LAW 406: TORTS AND LOSS COMPENSATION

Is there a Duty of Care?

Donoghue v. Stevenson
You must take reasonable care to avoid acts or omissions that you can reasonably forsee would be likely to injure
your neighbour
Neighbour = a person, so closely and directly affected by my act, that I should have considered them as affected
when I directed my mind to the act or omission in question
Dobson v. Dobson
Fetus injured in car accident sued mother
No duty from mother to fetus policy reasons to profound affect womens rights to liberty and equality too
immensely b/c anything she does could be called into question if this decision was allowed (failed due to
second branch of the Kamloops test)
Do not want to place constraints on role of reproduction in society (scare women from having kids)
Duval v. Seguin must forsee pregnant women would be using the highway childs rights crystallized if
there is a live birth (if child dies instantaneously, can still sue, only requirement is that the child is
born alive)
Montreal Tramways legal fiction assume child born at time of accident giving them legal person status
so they had power to sue
Kamloops v. Neilsen
(1) is there a relationship of sufficient proximity (neighbour principle)?
(2) is there anything that can limit the relationship? (negating the duty itself, or limiting the
class of people to whom the duty is owed)
If there is a duty, is it an Affirmative Duty?
1. Rescue
Jordan House
Economic benefit creates an affirmative duty
Duty not to over-serve (breaching Liquor Control Act)
Duty to take care not to eject patron onto a dangerous highway
Invitor-invitee relationship was sufficiently close to create a duty (Kamloops #1); it was foreseeable that
he would be injured by sending him out on his own and that could result in him being hurt
This is rescue b/c it is preventing him from being put into circumstances where he may be injured
Especially true b/c:
He was a regular and staff knew he was an alcoholic (this did not matter in Stewart v. Pettie b/c
serving alcohol was not enough)
They over-served him
They were deriving economic benefit from the situation
Horsley
Facts: 1st person fell in, 2nd person tried to save 1st person
At trial: No duty to 1st person, owed duty to 2nd person
Held: was not negligence, but merely a poor rescue attempt
Ratio: if you start a rescue, rescuer owes duty to rescue someone in a non-negligent manner (cannot put
them in a worse situation);
Rescuee owes duty if it is foreseeable that a 3rd party will try to rescue them and if it is foreseeable that
the 3rd party could be injured.
No liability if your attempt to help does not make the situation worse
Stewart v. Pettie
Facts: 2 drunk people, 2 sober people
Ratio: reasonable foreseeable risk of over-serving itself was not enough to breach duty of care
still has to be forseeability of risk and here this was limited b/c of the presence of the 2 sober
people

distinguished form Jordan House b/c there, they needed to take care to protect him from injury, and here,
there were 2 sober people who were present
additional factors: they discussed it in the parking lot
even if establishment asked who was driving, may not have made a difference
Held: No duty of care
Would have been different if:
Women were drinking
Women left separately
You can argue Jordan House and Stewart as opposites to the standard of care
2. Relationships of Control / Supervision
Crocker v Sundance
Ratio:
where there is a relationship of control/supervision (organizing an event that promotes alcohol
consumption and a risky activity), it gives rise to an affirmative duty of care
3. Creation of Danger
Oke v Weide
Ratio:
if your actions create a danger that foreseably could injure a bystander, it creates an affirmative
duty of care for all bystanders, since they become sufficiently close to become your neighbour (DvS)(this
case - the majority did not see sufficient foresight only dissenting judge saw reasonable foreseeability)
Crocker v Sundance
Alternative reason for the creation of an affirmative duty of care would be the creation of a dangerous
situation
Reliance Relationship
Zelenko v. Gimbel Bros
Ratio: when you voluntarily assume a duty or undertake to assist someone, and it puts a person in a situation
of reliance (so that their survival depends on you), an affirmative duty of care is created
Statutory Duties
Emergency Medical Aid Act
Ratio: when you undertake to save somebody you are protected up to a point of gross negligence
This differs from the creation of danger where you automatically have a duty when you create a danger, and is
meant to encourage good Samaritans
People with expertise (doctors, etc.) can have are also protected up to point of gross negligence
ORourke v. Schact
Ratio: Police have a statutory duty to protect the public (Police Act), and not acting can turn a nonfeasance
(not acting) into a misfeasance (acting improperly); they also have duties as regular citizens. This
statutory duty creates an affirmative duty to act.
Statuatory duties create duties on different classes of persons (Police)
B. If the duty is established above, then how is the standard of care created, and what is the standard, and how is
the standard altered?
1. Standard of Care If there is a duty of care, what is the standard of care?
A. Defining the Reasonable Person
Vaughan v. Menlove
Ratio: standard of care = the objective test = prudent man = reasonable person
subjective test is too variable could not create a general rule
Blythe v Birmingham

Ratio: no expectation to plan for an event that is out of the ordinary reasonable person cannot foresee
everything, accidents can still happen
Reasonable Conduct/Unreasonable Risk
Bolton v Stone
Ratio: 4 point analysis
Degree of Risk of Harm (how many times has it happened? Is it likely to occur again?)
Risk of injury (magnitude of injury to victim)
versus
Cost of Avoidance (ie. putting up new fence)
Value of the risky activity / Social Value (cricket important to society)
(i) and (ii) make up foreseeability
(iii) and (iv) make up defendants response to the risk
Priestman v Colangelo
Ratio: application of the 4 point analysis
The pursuit of criminals has great social utility and this overrides the risk that was associated with the firing of the
weapon on a public street
Questionable decision shows a reluctance of the courts to find police negligent (was a dissent) violent crime
would have made the decision less questionable
Citizens have a social contract with police and police legislation is an internal standard of care (internal standards
were raised by the result of this case)
Social contract outweighed all the risks
Role of Stautes can alter the standard of care
R v Saskatchewan Wheat Pool
Ratio: statutes can be indicative of the standard of care breech of a statute can be prima facie evidence of
negligence but does not create a nominate (automatic) tort there are no statutory torts
Carelessness may whisper or shout of breech the weight of the evidence will be case dependant
Gorris v Scott
Ratio: a statute cannot indicate a standard of care when it is legislated for different purposes than the cause of
action
Intent was not to protect sheep but to contain spread of disease
Ryan v Victoria
Ratio: satisfying a statutory duty does not indicate that the standard of care has been met
The railway followed their guidelines but there still was a foreseeability of injury and therefore, the standard of
care was not met by the statute alone
Sask Wheat pool is one side of argument vs. Gorris and Ryan
Role of Custom
Waldrick v. Malcolm
Ratio: Custom can crystallize an ordinarily vague std of care, but court reserves the right to evaluate the
reasonableness of a custom
Custom is indicative of an ordinary reasonable person this should indicate the std of care; custom does not
always absolve you of your duty or std of care
If whole community is doing something outside the reasonable person test, in the rest of society, negligence can
still be found (not salting the icy sidewalks)
Ter Neuzen v. Korn

Ratio: only common sense custom issues can be questioned by a jury or lay person, whereas complicated
standards of care can only be determined by other experts
In this case, jury could question the screening practices of the doctor (interviewing patients, checklists, etc.), but
they would not be able to question the complicated issues of artificial insemination w.r.t. HIV
E. Altering the Standard of Care (has to do with Public Interest)
1) LOWER STANDARDS
A) Emergency
Emergency Medical Aid Act
Ratio: EMA lowers the standard of care b/c allows protection up to point of gross negligence
B) Mental and Physical Disabilities
Wenden v. Trikha
Ratio: mental disability does not lower the standard of care from the standard of a normal person b/c the purpose
is to compensate the victim, regardless of who did it (sends message to caretakers and families of those w/
mental disabilities to take special care of them those who care for mentally ill have higher standard of care)
Tort test has always been reasonable person, so no need to deviate
Different standard for people who have physical disability or illness as long as it is not foreseeable (1 st heartattack free, 2nd one not b/c it is forseeable); people w/ disabilities often have obvious signs that show the rest
of society that indicate they have the same std of care
C) The Young
Heisler v. Moke
Ratio: test is not objective for children it is of like age, intelligence and experience
For adults, normally use purely objective test: reasonable prudent person test, but n/a to children
People who are 18 can be argued to fall in either category (adult or child) and can therefore have either test
Under 6 yrs old, not much chance that theyll be held liable; over 6 yrs old, case has to be examined on a case by
case basis
HIGHER STANDARDS
D) Professional Negligence
Challand v Bell (gangrene)
Ratio: Test for doctors
Does the surgeon have the skill required to undertake the operation
In judging the average, account must be taken for the rural doctor as opposed to the urban
If the accepted standard was met according to the local circumstances there will be no
negligence
Is what he did what a prudent rural doctor in the same circumstances would have done? Yes.
Do rural residents deserve a lower standard of care? Question of judgment
No difference between the standard of care of a new doctor and an experienced doctor
No liability for error in judgment doctors can make mistakes and still not be negligent
Reibl v Hughes (full pension)
Ratio: patient knows best, the professional has a responsibility to inquire into the patients life and circumstances
the doctor must disclose all material risks in order to allow the patient to make an informed consent (must
disclose risks in the context of the patients circumstances)
Whether the average prudent person in the plaintiffs position informed of all the material risks would have
foregone the treatment
Modified Objective Test (LASKINS TEST = Reibl Test)
Was there a material risk
Was the material risk disclosed

Had the risk been disclosed they would not have consented
Counter argument what questions are appropriate to ask?
Cost-avoidance is important here: what would it have cost the Doctor to disclose all risks (ie. it would be easy to
have a checklist that would elicit the necessary patient information)
Arndt v Smith (chicken pox)
Cory approves modified objective test
if patient asks you if theyll lose sense of smell, then Doctor must ask why this is important to the patient
ignore idiosyncratic test
Only reasonable fears of the plaintiff can be accounted for, and not the idiosyncrasies
Wants some subjectivity but does not want to push the envelope too far
His reasoning still ensures a high standard of disclosure
Causation required: did the material risk that was not disclosed lead to the injury?
Where do we draw the line with causation? Probably if you can prove that you would have had a
better result w/ another doctor
Sopinka & Iacobucci (dissenting)
Want purely subjective test
McLachlin (concurring)
Subjective test is the best, and that all the evidence of a particular plaintiff must be considered modified
objective test robs the plaintiff of the right to choose
Proper test is what that particular plaintiff would have done
Minority raises public policy concerns: racism, sexism, discrimination (epilepsy) are these considered
idiosyncratic or are they admissible?
Pulic policy concerns w/ completely subjective analysis can be addressed by causation if you have an
idiosyncratic belief, this still must be proven by causation to be accepted
In a split decision, SCC approved modified objective test
Ciarariello v. Schacter (angiogram)
Ratio: when obtaining a second consent, doctors only have to review the risks if stopping the procedure actually
changed the risks (if stopping and starting increased the risk), or if the circumstances of the patient have
changed the assessment of the risks (her hands going numb)
You need a second consent
Once you give consent, you can always withdraw it
Halkward v. Mathew (epilepsy)
Doctors standard of care: (1) duty to inform patient of all material risks (2) duty to apply skill in a competent
manner
Epilepsy is not a material risk, so it does not have to be disclosed; Nothing shows that the epilepsy disclosure
caused the injury to the patient need sufficient causation
Ratio:
there is no liability unless the loss is caused by the failure to disclose or inform. The failure to disclose
the Drs epilepsy did not cause the womans death.
When the harm is caused by the lack of disclosure, liability in negligence may arise
In Canada, there is no liability in negligence in a Dr who fails to disclose his personal medical problems
in a case where those medical problems cause no harm to the patient
Brenner v. Gregory
Ratio: Test = ordinary competent solicitor would have done the same thing
If you dont know, there is a duty to refer to someone who does know
error in judgment is not incompetence
Occupiers Liability does not need to be the owner only the person on control of premises

Warning is not usually enough to absolve occupier of a common duty of care unless in all circumstances the warning is
enough to enable the visitor to remain safe
Occupier not liable when the negligence is that of an independent contractor if the occupier took reasonable care
Licensee Social Guest
Duty to prevent damage form concealed traps that the occupier has knowledge or ought to have
knowledge about
Invitees Economic Guests
Can include those that are helping
Protect from unusual dangers that the occupier knows or ought to know about
Duty to check (be acquainted) with property and know of dangers
Strictest standard
Was there an unusual danger?
Did the defendant have a reason to know about it?
Did the defendant act reasonably?
Did the plaintiff use reasonable care for safety or voluntarily incur the risk?
Trespassers
Those on property without consent
At common law not to willfully or deliberately injure; no willful or recklessness
Children have deserve a higher standard of protection as they are considered innocent trespassers
Changed in 1970s to humanity
Gravity of likelihood of probable injury
Character of intrusion (child v thief)
Nature of trespassers injury (home v farmland)
Knowledge of trespassers likelihood of being on the land
Cost of occupier to clean up danger (avoidance)

Waldick v Malcolm
s. 7 no duty of care required of the occupier when risk has been willingly accepted by the visitor
this case, the return trip to the car was not an acceptance of the risk
defense argued that is was volenti (not accepted by the court)
Invitor-invitee relationship is there any economic benefit derived from the relationship
Jordan House
C. Cause in Fact after duty and standard of care are proven, and breach of std of care, can you find a causal link
b/w the breach and the ultimate injury or loss?
Burden of Proof
Wakelin v London
Ratio: plaintiff must prove on balance of probability that the loss was caused by the negligence of the defendant
Byrne v Boadle
Ratio: application of res ipsa loquiter the facts indicated negligence and it is up to the defendant to prove that
the accident was not due to negligence
Facts themselves are prima facie evidence of negligence
Only apply res ipsa if there is not other evidence of negligence
Fontaine v ICBC
Res ipsa is dead (or modified to an evidentiary burden)
Ratio: the onus is on the plaintiff to prove with circumstantial evidence that an inference of negligence can be
drawn (over 50 + 1%)

The evidential burden then switches to the defendant to disprove the circumstantial case (neutralize the inference
(49%))
Statutory Provisions
Statutes like the Highway Traffic Act of Ontario can in some cases shift the burden of proof to the defendant and reverse
the common law. This is very limited in application, where a pedestrian is injured the driver of the vehicle must prove
he was not negligent. (only in pedestrian cases, not collisions)
Inferring Causation
Snell v Farrell (eye injury)
Ratio: court is careful to suggest that the burden still remains with the plaintiff but there are hints within the
judgment that indicate that a real burden (not the full evidentiary burden) can shift to the defendant (tactical
burden) that if the circumstantial evidence cannot be rebutted an inference of negligence can arise
After breach of standard of care has been proven, ultimate burden still lies with the plaintiff but in the absence of
contrary circumstantial evidence, an inference of negligence can be made (even w/o scientific precision)
depending on the weight of that circumstantial evidence; then if the inference is drawn, the tactical burden
switches to the defendant.
Held: breach of std of care, drew inference, Dr couldnt offset it guilty
Multiple Causes
Cook v Lewis (eye injury)
2 hunters fired simultaneously could not tell which one was the cause of the injury
both had duty to care, both had std of care, both breached std of care
plaintiff could not prove which person shot him, but knew it was one of them, and w/o proof, both would have
gotten off, so inference drawn, switched burden of proof to defendants, and if they could not disprove which
one did it, then both liable results-oriented decision making
Athey v. Leonati (pre-existing sore back)
Ratio: once you can prove a material contribution (something beyond de minimis 1-2%), the tortfeasor, is
responsible for the entire loss despite any preexisting injury or conditions which may have predisposed the
plaintiff to the injury.
as long as the defendant is part of the cause of the injury the defendant is liable no basis for reduction in liability
supported by this decision and Snell and Farrell decision
Thin Skull: take victim as you find them you absorb risk of all plaintiffs predispositions (prior tort)
Crumbling Skull prior injury unrelated to current tort (not full restitutio in integrum b/c restore them to their
pre-existing injury => prevents overcompensation)
two step process thin or crumbling skull first, second if the preexisting weakness is not related to anything
tortuous then if the second tort is beyond de minimus level, the tortfeasor pays the full compensation
Lost Chance Sindell argue that increased chance of daughter getting cervical cancer, and lost chance of risk
free existence (no actual injury) argue for compensation of lost chance (can be argued from both sides)
Walker Estate v. York Finch
Ratio: causation must be linked to appropriate standard of care, b/c if wrong std of care is applied then they may
miss the causal link
Std of care = prudent reasonable blood donation bank
See second semester Mini-cans
__________________________
FRAMEWORK
Introduction point out major issues

Is there a duty of care?

What is the duty of care?
Donoghue v. Stevenson Neighbor Principle forseeability
Dobson v Dobson Kamloops Test policy implications
Affirmative Duties
Rescue
Relationships of Control or Supervision
Creation of Danger
Reliance Relationships
Statutory Duties (Occupiers Liability)
If duty established, is there a standard of care?
What is the standard of care?
Reasonable person
Can you find an additional standard of care from:
Reasonable conduct and unreasonable risk (Cost-benefit 4 point-analysis)
Is it a statutory standard of care? (Occupiers Liability)
Is the standard defined by custom?
Is the standard of care altered in any way?
Emergency Medical Act (up to gross negligence)
Mental and Physical disabilities
Standard of care of the young
Standard of care of a professional (Modified Objective Test)
Invitor-invitee relationship (economic benefit relationship may raise std of care eg. Jordan House)
Has standard of care been breached?
If duty and standard of care established, and standard has been breached, how do you establish the causal link
between the breach of the standard and the injury?
Who has the burden of proof?
Can the burden be switched after inference of causation?
Do statutory provisions change the burden of proof? (ie. switch the onus)
Can you inferring causation?
Are there multiple causes?
Multiple Defendants? (Leaman v Rae)
Second Semester
Is there proximate cause?
Wagon Mound #1
Foreseeability of consequences (would a reasonable person foresee these consequences)
Old test was direst consequences (Polemis) no longer
Type of Damage?
Hughes v Lord Advocate erodes the protection of the tortfeasor from WM #1 as the manner and
extent of the harm need not be foreseeable, only type of damage must be foreseeable
Possibility of Damage?
Wagon Mound #2 reasonable foreseeability does not have to be a probability only a possibility
(widening of the scope of WM #1 more onerous tortfeasor)
Thin-Skull
Smith v Leech Brain take your victim as you find him exception to WM #1 as foreseeability is
no longer a requirement for preexisting conditions of the injured party
Third Party and Intervening Forces

Harris v TTC negligent intervening acts by the plaintiff do not relieve a tortfeasor of liability if
the negligent act is a foreseeable one
Rescue
Horsley v McLaren
as long as the second rescue is not foolhardy or grossly negligent the second rescuer is owed
a duty by the first rescuer
when you put yourself in a position of risk, and someone comes to rescue you, you owe that
person a duty of care
Second Accident
Weiland v Cyril if the subsequent accident is close in time to the first and the result of an ordinary
daily activity then it will be considered part of the initial injury and the defendant will be liable
McKew v Holland Test of foreseeability of a second accident: if the second accident was caused
by the plaintiff doing something unreasonable or negligent then the chain of causation is broken
and the defendant is not liable
Intervening Medical Error
Only shocking or gross negligence can break the chain of causation and relieve the original
torfeasor of further damages, normal malpractice is foreseeable and will not break the chain of
causation and the original tortfeasor will remain responsible for all the damages the onus is on
the original torfeasor to prove that the doctors malpractice is beyond the scope of reasonable
foreseeability
Intermediate Inspection
Ives v Clare Brothers an intermediate inspection will not break the chain of causation from the
liability of a manufacturer who had a duty to warn the customer
Learned Intermediary
Hollis v Dow a manufacture can be relieved of liability if they rely on a learned intermediary
(like a doctor) but the learned intermediary must be told of all the possible risks by the
manufacturer
Government Liability and Proceedings Against the Crown
Proceedings Against the Crown Act
s. 4 allows the Crown to be sued
s. 5 allows the Crown can be sued as an individual
Comeaus Sea Foods must look at the legislation to determine if the Minister may be sued as the
legislation might include the government duty
Deacock v Alberta to be suable, the government entity must be created by statute
What is the Duty owed by the government
Just v BC pure policy decisions cannot be reviewed by the courts but implementation can be
assessed for reasonableness (policy vs. operational)
Brown v BC application of operational v policy
Ingles v Tutkaluk application of the Anns Test
Constitutional Torts
Jane Doe v Toronto Board of Police Charter violations and constitutional torts are another way to
attack government liability
Economic Losses
Negligent Statements
Fletcher v Manitoba Test for negligent statement: was there reliance on the information, was the
reliance reasonable, did the person making the statement know that it would be relied upon
Queen v Cognos five required elements for a duty of care in negligent misstatements
must be a special relationship
must be a misstatement
misstatement must be carelessly made
must be reasonable reliance
reliance must have been detrimental (caused some loss)

Hercules Management policy reasons are: indeterminacy of scope, class, and damages these
might limit the application of negligent misstatement claims
BC Checo tort and contract coexist, can contract out of a tort remedy
Negligent Performance of Service
BDC v Hofstrand when the defendant has no knowledge of the class of plaintiffs and there is no
reliance to create risk then there is no proximity and no duty of care
Economic Loss Caused by Defective Products and Structures
Winnipeg Condos if the construction is dangerous and it is foreseeable that personal injury or
property damage could result a third party could be liable
Relational Losses
D Amato v Badger five reasons why economic losses can be recovered, four reasons why they
cant be recovered (see mini-cans)
Bow Valley Husky v St. Johns Shipbuilding indeterminacy and policy reasons can restrict the
ability to receive damages for economic relational losses
Wrongful Birth
Kealey v Berezowski three categories: wrongful life action, wrongful birth, wrongful pregnancy
(see mini-cans)
Negligent Infliction of Nervous Shock
Rhodes v CNR nervous shock requires more than forseeability 3 relational factors: relational
proximity, spatial proximity, temporal proximity
Bechard v Haliburton egg shell personality
Vannick v A&P psychiatric damage must be foreseeable and diagnosable but not physical impact
is required for mental shock
Relevance of Plaintiff Conduct
Contributory Negligence
Contributory Negligence Act liability is apportioned according to fault, if fault cannot be
determined damages will be apportioned equally
Butterfield v Forrester no relevance today
Davies v Mann Last Clear Chance Doctrine (not relevant anymore)
Labbee v Peters causation can alter the apportionment of damages
Seatbelt Defense
Galaske v ODonnell the duty of the defendant will vary depending on the context of the situation
(age, parents etc.)
Voluntary Assumption of Risk
Hambley v Shepley volenti is a complete defense but rarely applies courts prefer contributory
negligence
Crocker v Sundance waivers have to be read and understood
Illegality of Pl
aintiff Conduct
Hall v Hebert Can be a complete defense
must have negligence
must owe a duty of care
must not profit from the crime
injury must be separate and apart
Exclusion clauses
Dyck v Manitoba Snowmobile waiver has to cover the precise negligence that occurred
Crocker waivers have to read and understood higher standard for those that are hammered
point out waiver
Mitigation of Damages
Janiuk v Ipolito plaintiff must mitigate (reasonable efforts), if you do not mitigate the failure to do
so must be reasonable
Intentional Torts
Goshen v Larin do not need malice or intent for an intentional tort
Garratt v Dailey Substantial Certainty of Consequence any natural consequence that is intended can lead
to an intentional tort
Carnes v Thompson transferred intent as long as there is an intent to commit a tort it does not matter who
was injured or affected the action itself is really what matters

Basely v Clarkson mistake is no defense in intentional torts only need volition

Smith v Stone must have volition
Tillander v Gosselin normal test is messed with for children they need to know nature and consequences
Lawson v Wellesley mentally ill mind must be directed to nature and consequences (see mini
cans for nature and consequences)
Assault
I. De. S. do not need physical contact for assault
Stephens v Myers test for assault must be a means to carry out the threat, must be unwanted or
harmful conduct, must be immediate
Tuberville applies the test (need immediacy)
Bruce v Dyer self-defense must be reasonable and proportionate
Battery
Cole v Turner touching of another in anger is battery (unwanted touching is probably enough)
Bettel v Yim Test deliberate or intention and unlawful violence or threats of violence
Sexual Misconduct
Bazely v Curry
Jacobi Intentional Infliction of Mental Suffering
Wilkinson v Downton if you deliberately try to inflict mental suffering you can be liable
False Imprisonment
Bird v Jones putting an illegal condition on a persons freedom is false imprisonment
Chaytor psychological imprisonment can false imprisonment
Abuse of Public Office
Uni-Jet v Canada test in mini-cans
Defenses to Intentional Torts
Consent
OBrien v Cunard conduct of defendant must be considered in connection with surrounding
circumstances
Norberg v Wynrib consent must be genuine and cannot be coerced (inequality of power and
expoitation)
Malette v Shulman if defendant is aware of individual circumstances (religion etc.) this can be an
indication that there is no true consent and an intentional tort
Marshall v Curry consent can be implied in an emergency
Self-Defense
Cockcroft v Smith needs to be immediacy and must be proportionate
Defense of Property
Green v Goddard - Have to ask a trespasser to leave before violence
Bird v Holbrook force must be reasonable given the circumstances
Necessity
Dwyer v Staunton public v private welfare
Lake Erie can destroy property in private v private interests cases but must compensate
Southwark v London necessity 2 steps: public interference for good of public and private interests
need imminent danger
Legal Authority
Reynen v Antonenko reasonable in the circumstances (the exercise of legal authority)
Mohammed v Vancouver reasonable in the circumstances
Defamation
Hill v Scientology falseness of speech required
Murphy v Lamarsh three tests for defamation (see mini cans)
Meldrum v ABC libel is publication of printing, writing, pictures, and signs, slander is the spoken word
McNichol v Grandi plaintiff has onus to prove slander
Halton v Jones intention and motive are not important, intention can be inferred
Cassidy - Newspaper and publishers must take responsibility for the defamatory inferences drawn from what
they publish
Vizetelly see test in mini-cans

Defenses to Defamation
Sunlife privilege + malice = liable and privilege + no malice = not liable
Globe and Mail qualified privilege (not open to newspapers), fair comment (open to newspapers)
Chernesky fair comment Dickson dissent adopted in most jurisdictions legislation
Longsdon moral duty exists in limited context
Do analysis for the opposing side and where counter-arguments fit in
Conclusion over duty, standard of care, and causation
Implications of decision
Policy considerations
Big picture commentary
Step back and draw sensible conclusions for overall assessment
Real chances of success for your client
What do you personally feel about this?
Multiple Causes
Cook v. Lewis (1951, SCC)
CB: 267
Exotic / Difficulties of proof / Shifting Burden to defendants
Facts: There were 2 groups hunting. Two defendants fired simultaneously and one shot hit the plaintiff in the other group. It was not
possible to tell which defendant fired the shot that hit the plaintiff. Can't prove causation (generally plaintiff has to prove causation)
Issue: Is there a legal action when plaintiff can't prove causation under these unusual circumstances? Yes
Reasoning: Court could not determine which of the Defendants hit the Plaintiff. Both were simultaneously negligent (in shooting at
the same time). But for test does not work because either could be negligent.
Ratio: Where the plaintiff is injured by one of two parties, where they were both negligent, and where the plaintiffs difficulties of
proof arose because of the defendants' negligence, the onus of disproving the causal link must shift to the defendants. In the absence of
proof against one defendant, both are not liable. The burden shift to the defendant occurs after the plaintiff has shown duty and that the
defendant has breached the standard of care.
negligent act + Ds negligent destruction (of evidence or) of Ps ability to prove causation/case (his legal rights were
compromised) = burden shifts to D to proving cause (burden is shared)
Fairer for Ds to be liable until they can prove who did it.
Unless A can point to B or vice versa, they will have to share the burden.
Burden is on the person with the greater knowledge.
Snell v. Farell: In Snell, there was no negligence in the plainitffs act the cause of blindless was unknown (causation could have
been from something other than the doctors actions. In Cook, the initial act of shooting was negligent in itself and the cause of the
injury was known.
Hollis v. Dow Corning Corp.: Cook v. Lewis rule was reaffirmed
Athey v. Leonati (1996, SCC)

SM: 185

Facts: Appeal by plaintiff from a judgment of the BCCA dismissing his appeal. The plaintiff A had a history of back problems and
suffered back injuries in two separate car accidents. Pursuant to his doctor's advice, he resumed his regular exercise routine after the
second accident and suffered a herniated disk while warming up. Trial found the accidents played some causative role in the disc
herniation and assessed liability at 25 per cent for his injury. Athey appealed from this assessment.
Both admit equal liability but claim that his pre-existing weakness in his back contributed to his injuries therefore the defendants
should not be liable for 100% damages. (Each only wants to play 25%).
Claims lost income.
Trial: disc herniation would not have occurred without the accidents. Trial found defendants 25% liabke (which is more than the de
minimus level of causation.)
Issue:
Causation: Should non-tortious activity be accounted for in apportionment? No
W/o/n the preexisting back injury should subtract from the damages?
Reasoning: Appeal allowed. Causation was established where the plaintiff proved that the defendants caused or contributed to the
injury. A defendant was liable for any injuries caused or contributed to by his or her negligence. The plaintiff need not show that the
defendants' negligence was the sole cause of the injury. The disc herniation was not an injury that could be apportioned between
tortious and non-tortious causes. It was a single non-divisible injury. As the trial judge found that the accident caused or contributed
to the disc herniation, it was not an independent intervening event and did not reduce the net loss experienced by the plaintiff. Once it
was proven that the accidents caused the disc herniation the defendants were fully liable for this injury.

