torts - gotorts - golden bullets

8/18/2019 Torts - GoTorts - Golden Bullets

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LAW 406: TORTS AND LOSS COMPENSATION

D. Proximate Cause

Proximate cause is really about saying when is enough. When discussing proximate cause we know there has already been a dutyestablished, a breach of duty, and the requisite factual nexus. Proximate cause is how we limit liability. An intervening cause is supposed to be easily separated from the thin skull rule, but may not always be so.

• An intervening cause occurs after the initial act of negligence. The think skull is preexisting! an intervening cause happensafter the first act of negligence and is not preexisting.

•The intervening cause is so dramatic that it snaps the chain of causation. The idea is that the defendant did not, in certaincircumstances, cause the loss that the plaintiff suffered. There can be a blur between snapping of the chain of causation onthe factual language and the snapping of the chain in proximate cause.

• "f an event occurs that is not foreseeable or that should not be foreseeable then the courts will use the idea of an interveningact to snap the chain of causation so the defendant will not be liable for that particular damage.

3. Ats o! T"ir# Parties a$# I$ter%e$i$& 'ores• Act done between what the defendant did and what happened to the plaintiff. Two situations#a$ "nitial in%ury is exacerbated by the second in%ury. "s it within the ambit of risk created by the defendant&s negligence'b$ Another person intervenes and creates the damage. When can the defendant be held liable for the negligent acts of others'

Harris v. T.C.C. & Miller ( )*+6,-( S.C.C.( C /&. 3*'ats: A bus pulled away from stop and brushed against a steel pole. At the same time an infant passenger stuck his hand out of thewindow of the bus and his arm was crushed and broken by the pole. The bus company had a bylaw which the appellant was awareand was posted in the bus together with a sign below the window reading# ()eep arm in.* The trial %udge divided the fault equally

between the parties. The +ourt of Appeal found that on the facts of the case there could by no recovery.

Reaso$s: "t was foreseeable that a child may put his arm out the window. The negligent act was driving too close to the post. "t wasargued by the respondent that but for the child sticking his arm out the window, he would not have been hurt and this was anintervening cause. The courts did not accept this argument and looked at the event happening as a whole.

Ratio: I! somet"i$& is a !oreseea12e o$seue$e o! our $e&2i&e$t atio$s t"e$ it is $ot a$ i$ter%e$i$& !ator.. -erely because the plaintiff&s in%ury is caused or contributed to by his own negligent act, or the wrongful act of a third person, does

not mean that the def is freed from liability.. "f the scope of the def&s duty is to protect the pl from the very in%ury that occurred, it is not a defense for def to say that pl&s action

was an intervening cause which should shield him from liability.

1. Recurring Situationsa. RescueHorsley v. MacLaren( )5T"e O&o/o&o5-( )*+,-( S.C.C.( C /&. 3Facts: / 0-c1aren$ owned the boat. -athews fell overboard. They were trying to rescue him and / backed the boat up to executethe rescue instead of coming head on. 2e did this twice. -athews fell under the water, and 2orsley %umped in after to save him andsuffered a heart attack and died. Pathologist determined that 2orsley&s death was caused by shock resulting from sudden immersion inthe cold water.Ratio: The first rescuer can owe the second rescuer a duty of care when he is negligent in his rescue and it is reasonably foreseeablethat a second rescuer will attempt rescue. "f you botch the rescue you create a new situation of risk. As long as the second rescue isnot foolhardy 0grossly negligent$ then the first rescue owed a duty to the second rescuer. T34T# that the second rescuer must not be foolhardy. "f not foolhardy then there is a duty owned by the first rescuer to the second.

5egligent defendant had a /6T7 to a rescuer coming to aid of person. This is an independent duty, not derivative. /oesn&t matter if

the rescuee is not in%ured. Also, if the rescue is a futile exhibition of recklessness for which there can be no recourse, rather than brave acceptance of a

serious risk, there is no duty owed by the defendant. 4hip owners have a positive duty of care to rescue passengers.

A person can put themselves into peril, if they breach a duty of care to themselves in doing so, will be held liable to a rescuer whocomes to their aid.

A rescuer can owe a duty of care to another subsequent rescuer if#

a$ 2is attempt to rescue increases 0creates new$ the peril, andb$ "nduces the second rescuer to move in and make a rescue.88 must find negligence in first attempt, will be very high standard since it is a rescue attempt.

Class:

b. Second Accident Weiland v. Cyril Lord Carets Ltd.( C /&. 36,


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Facts: Woman in%ured in a bus accident. Went to hospital to get a neck brace, couldn&t see properly, was woo9y and fell down stairsand in%ured ankle. +laims is part of initial ambit of harm created by the def. /efendant says it is an intervening cause : she caused theankle in%ury herself, or it was not foreseeable.!ssue: Are the Pl&s actions an intervening cause' 5;

/id /&s actions +A643 the second in%ury' 734, result of the first

Reasoning:. The second in%ury was the result of the first in%ury. The first in%ury impaired her ability to negotiate stairs, which resulted in the fall.. /on&t need to foresee precisely how this will occur. 2e says that Wagon Mound 1 does not deal with extent of original in%ury,

degree to which it has affected Pl, nor manner of harm.ut for= test works here# but for first, wouldn&t have had second.Ratio: ("t is foreseeable that one in%ury may affect a person&s ability to cope with the vicissitudes of life and thereby be a cause of another

in%ury* 3xtends the foreseeability of harm to a second accident.

"t is foreseeable that one in%ury may affect the person&s normal functioning and lead to a second in%ury.

"f a subsequent accident is#

a$ close in time to the firstb$ the result of an ordinary activity of life 0i.e. walking$, then will be considered part of the initial in%ury, and the

/efendant will be held liable.Class:

Mc"e# v. Holland( )*+6+-( 7.L.( C /&. 36+

Facts: The plaintiff sustained leg in%uries for which the defendants were liable, and as a result, his leg would unexpectedly give waybeneath him. While descending some stairs the plaintiffs leg collapsed and he began to fall. 2e tried to %ump to land in a standingposition, and broke his ankle. /ismissed at both.

!ssue: Were the defendants liable for the broken ankle'

Reasoning: "f an in%ured person takes reasonable care and yet sustains further in%ury as a result of an initial in%ury, the second in%ury can be said

to have been caused by the disability which was in turn caused by the defendant. "f an in%ured person who acts unreasonably cannot hold the defendant liable for in%ury caused by the person?s own unreasonable

conduct! the unreasonable conduct has broken the chain of causation.

Ratio: T34T for foreseeability of second accident# "f the second accident was caused by the pl doing something unreasonable ornegligent then chain of causation is broken and the defendant is not liable.

"f the person is abnormally stupid, then maybe can be expected to act unreasonably → thin skull. "ntervening negligence on the part of the plaintiff breaks the chain of causation.

Co$$ents# 2is unreasonable act became an intervening event! he was not merely contributorily negligent, he completely snapped thechain of causation. Weiland differs as the plaintiff took steps to get help, here he did it on his own@ +ourt is punishing plaintiff bc they acted unreasonable

Co$$etio$ 8it" Wa&o$ Mou$# 9 *

"n W- the plaintiffs had no evidence that furnace oil caught on fire on water, bc if they did then it would find them

guilty. "n the -ckew case the same thing is going on : but to get around it they should use contributory negligent.

"f it is foreseeable that ppl will act reckless than the original wrongdoer should be held liable bc it is foreseeable

Ma$u!atures Lia1i2it La8# -anufacturers owe a direct responsibility to the consumer 0/onaghue v. 4tevenson$.

A manufacturer has duties in regards to safety of how the product is built and how the product is designed, as well as a duty towarn of potential dangers. The duty to warn about dangers in continuous whereas the duty of safety and design only applies whenthe item is made.

The more dangerous he product the higher the obligation on the manufacturer.

Bollow -cCee 0not Willshire$# a $aterial increase in t%e ris o' in(ury #ill be treated as a $aterial contribution to in(ury. This

is a 2ouse of 1ords decision but is still influential. There will be chains of different individuals who will have varying liability to the consumer along the distribution channel : through

who&s hands has the product passed.

. I$ter%ie8i$& Me#ia2 Error ) C:3,*


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"f an individual defendant through negligence causes physical harm it is quite clear that physical harm will be treated by physicians0factual cause$. "n terms of proximate cause it is reasonably foreseeable that an in%ured person would seek medical treatment. An actof negligence can break the chain of causation. 3rrors in %udgment are not enough. Bor the longest timer -ercer was the leading case

"n that case a child broke her leg and she was treated at the hospital but the condition worsened when the /r. failed to cut off

the cast soon enough. At the trial these damages caused by the /r. were not take into account The damages were not taken into account bc the court says that the only time that the /r. can be held liable is when the /r. is

not negligence. -eaning the second /r. would not be responsible for the neg. of the st /r. Plaintiff must sue the /r. so this burdens the plaintiff with not %ust one lawsuit but two

!ves v. Clare *rot%ers( )*+,*-( 7i&" Court o! O$t. C 3,3Facts# Plaintiff was bound to take gas from Twin +ity Cas. 2e bought a +lare gas furnace from the supplier and installer. "t wasinspected on three occasions by Twin +ity defendants. The plaintiff wasn?t given any warning of any danger. The plaintiff sufferedin%uries 0carbon monoxide poisoning$

!ssues:. Were the defendants negligent' 734. /id they cause the damage' 734, the intermediate inspection didn?t break the chain of causation.

