LAW 406: TORTS AND LOSS COMPENSATION

D.

Proximate Cause

Proximate cause is really about saying when is enough. When discussing proximate cause we know there has already been a 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:
a) Initial injury is exacerbated by the second injury. Is it within the ambit of risk created by the defendants negligence?
b) Another person intervenes and creates the damage. When can the defendant be held liable for the negligent acts of others?
Harris v. T.C.C. & Miller, (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.
1. 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.
2. 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.
1. Recurring Situations
a. 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.
Class:
b. 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:
a) close in time to the first
b) 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.
Class:

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
Court is punishing plaintiff b/c they acted unreasonable
Connection with Wagon Mound # 1

In WM the plaintiffs had no evidence that furnace oil caught on fire on water, b/c if they did then it would find them
guilty.

In the Mckew case the same thing is going on but to get around it they should use contributory negligent.
If it is foreseeable that ppl will act reckless than the original wrongdoer should be held liable b/c it is foreseeable
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.
c.

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.

For the longest timer Mercer was the leading case

In that case a child broke her leg and she was treated at the hospital but the condition worsened when the Dr. failed to cut off
the cast soon enough. At the trial these damages caused by the Dr. were not take into account

The damages were not taken into account b/c the court says that the only time that the Dr. can be held liable is when the Dr. is
not negligence. Meaning the second Dr. would not be responsible for the neg. of the 1st Dr.

Plaintiff must sue the Dr. so this burdens the plaintiff with not just one lawsuit but two
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.
Class:
B/c of apportionment legislation both were held liable the gas co. and Clare Bros.
If you dig deep enough you will see that insurance companies said that there could only be one party responsible for the accident.
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.

Dow argued that yes they did not warn the doctor, but even if they had warned the Dr. he still would not have warned her about the
risks

Court got pissed and said that the test would be completely subjective meaning that if the plaintiff said she would not have the
procedure then that was enough
Ratio: The Following groups can break a chain of causation for a corporation: learned intermediary, doctor, and patient.
The learned intermediary rule provides a way the manufacturer can discharge its duty to give adequate information of the risks to
the plaintiff by informing an intermediary, but if it fails to do so it cannot raise the defense that the intermediary could have 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.
What we can pull out of the case
o Where a substance is dangerous in itself, it is absolutely critical that the mfg inform the Dr. so the consumer can be
appraised of all of the risks.

CLASS:
There is a duty to warn if the product is inherently dangerous (ie. anything you put in your body)
o There is an exception to that rule called the learned intermediary rule

If a professional is required to obtain that article for the consumer, then the manufacturer can fulfill its
obligation to warn the customer by informing the professional a.k.a the learned intermediary.
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.
Kathleen says that this case underscores the Learned Intermediary rule.
BIRTH CONTROL PILLS ARE EXCEPTION TO THE EXCEPTION
o Birth Control carry high risk of stroke
o It is so common for ppl to get these pills that the learned intermediary rule cannot apply. So inside the package there
is a waiver from the mfg.
If the learned intermediary is not informed the mfg cannot use the break of causation argument
Court says that mfg cannot hide behind the learned intermediary and try to eliminate there own negligence by saying that had they
informed the learned intermediary he still would not have told the patience
4.

Government Liability
Proceeding Against the Crown

Here we look at the sue-ability of the crown

o Crown can be sued but it is not like suing a person b/c the range of the crown is so much more massive and the mandate
of the crown is much larger than the average person
o Policy considerations also play into the ability to sue 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.

Can the Comeau Sea Food company sue the crown/minister?

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:
1. base his decision on relevant considerations
2. must avoid being arbitrary
3. 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).

Court said Minister has wide discretion and for purposes of common law when there is a gap in the statute the minister has a
standard of care and the court said the standard of care is a basic administration of the law that looks at:

Relevant considerations

Avoid arbitration

Use good faith

By looking at theses three things the crown can avoid liability

When your dealing with a situation that is public/private the standard of care is different
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.