Remember the fundamental principles of torts:

Tort law is all about compensation making injured parties whole again.
Plaintiff has burden to show that the defendants through their negligence caused the injuries of the plaintiff
Material contribution test the but for test cant always be used.
Ratio:
General Principle: Defendant is liable for any injuries caused or contributed to by the defendant. If the defendant's conduct is found
to be a cause of the injury, the presence of other non-tortious contributing causes does not reduce the extent of the defendant's
liability.
The plaintiff must prove the defendants conduct caused or contributed - but causation need not be determined by scientific precision.
As long as the defendant is part of the cause, an inference can be drawn to say that the defendant is responsible for the injury as a
whole. Can use the but for test to show the injury wouldnt have happened but for the accidents.
P. 189 The applicable principles.
NOTE:
Defendants tried unsuccessfully to argue the following principles:
Multiple Tortious Causes: Apportionment b/w tortious causes is expressly permitted by provincial negligence statutes and is
consistent with the general principles of tort law. Apportionment only between the negligent parties (and in this case, not between
the defendants and the plaintiff. The plaintiff in this case was not at fault (or negligent) for having a sore back.)
Divisible Injuries: Apportionment is permitted when there negligent actors are responsible for different injuries (one to arm and one
to leg). In this case you cant divide the herniated disk injury, therefore this principle doesnt apply.
Adjustment for Contingencies: Look at things that would happen in the future. In this case the herniation wouldnt have happened
without the accidents therefore this principle does not apply. Defendants wanted negative contingencies to apply to this case, but
this principle doesnt apply because the herniation has already happened in this case. If the herniated disk hadnt happened the
plaintiff would argue for positive contingencies.
Independent Intervening Events: Other negligent events where you can pin the responsibility on another party. In this case the
intervening event (his bad back) was not a negligent act. His bad back was a non-negligent intervening act. Had he done
something irresponsible such as doing heavy lifting he would have been contributorily negligent.
Thin skull or Crumbling Skull Doctrine: Thin skull doctrine could have decided the case in favour of the plaintiff take your victim
as you find him. In line with the torts principle that victims must be made whole again. If they are already weakened or in a
special position such as an athlete you will pay more to make them whole. Crumbling skull doctrine the compensatory
principle is to make him what he was before the accident happened. It doesnt apply in this case because there was no indication
that the herniated disk would have occurred without the accidents. (Pain and suffering damages could be compensated where a
victim was going to die in a couple months anyways so sad!)
Lost Change Doctrine: This doctrine finds that the accident merely increased the risk of herniation and should only be liable for
increasing the risk of the disk herniation. It isnt a lost chance because the herniation happened and it was beyond the de minimus
causation because the trail found the defendants each 25 per cent responsible for the injuries.
Walker Estate v. York Finch General Hospital [2001] SCC

SM:163

Facts: W, O and M contracted HIV from blood and blood products supplied by the Canadian Red Cross Society. They claimed that the
CRCS was negligent in the procedures used to screen blood donors with HIV and AIDS. Prior to 1985 there was no test that could
identify AIDS or HIV in blood. Therefore the CRCS was restricted to screening blood donors which is the focus of the appeals.
Trial: O and M were successful. Ws claim was dismissed as he failed to show causation.
CA: All three plaintiffs successful. Ws dismissal was set aside.
SCC: Appeals dismissed.
Issue:
Was the CRCS negligent in the process it took to screen blood donors with HIV and AIDS between 1983-1985? Yes with O and M. No
with W.
Holding: Appeals dismissed
Reasoning:
The trial judge concluded that the donor would not have been deferred or excluded from donating blood in Sept. 1983 had he seen the
CRCS May 1984 pamphlet, but would have been deferred had the donor sent eh ARC 1983 pamphlet. When the proper standard of
care is applied the causal link is established.
Trial judge should have asked whether the donor would have self-deferred or been excluded if the CRCS had followed the appropriate
standard of care for a professional voluntary blood bank in North America at the time, as represented by the ARC March 1983
pamphlet.
Ratio:

The proper test for causation in cases of negligent donor screening in whether the defendants negligence materially contributed to
the occurrence of the injury. A contributing factor is material if it falls outside of the de minimus range.
The plaintiff retains the burden of proof that the failure of the CRCS to screen donors with tainted blood materially contributed to W
contracting HIV from tainted blood.
Trial judge should have asked whether the donor would have self-deferred or been excluded if the CRCS had followed the appropriate
standard of care for a professional voluntary blood bank in North America at the time, as represented by the ARC March 1983
pamphlet.
Comments:
It is important to resist the temptation and to assess the claims on the basis of what was or reasonably ought to have been known at the
time that the appellants attempted to screen blood donors who were infected with HIV or AIDS.
Alternative view: Two elements against the adequacy of donor screening measures should have been tested: (1) the informational
component, involves a consideration of the nature and extent of the information made available to potential donors, and (2) the
awareness component, related to the measures taken to ensure that this critical information is brought to the attention of potential
donors and fully understood by them. Had the trial judge considered this approach, he may have concluded that the donor screening
measures implemented by the CRCS in May 1984 were inadequate and that proper screening measure would, more likely than not,
have deterred the donor from donating.
Special Problems of Causation
There can be multiple causes of negligence:
The defendant can be seen as the sole cause of the plaintiff's loss.
There can be one defendant who does a bunch of different things (McGhee) some of which are culpable and some of which are not.
Multiple causes with different defendants (Cook v. Lewis).
A plaintiff and multiple defendants whose actions combine to create the harm (Jordan House)--2 faults both required to lead to fault.
Contributory negligence (Crocker)
The plaintiff establishes that the defendant was, on 51%, a cause of the injury
The defendant has also established that they acted together (plaintiff and defendant) to create the harm
Fairchild v. Glenhaven Funeral Services LTD [2002] H.L.

p. 268

Facts: Claims were brought against employers by estates of former employees. Employees had been employed at different times and
for different periods by more than one employer. Both employers had a duty to take reasonable care to prevent the employee from
inhaling asbestos dust. Both employers breached this duty and as a result the employees inhaled excessive quantities of asbestos dust.
Employees contracted mesothelioma, and any cause of the conditions form other sources could be discounted.
Issues: whether the employee was entitled to recover damages against either employer or both of them, even though, because of the
limits of science, he was unable to prove on the balance of probabilities that the condition was the result of inhaling asbestos during
his employment with one or the other or both>>entitled to rever against A and B, (the 2 can fight in court in the normal way to
determine damages bw/ themselves)
Reasons: Unjust, and policy consideration in favour of compensating those who have suffered grave harm at the expense of employers
who owed them a duty and failed to do so.
This is the case in other jurisdictions and there is increasing need for uniformity.
Conduct of A and B was a material contribution to Cs condition.
Lower degree of causation should not be used lightly, there must be good reason for departing from the but-for test.
Ratio:
1) if C was employed at different times and for differing periods by both A and B, and
2) A and B were both subject to a duty to take reasonable care or take preventative measures to prevent C from inhaling asbestos dust
bc/ dust can cause mesothelioma (M), and
3) both A and B were in breach of that duty in relation to C, during Cs employment and C inhaled a large amount of asbestos, and
4) C is found to be suffering from M, and
5) any cause of Cs M other than inhalation of asbestos dust at work can be effectively discounted, but
6) C cannot prove, on the balance of probabilities, that his M was caused by his employment by A or B or A and B together
C is entitled to recover against both A and B
6. Multiple Defendants
1. The Contributory Negligence Act

SM: 01

Before CAN the common law said that if the P was in any way negligent in relation to their injury they are out of luck. CAN made the
playing field more level for plaintiffs.
s. 1(1): apportionment of liability based on fault (based on degree they caused the plaintiff's harm); if it's not possible to tell than it
should be equally apportioned between them
(Judge still needs to identify %)
s. 2: jointly and severably liable (separately or together to sue for the losses)
(sue one and you can sue them all)
s. 6 &7: eliminates "last chance" doctrine (where the consequences could have been avoided)
(person with last clear chance of avoiding harm used to be responsible for the damages)
2. Leaman v. Rea (N.B.S.C., Appeal Division)
CB: 255
Multiple defendants / Negligence (fault) established / Cause hidden / Both equally liable
Facts: Head-on collision of two cars. Each testified other was on wrong side of road. Unclear how accident occurred and who was at
fault. Trial judge thought both were slightly on other's lane. Dismissed both claims.
Issue: Who should be held liable in a case where negligence is established but can't decide which of the two parties was at fault?
Both, with judgment for each party for 50 per cent of the damages
Reasoning: Accident occurred in the middle of the road therefore both were at fault.
Ratio: Where there is clearly fault, in the absence of any evidence enabling the court to draw a distinction between the parties at fault,
they must be held both to at fault and in an equal degree.
Problem: but what if there were a third party who was injured? Judges duty to make a ruling.
Fontaine: In Fontaine there was no evidence of negligence. In this case, there was evidence of fault.
7. Market Share Liability
Sindel v. Abbott Laboratories Et Al
********
CB: 274
Facts: Ps mother ingested the drug DES during pregnancy for the purpose of preventing miscarriage. As a result of this drug, P
developed a malignant bladder tumor. P new the type of drug the mother was taking but couldnt identify the exact manufacturer.
Issue: Can the P hold all the manufacturers of a drug jointly liable for the for producing an unsafe drug? >>YES
Reasons: bw/ innocent P and negligent D, D should bear cost of injury. From a policy standpoint D are better able to bear the cost of
injury from manufacture of defective product (insured). About 7 companies produced 90% of DES marketed, and all D produced a
drug of identical formula which could have harmed the P. injustice of shifting burden of proof to D (Liable unless they can prove they
could not have supplied the drug) is significantly diminished. (substantial % required for P to join the action).
Ratio:
Where a substantial % of manufacturers can be identified, court can shift burden of proof to D to show, on balance of probabilities,
that they could not have produced product that caused harm they will be jointly liable as per their % market share at the time of the
injury.
D. Proximate Cause / Remoteness (of damage) / Chain of causation
1. General Principles
How do we limit liability?
Do you have this person in mind when contemplating your actions?
Is there a duty?
What is the standard?
Standard breached?
Did the breach cause the injury?
*What damage was caused? Minor? Unjust to pin all damages on one person for one small negligent act? Before Wagon
Mound the defendant would likely be responsible for all damages.
Proximate cause focuses on what limits should be places on the legal liability of the defendant, even though the defendant may
have, in fact, caused that loss.
Plaintiff has established the defendant owes the plaintiff a reasonable amount of care and has breached the
standard (defendant is negligent although perhaps not liable). How far given the sequence of events
will we allow recovery?
Operates as a way of restricting compensation for certain forms of loss.
Do we want to protect this kind of claim by compensation? Policy issues.
Are these the proper subjects of recovery under the law of torts? Emotional harm, nervous shock, economic
loss.
There are 2 schools of thought:
Before Wagon Mound: (Polemis) All other things being proven you are liable for all direct damages as a result of your actions.
Liability based solely on directness of remoteness of damage. As long as there is no direct supervening event, there is liability.

As a result of Wagon Mound: Remoteness should be far more concerned with foreseeability than with remoteness. P. 324
1. The Wagon Mound (No. 1) (1961, PC)
CB: 321
Reasonable Foreseeability / Overrules Polemis (responsible for all direct damages)
Facts: Due to carelessness of the appellant's servants, the Appellant's ship spilled oil in the wharf area. The Respondent owned the
adjacent wharf. Appellant assured the Respondent that it was ok to continue welding, saying that oil would not burn on water. They
continued to work, their ship and wharf caught on fire. Oil and a cotton rag caught fire from a spark of the Respondent's welding. The
wharf was severely damaged.
Holding: Court overruled Polemis and replaced it with a standard tied to foreseeability reasonable foreseeability of consequences
what the Defendant ought to have known. Defendant not liable, in this case the damages were too remote.
Ratio: Test: Would the reasonable person have foreseen the event that occurred as a consequence of their action? The defendant is
liable for all direct consequences of actions which are reasonably foreseeable.
WM #1: injects foreseeability as the cornerstone of remoteness.
But do you have to foresee the extent of the damage? Do you have to see the specific cause?
WM # 1 doesn't help here. It says that you have to foresee the kind of damage but how is this defined?
2. Hughes v. Lord Advocate (1963. HL)
CB: 331
Type of Damage
Facts: A manhole was left open, marked with flares. Children played, dropped flare in manhole, explosion injured children.
Holding:
There is a duty of care between workers and those in physical proximity. There is a foreseeable risk to a class of plaintiffs, taking into
consideration the proclivity of children to play. There is a breach of duty because the site was left in poor condition (manhole left
open).
The defendant argues that the standard is foreseeability (WM l) we could not foresee the extent of the damage nor the precise way in
which the events occurred. There was not the requisite level of foreseeability.
It has to be foreseeable as the same kind/type of harm, but not the extent of the harm. Because you could reasonably foresee the type
of harm, it doesn't matter how it happened, or the extent of the injury. This is a very wide test.
Ratio: As long as ultimate consequence is linked up to the negligence and is foreseeable, the extent of the harm or the manner in
which it occurs, which are not foreseeable, does not matter.
Note: Lord Advocate + WM #2 + thin skull rule = it doesn't matter if it's direct consequence approach or foreseeability.
CLASS: Matter and extent of harm are not important - only KIND OF DAMAGE need be foreseeable
3. The Wagon Mound (No. 2) (1966, PC)
CB: 337
Possibility of Damage
Facts: The defendant had a duty to prevent discharge of oil onto bay, should have known that oil was flammable on water, and that it
was easy to have been prevented.
Holding: If it is clear that a reasonable person would have realized or foreseen and prevented the risk, then it must follow that the
appellants [Defendant] are liable in damages. Reasonable foreseeability doesn't have to be a probability, only a possibility. The
Defendant can be liable even if the damage is very improbable it was foreseeable (seems to return to Polemis).
Ratio: The level of foreseeability is lower in remoteness than anywhere else; even if there is a small risk, a reasonable person would
act against it.
Summary
Polemis:
Liable because was unreasonable act to drop plank - negligent
Duty was owed (nexus to ship owner) even if extent of damage was not foreseeable
Direct Consequences Test - Liable
Wagon Mound No. 1
If No nexus to Plaintiff - not liable
Damage must be foreseeable - consequences must be probable
Reasonably foreseeable
Wagon Mound No. II
Damage must still be foreseeable but only just possible
Consequences need only be possible, not so high as being probable
2. Retreat from Wagon Mound (No. 1)

a. The Thin Skull Plaintiff

As long as you foresee the type of harm, you will be liable for its full extent regardless of whether it causes new loss or exacerbates a
pre-existing injury or condition. You take your victim as you find her.
1. Smith v Leech (1962, QB)
Thin skull doctrine (pre-existing injury)

CB: 327

Facts: Molten metal strikes plaintiff's husband's lip. Treatment given, but burn developed into cancer and he died. Medical evidence
showed burn was cause of the cancer.
Ratio:
Test is NOT whether the D could reasonably foresee that a burn would cause cancer and that he would die.
The question is whether the D could reasonably foresee the TYPE of injury (such as a burn) suffered.
In this case, could they foresee a burn occurring? If yes, liability follows, because this is what occurred. Plaintiff wins. Take your
victim as you find him/her.
3. Acts of Third Parties and Intervening Forces
Harris v. T.CC. & Miller

CB: 351

Facts: infant sustained injuries to his arm while riding a bus. The bus pulled away from the stop and brushed against a steel pole
which in turn crushed the childs arm which was extended out of the window pointing out something to his companion. At CA Laskin
found that the child knew he shouldnt have had his arm out the window and the bus had signs up on the window warning passengers
to keep their arm in. Found that the child was the author of his own misfortune.
Issue: Does an intervening act free a party from liability?
Reasoning: The driver should have foreseen the likelihood of children passengers extending their arms through the window
notwithstanding the warning. Therefore, the respondents (bus driver) negligence was an effective cause of the accident. Damages
should be apportioned in proportion to the degree of fault found against the parties respectively.
Ratio: Merely because the plaintiffs injury was caused or contributed to by the plaintiffs own negligent act, or the wrongful act of a
third person, does not necessarily mean that the defendant is freed from liability. Where a defendant has a duty to take reasonable care
to protect the plaintiff from injury caused either by the plaintiffs own act or the act of third person, these acts cannot be considered to
be intervening forces which shied the defendant from liability.
D.

Proximate Cause

Proximate cause is really about saying when is enough. When discussing proximate cause we know there has already been a duty
established, 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 pre-existing; an intervening cause happens after
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 certain
circumstances, cause the loss that the plaintiff suffered. There can be a blur between snapping of the chain of causation on
the factual language and the snapping of the chain in proximate cause.
If an event occurs that is not foreseeable or that should not be foreseeable then the courts will use the idea of an intervening act to
snap the chain of causation so the defendant will not be liable for that particular damage.
3. Acts of Third Parties and Intervening Forces
Act done between what the defendant did and what happened to the plaintiff. Two situations:
Initial injury is exacerbated by the second injury. Is it within the ambit of risk created by the defendants negligence?
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, (1967), S.C.C., CB pg. 351
Facts: A bus pulled away from stop and brushed against a steel pole. At the same time an infant passenger stuck his hand out of the
window of the bus and his arm was crushed and broken by the pole. The bus company had a by-law which the appellant was aware
and was posted in the bus together with a sign below the window reading: Keep arm in. The trial judge divided the fault equally
between the parties. The Court of Appeal found that on the facts of the case there could by no recovery.

Reasons: It was foreseeable that a child may put his arm out the window. The negligent act was driving too close to the post. It was
argued by the respondent that but for the child sticking his arm out the window, he would not have been hurt and this was an
intervening cause. The courts did not accept this argument and looked at the event happening as a whole.
Ratio: If something is a foreseeable consequence of your negligent actions then it is not an intervening factor.
Merely because the plaintiffs injury 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.
If the scope of the defs duty is to protect the pl from the very injury that occurred, it is not a defense for def to say that pls action
was an intervening cause which should shield him from liability.
Recurring Situations
Rescue
Horsley v. MacLaren, ("The Ogopogo"), (1972), S.C.C., CB pg. 355
Facts: D (McLaren) owned the boat. Mathews fell overboard. They were trying to rescue him and D backed the boat up to execute
the rescue instead of coming head on. He did this twice. Mathews fell under the water, and Horsley jumped in after to save him and
suffered a heart attack and died. Pathologist determined that Horsleys death was caused by shock resulting from sudden immersion in
the 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 foreseeable
that a second rescuer will attempt rescue. If you botch the rescue you create a new situation of risk. As long as the second rescue is
not foolhardy (grossly negligent) then the first rescue owed a duty to the second rescuer.
TEST: that the second rescuer must not be foolhardy. If not foolhardy then there is a duty owned by the first rescuer to the
second.
Negligent defendant had a DUTY to a rescuer coming to aid of person. This is an independent duty, not derivative. Doesnt matter
if the rescuee is not injured.
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.
Ship 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 who
comes to their aid.
A rescuer can owe a duty of care to another subsequent rescuer if:
a) His attempt to rescue increases (creates new) the peril, and
b) Induces the second rescuer to move in and make a rescue.
** must find negligence in first attempt, will be very high standard since it is a rescue attempt.
Second Accident
Weiland v. Cyril Lord Carpets Ltd., CB pg. 367
Facts: Woman injured in a bus accident. Went to hospital to get a neck brace, couldnt see properly, was woozy and fell down stairs
and injured ankle. Claims is part of initial ambit of harm created by the def. Defendant says it is an intervening cause she caused the
ankle injury herself, or it was not foreseeable.
Issue:
Are the Pls actions an intervening cause? NO
Did Ds actions CAUSE the second injury? - YES, result of the first
Reasoning:
1. The second injury was the result of the first injury. The first injury impaired her ability to negotiate stairs, which resulted in the
fall.
2. Dont need to foresee precisely how this will occur. He says that Wagon Mound 1 does not deal with extent of original injury,
degree to which it has affected Pl, nor manner of harm.
3. "But for" test works here: but for first, wouldnt have had second.
Ratio:

It is foreseeable that one injury may affect a persons ability to cope with the vicissitudes of life and thereby be a cause of
another injury
Extends the foreseeability of harm to a second accident.
It is foreseeable that one injury may affect the persons normal functioning and lead to a second injury.
If a subsequent accident is:
close in time to the first
the result of an ordinary activity of life (i.e. walking), then will be considered part of the initial injury, and the
Defendant will be held liable.

McKew v. Holland, (1969), H.L., CB pg. 369

Facts: The plaintiff sustained leg injuries for which the defendants were liable, and as a result, his leg would unexpectedly give way
beneath him. While descending some stairs the plaintiffs leg collapsed and he began to fall. He tried to jump to land in a standing
position, and broke his ankle. Dismissed at both.
Issue: Were the defendants liable for the broken ankle?
Reasoning:
If an injured person takes reasonable care and yet sustains further injury as a result of an initial injury, the second injury can be
said to have been caused by the disability which was in turn caused by the defendant.
If an injured person who acts unreasonably cannot hold the defendant liable for injury caused by the person's own unreasonable
conduct; the unreasonable conduct has broken the chain of causation.
Ratio: TEST for foreseeability of second accident: If the second accident was caused by the pl doing something unreasonable or
negligent then chain of causation is broken and the defendant is not liable.
If the person is abnormally stupid, then maybe can be expected to act unreasonably thin skull.
Intervening negligence on the part of the plaintiff breaks the chain of causation.
Comments: His unreasonable act became an intervening event; he was not merely contributorily negligent, he completely snapped the
chain of causation. Weiland differs as the plaintiff took steps to get help, here he did it on his own
Manufactures Liability Law:
Manufacturers owe a direct responsibility to the consumer (Donaghue v. Stevenson).
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 to warn of
potential dangers. The duty to warn about dangers in continuous whereas the duty of safety and design only applies when the item
is made.
The more dangerous he product the higher the obligation on the manufacturer.
Follow McGee (not Willshire): a material increase in the risk of injury will be treated as a material contribution to injury. This is a
House of Lords 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
whos hands has the product passed.
Interviewing Medical Error, CB:371
If an individual defendant through negligence causes physical harm it is quite clear that physical harm will be treated by physicians
(factual cause). In terms of proximate cause it is reasonably foreseeable that an injured person would seek medical treatment. An act
of negligence can break the chain of causation. Errors in judgment are not enough.
Ives v. Clare Brothers, (1971), High Court of Ont.
CB 373
Facts: Plaintiff was bound to take gas from Twin City Gas. He bought a Clare gas furnace from the supplier and installer. It was
inspected on three occasions by Twin City defendants. The plaintiff wasn't given any warning of any danger. The plaintiff suffered
injuries (carbon monoxide poisoning)
Issues:
1. Were the defendants negligent? YES
2. Did they cause the damage? YES, the intermediate inspection didn't break the chain of causation.
Decision: Judgment for plaintiff; both Twin City and Clare Brothers Ltd. equally negligent.
Reasoning:
1. Found the defendants (Twin City) 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. Defendant Clare => negligent manufacturer => failed to warn of the distributor
2. Did the inspections break the chain of causation to exonerate the manufacturer? NO, failure to do proper inspection didn't break
the chain of causation. Liability should be shared according to the Contributory Negligence Act between the two plaintiffs--the
manufacturer and the inspector.
Ratio:
An intermediate inspector (the last person) will not break the chain of causation to exonerate a manufacturer from liability who failed
to discharge their duty to warn. Liability 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 (the inspector) is not the only one responsible, the manufacturer never warned of the possible defect
and as such cannot be absolved.
Hollis v. Dow Corning Corp., (1995), S.C.C., CB pg. 379, SM 70
Facts: H had breast implants. No information given to plaintiff regarding serious health risk from breast implants. One sac burst. She
sued Drs. B and Q, the Can. sales agent for the American implant manufacturer and the American manufacturer itself.
Trial: 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 Dr. B of the risks and found Dr. B was liable
to the respondent for damages. Manufacturer appealed.

SCC: Appeal dismissed.

Issue: Chain of causation?
Can the manufacturer use the learned intermediary rule to discharge its legal duty to the consumer? YES. Did Dow meet the standard
of care required of it by using the learned intermediary rule? NO, Dow failed to adequately warn the doctor.
Reasoning: The learned intermediary rule can only be applied if the doctor (the intermediary) had knowledge about the product
which approximated the knowledge of the manufacturer. In this case Dow had failed to provide Dr. Birch and others about the
likelihood of rupture. As such, Dow cannot rely on the learned intermediary rule.
Ratio: Following can break a chain of causation: 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 ignored
this information.
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 direct
warning from the manufacturer before using the product.
CLASS:
There is a duty to warn if the product is inherently dangerous (ie. anything you put in your body)
Nature 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.
For Dow 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.
4. Government Liability
Proceeding Against the Crown
Government liability is important because it is a growing area of the law. It is challenging because you need to have a wide area of
knowledge in many fields including constitutional law, administrative law, contract law, property law and to be integrate all that
knowledge into tort law. There is process issues involved as well; the nature of governments responsibilities has to be reflected in the
legal process. If you are thinking about suing a government you must immediately turn to the Proceeding Against the Crown Act and
understand it. You must also pull all of the statutes that may deal with your action.
Section 5 of the Proceeding Against the Crown Act says you can sue the Crown in tort.
It becomes problematic if your claim deals with the legislative authority of the government. Therefore you must look at the
statutes statutes may explicitly exclude duties. (E.g. the Highway traffic accident says the Crown cannot be sued for the
absence of a sign on a highway.)
The fault in these cases is in substandard conduct the government failed to do what an ordinary individual in a similar situation
would have done. The government is still subject to the rule of law; when the government acts negligently you can pursue action
against the government to the same extent you would a normal individual.
When should the courts enforce private duties on the Crown? When is the Crown liable for negligence?
The courts must strike a balance between too much liability and too much free reign for the government. When will the court
enforce a civil law duty of care on the Crown? When does public accountability become a civil action?
The test is very flexible as the court must consider many differing factors.
Government liability is an area that has a lot of theoretical developments. Understand this - if you ever have a true government
liability case you will have to read all the cases. In this class we will be distilling the issue down to its basic elements.
Proceeding Against the Crown Act, SM pg. 27
Lays out the procedure for taking action against the Crown:
s. 4 allows you to sue the Crown without a fiat or right of petition
s. 5 tells us that the Crown can be sued in tort as if it was an individual
s. 11: sometimes the government doesnt have to give you a document (public interest privilege)
s. 13: who you serve when suing the government
s. 14 when you are taking a civil action against the Crown you cannot have a jury
Comeaus Sea Foods Ltd. v. Canada (Minister of Fisheries & Oceans), SCC (1997), SM pg. 192
Facts: The plaintiff was told by the Ministers office that they would receive at least one offshore lobster license. The company
incurred $500,000 in expenses in converting one scallop dragger into a lobster fishing vessel. The licenses were authorized by the
Minister, but never issued. Later, the Minister revoked the authorization calling for a study to be completed on the impact of the
fishing in the area.
Issue: Whether the Minister once authorizing the granting of the licenses also had authority to revoke it.
Decision: Appeal dismissed; Minister was acting under his power granted by s. 7 of the Fisheries Act.
Reasons: When making a decision on licensing the Minister must:
base his decision on relevant considerations
must avoid being arbitrary
must act in good faith

As long as those limitations are met by the Minister, then the Minister can exercise that discretion in any manner he chooses. (These
are the three criteria that you look at when you decide to sue the Minister).
Ratio: Must look to the act to determine the Ministers discretion and powers and then apply the three criteria to determine if the
Minister can be sued.
Comments:
The government owes no general duty not to harm its citizens.
Purely economic loss is not a well protected concept in a capitalist economy.
Purely economic loss + government liability + license = little chance of recovery.
In this case the Minister revoked the license because of policy and political reasons; there was concern over the impact the
experimental fisheries may have on the environment.
Decock v. Alberta, Alberta C.A. (2000), SM pg. 204
Facts: The appellants filed 4 sets of pleadings each claiming damages suffered as a result of receiving negligent medical care,
attention and treatment which resulted in injuries, and in certain cases, death.
Issue: Can you sue the honorable Ralph Klein (Premier of Alberta) and Shirley Maclellan (Minister of Health) in their personal
capacities? YES.
Reasons: You cant sue the Premier of Alberta because it is not a legal position created by statute. If you only sue the Crown you
may not be allowed in discovery to call specific members of the government and that is why these two politicians were named
personally.
Just v. The Queen in Right of B.C., SCC (1989), pg. 469
Facts: Appellant and his daughter set out for a day of skiing at Whistler. While stopped in traffic a great boulder worked itself loose
from the wooded slopes above the highway and came crashing down on the appellants car, killing his daughter and injuring him.
Appellant sued the Crown, lost at trial and appeal on the basis that this was a planning/policy matter out of which no tort duty could
arise.
Issue: What is the legal obligation that should attach to the provincial government for its inspection of this remote and difficult
highway? When can statutory obligations be enforced by the individual?
Arguments: The appellant argued that the provincial government failed to maintain the highway. What was specifically challenged
was:
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
Decision: SCC reversed the decision and ordered a new trial.
Reasons: Cory, J. How do we normally establish a duty of care?
Proximity neighbor principle (Donoghue v. Stevenson)
Is there a policy reason to negate or limit the prima facie duty of care? (Anns)
How 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:
Statutes (may exclude private liability for public conduct)
Policy & Operational Decisions: the nature of the actions or decisions that the plaintiff suggests has caused the harm.
Policy decisions are not subject to a private law duty of care.
Operation decisions are subject to a private law duty of care. (Therefore the government always argues that the
nature of the decision was policy while the plaintiff argues that the decision was operational in nature.)
Normally a policy decision involves the exercise of a discretionary power and is usually made at a higher level of
the government or the department. (E.g. budgets, allocation, balancing, etc.) It is the nature of the decision and
not the person making it that is key.
The distinction between operational decisions and policy decisions can be hard to establish.
For a policy decision to be immune from tort scrutiny it must be bona fide; that is it must be reasonable and rational
(it is a proper policy decision based on administrative law concepts). It is not enough for the government to
show that it is a policy decision; it can still be attacked on the basis that it is not a proper policy decision.
If you show that there is a duty the government may have a different standing because of its responsibility to govern.
Public Law

Private Law

Administrative Law
Constitutional law
Bona fides/bad faith

Tort damages
Contract

Government will be liable for any injury that could have been caused by another person - as liable as the general public.
Government liability concerns itself with the special jobs that the government has. When will it be held liable in respect of those
special jobs?
When is a government ACTOR, using a government POWER, liable?
General principle; If the decision is one of policy, it cannot be reviewed by the courts for negligence.
POLICY
Cannot sue here.
no tort duties
decision guided by social, political or economic
considerations
is usually up the ladder

OPERATIONAL
Can sue here.
tort duties
action/inaction product of administrative
directive, expert/professional opinion, standards
implementation of policy

Procedure for suing crown;

Proceedings against the Crown Act in Alberta
Crown Liability Act federally.
-Effect of the statutes is to permit suing of Crown as if it were an ordinary person.
A fear of allowing tort actions against the Crown is the potential floodgate of actions that could arise.
Anns v. Merton London Borough Council, (1978), HL
Broadening of government liability.
Government can be liable for economic loss.
Discretionary decisions are not reviewable by the court if:
they were bona fide made
with proper purpose
within power of body, procedurally and substantively
using reasonable considerations
the body actually considered whether or not to do something.
must prove that:
was not bona fide made.
not within purpose of statute
not within power of the body
using irrelevant considerations.
the authority completely omitted to make any decision at all.
City of Kamloops v. Nielson, Hughes and Hughes, (1984), S.C.C.
Negligent performance of operational duties is compensable.
If the government body never turns its mind to whether or not they should exercise a power, that is liability in tort.
By-laws must be enforced.
The city is vicariously liable for the actions of its employees (just like Dorset Yacht).
OTHER
Floodgates argument- not a problem because:
First must find a private law duty of care. Do this by asking:
is it an operational duty? If yes,
is it reasonably foreseeable that persons could be injured?
Neighbor principle/identifiable class?
Doesnt apply in policy decisions are bona fide made.
Only potential problem is in secondary policy decisions.
ANALYSIS TEMPLATE:
How to proceed with cases of this kind:
Relationship of proximity to warrant the imposition of a duty?
Does the statute exempt government from the imposition of this duty?