+ecision: Dudgment for plaintiff! both Twin +ity and +lare >rothers 1td. equally negligent.

Reasoning:. Bound the defendants 0Twin +ity$ negligent in that in its service during the three inspections failed in their duty to appreciate the

serious and cumulative effect of the reasons giving rise to these service calls, failed to remedy the defects and failed to warn the

plaintiff of the danger they should have detected. /efendant +lare EF negligent manufacturer EF failed to warn of the distributor . /id the inspections break the chain of causation to exonerate the manufacturer' 5;, failure to do proper inspection didn?t break

the chain of causation. 1iability should be shared according to the Contributory Negligence Act between the two plaintiffsthemanufacturer and the inspector.

Ratio: An intermediate inspector 0the last person$ will not break the chain of causation to exonerate a manufacturer from liability who

failed to discharge their duty to warn. 1iability should be apportioned as per Contributory Negligence Act . Where there are duties on two or more parties and negligence by each causing or contributing to the cause of damage, it is the

Negligence Act , and not the doctrine of proximate cause, which is applied. The last person to be negligent 0the inspector$ is not the only one responsible, the manufacturer never warned of the possible

defect and as such cannot be absolved.

Class: >c of apportionment legislation both were held liable : the gas co. and +lare >ros.

"f you dig deep enough you will see that insurance companies said that there could only be one party responsible for the accident.

Hollis v. +o# Corning Cor.( )*++-( S.C.C.( C /&. 3,+( SM ,0Facts: 2 had breast implants. 5o information given to plaintiff regarding serious health risk from breast implants. ;ne sac burst. 4hesued /rs. > and G, the +an. sales agent for the American implant manufacturer and the American manufacturer itself.Tria2# allowed the action against manufacturer for negligent manufacture of the implants.CA# disagreed but held the manufacturer was liable to the respondent for failing to warn /r. > of the risks and found /r. > was liable tothe respondent for damages. -anufacturer appealed.SCC# Appeal dismissed.

!ssue: +hain of causation'+an the manufacturer use the learned intermediary rule to discharge its legal duty to the consumer' ES. /id /ow meet the standardof care required of it by using the (learned intermediary* rule' NO( Do8 !ai2e# to a#euate2 8ar$ t"e #otor.

Reasoning: The learned intermediary rule can only be applied if the doctor 0the intermediary$ had knowledge about the product whichapproximated the knowledge of the manufacturer. "n this case /ow had failed to provide /r. >irch and others about the likelihood ofrupture. As such, /ow cannot rely on the learned intermediary rule. /ow argued that yes they did not warn the doctor, but even if they had warned the /r. he still would not have warned her about the

risks +ourt got pissed and said that the test would be completely sub%ective meaning that if the plaintiff said she would not have the

procedure then that was enough

Ratio: The Bollowing groups can break a chain of causation for a corporation# learned intermediary, doctor, and patient. The learned intermediary rule provides a way the manufacturer can discharge its duty to give adequate information of the risks to

the plaintiff by informing an intermediary, but if it fails to do so it cannot raise the defense that the intermediary could have ignoredthis information.


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The learned intermediary rule (is applicable either where a product is highly technical in nature and is intended to be used only

under the supervision of experts, or where the nature of the product is such that the consumer will not realistically receive a directwarning from the manufacturer before using the product.*

W"at 8e a$ /u22 out o! t"e ase

o Where a substance is dangerous in itself, it is absolutely critical that the mfg inform the /r. so the consumer can beappraised of all of the risks.

CLASS: There is a duty to warn if the /ro#ut is i$"ere$t2 #a$&erous 0ie. anything you put in your body$

o There is an exception to that rule called the 2ear$e# i$terme#iar ru2e "f a professional is required to obtain that article for the consumer, then the manufacturer can fulfill its

obligation to warn the customer by informing the professional a.k.a the learned intermediary. 5ature of the product may make it impossible for them to warn the consumer directly, therefore can discharge their obligation to the

consumer through the learned intermediary . Bor /ow to succeed in its claim they had to show that the knowledge of the doctor on the breast implants approximated that of the

manufacturer : the learned intermediary must be learned. ;at"2ee$ sas t"at t"is ase u$#ersores t"e Lear$e# I$terme#iar ru2e.

IRT7 CONTROL PILLS ARE E


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-inister, but never issued. 1ater, the -inister revoked the authori9ation calling for a study to be completed on the impact of the fishingin the area.

!ssue: Whether the -inister once authori9ing the granting of the licenses also had authority to revoke it.• +an the +omeau 4ea Bood company sue the crownminister'

+ecision: Appeal dismissed! -inister was acting under his power granted by s. L of the Fisheries Act .

Reasons: When making a decision on licensing the -inister must#. base his decision on relevant considerations. must avoid being arbitrary


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o This is an entity of statute, however, if you call her the -inister of 2ealth it will be treated as %ust being the (+rown*

Class:

• This case gives us principals and relevant consideration in the process of suing the crown

• "n tort the general rule is that torts can o$2 1e #o$e 1 i$#i%i#ua2s

• iarious Lia1i2it Testo "t is a two prong test

st part is control : who has control 0who is paying, who is in charge, is there a statutory control

• 2as to pass this test

-andate# does the employee have a mandate, has the organi9ation created a foreseeable risk in regards to theemployee&s mandate.

o Concept o! (icarious liability is when someone harms another while employed by a person. And that the employer put the

employee in that position to do that harm. )lein argued this that we are vicariously liable and that you should go after the Alberta government and not us.

• "dea of individual responsibility# People are the ones that hurt other people, even if they are cloaked in a government role.

• )1->1A+)WAT3M >+ +;6MT ;B APP3A1 B;M T23 1A B;M34T O"4"T

• IMPORTANT T7IN= TO TA;E OT O' T7IS CASE IS T7E IDEA O' ICARIOS LIAILIT AND SIN= AND NAMIN=ENTITIES AND PEOPLE

ust %. T"e Fuee$ i$ Ri&"t o! .C.( SCC )*+G+-( /&. 46+

Facts: Appellant and his daughter set out for a day of skiing at Whistler. While stopped in traffic a great boulder worked itself loosefrom the wooded slopes above the highway and came crashing down on the appellant&s car, killing his daughter and in%uring him. Appellant sued the +rown, lost at trial and appeal on the basis that this was a planningpolicy matter out of which no tort duty couldarise.!ssue: What is the legal obligation that should attach to the provincial government for its inspection of this remote and difficulthighway' When can statutory obligations be enforced by the individual'Ar&ume$ts: • The appellant argued that the provincial government failed to maintain the highway. 4pecifically they challenged#

• the manner in which the inspections were carried out, their frequency or infrequency

• how and when trees above the rock cut should have been inspected

• the manner in which the cutting and scaling operations should have been carried out

Deisio$: 4++ reversed the decision and ordered a new trial.

Reaso$s: +ory, D. 2ow do we normally establish a duty of care'

. Proximity : neighbor principle 0/onoghue v. 4tevenson$. "s there any reason not to find a duty' 0Anns +ase$

2ow does this case modify this test for government duty'• The same framework is employed to determine duty of care in cases involving the negligence of public officials.

• This case helps us understands what policies will limit government liability! there are different tests the court will employ.Therefore, to determine government duty you must determine#

. Proximity. Policy reasons which negate the duty, including#

- 4tatutes 0may exclude private liability for public conduct$- Po2i ? O/eratio$a2 Deisio$s# the nature of the actions or decisions that the plaintiff suggests has caused the

harm.o "f it is operational in nature then the required duty of care to individuals is thereo Policy decisions are not sub%ect to a private law duty of care.

o ;peration decisions are sub%ect to a private law duty of care. 0Therefore the government always argues that thenature of the decision was policy while the plaintiff argues that the decision was operational in nature.$

o 5ormally a policy decision involves the exercise of a discretionary power and is usually made at a higher level ofthe government or the department. 03.g. budgets, allocation, balancing, etc.$ "t is the nature of the decision andnot the person making it that is key.

o The distinction between operational decisions and policy decisions can be hard to establish.

o Bor a policy decision to be immune from tort scrutiny it must be bona !ide! that is it must be reasonable andrational 0it is a proper policy decision based on administrative law concepts$. "t is not enough for the governmentto show that it is a policy decision! it can still be attacked on the basis that it is not a proper policy decision.

"f you show that there is a duty the government may have a different standing because of its responsibility to govern.


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Pu12i La8 Pri%ate La8- Administrative 1aw- +onstitutional law- >ona fidesbad faith

- Tort → damages- +ontract

Covernment will be liable for any in%ury that could have been caused by another person as liable as the general public.

Covernment liability concerns itself with the special %obs that the government has. When will it be held liable in respect of those special %obs'When is a government A+T;M, using a government P;W3M, liable'=e$era2 /ri$i/2eH "f the decision is one of policy, it cannot be reviewed by the courts for negligence.

POLIC OPERATIONAL- Ca$$ot sue here.- no tort duties- decision guided by social, political or

economic considerations- is usually up the ladder

- Ca$ sue here.- tort duties- actioninaction product of administrative- directive, expertprofessional opinion,

standards- implementation of policy

Procedure for suing crown!• Proceedings against the Crown Act in Alberta

• Crown )iability Act federally.3ffect of the statutes is to permit suing of +rown as if it were an ordinary person.