Court says there is no evidence presented by Ralph or Shirley indicating that they should not be held responsible there only
defense was that the acts were vexatious and frivolous

Judge looked at the crown liability legislation and whether specific actors within the crown can be named
o Court said YES, individuals within the crown should be able to be named
o Vicarious liability

There is an employee who injured a person the injured person does not go after the employee but goes after
the employer. Crown argued that the case at bar was no different and that if Decock was going after the crown
then why should Klein and Shirley be named

Peter Hogg:
o They should be named, he argues what if the P cannot make that sufficient connection to the employer and they have not
named the person individually, then they are at a disadvantage.
o There is no guarantee that that crown has to deliver its witnesses once its been sued so by naming individually then
they can be subpoenaed as witnesses
o There can be no immunization of individuals from liability.

Is the Premier a sue able entity?

o No, only persons can be sued. But there are different kinds of persons (has to be of full age and mental capacity not
children)
o Sometimes depending on your criminal record or residence
o Or you can be a person created by statute a corporation is thought of as a living being, but political parties are not
o Office of the premier is neither of these things it is a matter of convention and there is no law that says we have
to have a premier. So what is left: NAME KLEIN INDIVIDUALLY

Is the Minister a sue able entity

This is an entity of statute, however, if you call her the Minister of Health it will be treated as just being the Crown

Class:

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

In tort the general rule is that torts can only be done by individuals

Vicarious Liability Test

o It is a two prong test

1st part is control who has control (who is paying, who is in charge, is there a statutory control

Has to pass this test

Mandate: does the employee have a mandate, has the organization created a foreseeable risk in regards to the
employees mandate.
o Concept of vicarious liability is when someone harms another while employed by a person. And that the employer put the
employee in that position to do that harm.

Klein argued this that we are vicariously liable and that you should go after the Alberta government and not us.

Idea of individual responsibility: People are the ones that hurt other people, even if they are cloaked in a government role.

KLM/BLACKWATER BC COURT OF APPEAL FOR THE LA FOREST VISIT

IMPORTANT THING TO TAKE OUT OF THIS CASE IS THE IDEA OF VICARIOUS LIABILITY AND SUING AND NAMING
ENTITIES AND PEOPLE

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. Specifically they challenged:

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

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

the manner in which the cutting and scaling operations should have been carried out
Decision: SCC reversed the decision and ordered a new trial.
Reasons: Cory, J. How do we normally establish a duty of care?
1. Proximity neighbor principle (Donoghue v. Stevenson)
2. Is there any reason not to find a duty? (Anns Case)
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:
1. Proximity
2. 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.
o If it is operational in nature then the required duty of care to individuals is there
o Policy decisions are not subject to a private law duty of care.
o 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.)
o 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.
o The distinction between operational decisions and policy decisions can be hard to establish.
o 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
Administrative Law
Constitutional law
Bona fides/bad faith

Private Law
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
1. Broadening of government liability.
2. Government can be liable for economic loss.
3. Discretionary decisions are not reviewable by the court if:
a) they were bona fide made
i) with proper purpose
ii) within power of body, procedurally and substantively
iii) using reasonable considerations
b) the body actually considered whether or not to do something.
4. must prove that:
a) was not bona fide made.
i) not within purpose of statute
ii) not within power of the body
iii) using irrelevant considerations.
b) the authority completely omitted to make any decision at all.
City of Kamloops v. Nielson, Hughes and Hughes, (1984), S.C.C.
1. Negligent performance of operational duties is compensable.
2. If the government body never turns its mind to whether or not they should exercise a power, that is liability in tort.
3. By-laws must be enforced.
4. The city is vicariously liable for the actions of its employees (just like Dorset Yacht).
OTHER
Floodgates argument- not a problem because:
a) First must find a private law duty of care. Do this by asking:
i) is it an operational duty? If yes,
ii) is it reasonably foreseeable that persons could be injured?
Neighbor principle/identifiable class?
b) 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:
1. Relationship of proximity to warrant the imposition of a duty?
2. Does the statute exempt government from the imposition of this duty?
3. Does the statute exempt government from liability?

4.