Does the statute exempt government from liability?

Is the decision pure policy? Economic, social or political considerations?
Is the policy decision exercised bona fide?
If not, go to a traditional tort analysis.
Is the standard of care modified by budgetary restraints, availability of qualified personnel/equip.
If it is an operational decision, is the standard of care met (same as (c) above).
Framework for looking at suit against public authority;
Does a public authority owe a private law duty of care to ?
Is there a statute that says so?
More often, look at Anns test (see p.184 Just)
Is there sufficient proximity?
If so, are there any reasons to limit or negative the duty?
With respect to step 1 of Anns;
Governments owe duty of care to anyone using the roads. Satisfies step 1 of Anns.
If you own a building and there has been some sort of government inspection, this also satisfies step 1 of
Anns.
With respect to step 2 of Anns;
Ask whether the issue is of policy or operation?
-Look at Brown
Can there be policy within the operational area? (Anns, Kamloops, Brown, all seem to say so and are challengable if exercise does not
seem to have been appropriate.
Misfeasance vs. non-feasance? Irrelevant from Kamloops.
What is the duty owed?
Just v. The Queen in Right of B.C., (1989), S.C.C., CB pg. 469
Facts: A father and daughter, plaintiffs J, were stopped in a line of traffic beside a rocky slope on a major highway in British
Columbia. A boulder from the slope rolled down upon their car, killing the daughter and seriously injuring the father. The Department
of Highways had set up a system for inspection and remedial work upon rock slopes under which engineers made inspections and
recommendations and the work was performed by rock-scaling crews. The Department's practice had been to make visual inspections
of the highway unless rock falls or a history of instability in an area indicated the need for a rock engineer to climb the slope. The
father claimed that the provincial authority was negligent in its maintenance of the highway.
Issue: Is it policy or operational? POLICY
Reasoning: SCC applied the two-stage duty test from Anns v. Merton and determined that the provincial authority owed a duty of
care to highway users, which extended to the reasonable maintenance of the roads.
The Court explained that public authorities may be exempt from the application of the traditional tort law duty of care if an explicit
statutory exemption from liability exists or if the decision is one of policy.
Whether or not a decision is characterized as policy or operational was said to rest on the nature of the decision, not on the actors'
identity. Court stated, generally, decisions concerning budgetary allotments for departments or government agencies should be
classified as policy decisions, which may be open to challenge on the basis that they were not made in the bona fide exercise of
discretion.
In considering the standard of care required of the government agency, the Supreme Court of Canada reasoned that the manner and
quality of the inspection system, being clearly part of the operational aspect of a governmental activity, should be assessed. The
requisite standard must be assessed in light of all the surrounding circumstances including budgetary restraints and the availability of
qualified personnel and equipment.
SCC ordered a new trial so that the necessary findings of fact on the issue of negligence could be made.
Ratio: Government inspections (frequency, how, when, manner) were the product of an administrative decision, therefore are
operational and therefore subject to a tort analysis (is really quasi-policy, but still subject to review). Decisions concerning budgetary
allotments for departments or government agencies should be classified as policy decisions, which may be open to challenge on the
basis that they were not made in the bona fide exercise of discretion.
Brown v. British Columbia (Minister of Transportation & Highways), SCC (1994), SM pg. 235
Facts: Brown hit black ice on a B.C. highway and was injured. Police on the scene of an earlier accident had requested the road be
sanded. The Deas Tower could not reach the worker who was on call to sand because they did not have his home phone number. Road
workers were on a summer schedule.
Issue: Mr. Brown alleges that the government was negligent on the basis that:

Gvt should have been on the winter schedule. (Argument fails it was a policy choice.)
Manner and the quality of the road inspection system are flawed. (An operational argument.)
Decision: Appeal dismissed; the manner and the quality of the inspection were operational decisions and subject to tort law scrutiny.
Was a breach of the duty of care, but breach didnt cause the accident.
Reasons: Cory, J.
Follows the framework laid out in Just. The Crown contended that it is under no obligation to repair the highway. It contends
that Crown liability can only arise from acts of misfeasance and not of non-feasance. The court does not accept this
submission; if you have a duty and the duty was breached it does not matter whether the breach was cause by an act or an
omission. The Highway Act, R.S.B.C. 1979 does not negate Crown liability.
The first ground of the complaint (the decision as to run on the summer schedule) was a policy decision. This was a policy
decision involving classic policy considerations of financial resources, personnel and, as well, significant negations with
government unions. It was true a governmental decision involving social, political and economic factors.
Policy is not just about threshold decisions. Policy decisions can be made by persons at all levels of authority. Policy decisions
cannot be judged by the private law tort standard of reasonableness.
The plaintiff claims that Deas Tower should have moved more expeditiously and that it was negligent for the Tower not to have
the home phone number of the on-call 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 on-call employee showed
up at work that morning. Even if the employee had been called he would not have arrived on the scene any earlier.
Ratio: The decision in Just was applied to this case.
Comments:
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.
Framework for looking at suit against public authority;
Does a public authority owe a private law duty of care to ?
Is there a statute that says so?
More often, look at Anns test
Is there sufficient proximity?
If so, are there any reasons to limit or negative the duty?
With respect to step 1 of Anns;
Governments owe duty of care to anyone using the roads. Satisfies step 1 of Anns.
If you own a building and there has been some sort of government inspection, this also satisfies step 1 of
Anns.
With respect to step 2 of Anns;
Ask whether the issue is of policy or operation?
Look at Brown: nature of decision, budgetary, who makes it
Can there be policy within the operational area? (Anns, Kamloops, Brown, all seem to say so and are challengable if exercise does not
seem to have been appropriate).
POLICY: social. political, economic factors (budget, personnel), financial
OPERATIONAL (same standard of care as individual): practical implementation, expert or professional opinion
Policy is open to challenge if: 1. NON BONA FIDE + 2. IRRATIONAL (higher than unreasonableness)
Misfeasance vs. non-feasance? Irrelevant from Kamloops.
Ingles v. Tutkaluk Construction Ltd., SCC (2000), SM pg. 244
Facts: Toronto was being sued for negligent inspection. Appellant hired a contractor to renovate his basement. A permit was required
prior to beginning the work but the contractor was able to convince the appellant to proceed without it. By the time the permit was
issue the underpinnings had been completed, but were concealed by subsequent construction so that it was impossible to visually
inspect them. When the inspector arrived it was raining and the inspector relied on the word of contractor that the underpinnings were
properly constructed. The appellant began to experience flooding in the basement shortly after the construction had been completed.
It was determined that the underpinnings were completely inadequate and failed to meet the standard prescribed in the Building 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.
The underpinnings must be of a sufficient depth.
Issue: Can the city be found negligent for the two inspections even though the plaintiff proceeded without the proper building permit?
Did the city owe the plaintiff a duty of care? YES

Decision: Appeal allowed; city was negligent in the manner of inspection.

Reasons: The Court of Appeal erred in concluding that the appellant, through his own negligence, removed himself from the class of
persons to whom a duty of care was owed.
Even though he knew he was proceeding without the required permit the SCC held that he was still within the ambit of who the
city owed a duty of care to.
In order to avail itself of the defense set out in Rothfield, the city must show that the appellants conduct was such as to make him
the sole source of his loss. His conduct must amount to a flouting of the inspection scheme. This was not the case here.
Comments: The court found that the city and the contractor were jointly and severally liable (liable together). This makes them is
some aspects a single unit. The plaintiffs proportion of guilt is against anybody in the defendant category.
An andendum was issued to correct the quantum of damages. The contractor was held 80% liable, the city was found 14% liable
and the plaintiff was held 6% liable.
The city does not want to be a joint and several tortfeasor because then both defendants are each bound to pay the whole award of
damages.
Damages set at $52,000. When you deduct the plaintiffs apportionment that left the actual award at $49,000. It is likely that the
contractor declared bankruptcy and thus the city would be liable for all of the damages. The minute a party is found jointly
and severally liable they must pay the full amount of damages when called on by the plaintiff, even if they were only found
1% liable.
The court could have found the contractor and the city separately liable and thus the plaintiff may have only been able to collect
14% of the damages. Here, it was the combination of the faults that created the loss here and that is why the defendants were
found jointly and severally liable.
Jane Doe v. Toronto (Metro) Commissioners of Police (1990), Ont. Div. Ct.

CB:484

Facts: A woman/plaintiff/JD was assaulted in her apartment by a serial rapist who had assaulted other women in similar apartments in
the vicinity. Woman alleged the police decided not to issue warnings to likely victims because they thought it would cause hysteria and
impede apprehension of the rapist. Woman's pleadings alleged, among other things, negligence in failing to warn and protect her from
foreseeable harm. A motion to strike out the Statement of Claim failed and was appealed. Issue before the Divisional Court was
whether the pleadings supported the cause of action. Divisional Court held while the police owe certain duties to the public at large,
they cannot be expected to owe a private law duty of care to every member of society who might be at risk. To establish a private law
duty of care, forseeability of risk was said to have to co-exist with a special relationship of proximity.
Argued denied equal protection under the law (s.15 Charter)
Security of the person viability of the person and psychological well-being (s.7 Charter)
Failure to warn from foreseeable harm (Statute Police Act)
Failure to protect (Statute Police Act)
Issue: Did the police owe a duty of care? YES both statutory and common law duty to warn. There is also a Charter breach of ss.15
and 7 (not saved by s.1)
Reasoning: Court decided she was entitled to proceed with the cause of action. In view of the requisite knowledge on the part of the
police and the similarity of the woman's circumstances with those of previous victims, her allegations raised a triable issue of
negligence; the harm was foreseeable and a special relationship of proximity existed. It was the polices duty to warn certain citizens
of the foreseeable harm or to protect them. Woman alleged the police did neither = found to support a breach of the duty owed.
Decision here was PURE POLICY but discriminatory violation of s.15 of the Charter
Ratio: Constitution is another way to attack government liability in a tort analysis.
CLASS:
Charter damages not often used police misconduct may warrant such damages (Criminal sphere)
Indeterminate liability to an indeterminate class, for an indeterminate amount
A private law duty of care was owed by the police (a 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 over
individual safety. Even so says the court there is still a duty to protect operational, (even 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 (thru s.1) that the courts should stay out of police business because it is a complicated business and they didnt
forward any evidence of such so they were bound to lose!
S. 24 she received only general damages no extra damages for Constitutional breaches or rights the court uses the torts method
of calculating damages (this area of the law is still forming). In Charter damages should they be compensatory or should they have
an element of review or punishment for the breach (a deterrent-based payment)? Conservative in this case only compensated
no extra damages.
GOVERNMENT LIABILITY
1. If there is a statutory exemption Crown is not liable (look at this first)
2. Use the Anns test

3. Policy or operational?
Wrongful Birth
Kealey v. Berezowski

SM 292

Facts: K went to B for tubal ligation to prevent subsequent pregnancy(s). Procedure failed and K had a third child, unplanned. K sued
doctor for wrongful birth. Parents were in the middle of a divorce.
Issue: What, if any, damages should be awarded?
Holding: Court found the doctor was negligent in performing the procedure. Ks were awarded general damages for pregnancy, labour,
delivery and necessity for the second tubal ligation. Ks (H & W) also awarded for loss of income during pregnancy (W) and postdelivery (H). No award was given for cost of raising third child. Court takes a limited damages approach. Awarded $40K
physical discomfort, general damages for going thru the unwanted pregnancy, damages for the actual birth, time off work for the
husband,
Possible Claims: 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 injuries incurred. With respect to this claim (and others), the 3 approaches taken
by the courts in assessing damages are:
Restitution/total recovery.
Pro of this is its consistency. Parents are put into their original positions.
Cons
Policy arguments: mitigation, floodgates, loving vs. disparaging parent, strain/effect on child (applies at out-set for whatever
types of damages and/or claims that are initiated),
Offset benefit: Total recovery offset with the benefit of having a child.
Pat says offset benefit has similar aspects as restitution except that the quantification is more difficult. The benefit is an
unquantifiable aspect of having a child.
Limited damages: Recovery for unplanned pregnancy but not the unplanned birth and child.
CLASS:
Essentially three types of wrongful birth cases:
Wrongful birth: Parents give birth to a child with disabilities, doctor should have told parents about defects, with parents
bringing claim.
Wrongful life: Similar to above, but with child bringing action.
Wrongful pregnancy: Kealey.
Optional 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. But what
about the costs for the child?
Courts dont want to get into the value of life wrongful life suits. Courts 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.
Here, the allegation is that we had decided to limit the size 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 werent anticipated and foreseeable costs as a result of a failed
sterilization. To break the chain the doctor would argue the mitigation argument is that you had choices your decision to
continue the pregnancy would cause the birth of the child. It makes sense theoretically but would not enforce such a principle and
judge peoples personal decisions re: abortion etc. factually it works but its not the type of mitigation the court requires in such
circumstances.
Uses a proximate cause analysis to limit damages. Only costs associated with the unwanted pregnancy will be compensable. There is
still hesitation to award damages for the costs of raising the child.
Characterization of the loss analogous to one of pure economic loss.
3 troublesome areas of the law wrongful birth, economic loss, and nervous shock
Costs of future care need a physical injury. Without an injury the costs are analogous to economic loss. The costs to raising a healthy
child cannot be awarded in damages (costs of future care).
Where the child is born with physical injuries the court will award damages for the costs of injuries. Had this child been born with
cerebral palsy the court would have awarded damages. Life isnt an injury!
The law protects certain interests over others. Economic loss is not protected as much in torts when compared with physical injury
(which has a very high protection).
If you find out that your child has a physical injury at 3 yrs old you cant go back to court all about finality of judgment.
4.

Negligent Infliction of Nervous Shock

Courts have developed restrictions on nervous shock recovery: ok where there is a recognizable mental illness / psychiatric damage as
well as reasonable foreseeability of this type of harm (geographic, temporal, relational proximity). Cant get damages for grief,

disappointment, sorrow, distress, emotional reactions b/c its common, not an objective criteria, reactions would differ among
people, because people are going to die anyway.
Sheila 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. (Vanek)
The psychiatric illness in question must be ties to the negligent act in question. It must be a foreseeable consequence of the negligent
conduct. (think of when you witness or come across an accident)
Grieving the death vs. Nervous shock of the death
Cant see it, cant measure it, you can fake it
The Vietnam War may have been the start of a change in courts an acknowledgement of Post-traumatic stress disorder.
Its not just reasonably foreseeable
Framework for intentional torts. The test is:
Before: Zone of danger rule: where you were being hurt, if you are in the zone where you could have been injured,
you can use it to claim nervous shock.
During: in the zone where you could be hurt, As long as a reasonable person in the circumstances would suffer the
same damage
After: Emotional distress: must be the kind of psychiatric harm that is recognizable and able to diagnose need
objective symptoms/medical testimony.
The proximity of relationship was so close that it was reasonably foreseeable that the injury of one could cause the psychological
distress on another.
What are the techniqueas and devises the court uses to put a break on the damages awareded/who gets recovery
Can any bystander to a car accident sue for shock?
IN INTENTIONAL TORT - if the defendant knew or should have known the consequences it is intentional infliction of emotional
distress - foreseeability is not a requirement in intentional torts.
Witnessing an accident vs. pictures of an accident
Geographical proximity creating a zone of foreseeable plaintiffs.
Temporal proximity (time) how quickly did the person come onto the scene was it instantaneous (girl in the backseat witnesses her
parents being killed she can claim against nervous shock)
Relational proximity nature of the relationship
Rhodes (Estate) v. C.N.R., (1990), C.A.,
SM 306
Facts: Plaintiff R's 23-year-old son killed in a train crash. After hearing of the accident on the radio, R went to the accident scene.
Only after several days, during which she was misdirected and shown the wrong car, did she learn that her son had been killed. R
suffered from extreme depression and psychiatric illness for a long time after the accident and sued the defendant, CNR, who admitted
liability. At trial R's action for psychiatric illness was allowed to proceed. CA struck down R's action.
Issue: Was the Pl. entitled to recovery for emotional distress given that she wasn't in the zone? NO
Reasoning: The Court of Appeal stated that nervous shock cases unaccompanied by physical injury differ significantly from
traditional cases of tortious conduct, as the injury is the indirect result of direct physical injury to a third party. Direct psychiatric
injury was said to be caused by the "shock" or "fright, terror and horror" of the defendant's conduct, as opposed to psychiatric injury
resulting from one's subsequent reaction to the conduct and its consequences, such as sorrow, anxiety and grief, which is not
compensable.
The Court of Appeal explained that direct psychiatric injury was recoverable if there was a sufficient proximate connection between
the injury and the accident. The requisite proximity relationship was said to be made up of a combination of relational elements:
1. relational proximity, or the closeness of the relationship between the plaintiff and the victim;
2. locational proximity, or being at the scene observing the shocking event; and
3. temporal proximity, or the relation between the time of the event and the onset of the psychiatric illness. One element, it was
explained, cannot be decisive in establishing the reasonable forseeability of psychiatric injury, though relational proximity should be a
predominant factor.
R's illness was not found by the Court to be a reasonably foreseeable direct consequence of the defendant's negligent conduct. The
Court concluded that, therefore, the defendant was not under a duty of care to avoid causing the injury sustained. R's illness was
attributed to the death of her son and not to the trauma of the accident itself.
Ratio: 1. Grief is not recoverable. Grief and sorrow are not compensable as a psychiatric illness. The proximity relationship was
said to be made up of a combination of relational elements: 1. relational proximity, or the closeness of the relationship between the
plaintiff and the victim; 2. locational proximity, or being at the scene observing the shocking event; and 3. temporal proximity, or
the relation between the time of the event and the onset of the psychiatric illness. One element, won't be decisive in establishing the
reasonable forseeability of psychiatric injury, though relational proximity should be a predominant factor.
Bechard v. Haliburton Estates, (1992), Ont. C.A., SM pg. 268

Facts: This was an appeal by the defendant from a damage award for nervous shock. The plaintiff's vehicle collided with the
motorcycle operated by H. H and the plaintiffs were injured and H remained lying on the road. When the defendant D's vehicle
approached the scene of the accident, the female plaintiff waved her arms and screamed to alert D of H lying on the road. D ran over
H and killed him. The female plaintiff witnessed the accident and also had to jump out of the way.
Issue: Was the Pl's relationship to H too remote (not blood relatives) to establish a foreseeable psychological reaction? NO
Reasoning: The CA held that the plaintiff had to jump out of D's way for her own safety and the D should have foreseen that an
accident had occurred and that there could be victims in the vicinity. He held that the plaintiff was trying to save H by alerting D to
his presence on the road and that under these circumstances it was foreseeable that the plaintiff would suffer nervous shock from
observing H being run over. Even though the Pl had an eggshell personality (thin skull), here any reasonable person in her situation
would have been forseeable to suffer this harm.
CLASS: Before it was hard to succeed as a bystander, but she was a proximate bystander--more like a rescuer (see Cladwick rescuer in train crush). With respect to both - she was a foreseeable person to whom a duty was owed.
although she had a pre-existing condition, these damages were over and above her prior instability so
could be successful.
it is possible that if there had only been one accident then she would not have succeeded because the
second event lets the court around thin skull.
She gets to recover everything because the witnessing of the death would have constituted nervous shock to a reasonably constituted
person.
Vanek v. Great Atlantic Pacific
:
Facts: daughter drank gasoline found in a drinking-box. She was fine but father was soft.
Issue: can he claim for nervous shock? No.
Ratio: psychiatric damage must be foreseeable, diagnosable, and recognizable. Physical impact no longer required for
mental shock damages. Grief is not compensable. Thin skull personality is open to a claim of greater damages. There
was relational proximity, except she was fine, and there was no spatial or temporal proximity, so no damages. Reaction of
the father was not foreseeable.
f.

Economic Losses

Usually done by contract law or ppty law, not by tort law

Economic loss When youve lost money that is not tied to your body or ppty
Basic principle restore to their original position and not more than that (not the interest)
In a contract you would have a chance of getting the additional interest (you can be brought to the level of your promise to the level
of your expectations)
Loss in value of ppty,
Donahue v. Stevenson dont apply to economic losses
Five types of Economic Losses:
A statement made that was relied upon but was negligently made but caused the loss.
A statement can be an omission to tell
Negligent performance of service e.g. building inspectors, doctors, lawyers, architects
These categories may overlap/crossover
Economic loss caused by defective products and structures
Defective home, can the builder be sued after 20 years?
Relational losses
Based on physical or proprietary e.g. partners, people in the community who rely on the bridge
Reliability of statutory authorities government liability Comeau case
a.

Negligent Statements

Actions have a limited effect. Words are volatile and cant be contained. Courts worried about effect on freedom to speak and of
placing consequences on negligent speak. Wanted to have parameters on negligent statement to ensure there are limitations on
what you can be liable for saying.
Sometimes courts are impressed by the size of the damage. Court are less prepared to protect transfers of wealth.
You can sue in contract or in tort.
Courts are concerned with the allocation of risk by contract
Through waiver the parties can change tort obligations who signed on and for what level of risk and obligation.
Lost of talk about it being limited to professional talkers lawyers, doctors, etc.

Test for Economic Loss: How to

Duty of care: Special relationship?

Representation untrue, inaccurate, misleading?

Representation negligently made?
Plaintiff relied on representation in a reasonable manner?
Defendant must be able to foresee the reliance
Was the Pl. reasonable in trying to rely on these statements?
(5) Circumstances?
Is the Pl or class of Pls known to the defendant?
Do the losses of the Pl connect to the purpose of the statement
(6) Damage result.
Hedley Byrne & Co Ltd. v. Heller & Partners Ltd., (1964), H.L.
Facts: Inquiry re: credit of Easipower is made in confidence and without responsibility (which negatizes the duty). A contract is given
to Easipower and they rack up a debt and go bankrupt. There was no reliance between speaker and listener because the inquiry was
made in confidence and without responsibility (for private use only).
Ratio:
1. Negligent misstatement is a recognizable recovery.
2. Speaking of economic loss.
3. No contract between speaker and listener.
There can be liability for negligent misstatement if establishes:
a) duty
b) negligence in statement at time it was made. BREACH part.
c) reliance reasonable only
d) actual loss caused by the reliance
a) To establish duty:
Person knows is being trusted for the info., or skill/judgment are being relied on, can:
keep silent and decline to answer (no duty).
answer, but qualify the answer by saying arent responsible (no duty).
answer without qualifications (duty) (have special relationship).
Is there a context of trust?
Dont need to ask for statement, could be a seminar.
b) To establish reasonable reliance:
Consider situation where comment was made (social or business); skill of person making statement; relative skill of person receiving
info.
Courts play at this step, can completely negate liability or go to contributory negligent.
Reliance on opinion can be reasonable if person is respected, etc.
c) To establish causation:
Show that person would have done something different with different information.
Show that reliance caused the loss.
Fletcher v. Manitoba Public Ins. Corp., (1990), S.C.C., SM pg. 167
Facts: Fletcher asked for maximum insurance coverage on an auto policy. Got maximum liability coverage but not under or
uninsured motorist coverage (UMC). Was not told about it and also on renewal form said that this coverage was not applicable. Got in
an accident with an underinsured motorist, got $500,000 back but shortfall of $800,000 (wife was rendered quadriplegic).
Issue: Did the D have a duty to tell P of all the options? YES
Reasoning:
Appellate courts should overturn trial judge finding of FACT only when the Judge has made a palpable and overriding error which
affected his assessment of the facts.
Failure to speak (to 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 .
Hedley Byrne applies to establish a duty of care if:
customers rely on the information.
the reliance is reasonable.
the person giving the info knew or ought to have known that they would rely on the info.
Scope of private insurers duty:
to provide both information and advice and
to provide the insurance coverage bargained for, and if that is not available, to explain the gaps.