• A fear of allowing tort actions against the +rown is the potential floodgate of actions that could arise.

Anns v. Merton London *oroug% Council) )*+,G-( 7L. >roadening of government liability.. Covernment can be liable for economic loss.


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I. "s the decision pure policy' 3conomic, social or political considerations'a$ "s the policy decision exercised bona !ide'b$ "f not, go to a traditional tort analysis.c$ "s the standard of care modified by budgetary restraints, availability of qualified personnelequip.

"f it is an operational decision, is the standard of care met 0same as 0c$ above$.

'rame8or@ !or 2oo@i$& at suit a&ai$st /u12i aut"oritH. /oes a public authority owe a private law duty of care to ∏'

#a% "s there a statute that says so'#b% -ore often, look at Anns test 0see p.I *ust%

0i$ "s there sufficient proximity'0ii$ "f so, are there any reasons to limit or negative the duty'

With respect to step of Anns!• Covernments owe duty of care to anyone using the roads. 4atisfies step of Anns.

• "f you own a building and there has been some sort of government inspection, this also satisfies step of Anns.With respect to step of Anns!. Ask whether the issue is of policy or operation'

1ook at rown


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The +ourt explained that public authorities may be exempt from the application of the traditional tort law duty of care if an explicitstatutory exemption from liability exists or if the decision is one of policy.

Whether or not a decision is characteri9ed as /o2i or o/eratio$a2 was said to rest on the nature of the decision, not on the actors?identity. +ourt stated, generally, decisions concerning budgetary allotments for departments or government agencies should beclassified as policy decisions, which may be open to challenge on the basis that they were not made in the bona fide exercise ofdiscretion.

"n considering the standard of care required of the government agency, the 4upreme +ourt of +anada reasoned that the manner andquality of the inspection system, being clearly part of the operational aspect of a governmental activity, should be assessed. Therequisite standard must be assessed in light of all the surrounding circumstances including budgetary restraints and the availability ofqualified personnel and equipment.

4++ ordered a new trial so that the necessary findings of fact on the issue of negligence could be made.Ratio: Covernment inspections 0frequency, how, when, manner$ were the product of an administrative decision, therefore areoperational and therefore sub%ect to a tort analysis 0is really quasipolicy, but still sub%ect to review$. /ecisions concerning budgetaryallotments for departments or government agencies should be classified as policy decisions, which may be open to challenge on thebasis that they were not made in the bona !ide exercise of discretion.

ro8$ %. ritis" Co2um1ia )Mi$ister o! Tra$s/ortatio$ ? 7i&"8as-( SCC )*++4-( SM /&. 3'ats: >rown hit black ice on a >.+. highway and was in%ured. Police on the scene of an earlier accident had requested the road besanded. The /eas Tower could not reach the worker who was on call to sand because they did not have his home phone number. Moadworkers were on a summer schedule.

Issue: -r. >rown alleges that the government was negligent on the basis that#. Cvt should have been on the winter schedule. 0Argument fails : it was a policy choice.$. -anner and the quality of the road inspection system are flawed. 0An operational argument.$

Deisio$: Appeal dismissed! the manner and the quality of the inspection were operational decisions and sub%ect to tort law scrutiny.Was a breach of the duty of care, but breach didn&t cause the accident.

Reaso$s: +ory, D. :• Bollows the framework laid out in *ust . The +rown contended that (it is under no obligation to repair the highway. "t contends

that +rown liability can only arise from acts of misfeasance and not of nonfeasance.* The court does not accept thissubmission! if you have a duty and the duty was breached it does not matter whether the breach was cause by an act or anomission. The ighway Act , M.4.>.+. QLQ does not negate +rown liability.

• The first ground of the complaint 0the decision as to run on the summer schedule$ was a policy decision. (This was a policydecision involving classic policy considerations of financial resources, personnel and, as well, significant negations withgovernment unions. "t was true a governmental decision involving social, political and economic factors.*

• Policy is not %ust about threshold decisions. (Policy decisions can be made by persons at all levels of authority.* Policydecisions cannot be %udged by the private law tort standard of reasonableness.

• The plaintiff claims that /eas Tower should have moved more expeditiously and that it was negligent for the Tower not to havethe home phone number of the oncall employee. The court finds that these are not reasonable practices by the department.This breaches the standard of care that should be expected from a government.

• Why is there no negligence in this case then' There is no factual causation here : it was lucky that the oncall employeeshowed up at work that morning. 3ven if the employee had been called he would not have arrived on the scene any earlier.

Ratio: The decision in *ust was applied to this case.

Comme$ts:• A complaint against a government entity must be very specifically drawn up so the court can determine if the decision in

question was a policy decision or an operational decision.

'rame8or@ !or 2oo@i$& at suit a&ai$st /u12i aut"oritH. /oes a public authority owe a private law duty of care to ∏'

#c% "s there a statute that says so'#d% -ore often, look at Anns test

0iii$ "s there sufficient proximity'0iv$ "f so, are there any reasons to limit or negative the duty'

With respect to step of Anns!• Covernments owe duty of care to anyone using the roads. 4atisfies step of Anns.

• "f you own a building and there has been some sort of government inspection, this also satisfies step of Anns.With respect to step of Anns!. Ask whether the issue is of policy or operation'


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I. +an there be policy within the operational area' 0 Anns, +amloops, rown, all seem to say so and are challengable if exercise doesnot seem to have been appropriate$.

H. P;1"+7# social. political, economic factors 0budget, personnel$, financialR. ;P3MAT";5A1 0same standard of care as individual$# practical implementation, expert or professional opinionL. Policy is open to challenge if# . 5;5 >;5A B"/3 N . "MMAT";5A1 0higher than unreasonableness$. -isfeasance vs. nonfeasance' "rrelevant from +amloops.

I$&2es %. Tut@a2u@ Co$strutio$ Lt#.( SCC )000-( SM /&. 44'ats: Toronto was being sued for negligent inspection. Appellant hired a contractor to renovate his basement. A permit was requiredprior to beginning the work but the contractor was able to convince the appellant to proceed without it. >y the time the permit was issuethe underpinnings had been completed, but were concealed by subsequent construction so that it was impossible to visually inspectthem. When the inspector arrived it was raining and the inspector relied on the word of contractor that the underpinnings were properlyconstructed. The appellant began to experience flooding in the basement shortly after the construction had been completed. "t wasdetermined that the underpinnings were completely inadequate and failed to meet the standard prescribed in the uilding code Act . The appellant sued the contractor and the city for negligence. The building code stipulates that#

. There has to be a satisfactory building inspection.. Their must be notice to the city before work is done on the underpinnings.


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Ratio: +onstitution is another way to attack government liability in a tort analysis.CLASS: +harter damages not often used : police misconduct may warrant such damages 0+riminal sphere$

"ndeterminate liability to an indeterminate class, for an indeterminate amount

A private law duty of care was owed by the police 0a prima facie duty$ : but there are policy reasons to negate such a duty : the

Police Act reinforced the prima facie duty. Police made a decision to not disclose info because they put the collective safety overindividual safety. 3ven so : says the court : there is still a duty to protect : operational, 0even there is still no duty to warn : policy$.The overall duty is still there even if one part of the duty is negated thru policy.

Police tried to argue 0thru s.$ that the courts should stay out of police business because it is a complicated business : and they

didn&t forward any evidence of such : so they were bound to lose 4. I : she received only general damages : no extra damages for +onstitutional breaches or rights : the court uses the torts

method of calculating damages 0this area of the law is still forming$. "n +harter damages should they be compensatory or shouldthey have an element of review or punishment for the breach 0a deterrentbased payment$' +onservative in this case : onlycompensated : no extra damages.

C;O3M5-35T 1"A>"1"T7. "f there is a statutory exemption +rown is not liable 0look at this first$. 6se the Anns test for tubal ligation to prevent subsequent pregnancy0s$. Procedure failed and ) had a third child, unplanned. ) sueddoctor for wrongful birth. Parents were in the middle of a divorce.• 3conomic, third party claims!ssue: What, if any, damages should be awarded'Holding: +ourt found the doctor was negligent in performing the procedure. )s were awarded general damages for pregnancy, labour,delivery and necessity for the second tubal ligation. )s 02 U W$ also awarded for loss of income during pregnancy 0W$ and postdelivery 02$. 5o award was given for cost of raising third child. +ourt takes a K2imite# #ama&es> a//roa". Awarded JIK) : physicaldiscomfort, general damages for going thru the unwanted pregnancy, damages for the actual birth, time off work for the husband,Possi12e C2aims: failure to warn, sue the manufacturers for the clip, faulty treatment, the child can make a wrongful life claim,Reasoning:This is a claim for purely economic loss because no in%uries incurred. With respect to this claim 0and others$, the 3 a//roa"es takenby the courts in assessing damages are#

#i% Restitutio$tota2 reo%er.

-VPro& of this is its consistency. Parents are put into their original positions.

- V+ons&- Policy arguments# mitigation, floodgates, loving vs. disparaging parent, straineffect on child 0applies at outset for

whatever types of damages andor claims that are initiated$,#ii% O!!set 1e$e!it# 3otal reco(ery o!!set with the bene!it o! ha(ing a child.