Is the decision pure policy? Economic, social or political considerations?

a) Is the policy decision exercised bona fide?
b) If not, go to a traditional tort analysis.
c) 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;
1. Does a public authority owe a private law duty of care to ?
(a) Is there a statute that says so?
(b) More often, look at Anns test (see p.184 Just)
(i)
Is there sufficient proximity?
(ii)
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;
2. Ask whether the issue is of policy or operation?
-Look at Brown
3. 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.
Class:

Policy area creates a vacuum where the government cannot be sued

o The inspection techniques was a policy decisions

Can the crown ever be sued for policy reasons?

o Yes there is an exception that the policy has to be bona fide meaning that the policy has to be in good faith, the decision
to implement has been made considering the problem

Have to be made in the public interest for the benefit of the public and they must be considerate

Should consider the alternatives

Cannot be corrupt

If you dont think about it it cant be good policy

How do we differentiate b/w policy and operational?

o Policy consideration usually have to do with economic, political, or social
o Policy decisions are usually made at the top of the hierarchy they are the ones that decide how to spend taxpayer
dollars
o If it is an administrative direction

That is not to say that a low level civil servant cannot make policy decisions, however these usually occur once
the government has established that it is reasonable to make the policy decision at that level.
o Making a decision and then finding a problematic situation arising from its improper implementation is an operational
decision as opposed to a policy
o Dont just look at the decision at face value, but look at how the decision was carried out b/c we can sue on the
operational basis

Courts Summary
o As a general rule duty will apply by using the regular duty test (Donahue v. Stevenson > Anns > Is it policy? Is it
operational? Is there a statutory exemption?)
o Kathleen says that when your dealing with government the standard of care is not going to as rigorous as when dealing
with an individual person
o The case states that it is the nature of the decision that will determine if it is policy or operational

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:
1. Gvt should have been on the winter schedule. (Argument fails it was a policy choice.)
2. 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;
1. Does a public authority owe a private law duty of care to ?
(c) Is there a statute that says so?
(d) More often, look at Anns test
(iii)
Is there sufficient proximity?
(iv)
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;
2. Ask whether the issue is of policy or operation?
3. Look at Brown: nature of decision, budgetary, who makes it

4.
5.
6.
7.
8.

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:
1. There has to be a satisfactory building inspection.
2. Their must be notice to the city before work is done on the underpinnings.
3. 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

*****************************************IF YOU ARE CATHOLIC THIS CLASS MAY BE OFFENSIVE

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.

Economic, third party claims

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:
(i)

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),
(ii) Offset benefit: Total recovery offset with the benefit of having a child.
Children per se give benefit to children
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.
(iii) Limited damages:

Public Policy comes into play here

o Undesirability of having the child find out that a court determined that there birth was unwanted
o No $$$ for loving mothers, but for moms who dont like there children and reject them would receive damages
o Physicians would be encouraged to perform more late term abortions to avoid liability
o

Recovery for unplanned pregnancy but not the unplanned birth and child.
Court talks about public policy:
o
There is no public policy in Canada that requires people to or prevents them from having children
o
There is no public policy that sets a cap on the number of kids you can have
o
Reproductive ability is an individual right and that is the policy in Canada
o
Children in Canada are perceived as being a benefit court substantiates this claim by looking at wrongful
death legislation
PAGE 298: How court approaches these cases:
o
Total Recovery approach: court parallels this with economic loss
o
Court focuses on loss incurred to her and does not go beyond the end of the pregnancy
o
Court looks at reasons for tubal ligation

The plaintiff on a balance of probabilities has to prove economic reasons for not wanting child

o
o

Court brings in notion of injury

Birth of healthy child is not an injury
PAGE 302:
Court questions why they did not abort the baby
Had they been more reasonable parents they would have taken steps to extinguish the issue before it became
this big of a problem
Page 302 c Life is about choices some of the worst legal reasoning you will ever see

o
CLASS:
Essentially three types of wrongful birth cases:
(i) Wrongful birth:

Parents are plaintiffs

Can be a planned pregnancy

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

Parents give birth to a child with disabilities, doctor should have told parents about defects, with parents bringing
claim.
(ii) Wrongful life: Similar to above, but with child bringing action.

