5Hedley Byrne v. Heller5Home Office v. Dorset5Just v. BC5Anns v. Merton London Borough Council5Murphy Case & Caparo Case5Kamloops v. Williams5Cooper v. Hobart5Cooper Test6Dobson v. Dobson6Reasonable Forseeability7Special Duties of Care: Duties over Drunks7General7Jordan House v. Menow7CROCKER v. SUNDANCE7Caillou Estate8Stewart v. Pettie8Childs v. Desmoreaux8Special Duties of Care: Duty to Prevent Crime & Protect Others8Jane Doe Case8Hill v. Chief Constable8Special Duties of Care: Duty to Rescue8Matthews v. MacLaren8Matthews v. MacLaren (Horsely Complication)9Special Duties of Care: Duties to the Unborn9Categories of Duties:9Arndt v. Smith9Bovingdon v. Hergott9Wrongful Pregnancy9Kealy v. Berezowski10Issues with Wrongful Life:10Options for dealing with Wrongful Life10Special Duties: Nervous Shock10History of Nervous Shock10Mustafa10Post-Mustafa11Special Duties: Doctors Duty to Inform11Reibl v. Hughes11Haughian v. Paine11Riebl v. Hughes11Special Duties: Manufacturers Duty to Warn12Holis v. Dow Corning Corp12Special Duties: Pure Economic Loss12Hedley Byrne12Herculese Management12Winnipeg Condominium no.3612Concurrent Liability: BC Checo13Caveat Emptar: CNR v. Norsk Pacific Steamship13Bow Valley Husky13Standard of Care14General14Bolton v. Stone14USA v. Carroll Towing Co.14Priestman v. Colangelo14Paris v. Stepney Borough Council15Special Standards of Care: People with Disabilities15Wenden v. Trikha15Fiala v. Cechmanek (Current Test)15Physically disabled as plaintiffs:15Physically disabled as defendants: Haley v. London Electric Co.15Special Standards of Care: The Young16Joyal v. Barsby16Special Standards of Care: Medical16White v. Turner16Special Standards of Care: Customs16Ter Neuzen v. Korn16Waldrick v. Malcom16Causation17The But-For Test: Kaufman v. TTC17Walker Estate v. York Finche General Hospital17Strategic Burden17Snell17Multiple Causes18Independent Sufficient Causes/Indivisible Harm: Material Contribution Test: Hanke18Independent Sufficient Causes: Lambton v. Mellish18Multiple Indivisible/Joint causes: Cook v. Lewis18Independent Insufficient Causes: 1 tortious, 1 not: Athey18Independent Insufficient Causes: Both tortious: Nolan Case18Assessing Ps Loss19Penner v. Mitchell19Remoteness19Wagon Mound #1: STILL THE TEST IN CANADA bc. Its unfair to impose a duty on Ds19Wagon Mound #2: TEST IN AUSTRALIA19Remoteness: Types of Damage19Hughes v. Lord Advocate19Tremain v. Pike20Remoteness: Thin Skull Rule20Smith v. Leech Brain20Athey v. Leonati20Marconato20Remoteness: Intervening Forces21Canphoto21Bradford v. Kanellos21Medical Error: Price v. Milawski21Second Accident: Weiland21Defences: Contributory Negligence21General21Last Chance Doctrine: Davies v. Mann22Scurfield v. Cariboo Helicopter Skiing22North King Lodge Case22Negligence Act22Mortimer v. Cameron22Defences: Seat Belt Defence22General22Galaske v. ODonnell22Defences: Voluntary Assumption of Risk23General23Dube v. Lebar23Defences: Ex Turpi Causa23General23Hall v. Hebert23Issues of Proof23Wakelin23Statutory Burden Shifts: MacDonald v. Woodward23Unintended Trespass: Cook v. Lewis24Trespass: Dahlberg v. Naydiuk24

History of the Law of Torts and Negligence 800 Years Ago: Early days of common law. The state had little concern regarding individuals and their interactions. 1300s: The monarchy began to take an interest in individual interactions. Trespass began the law of torts. However, a party wanting to bring an action for trespass had to follow strict forms- their trespass must fit a writ. 1400s: In response to the restricfulness of the writ system, actions on the case developed. The appealed to a sense of justice, and developed into nuisance, some others, and negligence. Early negligence could only apply to certain cases: Apothecaries, doctors/surgeons, and other people who served the public in a professional capacity, and for whom there was a general accepted standard of appropriate conduct. Late 1700s: Negligence developed in a way that they could be indirect, as opposed to the directness required by the trespass torts. Scott v. Sheppard is an example of a trespass tort requiring directness. 1800s: Instead of focusing on causation, courts began to see fault as most important for actions on the case. Wit this shift in focus, it became less necessary to restrict actions to the pre-set categories. There was an attempt to develop a more general theory/principled approach the negligence.Donoghue v. Stevenson Facts: P became sick after drinking snail-infested ginger beer. Reasons: There must be some general conception of relations giving rise to a duty of care This theory should be based on a social theory of general wrongdoing. Negligence wont always give rise to successful actions. Some harm is simply expected in day-to-day activities. Therefore, the ability to bring actions for negligence must be limited. We all have a moral duty to love your neighbour. This translates into a duty to