- +hildren per se give benefit to children- Pat says Voffset benefit& has similar aspects as Vrestitution& except that the quantification is more difficult. The benefit is an

unquantifiable aspect of having a child.#iii% Limite# #ama&es#

• Public Policy comes into play here

o 4ndesirability o! ha(ing the child !ind out that a court determined that there birth was unwanted

o No 555 !or lo(ing mothers, but !or moms who don6t li"e there children and re7ect them would recei(e damages

o Physicians would be encouraged to per!orm more late term abortions to a(oid liability

o

• Mecovery for unplanned pregnancy but not the unplanned birth and child.• +ourt talks about /u12i /o2i:

o 3here is no public policy in Canada that re8uires people to or pre(ents them !rom ha(ing children

o 3here is no public policy that sets a cap on the number o! "ids you can ha(e

o 9eproducti(e ability is an indi(idual right and that is the policy in Canada

o Children in Canada are percei(ed as being a bene!it court substantiates this claim by loo"ing at wrong!ul

death legislation

• PA=E +G: 7o8 ourt a//roa"es t"ese ases:o 3otal 9eco(ery approach: court parallels this with economic loss

o Court !ocuses on loss incurred to her and does not go beyond the end o! the pregnancy

o Court loo"s at reasons !or tubal ligation

• 3he plainti!! on a balance o! probabilities has to pro(e economic reasons !or not wanting child


12/58

• Court 1ri$&s i$ $otio$ o! i$uro irth o! healthy child is not an in7ury

• PA=E 30:o Court 8uestions why they did not abort the baby

o ad they been more reasonable parents they would ha(e ta"en steps to e2tinguish the issue be!ore it became

this big o! a problemo Page ;< =c> =)i!e is about choices??> some o! the worst legal reasoning you will e(er see

CLASS: Esse$tia22 t"ree t/es o! K8ro$&!u2 1irt"> ases:

0i$ Wrongful birth#• Parents are plaintiffs

• +an be a planned pregnancy

• Tort arises out of some negligence through the course of the pregnancy

• Parents give birth to a child with disabilities, doctor should have told parents about defects, with parents bringingclaim.

0ii$ Wrongful life# 4imilar to above, but with child bringing action.• Plaintiff is the infant

• +ases arise from failed abortions, or failed sterili9ation

• Also have begun to arise out of failed genetic screening usually here the child is born disfigured or damaged

in some way and is suing for being alive0iii$ Wrongful pregnancy#

• Wrong permitted /reo$e/tio$

• Bailed vasectomy, or tubal ligation

• +hild does not need to have defects, but pregnancy has to be unplanned

• +ealey . ;ptional procedure therefore the duty to warn is higher

The woman will get the costs to have a second operation and fix the problem. Also got costs associated with the pregnancy. >ut

what about the costs for the child' +ourts don&t want to get into the value of life : wrongful life suits. +ourts have a great reluctance for giving damages for a wrongful

life suits. The mother or parents will usually claim for the damages of the birth of the child and the costs of the child.

2ere, the allegation is that we had decided to limit the si9e of the family and now we have another child and this creates costs for

us. They want the costs of care for their child. These are costs that weren&t anticipated and foreseeable costs as a result of a failedsterili9ation. To break the chain the doctor would argue the mitigation argument is that (you had choices* : your decision tocontinue the pregnancy would cause the birth of the child. "t makes sense theoretically but would not enforce such a principle and %udge people&s personal decisions re# abortion etc. factually it works but it&s not the type of mitigation the court requires in suchcircumstances.

6ses a proximate cause analysis to limit damages. ;nly costs associated with the unwanted pregnancy will be compensable.

There is still hesitation to award damages for the costs of raising the child. +haracteri9ation of the loss : analogous to one of pure economic loss.

< troublesome areas of the law : wrongful birth, economic loss, and nervous shock

+osts of future care : need a physical in%ury. Without an in%ury the costs are analogous to economic loss. The costs to raising a

healthy child cannot be awarded in damages 0costs of future care$. Where the child is born with physical in%uries the court will award damages for the costs of in%uries. 2ad this child been born with

cerebral palsy the court would have awarded damages. 1ife isn&t an in%ury The law protects certain interests over others. 3conomic loss is not protected as much in torts when compared with physical in%ury

0which has a very high protection$. "f you find out that your child has a physical in%ury at < yrs old you can&t go back to court : all about finality of %udgment.

4. Ne&2i&e$t I$!2itio$ o! Ner%ous S"o@

)athleen says that courts are treading lightly on this topic. 4ome %udges believe that mental illness is really suspect : it is not as vague as it once was but still the acceptance of

mental in%ury has been slow by the courts. +ourts have developed restrictions on nervous shock recovery# ok where there is a recogni9able mental illness psychiatric

damage as well as reasonable foreseeability of this type of harm 0geographic, temporal, relational proximity$. +an&t get damagesfor grief, disappointment, sorrow, distress, emotional reactions bc it&s common, not an ob%ective criteria, reactions would differamong people, because people are going to die anyway.

4heila says : claim that someone is gone is different from grief from a death.

Where do you draw the line between grief and depression'

Worry is not a significant enough psychological impairment to warrant damage. 0Oanek$

The psychiatric illness in question must be ties to the negligent act in question. "t must be a foreseeable consequence of the

negligent conduct. 0think of when you witness or come across an accident$


13/58

3rieving t%e deat% vs. ,ervous s%oc o' t%e deat%

+an&t see it, can&t measure it, you can fake it@

The Oietnam War may have been the start of a change in courts : an acknowledgement of Posttraumatic stress disorder.

"t&s not %ust reasonably foreseeable

Bramework for intentional torts. The test is#

. e!ore: o$e o! #a$&er ru2e: 8"ere ou 8ere 1ei$& "urt( if you are in the 9one where you could have beenin%ured, you can use it to claim nervous shock.

. /uring# in the 9one : where you could be hurt, As long as a reaso$a12e /erso$ in the circumstances would sufferthe same damage


14/58

. re2atio$a2 /roximit, or the closeness of the relationship between the plaintiff and the victim!. 2oatio$a2 /roximit, or being at the scene observing the shocking event! and


15/58

Reasoning:

• The parents did not see her consume the %uice, they were not in the immediate vicinity to see it

• The swallowing %uice did not cause too much discomfort to the child

• 3veryone did the right thing, the school handled it correctly

• When the parents came to the school there was %ust an ordinary scene : there was no mayhem, the daughter was acting normal.

• There response was that of a normal parent : there was no sign of nervous shock in the office

• At the hospital she was given a check up and the doctor even said she had a clean bill of health

• 1astly she went back to school the next day

• T"ere 8as $o imme#iate a!termat"

• 2ealth and Welfare +anada came back and said that there was very likely no chance of long term effects.

• There is no duty of care breached

Class:

!. Eo$omi Losses

6sually done by contract law or ppty law, not by tort law

3conomic loss : When you&ve lost money that is not tied to your body or ppty

>asic principle : restore to their original position : and not more than that 0not the interest$

"n a contract you would have a chance of getting the additional interest 0you can be brought to the level of your promise : to the

level of your expectations$ 1oss in value of ppty,

/onahue v. 4tevenson : don&t apply to economic losses

'i%e t/es o! Eo$omi Losses:. A statement made that was relied upon but was negligently made but caused the loss.

A statement can be an omission to tell

. 5egligent performance of service e.g. building inspectors, doctors, lawyers, architects These categories may overlapcrossover


16/58

. 4peaking of economic loss.M3A+2 part.c$ reliance → reasonable only

d$ actual loss → caused by the reliance

a- To esta12is" #ut#Person knows is being trusted for the info., or skill%udgment are being relied on, can#a$ keep silent and decline to answer 0no duty$.b$ answer, but qualify the answer by saying aren&t responsible 0no duty$.c$ answer without qualifications 0duty$ 0have special relationship$.

• "s there a context of trust'

• /on&t need to ask for statement, could be a seminar.

1- To esta12is" reaso$a12e re2ia$e:+onsider situation where comment was made 0social or business$! skill of person making statement! relative skill of person receivinginfo.• +ourts play at this step, can completely negate liability or go to contributory negligent.

• Meliance on opinion can be reasonable if person is respected, etc.

- To esta12is" ausatio$:4how that person would have done something different with different information.4how that reliance caused the loss.

Class:

• 5egligent statement F economic harm

• >efore this case Tort did not recogni9e that statements merely negligently made are accessible to tort action

• A duty of care in negligence can be created when the representation was made in a professional representation : 1ord Pierce

• A duty of care would arise if the arrangement was equivalent to a ) : 1ord /evlin

• Measonable Meliance# "f there is Measonable Meliance bw the maker of the statement and the receiver of the statement you maybe able to find a duty : 1ord Meid

• "rrespective of contract that there can be a duty to be careful, in regards to statements, if you know that another person will rely onyour %udgment and skill : 1ord -orris

Fletc%er v. Manitoba ublic !ns. Cor.( )*++0-( S.C.C.( SM /&. 6Facts: Bletcher asked for maximum insurance coverage on an auto policy. Cot maximum liability coverage but not under or uninsuredmotorist coverage 06-+$. Was not told about it and also on renewal form said that this coverage was not applicable. Cot in an accidentwith an underinsured motorist, got JHKK,KKK back but shortfall of JKK,KKK 0wife was rendered quadriplegic$.!ssue: /id the / have a duty to tell P of all the options' 734

What is the duty of care to a person working in the insurance business for the government, where they have a monopoly, ofinforming the user of the policy.