Scope of public insurers duty: not as stringent, are not specialists in insurance. Merely to inform the customer of all the options of
coverage available. Idea is that a private insurer would be more personalized and special, as opposed to this government insurer.
Contra proferentem rule of construction: ambiguous terms of a contract of insurance are resolved in favor of the insured.
Causation clear here. Had the person bought the extra insurance, would not have suffered the loss.
Ratio: 1. If 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 (don't need to be a professional by degree - all they need to do is to hold they are
professionals even if they aren't). Reasonable reliance is essential
2. Silence can also amount to a negligent mistake
3. In a private insurance company - have a higher duty than public insurance but public insurance still has a duty.
Test:
Reliance on the info doing or not doing an action to your detriment. Reliance determines when there is and isnt a duty of
care.
It was reasonable for them to do so
The speaker knew they would rely on the info
CLASS:
In Alberta, $200,000 statutory minimum auto insurance limit.
Optional: Collision on own car, medical, uninsured motorist (SEF #44).
Purely economic loss because F is suing for the absence of proper insurance to replace the money he can no longer collect from the
defendant in the tort action where he had physical damage. When he turns to another defendant the nature of his damage changes.
The characterization of the loss is purely an economic loss.
The courts believed him that the n/a didnt apply to him he trusted that he was as protected as he could be. He assumed that he got
what he asked for.
Wilson said here is a special relationship because hes someone who must buy insurance from someone with superior knowledge on
insurance. It is reasonable to assume F would rely upon what the public insurer said. They said that he had it all. It was in the
course of selling insuance that it made the representation that he had the proper coverage. They know that when they provide this
info that customers would rely on the info. In this case F relied on the info and was reasonable in doing so. There is a duty of
care not to provide negligent information.
Whats the negligent statement? The omission to tell him that he did not have the UMC or telling him that he had the full insurance.
A public company doesnt have as high a duty as a private company but there is still a duty on them to inform re: reasonable range of
insurance coverage.
ANALYSIS for this type of cases:
1. Was there a duty(proximity)?
Duty can arise in:
reasonable reliance + was the reliance expected
special skill
silence
2. What is the scope of duty?
here POLICY is essential
1) private duty v. public duty
2) floodgates of litigation - indeterminacy
Queen v. Cognos, (1993), S.C.C.
Facts: Appeal from a judgment overturning the trial judgment and dismissing the plaintiff's action. The appellant sued the respondent
for damages as a result of negligent misrepresentations made during the hiring interview. The appellant accountant applied for a
position with the respondent to help with the development of accounting software. The respondent advertised the position and told the
appellant during the interview that the product would take at least two years to develop and that additional staff would be hired. The
respondent never told the appellant that funding for the project was not guaranteed. The appellant accepted the position with the
respondent based on the representations made to him during the interview. The funding for the project was not approved and the
appellant's employment was terminated after one year. The respondent argued that the employment contract, which provided that the
appellant could be terminated without cause and that he could be reassigned, acted as a disclaimer of responsibility for the
representations made during the interview.
Issue: Was there a negligent misstatement coupled with detrimental reliance? YES
Held: Appeal allowed. Respondent owed the appellant a duty of care to exercise reasonable care and diligence in making
representations with respect to the employment. The respondent's manager negligently misrepresented to the appellant the nature and
existence of the position offered by failing to disclose that the position was dependent on financing. The manager knew or ought to
have known that approval for the project was speculative and that there was a considerable risk that senior management would not
give the budgetary approval required. The manager knew that the appellant relied on information provided to him at the interview.
The respondent breached the standard of care of a reasonable person by making the representations he did during the interview. The
employment contract signed by the appellant did not affect his claim for negligent misrepresentation, because the representations

complained of were not dealt with in the contract. The contract did not state that the position offered during the interview might not
be available.
Ratio:
Special relationship includes fiduciary - Employer/employee.
When defendant makes statement, it is not sufficient to be merely honest, must use reasonable care not to say unfounded statements.
They didn't.
List of issues to take into account to determine Standard of Care 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 of
competence generally observed by others similarly placed.
Required elements for a duty of care (p.417):
1) there must be a duty of care based on a special relationship between the speaker and the listener
2) representation must be untrue, inaccurate or misleading a misstatement
3) must have acted negligently in making the representation
4) must have reliance, in a reasonable manner, on representation
5) reliance must have been detrimental to the representee in the sense that damages resulted.
Pre-contractual misrepresentation the comments about the job induced the listener to enter into a contract.
CLASS: This was a pre-employment statement: tells people they have to take care even if there is no contract (he couldn't sue in
contract)
*** indeterminacy must be looked at but did not apply in this case.
Trying to induce the plaintiff to work for the defendant. A statement can be a fact, an opinion, a wrong statement, misstatement,
negligent means a proper standard of care was not given didnt check your facts before making the statement.
It was a misstatement but only a neg. misstatement is it passes the tests for negligent misstatement.
Could have also been breach of contract or fraud in a statement of claim?
How do you establish a duty of care? Court says there is no contract here.
Hercules Management Ltd. v. Ernst & Young, (1997), S.C.C.
Facts: Plaintiffs were shareholders in different companies. Relied on an audit prepared by the defendants to make investments in the
company. Economic loss ensued b/c the auditors' statements were inaccurate, they negligently prepared the audits purely financial
loss
Plaintiffs relied on financial stmts, suing auditors, making 2 claims: economic loss (1) showed a healthy company so we put more
money in (2) we relied on your statements and would have left if we had knows the bad financial situation. Suing because they lost
money.
Issue: Is there a duty owed? NO the duty in this case is negated by policy considerations
Reasoning: The test in Anns: 1) relationship of proximity & 2) policy reasons to limit the duty
Principles:
Proximity test: As a matter of simple justice, should the defendant, in going about his or her business, have had an obligation to be
mindful of the plaintiffs interests. See #2.
Reasonable foreseeability/reasonable reliance test
D ought reasonably to foresee that the P will rely on his or her representation, and
Reliance by P would in the circumstances, be reasonable.
If these two are met, have a special relationship a prima facie duty of care.
Restrict or limit this by (these are policy considerations):
D must know identity of P or class of P (cannot be limitless, they need to know them), and
Reliance losses claimed by P result from using the statement in a manner it was intended to be used (information cannot be taken
out of context).
In cases where the D knows the identity of the P (or class of P) and where the Ds statements are used for the purpose or transaction
for which they were made, policy considerations surrounding indeterminate liability will not be of any concern since the scope of
liability can readily be circumscribed. If not met then wont be liable because the duty of care will be negated.
Purpose of auditors reports: to assist collectivity of shareholders in their task of overseeing management (not to help people who want
to make personal investment decisions)
CLASS:
(1) Hercules case and (2) limited liability partnership stopped further liability
LaForest: duty of care analysis for personal injury 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.
As a general rule we will negatize liability in this case because of policy reasons. It would be an exception to allow a party (audited
statements) to be liable in such a case. The social costs outweigh the benefit we would get from better audit reports.
See para 41 page 428
TEST - ECONOMIC LOSS
1. Special Relationship

2. Relationship of Reliance
Defendant
a) Foreseen reliance by P and
b) Was the P reasonable in relying on these statements?
3. Circumstances?
a) Is the P known to the defendant (or class of P)?
b) Do the losses of the P connect to the purpose of the statement? Whats the purpose of the transaction / the audit stmts /
etc.
BG Checo International v. BC Hydro & Power Authority SCC 1993
CB: 433
Facts: contractor said that the way was clear which needed to be cleared to do his job, he lost money in order to clear the way which
resulted in financial loss (out of pocket or a reduced profit margin) alleged negligence in that misrepresentation which is economic
loss.
Issues:
Ratio: Torts and contracts coexist. Just because you have a contract doesnt mean you cant sue in tort. You must scrutinize the
contract ask did the parties bargain to eliminate the possibility of claiming in tort for a negligent misstatement. Does the contract
speak for everything or does it leave tort out of it?
Comments:
This is a pre-contractual representation it induces a contract. Tort was the only link there was a duty of care a misstatement
reduces the profitability under the contract. They have a contract and a potential tort claim. P can frame the claim in tort or in contract
usually will plead them all. Contracts allow people the freedom to make their own agreements or deals between people. There is
concurrency between tort and contract law one doesnt override the other, we must look to the content of the contract.
In this case the contract has some allocation of a risk. The majority is saying its not enough that theres a contract dealing with the area
as the negligent misstatement.
b.

Negligent Performance of Services

B.D.C. Ltd. V. Hofstrand Farms Ltd., CB pg. 439

Facts: Defendant is a courier company delivering for the benefit of a 3rd party, the Plaintiff. Documents were late and Pl. lost a deal
with the Crown. No contractual relationship here b/w Pl and Def. Pl losses opportunity to purchase land - economic loss.
Issue: Is there a duty of care? NO - no proximity
Reasoning: 1. NO knowledge and 2. NO reliance
1. NO knowledge
didn't know the class of plaintiffs or the plaintiff himself - so class is indeterminate
no knowledge of what was in the envelope
2. NO reliance
situation of risk had nothing to do with the courier - risk was separate and apart from 3rd party
reliance was on the Crown not on the 3rd party, the courier
Ratio: When the plaintiff has no knowledge of the class of plaintiffs + doesn't rely on the def in any way prior to the creation of
the risk + there is no contractual relationship b/w the two = no proximity = no duty of care b/w the parties.
CLASS: Negligent performance of services is similar to negligent misrepresentation ---> still economic loss so we still have to be
concerned with the second step in Anns and indeterminacy
c.

Economic Loss Caused by Defective Products and Structures

Winnipeg Condominiums No. 26 v. Bird Construction Co., (1995, SCC) CB pg. 442
Facts: Contractor subcontracted the cladding of a huge apartment building. Building then sold to another party. Cladding started
falling off and was a clear danger to people. The purchaser of the building spent 1.5M$ to get the plastering repaired. Is now suing
the contractor in tort for negligence. Therefore, have a non-contractual relationship between and . This is a motion to strike the
s claim on the basis that there is no reasonable cause of action, as the loss is purely economic which is not recoverable in the
absence of a contractual relationship.
Timeline is important to this case.
Issue: Can the recover for repair costs of a building negligently built? YES, building is a threat to safety
Reasoning:
Five categories where recovery in tort for economic loss has arisen:
The independent liability of statutory public authorities.
Negligent misrepresentation.
Negligent performance of a service.
Negligent supply of shoddy goods or structures (this case).
Relational economic loss (Norsk).

Contractors, subcontractors, architects, engineers, who take part in the design and construction of a building will owe a duty in tort to
subsequent purchasers of the building if it can be shown that it was foreseeable that a failure to take reasonable care in
construction of the building would create defects that pose a substantial danger to the health and safety of the occupants.
Onus is on the plaintiff to show that;
There is a serious risk to safety.
The risk was caused by the contractors negligence.
Repairs are required to alleviate the risk (only recover costs to put building in non-dangerous state)
Contractors duty: to take reasonable care in constructing the building and to ensure that the building does not contain defects that pose
foreseeable and substantial danger to the health and safety of the occupants.
In Rafuse: Le Dain made it clear that, although duties in tort and K may arise concurrently, the duty in tort must arise independently of
the contractual duty.
POLICY arguments for establishment of the duty;
Logically, if a contractor would be liable to person injured by defects in construction, should also make them liable for defects
that pose a potential, substantial danger. (why wait?)
Punishes (economically) those who dont fix dangers by disallowing a claim in tort, whereas those who wait until someone is
injured, do (preventative function)
Privity of K and caveat emptor are not arguments which work. There is a general tort duty to construct a building safely, which
crosses contractual boundaries. Shouldnt be absolved of the duty just because the building is sold. Purchase should not
have to assume all the risk of latent defective construction.
Court used Anns test;
i) Is there proximity?
Yes. It is reasonable to foresee that the negligence of a contractors work could affect the safety of
public (see pt.2 above), and it is forseeable danger even for the consequent purchaser that danger will
materialize
Would (do) the defects pose a real and substantial danger to the occupants?
ii) What are the policy considerations? - defective product, shoddy work - fell within the policy consideration approved by Rivtow
indeterminacy - class confined (defined class as those in the zone of danger)
- time confined (only the lifetime of the building)
Ratio: 1. Liability to 3rd party when no contract b/w them is OK in cases of negligent construction if such construction is dangerous.
2. Tort and contract are both OK as causes of action and overlapping as long as tort can rest independently from contract.
Independent if risk to safety/dangerous --> separate and apart from contract
CLASS: The one piece of cladding that fell does not constitute building damage and create the issue. The issue here (of economic
loss) is the removal of all the poorly attached cladding and re-application of new stuff.
Some arguments for the defence;
A very good argument for the is; When parties (contractor & purchaser) negotiate a contract between
them, they also at that time allocate risks between themselves. For the court to impose liability would be
to circumvent those negotiations and allocations (see above)
A second defense involves indeterminacy with respect to amount/time/class of people.
-A response to indeterminate time it is difficult over long periods of time to attribute problems to negligence or wear-and-tear.
-A response to indeterminate amount the amount awarded will be only to put the (building) into a reasonable state of repair,
back into a safe place.
-If you purchased from the vendor, you might be able to sue for more than bare minimums if that was the level of
craftsmanship and materials used. If you purchased after original owner, the return to reasonable 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 the
building (still pretty large group).
Now in Alberta with respect to limitation periods, for pure economic loss, you will have 2 years from date
of discovery OR 10 years from the date the action arose (IE. 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 non-dangerous defects?
-Left by the court for another day. No answer giver here.
This would apply to chattels as well (the barge in Rivtow).
This takes the dissent in Rivtow and makes it law
Relational Losses
Canadian National Railway (Resp/Resp/Pl) v Norsk Pacific Steamship Co. (Appl/Appl/Def)
(sued Def for economic loss - costs of rerouting trains) v (negligently hit bridge used by Pl)
(1992) SCC

Claim for contractual relational economic loss

Facts: Def was the owner of a tug that negligently struck a railway bridge. The bridge, owned by Public Works Canada, was closed
for several weeks for repair. Pl had a contractual license to use the bridge for its rail traffic. Def knew that the bridge was used by Pl,
that it was essential to the Pls operation, and that Pl was the main user of the bridge (86%). Pl sued for the cost of rerouting its trains
while the bridge was closed.
Reasoning: (McLachlin J. 3 judges) more liberal - contractual relational economic loss claims should be dealt with on a case-bycase basis and should be allowed where, on the facts, there are no insuperable indeterminacy problems
(LaForest J. 3 judges) more conservative - the exclusionary rule must be applied to contractual economic loss claims and no duty
of care arises in respect of that loss unless the case falls within narrow exception categories where identifiable policy factors strongly
support recovery.
Ratio: This case left the law in an unsatisfactory state 2 visions presented.
Pure Economic Loss: loss suffered by an individual that is not accompanied by physical injury or property damage.
LaForest lists five situations that allow for recovery in economic cases:
1) Independent Liability of Statutory Public Authority (GOV)
2) Negligent Misrepresentation
3) Negligent Performance of a Service
4) Negligent Supply of Shoddy Goods or Structures
5) Relational Economic Loss (no such successful case yet)
D'Amato v. Badger, (1996), C.C.L.T.
SM: 326
Facts: P was in a car accident and severely injured. He was part owner of a body shop and continued to work after the accident, but
could no longer do physical labor, only paperwork. Continued to be paid at his old salary, but body shop had to hire someone else to
do the work that he normally did. Body shop is now suing for economic loss and the P is suing for loss on earning capacity.
Issue: Can P claim relational economic loss? NO, the relationship is a contractual one.
Reasoning: Applying Anns test to relational economic loss (used by MacLaughlin J)
Step 1 the loss was not foreseeable no proximity. No relationship between tortfeasor and company.
Step 2 policy reasons: (LaForest J) - POLICY criteria
no deterrence/ already liability for the physical loss
if there is a contract there is a remedy already (damages)
indeterminacy too many will recover due to relationship with the plaintiff
***Left the door open ---> when these 3 elements are not there may be a chance to recover for relational economic losses (right now
there is no case that was successful in this area).
Principles:
Pure Economic Loss: loss suffered by an individual that is not accompanied by physical injury or property damage.
LaForest lists five situations that allow for recovery in economic cases:
1) Independent Liability of Statutory Public Authority (GOV)
2) Negligent Misrepresentation
3) Negligent Performance of a Service
4) Negligent Supply of Shoddy Goods or Structures
5) Relational Economic Loss (no such successful case yet)
Four policy reasons why economic loss should not be allowed;
Less worthy of protection than physical injury.
Indeterminate liability.
Burden of loss should be on victim.
Multiplicity of lawsuits.
Relational Economic Loss:(AKA contractual and relational) economic loss that arises solely because of a relationship with the injured
party.
No foreseeability or proximity. Loss arises out of an employment contract therefore is a contractual relational economic loss. No
liability.
CLASS:
Para 30
-test of knowledge was rejected here as a way of meeting the indeterminacy test
Categories of relational economic losses;
Claim for loss of consortium and services.
Historically, this was a one sided thing for husbands claims for loss of wife.
Many provinces do not allow this action.
What does the claim entail?
The material side. Quantifiable losses.
Emotional side.
Statutory basis is s.43 of the Domestic Relations Act.
A dependant of a family member claims for loss of income when that partner dies.

Statutory basis is Fatal Accidents Act.

A claim for loss of services brought forward by employer for loss of services of injured employee.
(limited by DAmato).
Per quod servitium amisit,
Bow Valley Husky (Bermuda) Ltd. v. St. John Shipbuilding Ltd., (1997), S.C.C., CB: 454
*HOOL and BVI contracted with BVHB [separate parties/legal entity]
*heating system => failure to warn (flammability/circuit breaker wasn't installed) (similar to Rivtow)
*claim: repairs + loss of profits (pure economic loss)
SCC: Denied liability for builder of SJSB => looked at contract and found the contract wins => no independent tort found 40%
liability on Raychem for failure to warn.
-HOOL & BVI => contract prevailed => action dismissed here (parties have contemplated this loss in contract) => denied claim
Reasoning:
1. product is highly technical
2. product is such that ultimate consumer can't be warned directly
3. intermediary must be learned (expert supervisor) Here => was direct contact/not highly technical/no need for expert
supervisor)
4. Causation: yes, both by subjective and objective test
5. Fault allocation => equally liable (both knew same things)
6. Duty to warn to BVI and HOOL? (here we have economic relational loss)--like in Hosk and D'Amato => economic loss
relation not allowed in England but in Canada still possible
RULE: for relational losses: joint venture => may be successful
**very important- Only in special circumstances but categories are not closed:
1. possessory or proprietary interests
2. average cases
3. joint ventures
We might want to encourage recovery for economic loss: 1. To prevent harm (incentive for people to take care) 2. When Pl unable to
allocate risk /unequal bargaining power.
Exceptions:
1. when the deterrent effect is low and
2. claimants' opportunity to allocate risk is slight
3. where there is inequality of power => exceptions to recovery
Facts: 3 plaintiffs: -HOOL
2 defendants: -S.J.S.B. (builder)
-B.V.I.
v.
-Raychem (materials use)
-B.V.H.B.
*HOOL and BVI contracted with BVHB [separate parties/legal entity]
*heating system => failure to warn (flammability/circuit breaker wasn't installed) (similar to Rivtow)
*claim: repairs + loss of profits (pure economic loss)
Trial: defendant liable in contract & tort/breach of duty to warn/Raychem (liable for duty to warn) => equally liable => BVHB
(contributory negligence) => gets nothing because Maritime Act (if contributory negligence)
CA: overturned last part but dismissed HOOL & BVI (economic loss) but BVHB entitled to 40% of the loss, agreed with finding of
contributory negligence
SCC: Denied liability for builder of SJSB => looked at contract and found the contract wins => no independent tort
-found 40% liability on Raychem for failure to warn
-HOOL & BVI => contract prevailed => action dismissed here (parties have contemplated this loss in contract) => denied claim
Reasoning:
pg. 455 [McLachlin J] => approach
For SJBS:
1. Was there a duty to warn? Manufacturers are required to warn (Hollis). Manufacturers have a duty to warn when they are
producing dangerous substances. They must warn those that would be reasonably affected (forseeability) (proximity) + imbalance of
knowledge. Because the manufacturer knows more than the plaintiff there is a duty to warn.
2. Did the contract negate a duty to warn? NO (nothing in contract that would exclude for duty to warn specifically) => contract
must be examined)
3. "Learned intermediary" defence (Hollis)
Criteria 1. product is highly technical
2. product is such that ultimate consumer can't be warned directly
3. intermediary must be learned (expert supervisor)
Here => was direct contact/not highly technical/no need for expert supervisor)
4. Causation: yes, both by subjective and objective test
5. Fault allocation
=> equally liable (both knew same things)

6. Duty to warn to BVI and HOOL? (here we have economic relational loss)--like in Hosk and D'Amato => economic loss relation
not allowed in England but in Canada still possible
RULE: for relational losses: joint venture => may be successful
**very important, pg. 458 Only in special circumstances but categories are not closed:
1. possessory or proprietary interests
2. average cases
3. joint ventures
*case here doesn't fall into any of these categories b/c:
1. contract not property
2. not case of general averaging
3. not joint venture
CHECK: can recover for some other reason for policy matters? pg. 459 (IMPORTANT STEP)
1. Methodology SUMMARY:
Exceptions to the general exclusionary rule/ categories are never closed (para 48):
1. property interest
2. general average marine law, sinking ship, product overboard
3. relational is a joint venture Exceptions:

1. when the deterrent effect is low and

2. claimants' opportunity to allocate risk is slight
3. where there is inequality of power => exceptions to recovery (can get around the rule)
Majority says that if you cant get something in K, cant sue in T
LaForest and McLauchlin (dissent) says that just because you have contractual terms, should be able to sue in T
owners & hirers v. supplier
duty to warn (Hollis) those who use their products reasonable foreseeability
use public policy analysis general exclusionary rule
did K negate duty to warn?
learned intermediary defence (Hollis)
product is highly technical
product is such that ultimate consumer cant be warned directly
intermediary must be learned
causation
fault allocation
Only in very special circumstances will be liable but categories are never closed
possessory or proprietary interests
average cases
joint ventures
Comments:
Pure economic loss (a tort) vs. contractual loss (in contract)
The parties to contract took great care to manage risk, to allocate risk in a contract in two ways:
1. Warranties the supplier makes promises that a product will perform in a certain way
2. Limitation clauses
Key to liability of Raychem was the flammability of Thermaclad. BVHB told SJSL to purchase Thermaclad. Everyone knew it was
flammable but the configurations were different on a rig, in which it should not burn. Who should have known about the
flammability? Who should take responsibility for the fire damage. BVHB did not know the extent of the risk, SJSL (who knew
about the flammability) did not tell BVHB about the risk. Raychem and SJSL had duties to warn and breached this duty. Because
of this failure to warn there was causation using either an objective standard (a reasonable person would not have gone ahead
with the operations) or subjective standard (BVHB would not have gone ahead with operations if they had known of the dangers).
It is foreseeable that damage will be caused to a party who leases the rig such as Husky. The way to discharge the duty to HOOL
is by warning BVHB.
Allocation of fault: 60% BVHB, 40% Raychem. HOOL and BVI got nothing because their losses were purely economic and there was
no ppty damage.
The exclusion clause didnt cover negligence the negligent failure to warn; therefore Raychem isnt protected. In tort there is no
contract to consider only duty relationships. The liability between BVHB and SJSL wasnt a contractual failure a tort failure to
warn.
Contract trumping tort (para 114)
Learned intermediary in cases of highly technical products.
Para 55-56, 58, 59
Exceptions to the general rule (para 48):

Cooper v. Hobart 2001, SCC 79

Mortgage Brokers Act. Evidence of rogue mortgage broker. Regulatory body doesnt take steps to discipline the guy or expel him
from the society. The investors lose money. Action against the mortgage broker your failure to regulate caused me economic loss. If
youd done your job this never would have happened. Failure of enforcement.
Edwards v. Law Society of Upper Alberta 2001, SCC 80
Legislatures give money to the law society to regulate behaviour of lawyers. Lawyer involved in fraud, no action taken against the
lawyer. People who invested money with the lawyer lost money because of the fraud.
Both cases Action denied no sufficient foreseeability by the regulatory body.
WRONGFUL PREGNANCY
Role of proximate cause: when is enough enough
What kinds of legal interest are given protection? The next 3 areas we are studying are examples of these. The law has trouble with
wrongful birth, emotional harm, and economic loss in a capitalist society
Types of Actions
Wrongful Birth: normally arises in an action instituted by parents of a child who is born with birth defects as a result of a planned
pregnancy. The legal basis comes from the interference by the defendant with the mothers lawful right to terminate the
pregnancy had an informed decision been available to her.
Wrongful Life: Similar to above, but with child bringing action. The claim alleges that the defendant (doctor) owes a duty of care to
the child which is breached by his failure to give the childs parents the opportunity to terminate his or her life.
Wrongful Pregnancy: claimants are parents who allege that the defendants negligence has caused an unwanted pregnancy and birth.
The negligence often occurs through a failed sterilisation or through the preparation or dispensing of a contraceptive medication.
Judicial Approaches to Damages for Wrongful Pregnancy:
Total Recovery Approach total recovery for all reasonably foreseeable damages based on ordinary principles of tort law (strict
application of the foreseeability doctrine). Damages may be recovered for the pecuniary & non-pecuniary costs associated with
the birth as well as for the economic costs of raising the child. UK-no; USA-limited
Pros: consistency. Parents are put into their original positions.
Cons: policy arguments mitigation, floodgates, loving vs. disparaging parent, strain/effect on child
Offset/Benefits Approach Total recovery (birth costs & child raising) offset with the benefits of having a child. UK-most common;
USA-limited
Limited Damages Approach Recovery is permitted for the unplanned pregnancy but not for the unplanned child. Accordingly, the
damages consequent to the pregnancy and birth of the child are recoverable, but no damages are awarded for the child-rearing.
These are denied for reasons of public policy, causation or both. UK-no longer the law; USA-most common
Kealey (Pl) v. Berezowski (Def)
(parents who had unwanted 3rd child) v (doctor who performed sterilisation procedure)
Ont. Ct. Gen. Div. SM 292
The reasons for the sterilisation are relevant to determine whether the consequences of a failed sterilisation constitute a
genuine injury or a blessed event
Facts: Pl wife went to Def for sterilisation procedure (tubal ligation) because she and her husband did not want any more children.
Procedure (performed July 1991) failed and Pls had a third child (September 1992). Parents sued doctor for negligence in performing
the tubal ligation. Parents were in the middle of a divorce.
Issue: What damages are recoverable for a wrongful pregnancy? LIMITED DAMAGES APPROACH
Pregnancy, labour, delivery and necessity for the 2nd tubal ligation.
Loss of income during pregnancy (wife) and post-delivery (husband)
No award was given for cost of raising third child.
Reasoning:

The doctor was negligent in performing the procedure did not meet standard because failed to apply the clip properly
Public policy reasoning could both support and deny recovery for child-rearing costs: one the one hand, public policy favours sensible
family planning and does not impose children on people contrary to their choice. On the other hand, children are regarded
undeniably by the state as benefit and it is the loss of a child (not the birth) that in law is a compensable wrong.
This is analogous to a claim for purely economic loss because no injuries incurred
Total Recovery and Offset/Benefits approaches are flawed because they assume that the birth of a health child can constitute an injury.
Latter is also flawed because the responsibilities and rewards cancel each other out.
It is not enough that the Pls injury be foreseeable to get child rearing damages. Damages are awarded to compensate for an injury, not
in the abstract, but with reference to the purpose of the activity (ie: sterilisation). Therefore, the fact that the parents are happy
with their healthy baby and can afford to raise her is an important consideration.
In this case, there is no damage caused by the Defs negligence that prevents the babys parents from fulfilling their responsibilities to
her. According, the child-rearing costs in this case are not a compensable loss.
Dicta: Note that this was not a case where a sterilisation was sought to protect a mothers health and mother became ill, avoid
transmission of a hereditary condition and child was born diseased, or economic necessity and unreasonable financial burdens were
imposed.
Ratio: (Lax J.)
If a child is born as a result of unplanned pregnancy following a failed sterilisation, this does not, in itself, constitute a harm that
inevitably leads to damages for child-rearing costs.
An award for child rearing costs very much depends on a court finding that the birth of a healthy child in fact constitutes a harm. (Ex:
sterilisation is sought for economic reasons and its failure imposes an economic burden or it is sought for genetic reasons and its
failure produces a defective child.)
Class:
Who do you sue in sterilisation cases?
doctor: faulty treatment and/or failure to warn
failure to warn standard may be higher in optional procedures
manufacturer: faulty clip
Issue in these cases is not was there a duty or was there a breach. Issue is what are the damages.
Divisive issue: what do you do of the costs of raising the child?
Can the child himself sue? Different if not a healthy child.
Courts dont want to get into valuation of life quantifying damages for less than full life
Prefer if parents sue for costs of pregnancy and future care
They are foreseeable costs of failed sterilisation
How can doctor argue that the chain is broken? parents did not mitigate damages by abortion or adoption courts dont accept this
argument they wont infringe on very personal and private decision
Court uses a proximate cause argument to limit the types of damages available.
If this had been a case of failure to warn, probably wouldnt have gotten costs of redoing the sterilisation
Judge characterises the nature of the loss being put forward as one of pure economic loss (not physical damage to mother).
Should there really be a policy difference between those who can and cannot afford to have children?
Where child is born with physical injuries, court will provide costs for cost of care. In this case no, because life is not a physical
injury
Not physical injury of mother either just a question of money that you are out of pocket
Certain damages in tort are compensable and others are not. Physical injury is, while economic loss is not so much
E.