Plaintiff is the infant

Cases arise from failed abortions, or failed sterilization

Also have begun to arise out of failed genetic screening usually here the child is born disfigured or damaged
in some way and is suing for being alive
(iii) Wrongful pregnancy:

Wrong permitted pre-conception

Failed vasectomy, or tubal ligation

Child does not need to have defects, but pregnancy has to be unplanned

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

Kathleen says that courts are treading lightly on this topic
1. Some judges believe that mental illness is really suspect it is not as vague as it once was but still the acceptance of
mental injury has been slow by the courts.
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:
1. 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.
2. During: in the zone where you could be hurt, As long as a reasonable person in the circumstances would suffer
the same damage
3. 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

(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:

At trial the court looked at the background case law the leading case was the Mcglaughlin (Mother called to hospital after her
Husband and kids were in an accident, she saw one of kids die in hospital)
o In that case the judge said that there is a composite test in determining if there is a duty in these cases:

There is a causal proximity (closeness to the sight of the accident) that is relevant

There is a temporal proximity (the immediacy after the accident were they involved in the immediate aftermath)
that need not be there, but the case is stronger if there is one

Geographical (has to do with location) proximity

Emotional proximity (very important if the victim is a close family member the forseeability of nervous shock is
easier to substantiate)

Using this framework from the Mchlaughlin case they applied the facts:

The court held that the fact that she was neither at the hospital nor at the site of the accident she was indirectly affected thus
negating the duty of care.

If a party is geographically present and they either here or see the accident they pass the forseeability aspect of the test
making them directly effected by it.

Wallace J.A.

He takes us through a discussion of the case law in regards to these matters

Nervous shock requires more than just mere foreseeability, need an evidentiary basis from which proximity can be decided

Southin J.A.

Shock factor is important

Agrees that physical impact is not necessary, and the shock aspect will create a direct impact

Mcfarlane J.A.

He supports Southins position in talking about directness

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.
2.
3.

relational proximity, or the closeness of the relationship between the plaintiff and the victim;
locational proximity, or being at the scene observing the shocking event; and
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.
Class:

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

Is there a duty of Care owed by the second driver, and if what they did caused the damage she suffered
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.

The test is the forseeability of risk she was a bystander

o Even though she did not have a emotional relationship was not enough to dismiss the matter

Because she was not a family member the court looked at the case law as it related to non-family members claiming nervous
shock
o Chadwick case from England this case said it was good public policy to give damages in these cases b/c it promotes
rescue
o Mount Eaison Mines from Australia (workman was electrocuted and coworker went to help but guy died) court found
that there was sufficient connection in that case so that the defendant should have been able to foresee the injury.

THIN SKULL:
o Thin skull is pre-existing injury while crumbling skull is an injury that has nothing to do with the negligence of the
defendant (i.e. cancer victim who got into a car accident cannot claim lost pay for the next 40 years)
o Person can have a thin skull physically and mentally.
o If they fall within the ambit of foreseeability and proximity then you owe them that duty
o TAKE YOUR VICTIM AS YOU FIND THEM
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.

Vanck v. Atlantic Pacific Company Ltd

SM 346

Facts:
Child at school and drank juice bottle, and thought it tastes crappy, so she puked it up. She reported the taste to friends she went to the
principals office, and they called parents. They came to the office they said she looked pail, she went to the Emergency room they said
she was fine. They sent the drink to be analyzed turns out the drink had gasoline in it. Girl went back to school she was fine but
parents went loco, especially father who began to have numbness in his hand and was treated for angina they sued the store that sold
the juice and the juice company for $925,000.00. At the trial they were awarded damages and costs, but not full damages. It was
appealed.
Issues:

Whether or not mental damage suffered was so serious that it caused recognizable mental disorder

Reasoning:

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

The swallowing juice did not cause too much discomfort to the child

Everyone did the right thing, the school handled it correctly

When the parents came to the school there was just an ordinary scene there was no mayhem, the daughter was acting normal.

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

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

Lastly she went back to school the next day

There was no immediate aftermath

Health and Welfare Canada came back and said that there was very likely no chance of long term effects.

There is no duty of care breached

Class:
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:
1. A statement made that was relied upon but was negligently made but caused the loss.

A statement can be an omission to tell

2. Negligent performance of service e.g. building inspectors, doctors, lawyers, architects

These categories may overlap/crossover

3. Economic loss caused by defective products and structures

Defective home, can the builder be sued after 20 years?

4. Relational losses

Based on physical or proprietary e.g. partners, people in the community who rely on the bridge
5. 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

(1) Duty of care: Special relationship?
(2) Representation untrue, inaccurate, misleading?
(3) Representation negligently made?
(4) 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.
3.