Reasoning:*. Appellate courts should overturn trial %udge finding of 'ACT only when the Dudge has made a /a2/a12e a$# o%erri#i$& error

8"i" a!!ete# "is assessme$t o! t"e !ats. B 1asia22 a22i$& t"e &u a 2iar • 3he &CC said the appeal court was wrong and that the CA has no reason to go bac" and burrow through the !acts o! the trial

. Bailure to speak 0to disclose information$ can give rise to liability in negligence if#a$ there is a voluntary assumption of that responsibility by one person.b$ there is reliance on that assumption by the other .

3. edley yrne applies to establish a duty of care if#

• 3his case tells us that you can be negligent when you !ail to tell the employeea$ customers rely on the information.b$ the reliance is reasonable.

• t was reasonable !or him to rely in the in!o gi(en. Few people approaching the insurer "now the law, the speci!ic

policies, nor the types o! the insurance they need to protect there property c$ Was it foreseeable that the man would rely on the insurer

• 3he go(ernment cannot assume that customers will not rely on the in!o. And the reliance was e2pected

4. 4cope of private insurers duty, should it be the same as a private company#0a$ to provide both information and advice and

• it is a di!!erent "ettle o! !ish when you6re the go(ernment $ the standard is not the same !or the go(ernment. When

you ha(e a pri(ate insurer the parallel can be drawn to a doctor patient relationship. 3here is a higher scope o! duty!rom pri(ate than !rom go(ernment.


17/58

o *ut t%e court still says t%at t%e govern$ent never $ade t%e scoe o' t%ere duty b8c t%e insurer

s%ould %ave told t%e$ #%at #as going on and #%at t%e olicy entailed.0b$ to provide the insurance coverage bargained for, and if that is not available, to explain the gaps.

. 4cope of public insurers duty# not as stringent, are not specialists in insurance. -erely to inform the customer of all the options ofcoverage available. "dea is that a private insurer would be more personali9ed and special, as opposed to this government insurer.

6. Contra pro!erentem rule of construction# ambiguous terms of a contract of insurance are resolved in favor of the insured.,. +ausation clear here. 2ad the person bought the extra insurance, would not have suffered the loss.Ratio: "f someone who possess a special skill, undertakes, irrespective of contract, to apply that skill for the assistance of another who relies

on this skill, a duty of care will arise 0don?t need to be a professional by degree all they need to do is to hold they areprofessionals even if they aren?t$. Measonable reliance is essential

4ilence can also amount to a negligent mistake"n a private insurance company have a higher duty than public insurance but public insurance still has a duty."s the standard you receive the same as what a reasonable person would expect in the context of government insurance.Test:

. Meliance on the info : doing or not doing an action to your detriment. Meliance determines when there is and isn&t a dutyof care.

. "t was reasonable for them to rely on the info


18/58

respondent breached the standard of care of a reasonable person by making the representations he did during the interview. Theemployment contract signed by the appellant did not affect his claim for negligent misrepresentation, because the representationscomplained of were not dealt with in the contract. The contract did not state that the position offered during the interview might not beavailable.Ratio: 4pecial relationship includes fiduciary 3mployeremployee.

When defendant makes statement, it is not sufficient to be merely honest, ∆ must use reasonable care not to say unfounded

statements. They didn?t. 1ist of issues to take into account to determine 4tandard of +are and negligence, nature of occasion, purpose for which statement

made, foreseeable use to be made of statement, probable damage to result from inaccurate statement, status of the advisor, level ofcompetence generally observed by others similarly placed.Reuire# e2eme$ts !or a #ut o! are )/.4*,-:

$ there must be a duty of care based on a special relationship between the speaker and the listener $ representation must be untrue, inaccurate, false or misleading : a misstatement


19/58

)- Meliance losses claimed by P result from using the statement in a manner it was intended to be used 0information cannot betaken out of context$.

I. "n cases where the / knows the identity of the P 0or class of P$ and where the /&s statements are used for the purpose ortransaction for which they were made, policy considerations surrounding indeterminate liability will not be of any concern since thescope of liability can readily be circumscribed. "f not met then won&t be liable because the duty of care will be negated.

H. Purpose of auditors reports# to assist collectivity of shareholders in their task of overseeing management 0not to help people whowant to make personal investment decisions$

CLASS: W"at 8e "a%e see$ is tort 2a8 is a%ai2a12e !or 2osses 1ut ourts are $er%ous a1out it 1 o! t"e i$#etermi$a o!

so/e( 2ass( a$# #ama&es.o ;at"2ee$ sas t"at i! t"e a$$ot !i$# a met"o#o2o&ia22 %ia12e 8a o! so2%i$& t"e /ro12em t"e$ t"e a$s8er

to t"e seo$# /art o! t"e ANNS test 8i22 1e 7ELLA NO

0$ 2ercules case and 0$ limited liability partnership stopped further liability

1aBorest# duty of care analysis for personal in%ury is the same as the duty of care for economic loss.

Policy reasons negate the duty of care : indeterminate liability to an indeterminate class for an indeterminate amount. Too much

liability is not socially valuable or desirable. Court 2oo@s at /ur/ose o! t"e au#it assist s"are"o2#ers i$ o%erseei$& t"e ma$a&i$& o! t"e om/a$.

o 3hey lose on the !irst ground b-c the purpose o! the audit is not !or in(estment ad(ice

I$ re&ar#s to t"e 2oss o! s"ares t"e /2ai$ti!! sas t"e re2ie# o$ t"e au#it to #etermi$e t"e %a2ue o! t"ere s"ares( a$# t"e

seo$# ar&ume$t 8as t"at t"e re2ie# o$ t"e au#it to o%ersee t"e ma$a&eme$t. 7a# t"e au#it to2# t"em t"e !i$a$ia2 /eri2t"e om/a$ 8as i$ t"e ou2# "a%e ats

o Court said there was a !law the argument that goes bac" to purpose. Court agreed that the purpose stated by the

appellant was correct $ but the shareholders here are indi(iduals claiming there own loss. And the audit is made not!or the purpose o! aiding indi(iduals but made !or aiding the whole group o! shareholders.

As a general rule we will negati9e liability in this case because of policy reasons. "t would be an exception to allow a party 0audited

statements$ to be liable in such a case. The social costs outweigh the benefit we would get from better audit reports. 4ee para I page I

TEST ECONOMIC LOSS. 4pecial Melationship. Melationship of Meliance

/efendanta$ Boreseen reliance by P andb$ Was the P reasonable in relying on these statements'


20/58

• didn?t know the class of plaintiffs or the plaintiff himself so class is indeterminate

• no knowledge of what was in the envelope. 5; reliance• situation of risk had nothing to do with the courier risk was separate and apart from


21/58

A response to indeterminate time → it is difficult over long periods of time to attribute problems to negligence or wearandtear.

A response to indeterminate amount → the amount awarded will be only to put the 0building$ into a reasonable state of repair,back into a safe place.

"f you purchased from the vendor, you might be able to sue for more than bare minimums if that was the level ofcraftsmanship and materials used. "f you purchased after original owner, the return to Vreasonable state& will apply.

A response to indeterminate class of people → the class will be only those persons living in the building or who will live in thebuilding 0still pretty large group$.

• 5ow in Alberta with respect to limitation periods, for pure economic loss, you will have years from date of discovery ;M K years from the date the action arose 0"3. The construction of the building$.

• When will a building constitute enough of a danger for actions for economic loss to arise 'When it poses a real and substantial danger to occupants.

• What costs will be recoverable'Those that are required to put the building back into a reasonable and safe state.

• What about nondangerous defects'1eft by the court for another day. 5o answer giver here.

• This would apply to chattels as well 0the barge in 9i(tow%.

• This takes the dissent in Mivtow and makes it law Relational Losses

• Party is third party but seeks to attain damages for economic loss from an incident bw X U 7

+@A$ato v. *adger( )*++6-( C.C.L.T. SM: 36Facts: P was in a car accident and severely in%ured. 2e was part owner of a body shop and continued to work after the accident, but

could no longer do physical labor, only paperwork. +ontinued to be paid at his old salary, but body shop had to hire someone else to dothe work that he normally did. >ody shop is now suing for economic loss and the P is suing for loss on earning capacity.!ssue: +an P claim relational economic loss' 5;, the relationship is a contractual one.Reasoning: Applying Ann6s test to relational economic loss 0used by -ac1aughlin D$

4tep → the loss was not foreseeable : no proximity. 5o relationship between tortfeasor and company.