The Relevance of the Plaintiff's Conduct

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. Must establish damages, and that damages were caused by the defendants standard of care (factual element cause
and effect, and there was proximate cause.)
= Tort of negligence has been made out!
Defendant has a full range of defences. The defendant doesnt have to raise these defences to win. When he raises a defence, the
defendant must prove the presence or absence of contributory negligence.

Defences available to the tort of negligence:

Contributory negligence: cant sue because you partially caused the loss
Voluntary assumption of risk: cant sue b/c you voluntarily assumed the risk
Illegality of conduct: I know I have a danger in my living room but because you broke into my house an illegal act this
negates my negligence / responsibility
Exclusion clauses: 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

Mitigation of damages: didnt take reasonable steps to minimize the extent of your damages, mitigation is a post-damage concept

1. Contributory Negligence
Contributory Negligence Act, SM pg. 01
Fault of two or more persons contributed to the damage caused. Liability 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 (because it is a defense).
Butterfield v. Forrester, (1809), K.B.
CB:
Facts: Defendant 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 injured. Left 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 this
damage. The defendant has not been prudent, the pole shouldnt be over the public highway at dusk.
Ratio: No claim can be made against the defendant because the plaintiff was negligent and could have prevented the injury by being
prudent. A plaintiff should use reasonable care to avoid injury due to the defendants actions.
Any amount of contributory negligence on the part of the plaintiff is an absolute bar to recovery.
CLASS: Harsh rule: but the court believes that this will deter careless conduct by plaintiffs. There is no proportionality all or
nothing.
Davies v. Mann, (1842), E.R. L.J.
CB:
Facts: The plaintiff had left his donkey, with its feet fettered, on a highway. The defendant negligently drove his horses and wagon
against the donkey and killed it.
Reasoning: Court found that although there may have been negligence on the part of the plaintiff, unless the plaintiff might have
avoided the consequences of the defendant's negligence by the exercise of ordinary care, the plaintiff is entitled to recover. Also held
the jury 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 injury.
Holding: A reasonable person should have avoiding running over the donkey.
Ratio: Last clear chance doctrine. Even if plaintiff is contributory negligent, if the defendant had the last clear chance to avoid the
loss, the defendant will be liable.
Comments: Todays Contributory Negligence Act
Contributory Negligence Act
Altas CA 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. If you cant collect from D1 (bankrupt), and they are jointly and severally liable, D2 is
liable for the entire proportion of the defendants. Plaintiff is not jointly and severable liable. This is not affected by the plaintiff
being contributory negligent.
Contribution and indemnity: when one of the defendants pays the plainitffs damages and then seeks the required amount from the
second defendant (because they are jointly and severably liable.)
$100 damages, P is 10% contributory negligent, D1 is 20%, D2 is 70%.
Labbee v. Peters

SM: 361

Holding: zero deduction in this case. Look to experts in accident reconstruction.

Cause 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 cant 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.
Galaske v. ODonnel
CB: 396
Failed to require the child to wear the seatbelt.
402 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.
Safety of the child comes first, the driver has a duty as well.

2. Assumption of Risk
Volenti non fit injuria:
Burden of proof is on the to show that expressly or by necessary implication, agreed to exempt the from liability.
must show that the whole risk was voluntarily incurred by the .

Volenti 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 injuries incurred as a result of any negligence on the s part.
is restrictively construed.
Showing that the took a chance is not enough
Come up often in Drunk driving willingness of passenger cases
Hambley v. Shepley
CB: 406
Hambley (Appl/Pl) v. Shepley (Resp/Def)
(Used his police car as a roadblock and was injured) v (drove into stopped police car)
(1967) Ont CA CB 406
No voluntary assumption of risk policeman in course of his duties
Facts: On radio instructions, the Pl used his police cruiser as a roadblock against the Def, a motorist, who was escaping arrest. The
Defs car, then being driven at high speed and in the wrong lane, proceeded into an intersection against the traffic light and struck the
police car, before the Pl could get out.
Issue: Is the Pl policeman barred from recovery under the principle of volenti non fit injuria? NO
Does the principle of volenti non fit injuria apply against a person whose injuries occur in the discharge by him of a public duty so as
to absolve an otherwise negligent defendant whose conduct caused those injuries? NO appeal allowed
Reasoning:
Pl in this case clearly knew of the risk of harm to which he might be exposing himself
BUT it would be a reversion to the rigid old conception of volenti to hold that he thereby accepted that risk so as to absolve the
defendant of any duty of care towards him.
Ratio: (Laskin J.A.) The volenti doctrine has no application to a policeman who is aware of a risk of injury which in facts befalls
him in the discharge of the duties of his office.
Class:
One of the 1st cases where start to see a shift from did he freely encounter the known risk
A person will not be taken to freely encounter the risk when it is his duty
Not enough any more that you just know theres a risk. Have to know that the risk is coming about because of unreasonable care or
negligent conduct and you must be consenting to the negligence. Ups the ante considerably.
Agreement can be expressed or implied
Argument here is by his conduct in continuing with his employment, he encountered the risks freely.
Laskin says this is not real test. Real test is whether hes consenting to allow someone to treat him negligently.
Crocker v. Sundance Northwest Resorts Ltd., (1988), S.C.C.
SM
Facts: The defendant, S, as a promotion for its ski resort, held a competition involving two-person teams in oversized inner tubes
sliding down a mogulled portion of a steep hill. The plaintiff, C, entered the competition, signed the entry and waiver
form without reading it, and paid the entry fee. During the second heat of the competition, C suffered a neck injury that rendered him a
quadriplegic. C 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 S
had asked C if C was in any condition to compete in the second heat but did nothing to dissuade him from continuing. The manager
had suggested that C not continue but took no steps to enforce this.
C successfully sued in tort but was found 25 per cent contributorily negligent. The Court of Appeal overturned the trial judge's
findings of S's liability. The issue before the Supreme Court of Canada was whether S had a positive duty to take steps to prevent a
visibly intoxicated person from competing. The Supreme Court of Canada allowed the appeal, finding that S owed, and had breached,
this duty.
Reasoning: The Supreme Court of Canada determined that, generally, where a person is injured in a sporting accident the law does
not hold anyone responsible. Here, however, the Court noted that the situation was not a "run-of-the-mill" sports accident. A ski resort
that promotes a highly dangerous sport and runs a competition for profit was said to owe a duty of care towards visibly intoxicated
patrons to take all reasonable steps to prevent them from participating.
It was found that S did not discharge that duty. The Court noted that while it may be acceptable for a ski resort to allow or encourage
sober individuals to participate in dangerous recreational activities, it was unacceptable for S to open its dangerous competition to
obviously incapacitated persons. Injury to C was clearly foreseeable and, furthermore, S had had numerous options to dissuade C from
competing, which did not impose a serious burden on the resort.
Ratio: Contractual waiver must be pointed out, read and understood.
3. Illegality of the Plaintiffs Conduct

Hall v. Hebert, (1993), S.C.C., CB pg. 410

Facts: The owner of a vehicle and his passenger, both impaired, were travelling in the dark, on a gravel road, one side of which
sloped sharply away to a gravel pit. The vehicle stalled, and the passenger asked to roll-start the car. The owner agreed, knowing the
difficulties of handling and roll-starting the car and being aware that the passenger had consumed beer that evening. The passenger
lost control of the car and it overturned into the gravel pit. The passenger suffered significant head injuries and sued the owner for
negligence.
The trial judge held the owner negligent in letting the passenger drive, but found the passenger 25 per cent liable. The Court of
Appeal allowed the appeal on the ground that the owner owed no duty of care to the passenger, and further, that the doctrine of
illegality applied. The Supreme Court of Canada allowed the passenger's appeal and found him 50 per cent contributorily negligent.
Reasoning: The Supreme Court of Canada held that recovery in tort should only be barred due to the plaintiffs immoral or illegal
conduct 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 from
illegal 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 injury, since tort suits are
generally based on claims for compensation. Compensatory damages, which compensate for personal injuries rather than for an illegal
act, only put the plaintiff in the position he or she would have been in had the tort not occurred. These awards, the Court continued,
cannot be said to be the profit of, or the windfall from, an illegal act.
The Supreme Court of Canada decided that this passenger need not be denied recovery since he did not genuinely seek to profit from
his illegal conduct, and the claimed compensation was not an evasion of a criminal sanction. Instead, the compensation sought by the
passenger was for injuries suffered. It was reduced by the extent of his contributory negligence, but not wholly denied by reason of his
disreputable or criminal conduct.
Ratio: Compensation does not come from the character of the conduct (illegal or not) but from the damage caused to him by the
negligent act of another.
To have a successful illegality defence:
must have negligence
must owe a duty of care
must not profit from the crime
injury must be separate and apart
CLASS:
The doctrine of ex 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;
profiting (being rewarded financially for an act of wrongdoing) from an illegal act, or
evading a penalty prescribed by criminal law. In essence, cant have recovery for what is illegal.
Compensation does not come from the character of the conduct (illegal or not) but from the damaged caused to by the negligent act
of another.
The principle allows the court to disallow compensation for the s own illegal conduct.
This defence still exists but in limited circumstances.
If seeking exemplary or punitive damages (which are in place to penalize), then ex turpi applies.
A third kind of damage is loss of income from an illegal activity. Say youre running a crack house, ex turpi applies you will not
be compensated for whatever reason.
With respect to when ex turpi will apply, there was a fairly recent Alta. C.A. case which held that it must be a Criminal Code case for
turpi to apply.
4.

Exclusion Clauses

Waiver clause will operate when:

covers precisely the type of negligence which occurred.
attention is drawn to its contents.
participant understood the clause.
participant voluntarily agreed to take part in the activity, and
party seeking to rely on it did not exert pressure (they had equal bargaining power).
Dyck v. Manitoba Snowmobile, (1985), S.C.C., SM pg. 235
Facts: was participant in a snowmobile race. He 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 injured the . had signed a waiver that released
the association from any negligence before the race and knew exactly what it said.
Issue: Was the exemption clause valid? YES
Reasoning: Waiver clause will operate when:
covers precisely the type of negligence which occurred.
waiver is reasonable (the breach is not fundamental, not the very reason you entered into the contract)
attention is drawn to its contents.

participant understood the clause.

participant voluntarily agreed to take part in the activity, and
party seeking to rely on it did not exert pressure (they had equal bargaining power).
Attempt to get to fundamental breach to negate the waiver did not work because covered precisely the kind of negligence which
occurred.
Arguments for :
Clause does not apply to particular situation.
An unequal bargaining power existed.
Unreasonableness of the waiver.
The clause was written in form of indemnity and not release. In a true indemnity clause, Dyck was agreeing that if he caused damage
he would indemnify the association.
Ratio: Fundamental breach to negate the waiver wont work if it covers precisely the kind of negligence which occurred.
CLASS:
Novus actus vs. mitigation;
Novus actus a commission
Mitigation an omission or failure to perform.
How does mitigation and contributory negligence fit together?
Mitigation deals with post injury conduct.
Contributory negligence deals with pre-injury negligence.
- only case of waiver to be successful
Crocker v. Sundance, (1988), S.C.C., SM pg. 58
Reasoning: The Supreme Court of Canada stated that the defence of voluntary assumption risk is based on the moral supposition
that no wrong is done to one who consents. By agreeing to assume both the physical and legal risk involved in the activity the
plaintiff absolves the defendant from all responsibility for it.
The Court determined that C's participation in the tubing competition did amount to an assumption of the physical risks involved, let
alone the legal risk given that his mind was clouded by alcohol at the time. Although a contract waiver clause can serve as a full
defence to a claim in tort, the waiver signed C did not relieve S for its negligent conduct because the waiver had not I drawn to C's
attention and had not been read by him.
The Supreme Court of Canada thus decided that the voluntary assumption of risk defence was inapplicable, and the trial judge's
conclusion of contributory negligence was not interfered with.
Ratio: Because patron was drunk, placed a higher standard of care on the owner to bring the waiver to the attention of the .
5.

Mitigation of Damages

Based 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. But, can recover costs incurred in mitigation.
Reasonableness of rejecting treatment is a matter of fact at trial. Usually not appealable.
Measured by objective test.
Janiak v. Ippolito, SM pg. 218
Facts: Plaintiff was a crane operator, had accident. He couldn't work without surgery. He refused back surgery. 70% chance of
success. Had fear of surgery.
Trial: found plaintiff had a duty to mitigate. Plaintiff's unreasonableness broke chain of causation.
CA agreed it was unreasonable not to mitigate but disagreed it broke the chain of causation - still a 30% chance of failure
(compensated for the 30%). Court decided defendant was only responsible for the damages up to the time that plaintiff would
have been able to return to work plus 30% of the remainder.
Issues:
1. Does thin skull apply to psychological injury? YES
2. To what extent does it apply?
Reasoning:
1. Does thin skull apply to psychological injury? Yes but there are 2 conditions:
a) condition must be pre-existing. Here there is no evidence of the pre-existing infirmity
b) Plaintiff is incapable of making a reasonable decision due to psychological infirmity
***If conflicting medical evidence Pl is entitled to do nothing , it is reasonable to do so.
2. To what extent does it apply? Must look at:
- timing
- nature of psychological infirmity
Principles:

Thin skull only applies if condition is pre-existing or caused by the accident. The objective test of reasonableness prevails in the
absence of any pre-existing condition.
The nature of the pre-existing condition must be considered too- if it prevents a person from making a reasonable decision, then
irrelevant that the decision is unreasonable. However, normally p cannot make the d bear the burden of his unreasonable
behaviour.
Conflicting medical opinions? Consider degree of risk, gravity of consequences of refusing it, potential benefits arising from it.
Burden of proof is on the (balance of probabilities) to prove the unreasonableness of the s decision.
Injured has a duty to mitigate the damages and may not be able to recover damages if his acts are unreasonable.
Whether refusal of surgery is reasonable is a matter of FACT, determined at trial- not altered on appeal.
Damages determined by % failure rate of the surgery.
Ratio: Plaintiff must mitigate damages. Plaintiff must act reasonably but the unavoidable losses should be compensated. Refusal of
surgery with a 70% success rate is not reasonable. Plaintiff cannot make the defendant bear the burden of his unreasonable behaviour.
Policy decision.
Trier of fact will consider:
degree of risk.
gravity of consequence.
potential benefits.
CLASS: Courts are afraid of fraud in these cases, hence the stringent requirements for proof. Court isnt giving an order of specific
performance to get the procedure. It is not imposing directly on the freedom of the plaintiff.
To benefit from thin skull to operate contra mitigation you need to prove its pre-existing. Need to take into account the attributes of the
individual. It has to affect the decision making capacity of the plaintiff. It has to be of a nature that it impairs judgment.
Conflicting medical opinion: then its hard to prove that someone is acting unreasonable as long as they are following someones
authority. Weight the reasonableness of the plaintiff similar to Bolton v. Stone. Look at the magnitude of the consequences, the costs of
having and not having the surgery. Take into account and estimate the chance of occurrence.
V.

Intentional Torts:

In the 1300s an action of trespass. Need direct damages or direct interference. For a long time the court didnt care about anything
indirect. Using a bat to hit someone is direct. Hitting someone with a car is direct vehicular assault. Many things pushed the
boundaries to create intentional torts. In Canada its not only intention if the plaintiff can show direct interference then the burden
shifts to the defendant to show that the interference is not intentional or negligent. (Plaintiffs procedural advantage.)
Intentional torts are actionable per se. They are actionable without proof of damage. They protect certain and important rights the
right not to be physically violated, the right not to be afraid, not to be battered or touched without consent, right to freedom of
movement, enjoy your land. These rights are important to social harmony. These cases were concerned with providing sufficient legal
remedy so people wouldnt take revenge into their own hands.
There is a huge social disapproval to intentional harmful conduct. This is the difference between tripping and pushing you. Between
careless driving and road warrior. We want to discourage intentional wrongdoing, the intentional violation of rights.
Defences include:
Consent
Self defence
Defence of ppty
Necessity
Legal authority
What do we mean by the concept of intent? How much of the acts consequences must you have wanted to bring about or be
substantially certain would occur? Its enough that you know the consequence will occur with substantial certainty. Recklessness has
substantial certainty. Dont mean for something to happen but dont care if it does.
Wilkinson v. Downton, (1897), Q.B., CB pg. 59
INTENTIONAL TORT -imputed intent
Facts: The defendant, D, as a practical joke, falsely represented to the plaintiff, W, that W's husband had had a serious accident in
which both his legs were broken. W suffered acute emotional and physical distress and spent a long time recovering.
Reasoning: The Court concluded that D had made the statement with the intent that it should be believed and that W in fact believed
it and, in consequence, suffered violent nervous shock which rendered her ill. These consequences were not found to be the result of
previous ill health or a predisposition to nervous shock. D thus was liable for damages.
Ratio: When a person willfully does an act calculated to cause physical harm to another, or, in other words, infringes on another's
legal right to personal safety and, in fact, thereby causes physical harm, there is a cause of action if there is no justification for the act.
The result is intended.

CLASS: In Samms v. Eccles (Utah) - sexual harassment case - 1st time distress was found to be compensable - looked at intentional
causes of distress
ACCIDENT NEGLIGENCE INTENTIONAL TORTS
Popular in criminal law, in particular sexual assaults.
As a practical matter, suing someone in tort has much to do with the s ability to pay.
People are not normally insured for intentional acts.
A.

Intentional Interference with the Person

1.

Intention

Historical Context

CB 33

Torts not requiring proof of damage: Do not require a quantum amount for damage to be awarded. You can be awarded damages without
showing how much harm was inflicted. They include:
Trespass to person (battery, assault)
Trespass to land.
Trespass to chattels.
Intentional Torts:
assault
battery
false imprisonment
trespass to goods
trespass to land
Must:
be direct interference with persons, ppty or chattels
have proof of damage to be actionable
defendants conduct must have been wrongful
be intentional or negligent
Direct: an injury can be described as directly produced by the defendants
Goshan v. Larin Nova Scotia CA (1974)
CB 35
Facts: referee, action framed in assault
Ratio: In an action for damages in trespass where the plaintiff proves that he ahs been injured by the direct act of the defendant, the
defendant must prove that his act was unintentional and without negligence to be entitled to a dismissal.
Holding: Not intentional (likely an accident but even if it was it would be ok if police used reasonable force) and no negligence.
Garratt v. Dailey, (1955), Wash. S.C.
CB 39
Facts: An action against a five-year-old boy for injuries sustained when he pulled a lawn chair our from under the plaintiff when she
started to sit down. Boy claimed he moved the chair slightly in order to sit in it, and the plaintiff later sat down, not realizing the chair
had been moved. Trial judge dismissed action, finding the boy had moved the chair, but without the purpose or intent of harming the
plaintiff.
Reasoning: Battery 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 injure 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. Supreme Court of Washington held
the case should be remanded for clarification as to the boy's knowledge. On retrial, judgment was entered for the plaintiff, and this
decision was affirmed by the Supreme Court.
Ratio: A battery is established if the defendant, when he moved the chair, knew with substantial certainty the plaintiff would attempt
to sit down where the chair had been.
An absence of intent to injure 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.
Lack of intent defence
A person intends all natural consequences of their actions. In intentional torts you intend the consequences of your actions (don't need
criminal intent).
Carnes v. Thompson, (1932), S.C. of Missouri, CB pg. 40
Facts: Defendant 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. Husband dodged the blow and the wife was corked.
Holding: Jury found no actual damages but awarded $100 punitive damages.

Ratio: Transferred intent: It does not matter who the defendant was trying to injure, there was intention to strike an unlawful blow,
and it is not essential the injury be to the one intended to receive it. Intention can be transferred to a third party.
CLASS: Case of transferred intent. Intent is there to commit a tort/unlawful blow.
Sufficient for the wife to recover because the defendant intended to do the same act to the husband.
Once we have the intention it can be transferred between torts. Can also transfer between people and torts.
Basley v. Clarkson
CB 41
Facts: Defendant became a little carried away while moving his lawn and mowed some of the plaintiffs. The defendant apparently
didnt notice he crossed the balk (the dividing ridge) and the hade (strip of land left unploughed to act as a dividing line).
Reasoning: Court found for the plaintiff because the act of the defendant was voluntary, and his intentions and knowledge are not
material here because they cannot be ascertained.
Ratio: Mistake is no defence in intentional torts. If one intends the result (actions were voluntary) they are liable.
Smith v. Stone, (1647), K.B.
CB 42
Facts: Plaintiff brought action against defendant for trespass. Defendant pleads he was carried onto the land by force and violence of
others, and was not there voluntarily.
Holding: Judge 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: Did the defendant act intentionally? Did the act by his own accord?
Tillander v. Gosselin
CB: 43
Facts: Infant, just under three years old, removed a second infant from her carriage and dragged her over 100, fracturing her skull and
causing some brain damage Action was dismissed.
Three year old not capable of committing the battery.
Criminal 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 applied: The court considered whether the child knew the nature and consequences of his conduct.
Does the child have the capacity to appreciate the motion? Does the child have the mental capacity to intend the consequences?
Courts are reluctant to allow people to escape responsibility for their actions.
Defendant would need to prove it wasnt intentional and they didnt have the capacity for it to be intentional. Does he know that
hes moving his arm? Does 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: Is the child considered incapable of
knowing the nature and consequence of his conduct and appreciate that it is wrong? If yes, not liable.
Defendant would nee to prove it wasnt intentional. Here, the three year old not liable "tender years doctrine". (Garratt v. Dailey, 5
year old was liable.)
Trespass when there is no right to touch another person (etc).
Can't apply reasonable person standard to this child. This can't be described as a voluntary act by the kid.
Lawson v. Wellesley Hospital
CB: 45
Ratio: Where a person by reason of mental illness is incapable of appreciating the nature or quality of his acts, such person has
committed no tort since the intention is missing.
2. Assault
To protect security and to prevent the immediate apprehension of harm. (Battery is the actual contact.)
To put a legal price on conduct that might incite retaliation.
I. De S. & Wife v. W. De S., (1348), Liber Assisarum,
CB: 48
Facts: W went to pub, door closed, girl poked head out, W went to hit with hatchet but missed. Assault?
Issue: Was there trespass even though no harm was done?
Holding: Thorpe C.J. held there was harm done, and a trespass for which they shall recover damages, since the guy made an assault
upon the woman as it is found, although he did no other harm.
Ratio: Close is close enough! Dont need actual physical contact for assault.
Stephens v. Meyers, (1830), C.P.
CB 49
Facts: M participating at a public meeting, threatened to remove chairperson and advanced towards him, fists clenched. M stopped
before he got near enough to strike him. Jury found in favour of chairperson.
Reasoning: The judge directed the jury that not every threat without actual personal violence constitutes an assault. There must be the
means to carry out the threat. The jury had to consider whether M was advancing in such a way that if he had not been stopped, he
would have hit the chairperson.

Ratio:
Not every threat needs violence to constitute an assault.
Assault = If the defendant was advancing with intent to harm, the threat was immediate, and there were means to carry out the
assault (raised hand, physical proximity).
Tuberville v. Savage, (1699), K.B.
CB 49
Facts: In the course of some 17th C banter, S, put his hand on his sword and said to T, "If it were not assize-time, I would not take
such language from you." Court dismissed T's action for assault.
Issue: Was there an assault? No b/c the defendant said he would not commit assault on the plaintiff.
There was no imminent fear.
Reasoning: There has to be an intention to threaten physical contact in addition to an act. Here, no threat was found, because the
defendant's very word indicated he would not touch the plaintiff. However, if a person who intended to assault struck at another and
missed, this would constitute an assault. It would also be assault if a person held up his hand against another in a threatening manner
and said nothing.
Ratio:
Need an immediate apprehension of physical harm to constitute assault.
If a person intended to assault struck at another and missed, this would constitute an assault.
If a person holds up a hand against another in a threatening manner and says nothing, it is an assault.
Bruce v. Dyer, (1970), H.C.
CB 51
Facts: D attempted to pass a line of cars on the highway, but because of an oncoming vehicle was unable to do so. He then attempted
to pull into a space in the driving lane between the first and second cars in the line. The plaintiff, B, driving the second car, accelerated
and closed the gap, forcing D to fall back and to enter the space between the second and third cars. B claimed that thereafter D drove
with his car's high beams on, in retaliation. D claimed that B kept accelerating to prevent him from passing. After some distance, B
suddenly stopped his car, forcing D to stop, and gestured at D with a clenched fist. A fight ensued in which D struck one blow that
fractured B's jaw.
B brought an action for assault. D claimed self-defence on the basis that B's conduct on the highway had constituted assault.
High Court dismissed the action, finding that in fact B had assaulted D. The Court of Appeal agreed with this finding and
dismissed the appeal.
Reasoning: Trial judge held striking a person against his will is regarded as an assault. One who is being assaulted has the right to hit
back in defence of oneself, one's property or one's way. The defence, though, must not be disproportionate to the severity of the
assault. The High Court concluded B, in blocking D's passage on the highway and by shaking his fist at him, committed an assault. D
had reasonable grounds to believe he was about to be attacked and it was necessary for him to take some action to ward off the attack.
He did not use excessive force, striking only one blow.
Holding: Bs blocking Ds passage considered an assault. The direct blow by D was self-defence and not excessive.
Ratio: Law of self-defence in intentional torts says you do not have to fear to act in self-defence. One is able to hit back if you believe
that you are being attacked or to defend your property.
3. Battery
An actor is subject to liability to another for battery if:
He acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension
of such a contact, and
A harmful contact either directly or indirectly with the other person results.

Battery: Is the touching. Trespass to person is essentially battery.

Assault: Protects ones right to be free from eminent physical harm.

Cole v. Turner, (1704), K.B.

CB 53
Ratio: Holt C.J.
The least touching of another in anger is battery. (Intention does not matter the question is w/o/n the person consented.)
If two or more meet in a narrow passage, and without violence one touches the other gently, there is no battery. (There will be
circumstances where the touching is de minimus or that there is an implied consent to certain types of social contact because
youre in a close proximity.)
If either uses violence against the other, to force his way in a rude manner, it will be battery; or any struggle about the passage to
that degree may hurt will be a battery. (There are limits to implied consent it cant be more than what youve consented to.
Reaction must be proportional; you cant be unreasonable.)
Bettel et al. v. Yim, (1978), C.C.L.T. Co. Ct.
CB 55
Fact: B and his friends threw lighted matches into a store. One match thrown by B, caused a bag of charcoal to ignite. Y, the store
owner, grabbed B with both hands and, while shaking B, the owner's head came into contact with B's nose, severely injuring B. The
store owner's purpose in shaking B was to force him to confess to setting the fire; he did not intend to injure B in the manner he did,
though he did intend to grasp him firmly and to shake him. The action for assault against the store owner was successful.