not to harm to your neighbour. Those who constitute your neighbour are the people the reasonable person should be expected to imagine would likely be directly & closely affected by your actions. The concern is not with who the people are, but what their relationship is to you. Dissent; Lord Buckmaster Where will negligence end? Where does liability end? Expanding negligence like this could result in unlimited liability that would impede the progression of capitalismElements of the Tort of Negligence Duty of Care Standard of Care & its breach Causation Remoteness of damages Actual low Defences (such as contributory negligence) Exemptions: Public authorities; limited to physical loss (not monetary)Duty of CareHedley Byrne v. Heller Case of negligent misrepresentation Donague principle applies: There was a close & direct relationship where D should have realized that his advice on the credit-worthiness of another company could result in harm if he didnt exercise due care.Home Office v. Dorset Facts: Home Office oversaw the maintenance of juvenile delinquents, who destroyed some property. They applied donaghue despite the exception made for bringing actions for trespass on the case against governments.Just v. BC A family was killed by falling rock on the sea to sky Found that the government cant be sued for policy matters; but they can be sued for operational matters.Anns v. Merton London Borough Council There is no need to fit the narrow precedent from Donoghue; you can look instead to the general principle. TEST: 2 stage analysis Was there sufficient proximity between the parties. This suffices for showing a prima facie duty of care. The burden then shifts to D to show there is some reason their liability should be negated or reduced. D argued that while there was a duty due to proximity, it should be limited in some way because they were being sued on a policy matter. Adds to donaghue the idea that once P shows proximity, D must show that liability wont apply.Murphy Case & Caparo Case UK law diverges from the Anns test In Murphy, courts showed they thought the test was going too far. Courts feel they werent comfortable with using proximity to import a duty of care.Kamloops v. Williams Canada adopts the Anns testCooper v. Hobart Facts: P and others invested money with mortgage brokers, which were overseen by D as the mortgage registrar. Issue: Is D in such close proximity to P so as to have a duty of care? Reasons: Defines proximity in terms of expectations If one should form expectations that the other ought to be aware of, then the other has a duty of care to that person. Physical proximity is irrelevant Concern is with reliance, expectation, and whether it is just and fair to impose that duty on the plaintiff. 2 stage test: Is there proximity and reasonable foreseeability? Are there any residual negativing policy considerations to negate finding a duty of care? If both can be established, then a prima facie duty of care exists, and the burden shifts to D to show policy considerations that limit liability or eliminate it.Cooper Test Part 1: Is there Proximity Proximity is mostly a matter of policy. It comes down to whether it would be just and fair to impose a duty of care upon the defendant, which is a policy consideration. Categories are important in determining proximity. Relationships of proximity are classified via categories. Where the parties fit into one of these categories of relationships, then there will be proximity. The list of categories isnt closed, as novel situations can lead to the creation of new categories. Part 2: Negativing considerations Extra-legal considerations, such as opening up unlimited liability to an unlimited class of people.Dobson v. Dobson FACTS: An unborn fetus was injured by her mother and sues for negligence. ISSUE: Should a duty of care be placed upon the mother? REASONS: Finding a duty of care would infringe upon the mothers right to bodily integrity To find a duty would bring pregnant womens actions under the scrutiny of the courts. It would be difficult to determine where tortious liability begins and ends Lifestyle choices beyond the control of pregnant women (such as drug addiction) could lead to liability in tort. The purpose of deterrence would therefore be impossible to fulfill Generally, finding liability would do nothing to help the more general societal problem of inadequate services for people with special needs. Reasonable Forseeability Harm and person in the position of the plaintiff must both be foreseeable.Special Duties of Care: Duties over DrunksGeneral Osterlind v. Hill: There is no need to rescue a victim if you are an innocent bystander who does not play a role in the story. There is no duty to involve oneself. This protects individual autonomy, which is at a premium in western society. Exception- in Quebec, a char

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