4tep →policy reasons# )La'orest - POLIC riteria

• no deterrence already liability for the physical loss

• if there is a contract there is a remedy already 0damages$

• indeterminacy too many will recover due to relationship with the plaintiff 888Le!t t"e #oor o/e$ when these < elements are not there may be a chance to recover for relational economic losses 0right now

there is no case that was successful in this area$.Principles#. Pure 3conomic 1oss# loss suffered by an individual that is not accompanied by physical in%ury or property damage.1aBorest lists five situations that allow for recovery in economic cases#

$ "ndependent 1iability of 4tatutory Public Authority 0C;O$$ 5egligent -isrepresentation


22/58


23/58

2ere EF was direct contactnot highly technicalno need for expert supervisor$4. Causatio$: yes, both by sub%ective and ob%ective test. 'au2t a22oatio$

EF equally liable 0both knew same things$6. Dut to 8ar$ to I a$# 7OOL 0here we have economic relational loss$like in 2osk and /?Amato economic loss relation not

allowed in 3ngland but in +anada still possibleRLE: for relational losses# %oint venture EF may be successful88very important, pg. IH ;nly in special circumstances but categories are not closed#

. possessory or proprietary interests. average cases


24/58

o We relied on &*&) and 9aychem

• Court sai# e%ero$e re2ies o$ t"e /ro#ut 1ei$& sa!e.o 3he duty to warn is limited and there!ore the class to whom the duty was owed is also limited

• Ar&ume$t is iru2ar t"ro8 A$$>s out t"e 8i$#o8( 8e are i$ t"e seo$# /art o! A$$>s a$# t"is

ar&ume$t re2ie# o$ t"e !irst /art o! t"e test.

RELATIONAL ECONOMIC LOSSES:•

Co$$ents: Pure economic loss 0a tort$ vs. contractual loss 0in contract$

The parties to contract took great care to manage risk, to allocate risk in a contract in two ways#

. Warranties : the supplier makes promises that a product will perform in a certain way. 1imitation clauses

)ey to liability of Maychem was the flammability of Thermaclad. >O2> told 4D41 to purchase Thermaclad. 3veryone knew it was

flammable but the configurations were different on a rig, in which it should not burn. Who should have known about theflammability' Who should take responsibility for the fire damage. >O2> did not know the extent of the risk, 4D41 0who knew aboutthe flammability$ did not tell >O2> about the risk. Maychem and 4D41 had duties to warn and breached this duty. >ecause of thisfailure to warn there was causation : using either an ob%ective standard 0a reasonable person would not have gone ahead with theoperations$ or sub%ective standard 0>O2> would not have gone ahead with operations if they had known of the dangers$. "t isforeseeable that damage will be caused to a party who leases the rig such as 2usky. The way to discharge the duty to 2;;1 is bywarning >O2>.

Allocation of fault# RKS >O2>, IKS Maychem. 2;;1 and >O" got nothing because their losses were purely economic and there

was no ppty damage. The exclusion clause didn&t cover negligence : the negligent failure to warn! therefore Maychem isn&t protected. "n tort there is no

contract to consider : only duty relationships. The liability between >O2> and 4D41 wasn&t a contractual failure : a tort failure towarn.

+ontract trumping tort 0para I$

o "t does trump tort if the specific tort is dealt with in the contract. 1earned intermediary : in cases of highly technical products.

Para HHHR, H, HQ

3xceptions to the general rule 0para I$#

Coo/er %. 7o1art 00*( SCC ,+

-ortgage >rokers Act. 3vidence of rogue mortgage broker. Megulatory body doesn&t take steps to discipline the guy or expel him fromthe society. The investors lose money. Action against the mortgage broker : your failure to regulate caused me economic loss. "f you&ddone your %ob this never would have happened. Bailure of enforcement.

E#8ar#s %. La8 Soiet o! //er A21erta 00*( SCC G0

1egislatures give money to the law society to regulate behaviour of lawyers. 1awyer involved in fraud, no action taken against thelawyer. People who invested money with the lawyer lost money because of the fraud.

>oth cases : Action denied : no sufficient foreseeability by the regulatory body.

E. T"e Re2e%a$e o! t"e P2ai$ti!!s Co$#ut

Plaintiff must show standard of care has not been met and that this defendant did not do something that a reasonable person would

have done. -ust establish damages, and that damages were caused by the defendant&s standard of care 0factual element : causeand effect, and there was proximate cause.$E Tort of negligence has been made out

/efendant has a full range of defences. The defendant doesn&t have to raise these defences to win. When he raises a defence, thedefendant must prove the presence or absence of contributory negligence.

De!e$es a%ai2a12e to t"e tort o! $e&2i&e$e: Co$tri1utor $e&2i&e$e# can&t sue because you partially caused the loss

o2u$tar assum/tio$ o! ris@# can&t sue bc you voluntarily assumed the risk

I22e&a2it o! o$#ut# " know " have a danger in my living room but because you broke into my house : an illegal act : this negates

my negligence responsibility Ex2usio$ 2auses# defendant has breached the duty of care but the defendant says that this risk was excluded through a contract

waiving your legal rights to sue Miti&atio$ o! #ama&es# didn&t take reasonable steps to minimi9e the extent of your damages, mitigation is a postdamage concept

*. Co$tri1utor Ne&2i&e$e


25/58

Contributory ,egligence Act( SM /&. 0* Bault of two or more persons contributed to the damage caused. 1iability is proportioned to each according to their relative fault.

A plaintiff has a duty to themselves.

The onus of claiming contributory negligence is on the defendant 0because it is a defense$.

Dointly liable# both defendants are liable

4everably 1iable# plaintiff can severe one party and go after one for all of the money and then let the two defendants can fight it out

*utter'ield v. Forrester( )*G0+-( ;.. C:Facts: /efendant left a pole across the road. Plaintiff was riding his horse very quickly at dusk. The horse ran into the pole and the

plaintiff was in%ured. 1eft the tavern, but not drunk.Reasoning: A reasonable driver would have seen the pole and taken evasive action. A prudent driver would not have suffered thisdamage. The defendant has not been prudent, the pole shouldn&t be over the public highway at dusk.Ratio: 5o claim can be made against the defendant because the plaintiff was negligent and could have prevented the in%ury by beingprudent. A plaintiff should use reasonable care to avoid in%ury due to the defendant&s actions. Any amount of contributory negligence on the part of the plaintiff is an absolute bar to recovery.

CLASS: 2arsh rule# but the court believes that this will deter careless conduct by plaintiffs. There is no proportionality : all or nothing.

+avies v. Mann ( )*G4-( E.R. L.. C:Facts: The plaintiff had left his donkey, with its feet fettered, on a highway. The defendant negligently drove his horses and wagonagainst the donkey and killed it.Reasoning: +ourt found that although there may have been negligence on the part of the plaintiff, unless the plaintiff might haveavoided the consequences of the defendant?s negligence by the exercise of ordinary care, the plaintiff is entitled to recover. Also heldthe %ury was properly directed that the plaintiff?s negligence in leaving his fettered donkey on the highway was no answer to the action,unless the donkey?s presence there was the immediate cause of the in%ury.Holding: A reasonable person should have avoiding running over the donkey.Ratio: 1ast clear chance doctrine. 3ven if plaintiff is contributory negligent, if the defendant had the last clear chance to avoid the loss,the defendant will be liable.Class:: Today&s Contributory Negligence Act • /efendant had 2ast "a$e to avoid the A44

• This was a step in the right direction at least took the plaintiff off the hook for being negligent

• "t is not an apportionment decision

• 1ast chance helps out plaintiffs but it does not help the /efendant

+ontributory 5egligence Act Alta&s +A : determine degree of fault of the plaintiff on one hand and defendants on the other. The court would then determine the

degree of fault between the defendants. "f you can&t collect from / 0bankrupt$, and they are %ointly and severally liable, / is liable

for the entire proportion of the defendants. Plaintiff is not %ointly and severable liable. This is not affected by the plaintiff beingcontributory negligent.

+ontribution and indemnity# when one of the defendants pays the plainitff&s damages and then seeks the required amount from the

second defendant 0because they are %ointly and severably liable.$ JKK damages, P is KS contributory negligent, / is KS, / is LKS.

La11ee %. Peters SM: 36*

7o2#i$ 9ero deduction in this case. 1ook to experts in accident reconstruction.

+ause of death was the absence of the seatbelt. The defendant argues that the plaintiff breached the standard of care he owed to

himself. The defendants can&t establish factual causation. The burden of proof is on the defendant : if he had been wearing the seatbelt on

the balance of probabilities he would have died anyways.

=a2as@e %. O>Do$$e2 C: 3+6 Bailed to require the child to wear the seatbelt.

IK : the extent of the duty owed by a driver to a child will vary with the circumstances although the duty will always exist the

extent of it will vary indefinitely. 5o fault of the driver

4afety of the child comes first, the driver has a duty as well.