Reasoning: The judge held, properly speaking, this action should have been battery, which is the intentional infliction upon another
of harmful or offensive contact. In Canada, however, the distinction between assault and battery appears to have been blurred, so that
assault may include battery.
It was stated that once the plaintiff proves that injury was caused by the direct act of the defendant, the defendant has the onus to
establish the absence of both intention and negligence. The store owner's act of grabbing B with both hands and shaking him
constituted the intentional tort of battery; he obviously desired to bring about offensive or harmful contact with B for the purpose of
extracting a confession from him. It ought to have been apparent to the store own grabbing and shaking B, he had created the risk of
injury to B resulting from some part of B's body coming into contact with some part of the store owner's body.
The judge explained that the concept of forseeability, as defined by negligence law, ought not to be imported into the field of
intentional torts. To do so would ignore the essential difference between the intentional infliction of harm from failure to adhere to the
reasonable standard of care and would result in bonusing deliberate wrongdoers who strike more forcefully than intended. The test
was stated to be whether the defendant is guilty of deliberate, intentional, and unlawful violence or threats of violence. If this test is
met, and more serious harm befalls the plaintiff than the defendant intended, the defendant, not the innocent plaintiff, must bear
responsibility for the unintended result. The fact that the magnitude of the intended physical contact exceeds all reasonable or intended
expectations is irrelevant.
Ratio:
Having intent to bring about harmful contact with the plaintiff, it doesn't matter that the type of injury was not foreseen or intended.
Once the plaintiff proves that he was injured by the defendant, the defendant must prove lack of intent and lack of negligence.
When something happens as a result of a chain of events deliberately set in motion by the defendant and at the end of the chain an
unintended injury occurs, it's not an accident.
The defendant is liable for beyond reasonably foreseeable, maybe even all, consequences.
CLASS:
Recall Reibel v. Hughes the tort of battery applies differently in medical cases.
Sexual Wrongdoing
CB 59
Unwanted sexual contact = battery (May also constitute other torts such as assault and intentional infliction of emotional distress).
In many cases, sexual wrongdoing amounts to a breach of trust = fiduciary duty
Bazley v. Curry
SM: 385
Test: The employee is responsible or the tort of employees if the tort occurs in the normal course of business. You can sue the postal
company the govt for hitting you while crossing the street.
Here, we are looking at vicarious liability where the employees conduct was an intentional tort. Was what the employee doing in
the course of his employment? The further the activity is from the job the more difficult this argument is to make. Employers do
not sanction the illegal activities of an employee.
Lack of due care to the children in their care about their screening processes.
Must start with the assaulter to begin the chain of liability to connect the employer etc.
Argues that the association stands in the shoes of the assaulter they are vicariously liable for intentional tort. This would be the
best argument because you dont need to show fault.
The court asks questions that deal with empowerment and creating by the enterprise a material increase in the risk of sexual
assault. Was there a significant connection between the creation or enhancement of the risk that this wrong would occur. The court
asks based on what the association is trying to accomplish have they organized themselves in a ways that sexual assaults would
occur. In this case the caregivers were parental substitutes. Factors to consider in determining w/o/n there is a sufficient
connection: P. 386
If battery is that broad it is easy to see how physical and sexual assaults should be interpreted in tort law as batteries.
Intentional tort of battery: the complainant is a plaintiff with his or her lawyer. The plaintiff controls the litigation. There is civil
balance of probabilities. You can force the defendant to answer. The complainant can seek vicarious liability of various
organizations. Non profit organizations argued that because they are non-profit they should not be held liable. They said that the
financial responsibility would be burdened fully on the company and could not be passed on. The court refused to lessen the
damages for public policy reasons, to deter conduct such as this.
We are not talking about negligence when we talk about vicarious liability. It is not a defence for the association to say they took
due care in hiring Curry. Custom is no defence. This is a harsh finding. If you increase the risk and there is a reasonable
connection (the thresholds are met) fault or no fault is not an issue.
Ratio:
Case of vicarious liability where the employees conduct was an intentional tort
The further the activity is from the job the more difficult this argument is to make.
Principles for the court to follow:
o Openly confront the question of whether liability should lie against the employer (dont look to scope of
employment

Ask whether the wrongful act is sufficiently related to conduct authorized by the employer to justify vicarious
liability
Incidental connections to the employment enterprise (such as time and place alone) will not suffice
o In determining the sufficiency of the connection between the employers creation or enhancement of the risk and the
wrong complained of, the court should consider:
The opportunity that the enterprise afforded the employee to abuse his power
The extent to which the wrongful act may have furthered the employers aims
The extent to which the wrongful act was related to friction, confrontation or intimacy in the employers
enterprise
The extent to which the wrongful act was conferred on the employee in relation to the victim
The vulnerability of potential victims to the wrongful exercise of the employers power
Holding: Organization is vicariously liable for the sexual misconduct of its employee. The employers enterprise created and fostered
the risk that led to the ultimate harm
o

Jacobi v. Griffiths
SM: 401
Court endorses Currys decision. The court reiterates it isnt enough that the association allows access to children (time, place and how
they met is not enough), they have to increase the risk. This is where the court split. There is not doubt these cases reflect a shift to the
strict liability (no-fault) side (from absolute liability) doesnt matter if in course of employment the test focuses on the nature of the
risk that the association activities posed (increase in risk and reasonable connection). In strict liability there is no due diligence
defence (no fault is not a defence). The lines between negligent, strict and absolute liability are not so defined in torts.
Ratio: Affirms Curry. It doesnt matter if the acts occurred in the course of employment; the test focuses on the increase in the risk.
4.

Intentional infliction of mental suffering

Wilkinson v. Downton, (1897), Q.B.

CB: 61
Facts: D as a practical joke, falsely represented to the plaintiff, W, that Ws husband had a serious accident and broke his legs. W
suffered acute emotional and physical distress and spent a long time recovering.
Reasoning: Court concluded D made the statement with the intent that it should be believed and W in fact believed it and, in
consequence, suffered violent nervous shock. These consequences not found to be result of previous ill health or predisposition to
nervous shock. D thus was liable for damages.
Ratio: When a person willfully does an act calculated to cause physical harm to another (or infringes on another's legal right to
personal safety) and in fact thereby causes physical harm, there is a cause of action if there is no justification for the act. The result is
intended.
Where you willfully do an act calculated to bring about a physical harm (including emotional trauma and stress and mental suffering)
it is actionable. It is an intentional tort. This is a residual basket clause (when you cant get them on battery etc). To get substantial
damages, the plaintiff must establish the existence of mental suffering.
CLASS: In Samms v. Eccles (Utah) - sexual harassment case - 1st time distress was found to be compensable - looked at intentional
causes of distress
Fraud intentionally tell me a falsehood and intend for me to rely upon it. In this case we should get the money back because of fraud.
They also try to sneak in damages for emotional (out of pocket + emotional concerns.) The court has no trouble awarding out of
pocket damages as a result of deceit. Court didnt believe the consequences (that it be belived) werent intended.
To date there is no tort of harassment. Therefore people use the intentional infliction of harm (through bullying, sexual harassment
etc.).
5.

False Imprisonment
Must be false and must be imprisonment. Protects freedom of unlawful physical restraint or coercion. There has to be a total
restraint or restriction. Protects freedom of movement and freedom of choice. Not only includes incarceration. What level of
restraint is necessary to constitute imprisonment? (See Bird) Implicit or explicit force, barriers, unlawful authority.
A barrier doesnt have to be physical, it has to be imposed.
Onus on def to show justification as a defence.
Arises from trespass, some nominal damages if tort is established.

Bird v. Jones, (1845), Q.B.

CB: 66
Facts: B, attempting to travel in a particular direction, was obstructed by J, who prevented B from going in any direction but one
not the direction B wanted to go. B brought an action for false imprisonment.
Reasoning: Court of Queen's Bench stated imprisonment of the body cannot be confused with mere loss of freedom; imprisonment of
the body also includes restraint by will. False imprisonment must involve total restraint on one's liberty, enforced through some
coercion. A "prison" may have a large or narrow boundary, be visible or intangible, or though real, still in conception only; it may be
movable or fixed, but it must have a boundary that a person is prevented from leaving.
Holding: No false imprisonment. B had a means of escape and another direction to travel.

Ratio:
For false imprisonment need to have: Imprisonment + That is unlawful (no right to enforce or constrain someone elses options)
Total restraint or obstruction or boundary is required to find false imprisonment. Boundary can be physical or psychological or
mental therefore need to look at the mind of the accused and the physical circumstances. Losing an aspect of freedom is not
sufficient.
CLASS:
Dissent: Denning says as long as you are preventing someone from doing what they want, that constitutes restraint. This would be a
total deprivation of liberty.
False imprisonment = Restraint + authority over someone who has a lawful right to be there.
This is the current view, with the caveat that the means of escape must be reasonable.
Chaytor et al. v. London New York and Paris, (1961), S.C. (Newfoundland)
CB: 66
Facts: Plaintiff was comparison-shopping, a common practice. Plaintiffs were recognized by the Defendant who loudly accused them of
spying and called police. They were detained in the store. There was no touching of the plaintiffs. There was another exit from the store
(which wasnt known by the plaintiffs).
Ratio: Psychological imprisonment is the imprisonment that takes place in one's mind. Does not have to be physical, can restrain
without touching and it will amount to false imprisonment. Even though there was an exertion of authority. Even though there was the
appearance of consent it did not exist in fact.
CLASS:
Court would have given more money if their reputation had been ruined.
False imprisonment can be by agreement.
Dont need knowledge that you are being imprisoned.
Runser v. Goughl 2001: False imprisonment in helicopter. 3-4 days of upset. No physical damages. Aggravated damages are
compensatory. Punitive damages are to punish ($7,500).
False imprisonment only lasts until your bailment hearing. The minute you go before the justice you are lawfully imprisoned.
Therefore Milgaard cant get damages for false imprisonment. Wrongful convictions are different.
Malicious prosecution
Can be against state actions and people who trigger state prosecutions (people who lied to the police that lead to you being arrested).
Susan Nelles (TO hospital, deaths, police arrested nurse) public prosecution of her because she wanted to speak to her lawyer first. She
sued for malicious prosecution, she sued the AG as well. The Nelles case established that you can sue the Crown.
Four elements must be established to sue the Crown:
proceedings initiated by the defendant,
the proceeding must have terminated in the plaintiffs favour (acquittal),
proceedings must have been instituted without reasonable cause (this is tough because usually the Crown only
pursues charges if there is a reasonable chance of conviction), and
the defendant must have been malicious (wide interpretation not doing your duty, without good faith, can be
reckless or an abuse of the process where youre not concerned with justice of integrity, look at how they dealt
with evidence)
6.

Abuse of Public Office

Taken against a gvt official, he abused the process and you are entitled to damages.
Where does the Charter fit in?
Duplessis: public officials should be held liable when they exceed their jurisdiction in a way that is malicious and targeted.
Uni-Jet Industrial Pipe Ltd. v. Canada (AG)
SM:404
Facts: He obtained search warrants of the premises (Baziuk and Uni-Jet) and two other companies engaged in the sewer contracting
business. There was no denial by Jennings that, as was suggested to him in cross-examination, his objective was to curry favour and
enhance his own relationship with the working press. The plaintiffs believe that they have been aggrieved by Jennings' conduct and
have claimed general, punitive, exemplary and special damages, since it is not contested that people in the construction industry,
customers and friends of the plaintiffs were aware of what was happening as a result of the media coverage.
Pl state the conduct of the defs was intended by them to cause harm to the pl. Alternatively, the Plaintiffs state the defs conduct
was intentional, and they were wilfully blind, reckless or callously indifferent to whether harm would be caused to the
Plaintiffs. In the premises, the defs have committed the torts of abuse of process, and abuse of governmental and/or public
authority.
Issues: Whether the defendants should be found liable to pay damages by reason of either the negligence or the abuse of public office
by Jennings and, if so, how damages should be determined.
Reasoning:
Abuse of public authority" or "abuse of statutory authority," "abuse of public office," and "misfeasance in public office."

It is an intentional tort where both the actual conduct and the mental state of the alleged tortfeasor must be examined.
1. Did Jennings hold some public office or statutory authority that he exercised improperly?
o Jennings was a peace officer and member of RCMP. The duties of such officers are outlined broadly in Part I of the
Royal Canadian Mounted Police Act. At the very least Jennings acted improperly when he released the information
about the search before the warrant had been executed and before the Return to the Judge had been executed or
filed. As a result, he violated the Code and breached the RCMP Act. This review of the RCMP Act, of the
obligations contained in the search provisions of the Code and of the authorities satisfies me that at the times
relevant hereto Jennings held a public office; he had statutory authority; and the manner in which he conducted
himself amounts to a failure to carry out the duties attached to his public office and constitutes a breach of his
statutory authority. The manual is not a regulation or standing order with any attendant force of law. By itself, it
cannot be taken either as a definition of the standard of care required or as a description of statutory authority.
2. Was his intent or state of mind of the kind that attracts liability for damages?
Once it was shown that a decision was tainted with malice in the sense that there was an intent to inflict injury on the
plaintiff then the invalid decision gave rise to a claim in damages. Today, the administrative tort is established once
it is shown that the invalid decision is tainted by either malice or knowledge.
What damages?
Damages other than for material loss are termed "damages at large." These have been variously defined but appear
generally to mean general damages consisting of non-economic loss and exemplary damages in appropriate cases.
The expression "at large" should be used in general to cover all cases where awards of damages may include
elements for loss of reputation, injured feelings, bad or good conduct by either party, or punishment, and where in
consequence no precise limit can be set. Any attempt at a precise computation or estimate must assume probabilities
in an area of uncertainty and risk. The situation is one which the Court should approach as a jury would, in a view of
its broad features. With respect to the individual plaintiff such considerations as his position, status and prior
reputation in both his social and commercial community quickly come to mind. With respect to Jennings' conduct
and circumstances, the mode and the extent of his communication with the media, his timing, his motivations and
his understanding of the risk of harm are all factors which should be considered.
Aggravated damages are damages which take into account the additional harm caused to the plaintiff's feelings by such
reprehensible or outrageous conduct on the part of the defendant. Their purpose is compensatory and properly form
part of general damages.
Punitive damages may be awarded in situations where the defendant's misconduct is so malicious, oppressive and highhanded that it offends the court's sense of decency. Their aim is to punish the defendant, not to compensate the
plaintiff.
Ratio: In the absence of malice, if a public officer knows that there is no power to do what is being done, and that his act will likely
injure the plaintiff, this is sufficient to establish liability.
Requirement for liability of public officials:
Conduct: Deliberate misconduct is established by proving an intentional illegal act:
1. An intentional use of statutory power for an improper purpose.
2. Actual knowledge that the act or omission is beyond statutory duty.
3. Reckless indifference or willful blindness to the lack of statutory authority for the act.
Mental Element: Intent to harm an individual or class of individuals, which is satisfied by either:
Targeted malice: Actual intention to harm
Untargeted malice: actual knowledge that harm will result
Reckless untargeted malice: reckless indifference or willful blindness to the harm that can be foreseen to result
Damages: Punitive damages may be awarded in situations where the defendant's misconduct is so malicious, oppressive and highhanded that it offends the court's sense of decency. Their aim is to punish the defendant, not to compensate the plaintiff. (awarded
in this case)
Comments:
He was a rogue agent. If the RCMP had given him authority it would have been vicarious liability.
Usuaslly a plaintiff would argue but argued an intentional abuse of office. Jennings did this for his own motives and he has to have
known or must have intended the dimunition of the reputation and business interests of the plaintiff.
Jennings was acting outside of the RCMP guidelines. But this isnt enough to get liability they must show intentional tort or
negligence or violation of the Charter.
Court said that violation of guidelines isnt evidence in of itself.
Focus is on w/o/n a def hold public office or statutory auth that was exercised improperly. Is this a state of mind that should attract
liability?
Look at the Act and look to the kind of public office does he have authority to do this yes, but in doing this he has breached the
code.
3 ways in which you can show that the public authority has been intentional or malicious:

Targeted Malice (Roncarelli v. Duplessis): targeting an individual, def knows hes doing it, directed wrong doing (for
the purpose of causing harm) directly intending to bring about a non-benevolent consequence.
Untargeted Malice: Intentional act. No intention to bring about a harmful consequence but there is
knowledge/awareness it is likely a negative consequence will result.
Reckless Untargeted Malice: same basis of awareness, rather than knowing something is likely to occur the def just
doesnt care about the risks. He knows the risks will likely occur unless something extraordinary happens. (Thats
not my job, I dont have to concern myself with that, my priority is getting the news out.)
The scope of intention has increased and therefore the net of potential liability has widened.
B.

1.

Defences to Intentional Torts

Some defences (theoretically):
Consent.
Policy reasons person acting to protect another.
Ex turpi,
Burden on defendant.
Practically, the defences are treated similarly.
When consent is used as defence to intentional tort, you are saying that the plaintiff consented to the particular act. In volenti, you
are not saying the plaintiff agreed to be injured but that there was a risk of injury stemming from the s conduct, and the def
acknowledged it.
A minor can consent to conduct as long as the child has sufficient knowledge and intelligence to do so.
(See Wren (1987) A.C.A. 16 year old girl who wanted an abortion, parents sought to prevent her from doing so. Court found that
she was able to decide.) Age of statutory majority does not seem to apply to these cases.
With respect to some conduct involving minors, consent is not relevant. i.e., Actions involving minors consenting to sexual acts
with adults (This seems inconsistent with holding in Wren).

Consent

No wrong is done to someone who consents. (Rollins)

If a battery is an unconsented touching then when you have consent all you have is touching, not battery.
Because of where you are and what you are engaged in you can be consenting. (scared at a Halloween party)
Consent can be express or implied through a course of conduct.

Once the plaintiff proves a tort, the burden of proof is on the def to show that there was consent.
Extent of consent is more relevant in sports related injuries.
Sexually transmitted diseases are a battery, old view that consenting to sex was consenting to the consequences, now there is a failure
to warn.

Consent in a medical context:

No doctor can give care, no matter how beneficial, without consent of patient.
It is patient, not doctor, who will decide if procedure is performed. (Integrity of the body.)
In case of children, consent must be given by parent. If parent refuses, there is a statutory way of getting around it by Child Welfare
Act.
Ability for child to give consent generally given at age 16 or married.
O'Brien v. Cunard SS. Co., (1891), Supreme Judicial Court of Massachusetts
CB 101
Facts: Passengers immigrating, had to be immunized. DR. checked for a mark, if none would vaccinate. Many signs announcing
procedure. Pl said she had a vaccine but no mark. She refused but lifted her arm and was vaccinated. Argued unprivileged medical
intervention, sued for battery. Defence of consent.
Issue: Was there any evidence to direct the jury on consent? YES, consent found.
Reasoning: Consent can be explicit or implied. Lifting arm could amount to consent. Onus is on the plaintiff to prove she didn't
consent (this is debated in other cases).
Ratio: Nature of Consent: In determining whether consent existed, one is guided by overt acts and the manifestations of feelings. The
conduct of the defendant must be considered in connection with the surrounding circumstances. Can rely on and draw inferences based
on actions of the plaintiff.
CLASS:
WRONG TEST: Onus should be on the defendant b/c its a defence.
It was an ambiguous situation need to look for clear consent.

If you can impliedly consent to physical violation what do you need to build the case? How do you show consent vs. just
going along? Signs indicated that she knew what was going on (and she could read and understand English. The sign brings
home what was occurring.
There are choices to be made and consequences for those choices. There was communication in the meantime and no objections
and a tendering of her arm (exact requirement of what was needed). Conduct is equivocal, difficult evidence. She could argue
coercion. You need to look at the context to tip the balance.

Norberg v. Wynrib, (1992), S.C.C.

CB 103
Facts: N became addicted to painkillers. She began seeing W and began obtaining prescriptions for painkillers from him. W
confronted her about the addiction. W then offered pills for sex. She returned when desperate.
N sought damages for sexual assault, negligence, and breach of fiduciary duty and breach of contract. At trial: N admitted W
never used physical force and she played on fact that he liked her. Court found consent. Appeal dismissed. SCC allowed N's
appeal, decision solely on the basis of sexual assault.
Issue: Was there consent (to the battery)? No
Reasoning:
SCC stated victims of sexual assault can use the tort actions of assault and battery and found that this case fell under battery
the intentional infliction of unlawful force on another person.
Consent was held to be a defence to a battery action.
Court set out a two-step test that should be used to determine, in "power dependency" relationships, whether there was legally
effective consent to a sexual assault:
1) there must be inequality between the parties:
Here, There was a marked inequality in the respective powers of the parties. N's drug dependence placed her in a
vulnerable position and diminished her ability to make a real choice. Dr. W s medical knowledge and knowledge
of N's addiction, combined with the authority to prescribe drugs, gave him power over her.
2) there must be exploitation: Consideration of the type of relationship at issue and community standards of conduct may
strongly indicate exploitation.
Here, there was also exploitation, Dr. W had abused his power over N and had exploited information he obtained
regarding her addiction to pursue his own interests. The sex-for-drugs relationship would be considered
unacceptable by the community.
SCC applied the two-step test and determined that there was no legally effective consent by N. SCC concluded there was a power
dependency relationship b/t parties, and an overwhelming power imbalance. As a result of this power imbalance, there was no legally
effective consent by N to the sexual relations.
Ratio:
In general, for sexual assault (tort of battery), consent (express or implied) is a defence to battery.
Consent must be genuine and cannot be coerced by:
Force or the threat of force,
Fraud or deceit as to the nature of the defendant's conduct, or
Under the influence of drugs.
Must be able to choose freely before able to consent. Consent must be voluntary. The factual circumstances of each case must be
considered to determine if there is genuine consent.
To determine legal consent in a power dependency relationship two-step test:
1. Proof of a marked inequality between parties can affect free will (breach of fiduciary relationship, risk of exploitation high)
2. Proof of exploitation (sexual relationship sufficiently divergent from community standards of conduct may highlight the
possibility of exploitation)
Comments:

Need to look beyond the conduct she consented to sex but given the circumstances there was not genuine consent.
We need to look at w/o/n the consent is informed, genuine and real. Need to look at the social reality of the situation.
She only returned to W when she was desperate.
There was a structured exploitation of her situation.
Nothing is more important than the fact that she is a drug addict and he is a doctor.

Malette v. Shulman, (1990), Ont. C.A.

CB 115
Facts: M injured in a car accident and taken, unconscious, to hospital. Physician, S, performed a blood transfusion even though he
saw a card in M's purse identifying her as a Jehovah's Witness (therefore no blood transfusions). S's opinion was it was necessary to
preserve M's life, so ignored card. Also refused to follow M's daughter's instructions. M recovered and brought an action against
hospital, executive director, S, four nurses, alleging transfusion constituted negligence, assault, battery b/c S tortiously violated
patient's rights over her own body. Trial: M awarded damages for battery. S's appeal dismissed.
CA Reasoning:

Found general rules governing battery applicable to doctor-patient relationship. Any intentional, nonconsensual touching harmful
or offensive to a person's reasonable sense of dignity is actionable, unless the person chooses to waive this protection and consent
to intentional invasion of this interest.
Issue: Did the Plaintiff consent to the surgery? NO
Holding: Concluded facts did not constitute an emergency situation exception. M's decision to refuse blood was communicated to S
through the JW card (valid restriction on emergency treatment to be provided to her). No reason on evidence not to regard card as a
valid directive, so S was liable for battery.
Ratio:
The general rules governing battery are applicable to a doctor-patient relationship.
Privacy gives people the right to determine their treatment in cases of emergency treatment.
o Any intentional, nonconsensual touching harmful / offensive to a person's reasonable sense of dignity is actionable,
unless they chooses to waive this protection and consent to intentional invasion of this interest.
o A doctor a liable if he proceeds in the face of a decision to reject treatment notwithstanding his justifiable belief that
it was necessary to preserve the patients life.
JW card = consent (or refusal) to treatment.
What has value: Interest in preservation of life vs. patients idea of what is proper medical treatment?
The emergency situation is an exception to the rule requiring prior consent. When immediate medical treatment is needed to save
the life of a person incapable of giving or withholding consent due to unconsciousness or extreme illness, a doctor may proceed
without the person's consent.

Comments: $20,000 awarded for battery.

Once act is established the burden shifts to Dr to prove consent. Difficult b/c was a no-treatment order.
If unconscious without the card there would be no tort action.
Court says people have the right to reject medical treatment. Court gives priority to the card.
SCC Reasoning:
The doctrine of informed consent is the primary means of protecting a patient's right to control his or her medical treatment. The
right of self-determination, which underlies the doctrine of informed consent, also encompasses the right to refuse medical
treatment. A competent adult generally is entitled to reject a specific treatment or all treatment or to select an alternative form of
treatment, regardless of the risks or how mistaken the decision appears to the medical profession or to the community.
This case was unique because of the manner in which treatment was refused (the card) and because there was no opportunity to
ensure the patients refusal was informed.
Consent & Sports
Non contact sport of B-ball: Player elbows you and you lose your teeth have you consented or agreed to run the risk by engaging in
this sport (implied consent through conduct)? What are the parameters of consent? Consent to punch? To pull down? To a fan
battering you? Courts usually look to custom. What is normal in high school basketball vs. NBA?
Hockey: Have fans consented to a puck in the head? Or is it outside the boundaries of consent? Have you consented to not taking the
tortuous route?
Marshall v. Curry NSSC 1933
CB: 120
Facts: Patient consented to have his hernia cured, not having a testicle removed. The problem with his testicle could not be detected
beforehand but was necessary for his health. Patient did not consent in any way to such a procedure.
Issues: Is the doctor liable for assault? Was there consent?
Reasoning: Three principles:
In the ordinary case where there is opportunity to obtain consent of the patient it must be had.
Such consent may be express or implied.
Consent may be implied from conversation preceding an operation or antecedent circumstances.
Ratio: Where a great emergency (which could not have been anticipated) arises it is the surgeons duty to act (in an honest execution
of a duty) to save the life or preserve the health of the patient. There is no need to find express or implied consent in such a case.
2.

Self-Defence

Self-defence: The right to use force to prevent harm or threat of harm.

You are defending yourself against an attack. You are not the instigator of a battery.
Self-defence vs. Instigation (First actor) vs. Revenge
Can still be justified in delivering the first punch.
You have the court understanding the human instinct towards preservation. You dont have to wait until the first blow to be engaged in
self-defence (ie you dont need to be injured to defend yourself).
Is the force proportionate? Courts will look at the extent of the force used. Must be in the proper circumstances (revenge etc?) and must
be reasonable in the circumstances and reasonably proportionate to the threat.

Some cases create a legal obligation to withdraw.

Self-defence is a complete defence as in criminal law.
Cases will distinguish between provocation and responding or defending. If it is revenge then its not self-defence. In relation to
damages some have argued that provocation will reduce damages. Some say that it can only reduce punitive damages and some
say even compensatory damages.
Must be proved by defendant on balance of probabilities.
Defence of others: Courts tend to exercise caution with this defence. When the def is not directly connected to the threat there is greater
room for error.
In the traditional self-defence in criminal law: must be immanent, there must be an immediate threat. Self-defence must consider when
women have been battered. We must look at the fear from the perspective of the battered woman. People might assess what is
reasonable force in different ways. People in battered relationships can better assess when the risk is real and immanent.
Criminal Code:
S.34(1) may repel force by force if that force will not cause death or grievous bodily harm and is no more than necessary, and
S.34(2), may cause death or grievous bodily harm if under reasonable apprehension of same and believes cannot otherwise preserve
himself.
Cockcroft v. Smith, (1705) Queen's Bench
CB 127
Facts: C running fingers toward S's eyes. S bites off C's finger.
Issue: Was this an overreaction or was it reasonable as self-defence? Overreaction, not reasonable
Reasoning: Must be a balance in self-defence. It must respond in kind to the threat. You do not have to wait to be struck first, you can
strike the first blow after an assault you do not have to wait for the battery.
Ratio: If there is a delay (time for reflection) between the assault and a return assault, this is not self-defence. The defence must be
reasonable and proportionate.
Comments:
Lavalle Can have self-defence even when done in a preventative way
MacDonald v. Hees (politician sleeping/motel) Force must be proportional to the threat, to the evil to be prevented. Should not abuse
self-defence. No threat here, he acted too harshly.
3. Defence of Property
Same general rules apply:
Was the force used reasonable?
Was is reasonable in regards to what is being protected?
More protection is given to land than personal property.
Must ask people to leave before you can use force.
Green v. Goddard, (1702), Q.B.
CB 131
Ratio:
If an individual enters another's ppty without the use of force, the ppty owner must ask the trespasser to depart before the
owner can lay hands on the trespasser to turn him or her out; otherwise, the owner has committed an assault and battery.
If an individual uses force to enter another's property (burglary or other unlawful purpose), it is lawful for owner to oppose
trespasser with force (not necessary to first request trespasser leave).
The reaction must be proportionate.
Comments: The threat to property is not as serious as the threat of physical harm. One is not allowed to overreact. A request for the
trespassers to leave must be made and they must be given reasonable time to actually leave the property. Only after a reasonable time
has passed are they allowed to use force.
Bird v. Holbrook, (1828), C.P.
CB 132
Facts: H occupied a garden bordered by walls, in which he grew expensive tulips. As a result of some tulips being stolen, H set a
spring gun in the garden, without any notice, at a distance from his house. B, while climbing over the garden wall in pursuit of a stray
fowl, was shot. H was found liable in damages.
Issue: Whether, even in case of a trespasser, the owner is liable for the intentional tort? YES
Reasoning:
The spring gun was not used for the purpose of deterring, but for the express purpose of doing injury, for catching the thief. B was a
trespasser, not a thief.
Device was mechanical and couldnt discern its victim.
Plaintiff overreacted to the defence of property should have at least given notice/warning.
Not a reasonable amount of force because it was not determined why the person was in the ppty (device was blind). Force used not
reasonable in these circumstances.
Ratio:
A person cannot do indirectly what he or she cannot do directly.
Force must be reasonable in the circumstances.

Force not reasonable in circumstances where device cannot discern between trespasser and non-trespasser (nefarious vs nonnefarious).
4.

Necessity

When the defendant is allowed to plead necessity there will be a claim that the defendants conduct is somehow privileged; the
conduct will be granted partial or total immunity. The plaintiff in these cases is usually totally innocent and has usually not
participated at all in the creation of the danger. The scope of necessity is narrower then a defence like self-defence or the defence
of property. The burden of proof lies on the defendant. The defence of necessity is only applicable in imminent peril. There are
two types of necessity that the jurisprudence has recognized
1. Public Necessity: the defendant argues for the public good. The defendants claim is based on a community interest. The
greatest example given is someone pulls down a house because there is a fire; it is a privileged invasion of private property
for the public good. (Dwyer v. Stanton)
2. Private Necessity: (Vincent v. Lake Erie)

In cases involving compensation, ex turpi will not apply.

In cases involving punishment or punitive measures, ex turpi will apply.
Volenti is not a defence to an intentional tort. Not saying I agree to be hit, its saying I agree to partake in an activity where I
might be hit.
A def can be excused from intentional tort liability if they are acting out of necessity.
In necessity cases, the threat emanates externally.
In intentional tort cases, the threat is produced by the individual.

Dwyer v. Staunton, (1947), Alta. Dist. Ct.

CB 134
Facts: The public highway running past the plaintiff D's farm was impassable because of snowdrifts. S had to drive over Ds land to
get back home, which caused some damage to Ds fences. D brought an action for damages for trespass to his land. The action was
dismissed.
District Court held a traveler who is lawfully using a public road has the right to go upon private land at places where the public
way is impassable, as long as no unnecessary damage is caused to the private land in so doing. S was within his legal rights in
crossing D's land in the circumstances.
Ratio:
The defendant is allowed to plead necessity in this circumstance; it was viewed as a community good to allow access to the
defendants in these circumstances.
Regard for the public welfare is the highest law. Private ppty rights to be respected but rights of public are higher rights.
If public road is impassable, one can use private lands, taking due care to do no unnecessary damage.
Doctrine of necessity: Interference with private property dictated and justified by the immediate urgency with a due regard for public
safety and convenience.
Comments: Here we are not talking about continued access; the peril which causes the situation is time limited. Our plaintiff did not
get any of his damages.
Vincent v. Lake Erie Transportation Ltd., (1910) Minn. S.C.
CB 136
Facts: LET tied its steamship to a dock for the purpose of unloading its cargo. During the unloading a storm developed and continued
to grow in violence throughout the night. Navigation was practically suspended until the second morning after the unloading. The lines
holding the steamship to the dock were kept fast throughout the storm and replaced as they became damaged.
Dock owners sued for damage caused by keeping steamship tied to the dock throughout the storm. LET alleged the wind was so
strong after unloading the cargo the crew was powerless to move the steamship.
The defendant argued necessity: the boat would have been in imminent peril had it left
the dock.
Trial: the jury returned a verdict in favour of the dock owner. Appeal was dismissed.
Issue: Was the Defendant entitled to invoke the defense of necessity? NO
Even if we accept that the defendant had to stay, that it was a necessary trespass, what do we do with the damage? Who is liable for
the loss of the plaintiff?
Reasoning: SC held if during the storm LET'S boat had entered the harbour and become disabled and thrown against the dock, the
dock owner could not have recovered. Again, if while attempting to hold fast to the dock the lines had parted, without any negligence,
and the boat was smashed against some other dock or boat in the harbour, there would be no liability upon LET.
Here, it was found those in charge of the steamship deliberately held her in such a position that damage to the dock resulted.
Having preserved the steamship at the expense of the dock, LET was held to be responsible to the dock's owners for the injury.
Court recognized that public necessity, in times of war or peace, may require the taking of private property for public purposes
but stated under the present system, compensation must be made.

LET would not be liable for the damage where life or property was menaced by any object or thing belonging to the dock owner,
the destruction of which became necessary to prevent the threatened disaster. Not a case where an act of God/unavoidable
accident the injury was beyond defs control.
Ratio: Where a def prudently (deliberately) avails itself of the plaintiff property for the purpose of preserving its own more valuable
property (necessity), the plaintiff are nevertheless entitled to compensation for the property damages done (b/c damage was avoidable).
Dissent would say it was mere inadvertent accident (act of God, could not be avoided with due care) and if the defendant had a right
to be moored there then should not be liable for the damages.
CLASS:
Look for a deliberate act at the expense of someone else.
Public v. Private (act of God exception)

Southwark London Borough Council v. Williams and Anderson, (1971), C.A.

CB 140
Facts: During a London housing crisis a group of squatters had taken up residence in a group of Council-owned houses. At trial, the
Council secured an order for possession of the homes, and the squatters appealed to the CA. One ground of appeal was their
trespassing was out of necessity.
Issue: Is homelessness a defence of necessity to trespass? NO, policy decision to prevent floodgate of homeless breaking into
buildings.
Reasoning:
Defence of necessity: In cases of great and imminent danger, in order to preserve life, the law will permit an encroachment on
private property. Defence is confined within narrow limits.
Hunger and homelessness are not sufficient emergencies or sudden events for the defence of necessity to be successful, as
compared to a fire or flood. The defence should not be an excuse for all sorts of wrongdoing.
Ratio: Defence of necessity exists in cases of great and imminent danger or where defs steps are considered reasonable to prevent the
impending harm. The defence of necessity is not applicable to the hungry and the homeless.
Two types of necessity:
Public: interference with persons private rights for the better good of the public (Dwyer).
Private: In the case of great and imminent danger, in order to preserve life, the law will permit encroachment on private property (the
defence of necessity).
Comments: The result in this case could be based largely on the fact that the defendants were trying to make out an ongoing
necessity. The case may have been decided differently if it were 40 below as a case of imminent peril would be much easier to make
out.
5. Legal Authority
The existence of legislative authority which entitled the defendant to engage in conduct which otherwise would be considered to be
tortuous and actionable. (ss. 25, 494-5 CCC)
Ask if the statute contains an express immunity provision and whether its constitutionally valid.
The test is still reasonableness.
Reynen v. Antonenko, (1975), Alta. S.C.
CB 150
Facts: Police officers arrested R on the suspicion he possessed narcotics and took him to a hospital for a rectal search. R co-operated
with the doctor in the performance of the search. R brought an action on the ground that the rectal search constituted assault and
battery. Action was dismissed.
Issue: Did the defendant have a legal authority defence against the charge of battery? YES
Reasoning:
Police had not only a right but a duty to search the accused and seize drugs found as evidence. The Narcotic Control Act gave them
this authority. The search must have been reasonable. Qualified doctor conducted the search, examination conducted with
accuseds full cooperation.
Ratio:
To determine what is reasonable and proper in any particular case will depend on the circumstances of that particular case. (Test of
reasonableness.)
The police had a duty to search for drugs under the Act, consent was irrelevant.
Mohamed v. City of Vancouver BCCA 2001
SM 422
Facts: Police dog apprehended robbery suspect after officer ordered him to stop. M argued it constituted an excessive use of force,
was negligent in failing to follow the dog immediately, and that the City was negligent in failing to teach other methods of
apprehension to the dog. Defence put forward by officer is lawful authority: argued a duty to apprehend and reasonable to use force
(the dog) on escaping suspect.
Reasoning:
It was found that M heard the officer yell stop and that the officer got to him as quickly as he could.
In this case the officer was working alone and was faced with three suspects.
No issue of self-defence or defence of another therefore didnt need to consider 25(3).

 No evidence that alternate methods of apprehension would minimize risk of injury.

Ratio:
Once the plaintiff establishes a prima facie case of assault, the onus of proving justification for the assault and the use of force
which is not excessive, rests on the defence.
To come within s.25 the defence (officers) must show that:
1. he acted on reasonable grounds
2. the force used was necessary for the purpose
Force used was reasonable in these circumstances and the officer had a duty to apprehend.

Torts Mini-CANS - Winter Term 2004

Case
The Rule

Wagon
Mound 1
(1961) PC

Kind of Harm

Hughes v
Lord
Advocate
(1963) HOL

Real Risk of
Damage

Wagon
Mound 2
(1966) PC

Linkage

Brief
Boat negligently
dumped a large
amount of oil
overboard working
welding on dock
foreman stopped work
and then proceeded
again after deeming it
safe a mouldering
rag under the dock
ignited the oil and
burnt down the dock.
Workmen leave
lighted lamps around
a manhole cover and
go on a break.
Children sneak in to
hole, and when
leaving, one
accidentally kicks a
lamp into hole, it
explodes, he falls in
and is burned in the
process.
Same case as before
but owners of a ship
in the harbour that
burned down are now
seeking damages.

Failure to start
snowmobile properly

Proximate Cause Remoteness

General Principles
Issue and Reasons
Is the ship liable for the damage?
- Polemis: overruled in this case, allowed for
direct consequences of an action to be the test for
remoteness
- each occurrence was improbable, and heaped
improbability on each other, was this a good test
for directness better with reasonable
- you must be able to foresee a probable result

Comments/Ratio
Test: D is liable only for
damage that was a
foreseeable consequence of
its negligent act.

HELD: Dock owner lost its claim for damages

based on the ruling that the fire on the dock was
not a foreseeable consequence of the negligent oil
spilling.
Are the workmen liable for the injury to the child?
- argued that the type of damage received by the
appellant was not able to be foreseen the
explosion was the real cause and while the
danger of someone falling in was foreseeable, it
was not
- the accident was caused by a known source of
danger, in a way that was not foreseeable this
is not a defence, and satisfies the requirement for
remoteness

Test: If a kind of harm is

foreseeable, then it is not
remote. You are not
required to foresee the
mechanics of the harm.

HELD: The workmen are liable (city) for the

injury.
Is the ship liable for the damage to the other
ship?
- trial judge found the lighting of the fuel was
unforeseeable
- in first case, the dock was unwilling to push for
foreseeability because they might be found
liable under contributory neg
- facts point to chief engineer knowing it was a
possibility versus a probability
- a reasonable man would weight the risk against
the difficulty of eliminating it
- unreal vs. real risk even if probability not
involved
HELD: The Wagon Mound is liable for the
damage.
- a series of events lead to a damage not too
remote

Test: A foreseeable harm

does not need to be
probable, only possible it
is not too remote.
If a reasonable man would
have realized and
prevented the risk then
the Ds must be liable.

Test: In a series of events,

if you can link them by

Assiniboine
South School
Div v Greater
Winnipeg
Gas

caused fire through

series of events.

Elasticity of
Forseeability

Parent negligently lets

her son steal her keys
he is known to steal.

Trevison v
Springman

forseeability, there is an
argument the harms are
not remote.
This time he steals and burns the house down.
Forseeability may be argued for stealing, but not
for the burning down.

Queries: Is forseeability
relative?
Is the scope of forseeability
a value judgement?

Retreat from Wagon Mound (No. 1)

The Thin-Skull
Plaintif

Smith v
Leech Brain
Co.
(1962) QB

A piece of molten
metal burned the lip
of Ps husband. He
died of cancer due to
the burn.

Retreat from Wagon Mound 1

Was the company liable for Ps husband death?
- thin skull rule: a tortfeasor takes his victim
as he finds him
- it is no answer he would have suffered less or no
injury if he was in better health
- the test is not whether he would have got cancer
and died, but whether the injury of the burn could
have been foreseen
- the amount of damage suffered is directly
connected to the victim
- Athey v Leonati is an example of this past
information
HELD: Company is liable for the death.

Harris v
T.CC. &
Miller
(1967) SCC

Acts of Third Parties and Intervening Forces

Is the bus driver liable?
An infant was holding
his arm outside a bus
- seems to point back to individual responsibility
window when it pulled at first at the trial level which is odd
away and it was
- from the evidence, the driver knew the children
had a tendency to put their arms out the window
crushed.
- could reasonably be expected to foresee
- bus drivers arg: child put own arm out
remote!
- there was an intervening action here, injured
party brought the injury on themselves
but.injury was foreseeable

Test: a tortfeasor may be

liable for an unforeseen
extent of damages due to
taking your victim as you
find them
(thin skull rule Athey v
Leonati)
Test: crumbling skull
need not compensate to put
them in a better position
(crumbling skull rule
Athey)
Test: Merely because the
injury was caused by Ps
own act, or the act of a
third party, does not shield
D from liability if he had a
duty owed to P.

HELD: Contributory negligence bus driver is

partly liable

Notes

Second
Accident

Mercer v Gray (1941) Ont CA: if medical intervention is so negligent to be actionable on its
own, it is a novus actus interviens (too remote)
Kolesar v Jeffries (1974) Ont CA: original D may be responsible for later negligence of a
doctor or hospital which aggrevates injuries unless completely outside range of normal
experience (not remote)
Recurring Situations
P was injured in a bus 1) Was the ankle injury caused by Ds neg yes
Test: A second injury
2) Was it foreseeable due to Ds neg yes this
accident due to
that was caused by the
ties to the question of remoteness below
negligence of D. As a
first injury can be linked
Is this too remote for damages?

Weiland v.
Cyril Lord
Carpets Ltd
(1969)
QB, All ER

result of her injury,

she needed to wear a
collar, which made it
impossible to adjust
her bifocals. Due to
this, she fell down a
stair and hurt her
ankles. She is
including this injury in
the compensation
claim.

McKew v
Holland
(1969) HL

Ps leg had been

injured and gave out
now and then. He
was going down some
stairs, unassisted,
without holding on
and it gave out. He
jumped, landed on his
foot, and broke his
ankle. He is seeking
damages from the D
of his original injury
to his leg.

Notes

Athey v Leonati - If an intervening event is unrelated to the tort D does not need to
compensate P.
- changes the way we think of intervening acts
A gas furnace made
Test: Where there are
now less and less likely that the original act
by Clare Hecla (D1)
duties on two or more
could be absolved points to the Neg Act where
was installed by Twin
parties and negligence by
there are duties on 2 or more parties it is this
City Gas (D2). Gas
each causing or
act and not the Doctrine of Proximate Cause that
leaked and injured the is applied
contributing to the cause of
- both Ds had duties and were negligent the
P. D1 is trying to
damage the Negligence
Negligence Act applies and apportions damages
avoid liability on the
Act is applied and not
between both Ds equally in this case
point of intermediate
remoteness.
- in old cases, if the intermediate inspection could
be seen as the proximate cause, the inspection
inspection by D2,
may relieve the original D from liability
which should have
relieved him of all
liability.
- learned intermediary manufacturer owes duty
Ms. Hollis receives a
Test: Learned
to consumer there is a duty to warn of any risks
breast implant in
Intermediary
- EXCEPT when warning is posted by learned
1983. In 1985
A manufacturer can fulfill
intermediary they will satisfy their standard of
discovers a lump and
its duty of passing
care
- here DDC did not tell the doctor about the risks
a rupture that is
warnings to ultimate
associated with the implants
corrected by later
consumers through a

Intermediate
Inspection

Ives v Clare
Brothers
(1971)
HC of Ont

Learned
Intermediary

Hollis v Dow
Corning Corp
(1995) SCC

- it does not depend on the forseeability test from

Wagon Mound I
- if this injury affects a persons ability to cope
with lifes acts then this is suffice implies
Hughes where the exact nature of the damage
does not need to be foreseen but the general
damages
- it is not necessary to show that each
consequence was within the foreseeable scope of
the original injury sounds like theyre implying
the Hughes ruling almost sounds like the direct
consequences idea from Plomis too
- value judgment here 2nd injury attributable to
original neg of the D
- novus actus breaking the chain of causation - no
- the respondent argued that the second injury
was not foreseeable as a result of his first injury
the court says it was foreseeable but decides on a
different grounds
- the law is if the injured person acts in an
unreasonable manner which results in another
injury, he cannot hold the original D liable novus
actus interveniens occurs a break in the chain of
causation
- a D is not liable if an injury was not foreseeable,
but is not liable for everything that is
foreseeable there is some responsibility on the
injured person to act in a reasonable manner with
regards to their injury
- HELD: on the facts, P was not moving slow
enough or holding on, it was unreasonable, and
served as an intervening act

to the original cause of

action if the general
nature of the damage was
foreseeable the exact
injury did not have to be
foreseen.

Test: An injured person

must act reasonably to
avoid further injury as a
result of what they have
incurred if they do not
their action could be a
novus actus.

surgery. Dow
manufactured the
implants and gave
inadequate warnings
to Dr. Birch regarding
the implants. Both
are sued, along with a
third doctor.

Rescue

Horsely v
MacLaren
(1972) SCC

Case Study:
Government
Liability - Act

MacLaren (D) who

was owner of the
boat, backed the boat
up in an attempted
rescue of Matthews.
This was not proper
rescue procedure
bow first is. The
failed rescue attempt
induced Horsely to
dive in to rescue.
Horsely died from the
shock of the cold
water heart attack.
Matthews died and
was not granted
compensation on
Matthews alleged
negligence no causal
relationship between
his death and
MacLarens conduct.
Horsley succeeded at
trial but was
overturned on appeal
and at SCC.
Act allows the Crown
to be sued as an
individual in tort.

- the issue that arises here is that of a learned

intermediary
- the general rule is that a manufacturer has a
general duty to warn consumers of any inherent
risks with a product
- an exception to this is the learned intermediary
rule it is applicable where (1) a product is
highly technical and only to be used in expert
supervision (2) nature of the product is such that
the consumer will not realistically get the direct
warning
- the manufacturer can only discharge his duty if
the LI has knowledge which approximates that of
the manufacturer
- breast implants are found to apply under this
rule and Dr. Birch was the learned intermediary
he was not properly informed
- a defence that the Dr never would have passed
the info on to the patient even if told cannot be
used
Majority
- if a person by his fault creates a situation of
peril, he must answer for it to any person who
attempts to rescue the person who is in danger
(Lord Denning quote in case p. 356)
- any duty from MacLaren to Horsley must stem
from a new situation of peril caused by
MacLarens negligence
- no causal issues from the alcohol
- the backing of the boat was seen as a mere
error in judgement and not a negligent act
- appeal dismissed as his act did not breach the
standard of care

learned intermediary.
This applies when a
product is too technical or
direct warning is not likely
to occur before use of the
product.

Governmental negligence
A. Old law Crown was immune
B. Proceedings against the Crown Act s. 5(1):
subject to all tort liability as if an individual
- under the common law employees action on

Purpose: Reverses old law

of king can do no wrong
subjects the Crown to a tort
as if it were a person.

Test: If a person by his

fault creates a situation of
peril, he must answer for it
to any person who attempts
to rescue the person in
danger.

Proceedings
Against the
Crown Act
(Alberta)

behalf of the Crown are immune Crown is

subject to tort law as if it were a person under the
new statute
- statuatory interpretation Rizzo Driedger
interpret by reading entire Act, look at entire
context, plain meaning, purpose, and intention of
parliament

Deacock v
Alberta
(2000) Alta
CA

Klein and the Minister

of Health were named
in a suit and they
were removed by trial
court the appeal was
to reinstate their
name on the suit.

Comeaus
Sea Foods v
Canada
(1997) SCC

A licence was revoked

after it was
communicated that it
would be issued.

What is the
Duty Owed?

Just v The
Queen in
Right of B.C.
(1989) SCC

Held: the powers

granted by statute
include the ability to
revoke the licence
prior to issuing it so
no breach of stat duty
A boulder fell on a car
killing a daughter and
injuring her dad. The
P sues the govt for
improperly inspecting
and maintaining the
slope of the mountain.

Klein named in a civil action

claimed that it was inappropriate to name him
court uses the concept of striking the name
an officials tort is first and foremost a private,
personal wrong and the person can be sued as an
individual
- liability of the govt comes through the acts of
the individual
- is the Premier a suable entity? does this person
actually have standing to sue (who is suing) and
the person being sued a suable entity? The
Premier is a creature of convention and not law or
statute the courts and legs have not
transformed this entity into law
- is the Minister of Health a legal entity? yes
recognized of law
- difficult to see any neg part of the case until last
paragraph
- Minister breached statuatory duty: this is
evidence of negligence
- P relies on Ministers intention to issue licences
which he then changes buys boat and
equipment sues for damages
- Ps argument: he has the power to authorize the
issue, issue but not the express power to revoke
and authorization
- Ds argument: authorizing is a long process that
he stopped from time to time he can exercise
and take it back

Ratio: It is permissible to
sue public officials in their
personal capacity.

More likely policy if:

1 higher up in decision chain level of
decision
2 nature of the decision is important
3 level of govt making it
4 budgetary concerns
for any budget concerns in an operational area
will look at budgetary restraints for standard of
care determination

Test: For a duty of care to

exist between an individual
and the govt the harm
cannot be a result of
policy it must be a result
of operation.

Note: The office of Premier

cannot be sued directly.

Ratio: A public official can

be liable in tort if acting
outside statutory
authorized powers or
within and arbitrarily or in
poor faith.

Ties into Anns test.

Note: Policy is generally seen in the

nature of the decision budgetary
decisions are generally policy.
Brown v B.C.
(1994) SCC

Roads conditions that

are noted lead to a
highway accident
because action wasnt

- does govt owe a duty of care to a motorist?

- trial
- neg in preventing ice formation, but immune due
to policy
- decision of having the employee on call, also

Just is applied: not having

the phone # of the
employee is an operational
issue so duty of care arises,

taken.
Held: Duty existed on
the operational issue
of no phone number.

Ingles v
Tutkaluk
Construction
(2000) SCC

Constitutional
Torts

Jane Doe v
Board of
Police
Commissione
rs
(1998) OC of
Justice

Case
Test

Apppelant hired a
contractor to renovate
the basement was
convinced no permit
needed
underpinnings were
done improperly city
later inspected but
underpinnings were
covered and inspector
went on contractors
word.
Held: Improper
inspection is
operational and city
was found partly at
fault.
A woman was raped
by knife-point in her
apartment. The police
knew of the danger
she faced in her
specific
neighbourhood.

seen as policy
- length of time to sand the road after accidents,
not negligent, but again policy
- contact # missing for employees home was
negligent and was operational in the end, no
causation was shown between this and the
accident so no liability found
- Brown: says policy if patently unfair can be duty
- flooding later caused damage to the property in
question
- policy was the inspection regime
- operational was the actual acts of the inspector
in the course of his job
- issue of A deciding against permit was a bar to
full recovery and added in contributory
negligence

being on summer schedule

due to budget is a policy
issue and no duty exists.
Ultimately no liability for
lack of causation.

- there was a statutory duty under the Police Act

and a common law duty to protect
- the issues (1) she was not warned (2) in
absence of this, was not protected
- test: police were aware of a specific threat and
did nothing to warn them they had a duty to do
this but because of a stereotypical belief that
women would get hysterical they did not
- on negligence and based on Charter violations
the P is awareded negligence

Duty: The police had a

duty under statute and
common law to both warn
and in absence of this
protect this woman from
harm.

Hill case: police did not owe a duty of care

insufficient proximity due to a wide class of
victims

Just is applied: the faulty

inspection was operational
and a duty was found, and
ultimately some liability
was found.

Failed stat duty of warning

the local women (1)
b/c decision was based on
panicking women,
violates s. 15 (2) and s. 7
(3) using a person as bait

Economic Losses
Negligent Misstatements not totally clear on how to go ahead?
Facts
Discussion
Ratio
Test for Negligent Misrepresentation
(1) Duty of care
a) Forseeable (Kamloops)

(2)
(3)
(4)
(5)

b) Special relationship
a. Was there reliance?
b. Was the reliance reasonable?
c. Was the reliance foreseeable?
c) 2nd part of Kamloops (policy reasons)
Standard of care
a) Representation untrue, inaccurate, misleading
b) Representation negligently made
Represent(ee) relied on misrep to his detriment
Economic loss results
No bars to recovery like a disclaimer

Factors to consider:
- knowledge of rep(tor)
- seriousness of occasion
- info provided to intial request
- financial interest in providing info
- nature of stmt forecasts? Speculative?
- Disclaimers
Policy reasons against economic loss:
-

Hedley Byrne & Co v

Heller & Partners
(1964) HL

Fletcher v Manitoba
Public Ins Corp
(1990) SCC

less worthy of compensation than injury

indeterminate liability
burden should be on the victim (buyer beware)
multiplicity
- no reliance between speaker and
Credit of
Easipowe listener because the inquiry was made
for private use
r is
- can be liability if:
vouched
(1) duty special rel know
skills/judgement is trusted or relied
for but
then they (2) neg in stmt at time it is made
(3) reliance reasonable social or
go
business? Type of people?
bankrupt. (4) actual loss by reliance show diff
result for diff info
Asked for Did D have a duty to tell P of all the
options?
max
- duty of care arises when someone with
insurance a special skill undertakes to apply that
in auto
skill for the assistance of another
- silence can amount to negligence
policy
- higher duty of care in private company
but not

given
uninsured
motorist
coverage.
Not told
about it.
Accident

Negligent misstatement is recoverable in tort

law.

If a special relationship and duty exists

silence can amount to a negligent
misstatement.

occurs
with
uninsured
motorist
and P
was not
covered.
Sued
insurance
company.
Was there a negligent misstatement
Queen v Cognos
Job
Where should we consider these in the test?
(1993) SCC
interview couple with detrimental reliance?
- nature of the occasion
- the mgr knew the appellant would
misstate
- purpose of statement
reasonably rely on the info in leaving his
ment
- foreseeable use of stmt
job and moving and made careless reps
- special rel includes fiduciary
position
- probable damage of error
- not enough to be honest, must use
was
- status of advisor
reasonable care in statements
terminate
- level of competence
d much
sooner
than
promised.
Is there a duty owed? No for policy
Hercules Mgmt v Ernst P were
Special relationship foreseeable and
& Young
sharehold reasons
reasonable reliance
- Anns test used
(1997) SCC
ers who
- special rel constitutes forseeability of
relied on
Indeterminate liability policy D must know
reasonable reliance test: yes this exists
- policy: must know identity of P or
audited
identity of Ps or of the limited class or
statement limited class or intended uses of the
intended uses
information indeterminate liability
s by Ds
policy
accounta
nts.
BG Checo Intl v BC
Contracto - tort claims can exist out of a contract
Claims in tort and contract can operate
- analyze contract to see if tort claims are
Hydro
r was
concurrently.
excluded
(1993) SCC
promised
the way
was
cleared,
but it was
not, and
needed to
clear
himself at
costs
extra.
Sued.
Economic Loss Caused by Negligent Performance of Services
Test
1 duty - assumption of responsibility by D in providing a service (Kamloops)

BDC Ltd v
Hofstrand
Farms Ltd

Winnipeg
Condomini
ums No. 26
v Bird
Constructio
n Co
(1995) SCC
CNR v
Norsk

Bow Valley
Husky
(1997) SCC
Star Tavern
v Nielf
(1976) Man
QB
DAmato v
Badger
(1996)
CCLT
Martel v
Canada

2 there must be foreseeable reliance

3 negligence
4 causation
5 damage
Why are these elements different from normal?
Is there a duty of care?
D is a courier
Duty of care is not established if you
- no proximity
company that
dont know who the P is and if they
- no knowledge of info or people involved
delivered Ps
were relying.
- no reliance on D by the P prior to service
documents late
- no contractual relationship between the two
- however, if direct contractual rel probably
docs sent by third
exclusion clause
party who was the
Crown.
Economic Loss Caused by Defective Products and Structures
Purchaser of condo Is there a cause of action to recover for the neg
A duty will exist in construction where
construction?
building sues the
it is foreseeable that reasonable care
- if it foreseeable that a failure to take reasonable
contractor for
must be taken to avoid creating a
care will pose a substantial danger
negligence in his
substantial danger.
- duty still arises even though no contract
- duty still arises even over time
construction.
- it is clear who the class is
- now can be statute limitations

Relational Losses
A. Relational Economic Loss Arising from Property Damage
HELD: CNR recovered?
Def Norsk owned
Ratio: There are two competing
McLachlin used Anns test to find duty
tug. Tug struck
theories on how to proceed in finding a
LaForest used categories to limit duties
bridge owned by
duty.
(1) property interests involved
Canada. CNR sued (2) general average cases
(3) joint ventures
D for relational
(4) transferred loss
economic loss.
Added transferred loss.
Claim for loss of
Example of relational economic loss.
profits while facility
was down due to
fire.
P sued but there was indeterminate liability due to
Damage to bridge
Indeterminate liability can be a bar to
many Ps.
owned by govt.
a duty owed in this category.
(McLs view)
No contract existed here (LaFs view)

B. Relational Economic Loss Arising from Personal Injury or Death

Main man in a body Can P claim for relational economic loss?
Three categories for relational
- no proximity in this case (McL Anns)
shop is injured in a
economic loss:
- policy reasons (LaF)
(1) loss of consortium and services marriage
car accident and
- no deterrence value created
(2) dependent of family member killed
body shop suffers
- if contract already, remedy already
(3) claim for loss of services from an injured
indeterminacy
losses without him
employee
working.
For contractual relational economic loss use
Contractual
In all categories except relational
LaForest test no recovery unless in one of the 4
economic loss.
economic loss use McLs Kamloops test
categories.