+hild is suing for the in%uries suffered

Reasons: +ourts held that when the father was there the driver was entitled to rely on that

Talks about general duty of drivers to assure wearing seatbelts

• /enning says that it is so foreseeable that you will be in%ured if you don&t wear a seatbelt


26/58

• People owe themselves a duty to wear seatbelt

• T"e sta$#ar# is mu" "i&"er 1 o! statute $o8 /oes the dri(er owe a duty

• There is a duty on a driver to ensure that passengers wear seatbelts. 3specially kids bc they rely on the guidance ofadults

/uty negated by the parent

• The presence of parent does not negate the duty on the driver

• /river is control of the car if the parent is present or not 3he e2tent o! the duty o! the dri(er

• 3xtent is a matter of fact

• "s it enough that the driver says to the parent that the child should be buckled up, does the age matter' +ourt says that a mere reminder may suffice, or in dealing with a young child a driver may have to put on the

seatbelt himself.Class:

. Assum/tio$ o! Ris@

Dolenti non !it in7uria#a$ >urden of proof is on the ∆ to show that ∏ expressly or by necessary implication, agreed to exempt the ∆ from liability.

b$ ∆ must show that the whole risk was voluntarily incurred by the ∏.

c$ Dolenti will arise only where the circumstances clearly show that the ∏, knowing of the virtually certain risk of harm, in

essence bargained away his right to sue for in%uries incurred as a result of any negligence on the ∆&s part.d$ is restrictively construed.e$ 4howing that the ∏ (took a chance* is not enough

- +ome up often in (/runk driving willingness of passenger cases*

Ha$bley v. S%eley C*: 76 Facts:+ops in chase, cop got hurt!ssue:/id the officer, voluntarily assume risk#' 2e assumed some risk but not the risk of a negligent driver

Ratio:7ou have to explicitly give up the right to sue

Crocer v. Sundance ,ort%#est Resorts Ltd. ( )*+GG-( S.C.C. SMFacts: The defendant, 4, as a promotion for its ski resort, held a competition involving twoperson teams in oversi9ed inner tubessliding down a mogulled portion of a steep hill. The plaintiff, +, entered the competition, signed the entry and waiver

form without reading it, and paid the entry fee. /uring the second heat of the competition, + suffered a neck in%ury that rendered him aquadriplegic. + was visibly drunk at the start of the second heat and had suffered a cut above his eye in the first heat. The owner of 4had asked + if + was in any condition to compete in the second heat but did nothing to dissuade him from continuing. The managerhad suggested that + not continue but took no steps to enforce this.+ successfully sued in tort but was found H per cent contributorily negligent. The +ourt of Appeal overturned the trial %udge?s findingsof 4?s liability. The issue before the 4upreme +ourt of +anada was whether 4 had a positive duty to take steps to prevent a visiblyintoxicated person from competing. The 4upreme +ourt of +anada allowed the appeal, finding that 4 owed, and had breached, thisduty.Reasoning: The 4upreme +ourt of +anada determined that, generally, where a person is in%ured in a sporting accident the law doesnot hold anyone responsible. 2ere, however, the +ourt noted that the situation was not a =runofthemill= sports accident. A ski resortthat promotes a highly dangerous sport and runs a competition for profit was said to owe a duty of care towards visibly intoxicatedpatrons to take all reasonable steps to prevent them from participating."t was found that 4 did not discharge that duty. The +ourt noted that while it may be acceptable for a ski resort to allow or encouragesober individuals to participate in dangerous recreational activities, it was unacceptable for 4 to open its dangerous competition toobviously incapacitated persons. "n%ury to + was clearly foreseeable and, furthermore, 4 had had numerous options to dissuade + from

competing, which did not impose a serious burden on the resort.Ratio: +ontractual waiver must be pointed out, read and understood.

B. !llegality o' t%e lainti''>s Conduct

Hall v. Hebert( )*++3-( S.C.C.( C /&. 4*0Facts: The owner of a vehicle and his passenger, both impaired, were travelling in the dark, on a gravel road, one side of which slopedsharply away to a gravel pit. The vehicle stalled, and the passenger asked to rollstart the car. The owner agreed, knowing thedifficulties of handling and rollstarting the car and being aware that the passenger had consumed beer that evening. The passengerlost control of the car and it overturned into the gravel pit. The passenger suffered significant head in%uries and sued the owner fornegligence.


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The tria2 u#&e held the owner negligent in letting the passenger drive, but found the passenger H per cent liable. The Court o!A//ea2 allowed the appeal on the ground that the owner owed no duty of care to the passenger, and further, that the doctrine ofillegality applied. The 4upreme +ourt of +anada allowed the passenger?s appeal and found him HK per cent contributory negligent.Reasoning: The 4upreme +ourt of +anada held that recovery in tort should only be barred due to the plaintiffs immoral or illegalconduct in very limited circumstances. The power to bar recovery lies in the courts? duty to preserve the integrity of the legal system,and thus is exercisable only where a damages award would, in effect, allow a person to profit through a direct pecuniary reward fromillegal or wrongful conduct, or permit an evasion of a penalty prescribed by the criminal law. As a general rule, it was explained, the illegality principle will not operate to deny damages for personal in%ury, since tort suits aregenerally based on claims for compensation. +ompensatory damages, which compensate for personal in%uries rather than for an illegalact, only put the plaintiff in the position he or she would have been in had the tort not occurred. These awards, the +ourt continued,cannot be said to be the profit of, or the windfall from, an illegal act.The 4upreme +ourt of +anada decided that this passenger need not be denied recovery since he did not genuinely seek to profit fromhis illegal conduct, and the claimed compensation was not an evasion of a criminal sanction. "nstead, the compensation sought by thepassenger was for in%uries suffered. "t was reduced by the extent of his contributory negligence, but not wholly denied by reason of hisdisreputable or criminal conduct.Ratio: +ompensation does not come from the character of the conduct 0illegal or not$ but from the damage caused to him by thenegligent act of another.To have a successful illegality defense#• must have negligence

• must owe a duty of care

• must not profit from the crime

• in%ury must be separate and apartCLASS:. The doctrine of e2 turpi causa non oritur actio is applied only to preserve the internal consistency of the law. Therefore, is applied

only when tort law would result in plaintiff!0a$ profiting 0being rewarded financially for an act of wrongdoing$ from an illegal act, or 0b$ evading a penalty prescribed by criminal law. "n essence, can&t have recovery for what is illegal.

. +ompensation does not come from the character of the conduct 0illegal or not$ but from the damaged caused to ∏ by the negligentact of another.

- The principle allows the court to disallow compensation for the ∏&s own illegal conduct.- This defence still exists but in limited circumstances.- "f seeking exemplary or punitive damages 0which are in place to penali9e$, then e2 turpi applies.- A third kind of damage is Vloss of income from an illegal activity&. 4ay you&re running a crack house, e2 turpi applies → you will not

be compensated for whatever reason.- With respect to when e2 turpi will apply, there was a fairly recent Alta. +.A. case which held that it must be a +riminal +ode case

for turpi to apply.

4. Ex2usio$ C2auses

Waiver clause will operate when#a$ covers precisely the type of negligence which occurred.b$ attention is drawn to its contents.c$ participant understood the clause.d$ participant voluntarily agreed to take part in the activity, ande$ party seeking to rely on it did not exert pressure 0they had equal bargaining power$.

+yc v. Manitoba Sno#$obile( )*+G-( S.C.C.( SM /&. 3Facts: ∏ was participant in a snowmobile race. 2e was a member of the association and was familiar with the rules. The signal

person stepped in front of the snowmobile negligently and caused an accident that in%ured the ∏. ∏ had signed a waiver that releasedthe association from any negligence before the race and knew exactly what it said.!ssue: Was the exemption clause valid' 734Reasoning: Waiver clause will operate when#

a$ covers precisely the type of negligence which occurred.

b$ waiver is reasonable 0the breach is not fundamental, not the very reason you entered into the contract$c$ attention is drawn to its contents.d$ participant understood the clause.e$ participant voluntarily agreed to take part in the activity, andf$ party seeking to rely on it did not exert pressure 0they had equal bargaining power$.

- Attempt to get to fundamental breach to negate the waiver did not work because covered precisely the kind of negligence whichoccurred.

Arguments for ∆#

- +lause does not apply to particular situation.- An unequal bargaining power existed.- 6nreasonableness of the waiver.


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- The clause was written in form of indemnity and not release. "n a true indemnity clause, /yck was agreeing that if he causeddamage he would indemnify the association.

Ratio: Bundamental breach to negate the waiver won&t work if it covers precisely the kind of negligence which occurred.CLASS:No(us actus (s. mitigationE

- No(us actus → a Vcommission&

- -itigation → an Vomission& or failure to perform.2ow does mitigation and contributory negligence fit together'

- -itigation deals with post in%ury conduct.-

+ontributory negligence deals with prein%ury negligence. only case of waiver to be successful

Crocer v. Sundance( )*+GG-( S.C.C.( SM /&. GReasoning: The 4upreme +ourt of +anada stated that the defence of %o2u$tar assum/tio$ ris@ is based on the moral suppositionthat no wrong is done to one who consents. >y agreeing to assume both the physical and legal risk involved in the activity the plaintiffabsolves the defendant from all responsibility for it.The +ourt determined that +?s participation in the tubing competition did amount to an assumption of the physical risks involved, letalone the legal risk given that his mind was clouded by alcohol at the time. Although a contract waiver clause can serve as a fulldefence to a claim in tort, the waiver signed + did not relieve 4 for its negligent conduct because the waiver had not " drawn to +?sattention and had not been read by him.The 4upreme +ourt of +anada thus decided that the voluntary assumption of risk defence was inapplicable, and the trial %udge?sconclusion of contributory negligence was not interfered with.Ratio: >ecause patron was drunk, placed a higher standard of care on the owner to bring the waiver to the attention of the ∏.

. Miti&atio$ o! Dama&es

>ased on public policy to prevent recovery of avoidable damages.. ∆ must prove that ∏&s failure to mitigate is unreasonable.

. ∏ cannot recover for damages which have been avoided because of mitigation. >ut, can recover costs incurred in mitigation.


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a$ degree of risk.b$ gravity of consequence.c$ potential benefits.

CLASS# +ourts are afraid of fraud in these cases, hence the stringent requirements for proof. +ourt isn&t giving an order of specificperformance to get the procedure. "t is not imposing directly on the freedom of the plaintiff.To benefit from thin skull to operate contra mitigation you need to prove its preexisting. 5eed to take into account the attributes of theindividual. "t has to affect the decision making capacity of the plaintiff. "t has to be of a nature that it impairs %udgment.