(2000) SCC
Notes
H(R) v
Hunter
(1996) Ont
Arndt v
Smith

Notes
Kealey v
Berezowski

(proximity test).
Other: Wrongful Birth How do you approach this?
A. Prenatal Injuries
1) An unborn infant has no tort rights available.
2) Once born, any injuries suffered prenatally are actionable in tort law.
B. Wrongful Birth
Is doctor liable? yes
Doctor did not tell
Doctor had a duty to disclose risk
- case of pre-conception negligence
P of genetic risk of
before conception to mother.
MD to her child
pre-conception.
Is doctor liable? no
P pregnant, got
Doctor had a duty to warn, but a
chicken pox, doctor - case of post-conception negligence
reasonable P would have had the baby
failed to warn her
anyways failed on causation.
of dangers to her
fetus.
C. Wrongful Life
Can a child born who argues should have been terminated as a fetus claim for cost of care and lost
income?
D. Wrongful Pregnancy
Can damages be awarded?
K had a third child
Wrongful birth is a problem area of
in middle of divorce - yes
economic loss limited damages
- damages for all medical items and lost income
after going for a
awarded for costs related to
- no costs for raising awarded
tubal ligation.
pregnancy but not costs of raising
- LIMITED DAMAGES approach versus restitution
damages related to unwanted pregnancy only but
Suing doctor.
child.
not unwanted birth
- economic loss situation because no injury

Other: Negligent Infliction of Nervous Shock What are the elements and
A. Non-relational nervous shock
Was Ps relationship too remote to establish shock?
Bechard v
Vehicle collides
Haliburton
with motorbike. As - not relatives
- still allowed
Estates
D approaching, P
- difficult to win as a bystander but she was a
(1992) Ont
waves away from
proximate bystander, almost a rescuer, involved in
danger zone
CA
injured man in
street. D runs over - even though thin skull issues with her personality
a reasonable person would have suffered shock
and kills him. P
witnessing the death
sues for shock.
B. Relational nervous shock
Entitled to damages for emotional distress? not in
Rhodes v
P learns of sons
CNR
death in train crash zone of danger
- if there is a sufficient proximate connection
(1990) CA
travels to
between the shock and the accident relational,
accident scene
locational, temporal
- Rs illness not seen to be reasonably foreseeable by
from afar.
Vanek v
Great
Atlantic

Kid had a rotten

juice no physical
harm. Parents

the negligent actor in the accident of the train

Parents did not witness event.
Event was ruled not traumatic.
P must suffer from some medically recognizable
illness (McLoughlin v OBrien)

how do you write for an exam?

If you are involved in the danger zone,
you more proximate than a simple
bystander you are more likely to
recover for shock.

Grief is not recoverable.

Proximity relationship is made up of
relational, locational, and temporal
elements one item wont be decisive
but relational is key
Everyday traumas of raising your child
are not recoverable.

Pacific

suffered nervous
shock.

Case
General

Contributory Negligence Act

RSO 1990 386
RSA 1980 S1

Butterfield v Forrester
(1809) KB

The Relevance of a Plaintiffs Conduct

Contributory Negligence
Facts
Discussion
s(1)
Review of act and look
- the court shall determine to what % each
at last chance doctrine.

Man falls over pole with

his horse. It was
claimed that in addition
to the man laying the
pole being negligent,
the rider was negligent
for riding too fast and
not avoiding the pole.
Held: P was at fault for
careless riding despite
Ds negligence

Davies v Mann
(1842) Exchequer Court

Labee v Peters
(1999) Alta CA

person is at fault
- the use of the words fault or negligence
has been interpreted to apply to intentional
torts and even breaches of contract cases
(393)
- jointly and severally liable for both parties
involved
Alberta s. 6 and s.7
- last clear chance doctrine was still included
and given to discretion of the judge now in
2000 out of the Act
- The defence of contributory negligence was
a complete defence in this case.
- Called the stalemate rule both were
negligent and no way to proceed for P
- rationale for this rule historically was as a
subsidy for people to engage in industry
- old view: careless individuals are not able
to take advantage of the common law, akin to
the clean hands approach of equity but in the
common law of negligence
- also: earlier in the common law, it was felt
there was a single cause only and not
multiple causes
- the deterrence value is only on the Ps out
there to not be negligent themselves

Wagon team runs over

tied donkey of the P.

- if the rider of the horse had the last clear

chance to avert the incident, that D could be
liable

Held: D was at fault

here despite Ps own
negligence.

- in Alberta, used to be in the Cont. Neg Act,

but now its been repealed.

But for the seatbelt not

being used, it didnt
matter, fatal injury
either way.

- causation must be proven to use the

seatbelt defence beyond the balance of
probablities
- not convinced on a balance of probabilities
there was a causal link between failure to
wear his belt and his death

Held: Appeal was

dismissed on the
seatbelt defence
because the injuries

Ratio
Fault includes negligence
and can include
intentional torts or
breaches of contract.

Defence of stalemate rule

old complete defence for a
defendant of the plaintiffs
own negligence canceling
out its own.

Defence of last chance

doctrine old either party
had clear last clear chance
to avoid the accident and is a
complete defence for
defendant.
You must prove causation in
order to prove your defence
of contributory negligence
but for test on a balance of
probabilities.

Seat Belt Defence

Galaske v ODonnel
(1994) SCC

Hambley v
Shepley

would have occurred

with or without the
seatbelt.
Duty of driver to
children in his vehicle
with the presence of a
parent positive duty to
ensure a seatbelt.

- mentions that the usual case in Canada is to

find 5-25% contributory negligence for
someone not wearing a seatbelt: there is a
duty to wear a seatbelt
- a driver must take reasonable steps to make
sure its passengers are safe, including
driving with care, and to ensure young
passengers are cared for
- failure to abide by seatbelt legislation is
evidence of negligence
- parent also owes a duty, but this does not
negate the duty of the driver

Held: D was liable to

make sure the child was
wearing a seatbelt
even with his parent
present as well.
Voluntary Assumption of Risk
Did the police voluntarily assume the risk in
Policeman did not
the discharge of his public duty?
consent to the risks
- he wasnt assuming the risk that the person
of injury and to the
would be careless that he was trying to
negligence of others
capture
causing it (roadblock - doesnt establish a different between
physical and legal it discusses the combined
smash-up)

Crocker v
Sundance

Assuming risks
requires assuming
physical plus legal
risks and waiving
this legal risk
otherwise assumed
by another

Hall v Hebert

D allowed P to drive
his car drunk with
him, doctrine of
illegality reviewed as
a bar to Ps claim on
D P had sued D for
not stopping him and
allowing him to drive
car

risk
- could be used as a policemen or anyone in
their stat duty
- Sundance argued Crocker assumed the
risks
- volenti defence: assumption of risk
- must consent to both physical and legal risk
- Crockers mere participation could be
viewed as assuming the physical risk but
even this is doubtful due to alcohol
- legal risk assumed by signing waiver form
is not seen because no attempt was made to
draw release to his attention no knowledge
of what he was consenting to
- the tendency of courts now is that
assumption legally must be a legally binding
contract

There is a duty owed by a

driver to a child passenger
to make sure they are
wearing a seatbelt and the
standard of care will vary
with a parent present or not.

A person in the line of public duty is

consenting to the general non-negligent types
of risks in their role. However, the risks of
negligent actions of all 3rd parties are not
necessarily consented to.

Intention must be present in a persons

consent to the legal risks they are assuming
they must have knowledge as to what is going
on with the consent.

Illegality of the Plaintiffs Conduct

- doctrine of illegality: a P cannot profit from
a wrong, in relation to pecuniary damages,
recovering for injury damages is not profiting
- also, cannot claim loss of income from illegal
occupations

Doctrine of illegality is introduced a bar to

recovery of profit, but not damages due to
injury, for acts that are immoral or illegal
not clear on meaning of immoral

Held:
At trial 25% P, 75% D
Appeal P barred
from money on
doctrine of illegality
Exclusion Clauses
Dyck v
Manitoba
Snowmobile

Waiver is held on
basis of clarity in
release and Ps
intention and
reasonable given to
the sport

Crocker v
Sundance

Crocker did not sign

the waiver
understanding
Sundances intention
to be relieve of
liability as in Dyck

Janiak v Ippolito

Deals with when it is

or is not reasonable
to refuse treatment
in terms of damages
assessed to D

- idea of defending, saving harmless, and

indemnifying arises
- hes agreed that even if the court finds MSA
owes Dyck money in negligence, Dyck has
agreed to pay this money
- the waiver clause was worded in the form of
an indemnity versus a release, however
intention was for a release

Intention was found in the waiver? - check

Intention is required to bring the waiver into

force.

Mitigation of Damages
- 70% man, if he had the operation could go
back to work
- insisted on 100% chance of success before
going ahead
- awarded 30% of damages after returning to
work because there was still a risk the
surgery wouldnt work

Duty to mitigate breached if unreasonable

refusal to operation if P does not take
reasonable steps to mitigate damages, D will
have his liability reduced

Intentional Torts
Interference with the Person Intention
Issue and Reasons

Case
Goshen v
Larin
(1975)
NSCA

Brief
Referee at a wrestling match
struck in the head with item. He
allegedly pushed someone down
after injuring them.

Garratt v
Dailey
(1955) SC
Wash
Carnes v
Thompson
(1932) SC
Miss

Pulled lawn chair out from under

lady.
D tried to evict former employee
and wife, swung at employee, and
hit wife.

- Cook v Lewis: law in Canada - in an

action for damages in trespass where
the P proves that he has been injured by
the direct act of D, the onus falls on D to
prove that his action was both
unintentional and without negligence on
his part, in order for a dismissal
- Held: act of referee was neither
intentional nor negligent
- D said he moved the chair to sit in, not
to injure
- however, if D knew that P would try to
sit and fall, this would be sufficient to
find intent
- if one person intentionally strikes at,
throws at, or shoots at another, and
unintentionally strikes a third person, he
is not excused, but is an assault on the
third person

Comments/Ratio
Directness shown D must show both
unintentional and without negligence
to dismiss the cause of action

Implied intent battery would exist if

he knew with substantial certainty the
sitting down would occur
If you try to injure someone it does not
matter if you hit someone else it is still
unlawful assault
(transferred intent)

Basley v
Clarkson
(1681)
CPleas

Cutting another mans grass and

carrying it away.

Smith v
Stone
(1647) KB
Tillander v
Gosselin
(1967) Ont
CA

D was carried involuntarily on Ps

land by force.

Lawson v
Wellesley
Hospital
(1978) SCC

Non-psych patient attacked by a

psych patient.

I. De S. &
Wife v. W.
De S.
(1348)
Stephens v
Meyers
(1830)
Tuberville
v Savage
(1699) KB
Bruce v
Dyer
(1970) HC

Cole v
Turner
(1705)

Infant dragged on the ground by

child.

Hatchet man
knocked on door and
swung at woman
missing her.
D advances on
chairperson at a
meeting but stops
before near enough
to strike him.
Conditional threat
hand on sword case.
Road rage fight after
vehicular taunting.

Old case of battery.

- if Ds intentional is to strike an
unlawful blow, it is not essential that the
person injured is the one intended
- by mistake mowed some grass on Ps
land
- the act itself was voluntary, even
though not intended to cut neighbours
lawn
- in Smith, ahead, the act itself was
totally involuntary
- judge rules the party who forced D onto
Ps land committed the trespass and not
D
- can an infant at 3 years be held
accountable for intent?
- cannot be guilty of negligence unless
the tender age 7
- almost like sleepwalking, there is no
genuine intent formulated in the mind of
the child to do harm
What happens with a psych patient who
cant comprehend the nature and quality
of his act?
- the intention to commit the tort wasnt
there he was incapable of appreciating
the nature and quality

Voluntariness existed in doing the act

itself.

Voluntariness is a requirement of
intent.
Mental ability capable of forming
intention to injure is required for
conviction.

Intention is a missing element when by

reason of mental illness one cannot
appreciate nature and quality of act.

Assault immediate apprehension of harm

Physical contact or harm is not required for assault
immediate apprehension of harm is.

- There was an assault even though no

physical contact or harm.
- To protect your security and the immediate
apprehension of harm.
- There must be in all cases the means of
carrying the threat into effect. (not a strong
rule but an argument)

Not every threat needs violence to constitute an

assault.

Was there an assault?

- no, threat was not direct, no assault here
- in fact, implied he would take no action in
this case
D was prompted to get out of his car.
Approached. B struck one blow and dropped
D.
- no assault
- D had reasonable belief he would be hit and
struck one blow not excessive

Minor point a condition threat could if it posed

an immediate apprehension of danager be assault
Law of self-defence in intentional torts if you
believe you or your property is being attacked
you are allowed to strike back

Battery harmful conduct intended can be direct or indirect

- the least contact with another in anger is
If a person touches another in anger, and no
battery
consent, this is battery.
- innocent contact with no intention is not
battery
- implied consent to some form of violence
must be within reason

Bettel et al
v Yim
(1978)
Ontario
Sexual
Wrongdoin
g
Bazley v
Curry

D grabs P and
shakes him to make
him confess to
arson.

The intentional act created unintentional harm and

you are liable for this harm.

Unwanted sexual contact is battery.

Vicarious liability of
the church and the
govt in relation to
sexual assaults.

Jacobi v
Griffiths

Vicarious liability
case as well.

Wilkinson
v Downton
(1897) QB

Practical joke
husband broke his
legs P suffers
acute physical and
emotional distress.

Bird v
Jones
(1845) QB

B trying to travel in
one direction and is
stopped in that
direction alone.
Comparison
shoppers asked to
go to the police
station by a
competitor in his
store.

Chaytor et
al v
London
New York
and Paris
(1961)
SCC NF
Malicious
Prosecutio
n

- argued this was an accident and therefore

not intentional
- can an intentional wrongdoer (shaker) be
held liable for consequences he did not
intend (injury)?
- yes

Can be used against

state actions and
people who trigger
state prosecutions

- test: is wrongful act sufficiently related to

the conduct that is authorized by the
employer
- in determining sufficient connection,
consider:
1 opportunity enterprise accorded the
employee
2 extent it further employers aims
3 related to friction, contact, or intimacy
4 amount of power on employee in relation
to victim
5 vulnerability of victim to employee in
situation
- battery can only be connected vicariously to
employer if there is a significant connection
to the authorized conduct of the employee

Vicarious liability where the employees action is

an intentional tort is there a sufficient connection
between authorized behaviour and the wrongful
act.

- psychological compulsion to remain in an

area was considered imprisonment
- elements: Direct, intentional or negligent,
and imprisonment

Psychological belief of restraint can be enough to

constitute imprisonment.

- Nells v Ontario sets out the test for D, now a

P, to sue for malicious prosecution
(1) D initiated the proceedings
(2) proceedings must have been shown to
favour P (acquittal)
(3) proceedings initiated without reasonable
cause (difficult to show)
(4) D must have acted maliciously (wide

Elements?

Affirms Curry test and emphasizes the creation of

the risk in the employment situation as the
important factor.
Intentional Infliction of Mental Suffering
- D made stmt with intent to be believed
Not sure on this one I think the ratio is that if you
- Hagen discussed you having reasonable
reasonably expect someone to react with distress
prediction of what might happen
you would be liable. She says where you willfully
do an act calculated to bring about a physical
harm, it is actionable.
False Imprisonment
- for false imprisonment you need to have
Imprisonment requires restraint with no
total imprisonment + unlawful reasons
reasonable means of escape + unlawful reasons for
- Denning dissented and found false
it.
imprisonment restraint

interpretation not in course of duty, good

faith, intent to harm P, reckless)

Abuse of Public Office

Odhavji v
Woodhouse
(2003)
SCC

Man was shot fatally

by police officers
who did not follow
procedures under
the act.

Was this an abuse of public office?

- yes
- conduct element of public official includes:
- (1) deliberate
- (2) unlawful (improper purpose, beyond
statute, reckless indifference to statute)
- mental element of intent to harm an
individual can be either:
(1) targeted malice: Roncarelli intention to
harm P
(2) untargeted malice: no intention but
awareness that harm will result to P
(3) reckless untargeted malice: reckless
indifference to the risks of harm foreseeable
to P

Abuse of public office can be advanced if:

- deliberate and unlawful act
- intent to harm an individual
Can you abuse your office within the law?

Hagen added in: intentional interference with land and chattels see if this will be on the exam.
Defences to Intentional Torts
Consent
Is this battery? Was there consent?
Forced vaccination
In tort law, implied consent is valid.
- body actions indicated consent, but no
of a passenger on a
words spoken at all
OBrien v
steamship.
- implied consent can be consent
Cunard SS
- not enough evidence here to show
Co.
negligence given consent
(1891) SC
Background to Consent:
- written or oral or implied
Mass
When is consent legal consent?
Norberg v
Doctor trades drugs
Unequal power
- not here, consent is no defence in this case
Wynrib
for sexual acts with
Exploitive relationship of a vulnerability
- consent must be genuine
[1992]
a drug addicted
- it must not be obtained through force or
SCC
patient.
threat of force

Malette v
Shulman

Jehovah Witness
transfusion case
with no consent it is
a battery. Semiconscious after an
accident, written on
card that was known
no transfusions D
doctor still did.

- or be given under the influence of drugs

- may be vitiated by fraud or deceit
- the court looks to consent tying in to
power/vulnerability relationships of the
parties consent must be free of interference
- the Dr knew her consent was affected by
her addiction
- factors of inequality: young, low education,
addiction
- ultimately, there was a choice here, but the
woman did not have a free choice due to
her addiction
Was this really a withdrawal of consent?
- yes
- doctor was not free to disregard the card
- in some provinces, written consent is
sometimes required
- remember Oh my god stop case if
changes in material circumstances, there is a
duty to disclose this prior to resuming
consent (NOTE he went over this)

Once consent is given you can do.

If not given it is a battery to do.
If withdrawn it is a battery to do.

Marshall v
Curry
Self-defence

Cockcroft v
Smith
Defence of
Property

D bit off Ps finger

when ran toward Ds
eyes.

What are the limits of defending yourself?

- the self defense is required to be
proportional to the danger

You can defend yourself, but the method of selfdefense must be proportional.

Trespasser on
property.

How far can you go in defending your

property?
- one can use force to eject a trespasser, but a
request must be made prior
- further, if someone is using force to take a
chattel from you, you may use force in return
without a request
D was liable for an inhuman act this was
going to far.

A request must be made before ejecting a

trespasser from your property.

Public have by common law a right to travel

over adjoining lands.
Public welfare trumps the idea of protection
to property in this case justified by urgency
of the occasion necessity.
Farmer had to pay for this.

Doing something that is a tort but it is necessary

in order to achieve a higher value purpose like
public safety.

You might think it smarter to maintain ship

tied to dock in order to protect property of
boat.
BUT court in end did not agree P is
entitled to compensation for D availing
himself of the use of Ps property.
- defence can be used to keep yourself from
dying like shelter or food
- public policy reasons prevent individuals
from doing this this would be a decision for
all sorts of wrong-doing

Cost of ones property being of more value isnt a

reason to use someone elses property to save
yours.

- this was reasonable and proper in the

circumstances there was lawful authority
based on statute

As long as its within reasonable limits or scope of

lawful authority otherwise intentional torts can

Green v
Goddard
Bird v
Holbrook

Necessity

Dwyer v.
Staunton
(1947) Alta
DC

Vincent v
Lake Erie
Transporta
tion Ltd
Southwark
London
Borough
Council v
Williams
and
Anderson
Legal
Authority

D was occupier of
walled garden
containing rare
tulips spring
loaded gun to
protect no notice
of gun. 3rd party
tried to help catch
hen in garden gets
shot in the knee.
Highway blocked by
snowdrifts that
could not be plowed
out. Bulldozer was
followed by 5 trucks.
Through fence,
crops, and field
instead. Farmer
says no way you are
returning.
D moored a ship to
Ps dock. Storm.
Dock damaged.
Found for D and P
appealed.
D pleaded necessity
for trespass.

P arrested for
suspicion of

If force is being used to steal, you may use force in

response without request.
You cant do indirectly what you cant do directly
must be request followed by ejection.

Policy reasons hungry and homeless must have

their distress relieved by charity and social
services.

Reynen v.
Antonenko
Mohamed
v City of
Vancouver

Notes
Apr 5

possessing narcotics - in this case, it was within the prescribed

be done.
limits
officer had doctor
do invasive search
cooperation
appeared.
Bites and holds rather than barks and holds.
Did not hear stop,
Criminal code provides reasonable limits for force
officer set police dog s. 25 of CC says as much force as
by officers.
necessary for this purpose, if for law
czar after him.
enforcement, and on reasonable grounds
Officer was
court felt this was satisfied
negligent after not
following dog.
Defences
1. Complete
a. Consent (analogous to voluntary assumption of risk)
b. Self-Defence (you are allowed to defend yourself, is must be proportional)
c. Defence of 3rd Party (interceding in a fight for example it is still unclear how far this goes, as to
what relationships it applies to the defence can apply to an honest but mistaken belief as to
someone being harmed, again, it must be proportional force)
d. Defence of Property
e. Discipline (really a defence of lawful authority ex. teachers are justified in using reasonable force
again, the question is how far can you go, like hitting child in head must be for educative or
corrective purposes, relating to constraining, controlling, or expressing disapproval)
f. Necessity (defence where you do something with is necessary to achieve a greater goal thats
value is greater than the act)
g. Legal Authority
h. Justification (Brimelow v Casson burlesque troop case justified if in course of duty)
i. Illegality (refer back to Hall v Hebert same defence as in negligence, cant profit from own
wrong)
2. Partial
a. Provocation (if you provoke someone by insults, racism less damages)
b. Contributory Negligence (Stanley Cup riots battery from rubber bullet damages reduced by
75% due to contributory negligence)
3. Consent
a. Nature of Consent written or oral or implied required burden of the defence
b. Typical Circumstances the following are examples where issues of consent and battery can arise
i. Interpersonal violence
ii. Sports
iii. Medical treatment
- Rule doctrine of informed consent is more to do with negligence than int tort; what
is relevant is consent or no consent, informed part is removed
- Withdrawal
- Emergencies
- Necessity
- Children & Adult dependents
iv. Sexual Relationships

Derry v Peek
(1889) HL

Young v
McMillan
(1984) NSSC

Business Torts
Deceit (suing based on a fraudulent misrepresentation)
- is one liable for deceit if
Company asserted they
Fraud is:
misrepresentation but honest belief in it?
had the right to use
1 knowingly false
- no
steam power believed
2 without belief in truth
- the stmt may have been made carelessly,
they could get it but
3 reckless
but there was honest belief
- fraud is: knowingly false, without belief
didnt have it and
objective test
in truth, recklessly (without caring if true
induced investor to
or false)
invest.
M bought boat from Y for Does this misrep amount to deceit?
To have grounds for deceit, the
- No
$105. Y had told him
misrepresentation must be a material
- a misrep must be material and an
previously $210, but was
inducement to the action.
inducing ground
$150 new.
- there was no inducement by this
misrepresentation
- caveat emptor (buyer beware principle)

Inducement
Lumley v Gye
(1853) QB

Singer was persuaded

not to perform at Ls
theatre. L sued as he
suffered a loss.

DC Thomson
v Deakin
(1952) CA

Union (D) asked BSL (3rd

party) to not deliver Ps
paper because of their
non-union hiring even
though BSL under
contract to do so.
Delivery of fuel contract
could not be fulfilled due
to a labour dispute.
Force majeure clause
included. So, hotel tried
to obtain from another
supplied and union
pressured to stop.

Torquay
Hotel v
Cousins
(1969) CA

Is there an action in tort for inducing a

breach of contract?
- yes
- the inducer is a joint wrongdoer, and
may be sued jointly or separately
- the inducement must be intended to
produce damages and actually produce
damages
- Hagens elements:
- an act of inducement
- intention to cause damage
- knowledge of the actual existence of
contract
- results in breach
Is D liable for indirect inducement?
- did not meet the elements required in
this case to show

Elements:
- act of inducement (direct)
- intention to cause damage
- knowledge of actual existence
of contract
- results in breach
(can be legal means?)

Is D liable if the interference did not

produce an actual breach?
- yes
- must be deliberate interference with
the execution of a contract
- must be direct interference with the
execution
- injunction granted to stop union from
interfering with future and existing
supply contracts
- there is a question of whether this
actually applies in Canada some cases
have said yes and some no

Liability for interference without a breach if:

- interference in execution
- deliberate (knowledge of contract or blind
eye to it and still intent)
- direct interference only
(Hagen says or illegal and indirect)

Indirect inducement is also a cause of action if

elements met
(must be illegal means?)

Brimelow v
Casson
(1924) LT

Burlesque troupe paid

less than minimum
advocated by Joint
Protection Committee.
They persuaded theatres
to break contracts until
wages increased.

Was this type of interference justified?

- yes
- the interference is actionable, but a
defence can be it was justified
- defence is available if the interference
by a D is justified by Ds duty: here the
protection of the chorus girls who
performed misconduct to earn money if
not paid enough

Rookes v
Barnard
(1964) HL

Employee quit union,

union threatened to strike
if employee not dismissed
by company. He was.
Sued union.

Did the Ds (union) commit the tort of

intimidation?
- yes threatened to strike illegally
unless dismiss employee
- intimidation of a P or of other persons
to injure P could constitute this tort the
injury here is breach of contract
- in law, immaterial if threat is carried
out or not, but practically, if carried out
on third party, then P has no cause of
action
- what damages were sued for by P?

Canada
Cement v BC
Lightweight
Aggregate
(1983) SCC

Originally, D purchased
aggregate for cement
from P and P agreed not
to compete. Contract
over and D purchased
from elsewhere, P could
not recoup sales because
of Ds actions.

Did the defendant commit conspiracy to

injure the Plaintiff?
- no (on appeal to the SCC)
- only if predominant purpose of D is to
injure P, whether lawful or unlawful, and
does injure D
- or, if unlawful, and D should know
injury to P is likely to result and does
result
- here there was no unlawful act, and the
predominant purpose to injure P was not
found

Tuttle v Buck
(1909) SC
Minn

Banker opens a rival

barbershop. P claims
banker (D) trying to put
him out of business.

No general rule, but defence of justified

interference can be argued if it was in the
course of duty.

Intimidation
Intimidation elements by D:
- threatens to use unlawful means (criminal,
tortious, or now contract breach)
- intent to achieve certain wishes
- compliance with demand met

Conspiracy

Intentional Interference by Unlawful Means

What amounts to illegality?
Intentional interference by unlawful means is
- motive is irrelevant if the act is lawful
an actionable tort controversial and
- the idea that a malicious motive
unreliable however when the sole purpose is
renders all lawful acts incapable of being
to drive a competitor out of business as
unlawful is not a good rule for all cases
- when a man starts a business for the
opposed to profit.
sole purpose of driving an opponent out
of business this satisfies the crime
- facts show operation at a loss or
intention to close down if P driven out of
business according to majority decision,
not the judge whos decision is in the
book
- also called unlawful interference with
economic interests

Notes Apr 5

Conspiracy exists if:

- predominant purpose of Ds conduct is to
injure P and does
- if unlawful, injury to P should be forseen by
D, and injury to P results

Improper Market Practices

1. Conspiracy
2. Intimidation
3. Inducement to Breach

4. Int Interference By Unlawful Means

EXAM
1.
2.
3.
4.
5.
6.

Practice
Problems

TIPS
IRAC
Divide torts into negligence and intentional torts
Intentional torts into the four main types of torts property, chattels, person, economic
Then divide those into individual torts causes of action
Hes focusing on defences a lot in a wide sense, not meeting an element like causation is a defence
In a narrower sense, the defences to negligence and intentional torts are applied even if cause of
action shown
7. Top down approach know the elements of each of the various torts
8. Remember difference between fault, liability
9. Know the Contributory Neg Act
10. When the court makes a ruling do they do vicarious liability separate from normal liability or do they
share?
11. Clarity on damages liability fault.
Tort Hypothetical
- Pure Economic Loss
o Relational economic loss what is the issue?
o Kamloops test is used in all economic losses except relational economic losses
o LaForest test there is no compensation for relational economic losses property interest
o What analysis do you use for pure economic loss?
- Remoteness
o When are the damages proximate or too remote? (I)
a) Wagon Mound II not remote if a foreseeable real and substantial risk (L)
Old view Re Polemis you are liable for direct cons. of your act
WGII you are liable for foreseeable events with a real risk
Bolton v Stone possibility of any cricket ball
WG II (citing B&S) - real and substantial risk something more than a mere
fantastic possibility doesnt have to be probable, just possible you weight the
harm caused with the mere possibility (Priestman?)
Distinguish here between Albert and the club (A)
Not a real and substantial risk a virtual impossibility like B&S (C)
b) Bolton v Stone cricket ball was foreseeable but not a real risk
c) Assiniboine argument given that the first event could cause a chain
d) Simon: why not just start with the nexus in Kamloops test?
e) My ?: is the foreseeable duty to a motorist on the road, and then remoteness comes into
play in tallying up which damages are attributable to him
Question 2 example
- Causation issue: but for psy cos screening test, this damage would not have occurred
- Walker case: cannot say but for here but could argue material contribution only applicable
where but for fails through inability to apply (Athey, Walker)
- Link the negligent ACT to the actual DAMAGE
- General causation is but for
- In cases where inapplicable because unfair use of but for use material contribution (Walker)

Does CSIS have any actions against Psy Co?

o Because but for test is arguably unworkable, you can use the material contribution test
there was a positive causal contribution due to the improper test

Take torts and break into categories define the categories

Take categories and break into causes of action
Take causes and break into elements
Take elements and break into
A page on cases and fact
Practice exam for format