+onflicting medical opinion# then it&s hard to prove that someone is acting unreasonable as long as they are following someone&sauthority. Weight the reasonableness of the plaintiff similar to >olton v. 4tone. 1ook at the magnitude of the consequences, the costs ofhaving and not having the surgery. Take into account and estimate the chance of occurrence.

. I$te$tio$a2 Torts:

• 7ou don&t have the same requirements as negligence

• /o not require any carelessness or evil mind W2AT you do need is to attend the consequences of your act.

• "n "ntentional tort you do not have to show any damage

o The law considers intentional torts itself as a wrong the effect of the tort on the bodily integrity of another person will

suffice to enough damage• 5otion of direct harm#

o This notion was thought 0in earlier cases$ to have been a unique feature of intentional torts

"n the


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*. I$te$tio$

7istoria2 Co$text C 33

Torts not requiring proof of damage# /o not require a quantum amount for damage to be awarded. 7ou can be awarded damages withoutshowing how much harm was inflicted. They include#

0a$ Trespass to person 0battery, assault$0b$ Trespass to land.0c$ Trespass to chattels.

"ntentional Torts# assault

battery

false imprisonment

trespass to goods

trespass to land

-ust# be direct interference with persons, ppty or chattels

have proof of damage to be actionable

defendant&s conduct must have been wrongful

be intentional or negligent

/irect# an in%ury can be described as directly produced by the defendant&s

P= 3G ;LAR ;E :• Where someone acts and produces a consequence that is not foreseeable and not preventable that is an accident

• Where a defendant acts knowingly and understanding the consequences and intends those consequences then it is an intentionaltort

3os%an v. Larin ,ova Scotia CA /1570 C* BD Facts: referee in a wrestling match he was trying to get out the ring and go to the dressing room. 4omeone threw something at him andstruck him in the head and fell to his knees. 2e got back up and and walked with his hand over his head and bumped into someone,they sued him in intentional tort action framed in assaultRatio: "n an action for damages in trespass where the plaintiff proves that he ahs been in%ured by the direct act of the defendant, thedefendant must prove that his act was unintentional and without negligence to be entitled to a dismissal.Holding: 5ot intentional 0likely an accident but even if it was it would be ok if police used reasonable force$ and no negligence.

• 2e was %ustified in moving towards the exit with his hand over his face.Class:

• "n the case Coo" (. )ewis is cited in an action for damages in trespass the onus falls upon the defendant that his action was

u$i$te$tio$a2 and not meant to cause in%uryo Way different approach than that followed in a negligence case

• Applied to this case the court said that the plaintiff did shove him, but did so without malice and not to in%ure );at"2ee$ sast"is is 8ro$& 1 i$ i$te$tio$a2 torts ou #o $ot $ee# ma2ie( or i$te$t to i$ure-

3arratt v. +ailey( )*+-( Was". S.C. C 3+Facts: An action against a fiveyearold boy for in%uries sustained when he pulled a lawn chair our from under the plaintiff when shestarted to sit down. >oy claimed he moved the chair slightly in order to sit in it, and the plaintiff later sat down, not reali9ing the chairhad been moved. Trial %udge dismissed action, finding the boy had moved the chair, but without the purpose or intent of harming theplaintiff.Reasoning: • >attery is established if it could be shown the boy knew with substantial certainty when he moved the chair that the plaintiff would

attempt to sit down. Absence of intent to in%ure the plaintiff, to play a prank on her or to embarrass her, or to commit an assault and

battery on her, would not absolve him from liability if, in fact, he had such knowledge.• Without such knowledge, there would be nothing wrongful about the boy?s act in moving the chair! thus, he would not be liable.

4upreme +ourt of Washington held the case should be remanded for clarification as to the boy?s knowledge. ;n retrial, %udgmentwas entered for the plaintiff, and this decision was affirmed by the 4upreme +ourt.

• /oes not matter what his motive is as long as he knew that she was going to come back and sit in that chair Ratio: A battery is established if the defendant, when he moved the chair, knew with substantial certainty the plaintiff would attempt tosit down where the chair had been. An absence of intent to in%ure does not absolve the defendant of liability if in fact he had knowledge that certain actions were likely

to result as a result of his act. 1ack of intent [ defence

A person intends all natural consequences of their actions. "n intentional torts you intend the consequences of your actions 0don?t

need criminal intent$.


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I$te$t is 2imite# to t"e o$seue$es o! t"e at

I$te$t is $ot 2imite# to o$2 o$seue$es t"at are #esire#

o Bire a gun in the desert and don&t intend to hit someone and it does then it is an intentional tort

o Bire a gun at something moving in the far distance and you thought it was an animal but it was a human : thisexample will result in an intentional tort.

Carnes v. T%o$son( )*+3-( S.C. o! Missouri( C /&. 40Facts: /efendant in an attempt to evict a former employee and his wife from a farm house, tried to hit the husband with a pair of pliers.

2usband dodged the blow and the wife was corked.Holding: Dury found no actual damages but awarded JKK punitive damages.Ratio: 3rans!erred intent: "t does not matter who the defendant was trying to in%ure, there was intention to strike an unlawful blow, andit is not essential the in%ury be to the one intended to receive it. "ntention can be transferred to a third party.CLASS: +ase of transferred intent. "ntent is there to commit a tortunlawful blow. 4ufficient for the wife to recover because the defendant intended to do the same act to the husband.

;nce we have the intention it can be transferred between torts. +an also transfer between people and torts.

/efendants& intention was to in%ure someone by an unlawful blow : the court said it does not matter that the identities changed bw

the husband and the wife this is a case of tra$s!erre# i$te$tQQQ

*asley v. Clarson C 4*Facts: /efendant became a little carried away while moving his lawn and mowed some of the plaintiff&s. The defendant apparentlydidn&t notice he crossed the bal" 0the dividing ridge$ and the hade 0strip of land left unploughed to act as a dividing line$.•

Trespass was the "ntentional Tort• The guy made a mistake and cut down his neighbors crops and sold it

Reasoning: +ourt found for the plaintiff because the act of the defendant was voluntary, and his intentions and knowledge are notmaterial here because they cannot be ascertained.• "t is irrelevant that you made a mistake : the intent was to mow the grass and that is sufficient to make the tortRatio: -istake is no defense in intentional torts. "f one intends the result 0actions were voluntary$ they are liable.Class:

S$it% v. Stone( )*64,-( ;.. C 4Facts: Plaintiff brought action against defendant for trespass. /efendant pleads he was carried onto the land by force and violence ofothers, and was not there voluntarily.Holding: Dudge said it was the trespass of the parties carrying the defendant onto the land, not the defendant.Ratio: The act of the defendant must be voluntary in the sense that it was directed by his conscious mind.Class: Ask# /id the defendant act intentionally' /id the act by his own accord'

• ou a$$ot ommit a$ i$te$tio$a2 tort 8it"out %o2itio$• There is a difference bw voluntaries and intention

• Mista@e is $ot a !orm o! #e!e$se

• W"ere #oes moti%e 1eome im/orta$t i$ Tort 2a8o 4sed as piece o! e(idence that could go to intention, but really helps towards damages. 3he more serious the moti(e the

more 8uantum and tantamount the damages will be.

Ti22a$#er %. =osse2i$ C: 43Facts: "nfant, %ust under three years old, removed a second infant from her carriage and dragged her over KK&, fracturing her skull andcausing some brain damage Action was dismissed.Reasoning: Three year old not capable of committing the battery.

+riminal test# is the child incapable of knowing the nature or consequences of his conduct and able to appreciate that it was wrong.

This is the criminal standard, not fully applied. Test a//2ie#: The court considered whether the child knew the nature and consequences of his conduct.

o A//2ie# a ma2iious i$te$t test 8"i" &oes a&ai$st 8"at t"e ase 2a8 sas

o T"is test a22o8s !or a &reater s"ie2# !or t"e /2ai$ti!! o A//2 o$seue$es test )/& 44- a$# a %o2u$tari$ess test

/oes the child have the capacity to appreciate the motion' /oes the child have the mental capacity to intend the consequences'

+ourts are reluctant to allow people to escape responsibility for their actions.

De!e$#a$t would need to prove it wasn&t intentional and they didn&t have the capacity for it to be intentional. /oes he know that

he&s moving his arm' /oes he understand the nature of the act that he is doing.Holding : Appeal allowed and the matter remitted to trial. Ratio: Principles# To constitute assault, the defendant must be capable of forming an intent to the actions. Test# "s the child considered incapable of

knowing the $ature and o$seue$e of his conduct and appreciate that it is wrong' "f yes, not liable.


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/efendant would nee to prove it wasn&t intentional. 2ere, the three year old not liable =tender years doctrine=. 0arratt (. /ailey , H year

old was liable.$ Trespass when there is no right to touch another person 0etc$.

+an?t apply reasonable person standard to this child. This can?t be described as a voluntary act by the kid.

Class:

• What did the child have to know to have the intent to commit this act'

• This is a results orientated decision : who wants to find a three year old guilty, there life would be over before it started

• 2uge public policy issue here how far do we go making kids liable for there acts

• Te$#er ears #otri$eo For criminal purposes that "ids under G cannot be responsible #howe(er

torts - gotorts - golden bullets

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