Speaking of economic loss.

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:
a) keep silent and decline to answer (no duty).
b) answer, but qualify the answer by saying arent responsible (no duty).
c) 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.
Class:

Negligent statement > economic harm

Before this case Tort did not recognize that statements merely negligently made are accessible to tort action

A duty of care in negligence can be created when the representation was made in a professional representation Lord Pierce

A duty of care would arise if the arrangement was equivalent to a K Lord Devlin

Reasonable Reliance: If there is Reasonable Reliance b/w the maker of the statement and the receiver of the statement you may
be able to find a duty Lord Reid

Irrespective of contract that there can be a duty to be careful, in regards to statements, if you know that another person will rely on
your judgment and skill Lord Morris
Fletcher v. Manitoba Public Ins. Corp., (1990), S.C.C., SM pg. 265
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
What is the duty of care to a person working in the insurance business for the government, where they have a monopoly, of
informing the user of the policy.
Reasoning:
1. 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. basically calling the guy a liar

The SCC said the appeal court was wrong and that the CA has no reason to go back and burrow through the facts of the trial
2. 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 .
3. Hedley Byrne applies to establish a duty of care if:

This case tells us that you can be negligent when you fail to tell the employee
a) customers rely on the information.
b) the reliance is reasonable.

It was reasonable for him to rely in the info given. Few people approaching the insurer know the law, the specific
policies, nor the types of the insurance they need to protect there property
c) Was it foreseeable that the man would rely on the insurer

The government cannot assume that customers will not rely on the info. And the reliance was expected
4. Scope of private insurers duty, should it be the same as a private company:
(a) to provide both information and advice and

it is a different kettle of fish when youre the government the standard is not the same for the government. When
you have a private insurer the parallel can be drawn to a doctor patient relationship. There is a higher scope of duty
from private than from government.

But the court still says that the government never made the scope of there duty b/c the insurer
should have told them what was going on and what the policy entailed.
(b) to provide the insurance coverage bargained for, and if that is not available, to explain the gaps.
5. 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.
6. Contra proferentem rule of construction: ambiguous terms of a contract of insurance are resolved in favor of the insured.
7. Causation clear here. Had the person bought the extra insurance, would not have suffered the loss.
Ratio:
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
Silence can also amount to a negligent mistake
In a private insurance company - have a higher duty than public insurance but public insurance still has a duty.
Is the standard you receive the same as what a reasonable person would expect in the context of government insurance.
Test:
1. Reliance on the info doing or not doing an action to your detriment. Reliance determines when there is and isnt a duty
of care.
2. It was reasonable for them to rely on the info
3. The speaker knew they would rely on the info
o

CLASS:
In the Appeal court the judge called fletcher a liar
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, false or misleading a misstatement
3) person representing this false info must have acted negligently in making the representation
4) person who is listening to the statement must have reliance, in a reasonable manner, on representation
5) reliance must have been detrimental to the listener in the sense that damages resulted
Pre-contractual misrepresentation the comments about the job induced the listener to enter into a contract.
ALL FIVE ELEMENTS NEED TO BE PRESENT
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.
The test that the court is applying (pg 419) is reasonable foresight in fact the SCC applies the Hedley Test
Evatt Case does not apply in Canada.
The standard of care required by someone making representations is OBJECTIVE!! What the reasonable person in the
situation would do
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.

They relied on financial audit statement from E & Y

They suffered investment losses and the value of there shares

Issue: Is there a duty owed? NO the duty in this case is negated by policy considerations
Reasoning:

The court says they are going to apply general tort negligence problems

The test in Anns is applied:

o 1) relationship of proximity

Is there a sufficient special relationship here the court refers to this as a prima facie duty of care

This is where the reliance kicks in the reliance has to be reasonable, foreseeable, and cause
detriment
o 2) policy reasons to limit the duty

Are there any considerations that would negate the duty of care, reduce the duty of care, limit the scope of the
duty, or the class of people that it applies to, or the amount of damages.

We see now that the policy considerations will also be looked at in private cases no longer does its application
only extend to government.
Principles in this case:
1. 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.
2. Reasonable foreseeability/reasonable reliance test
(a) D ought reasonably to foresee that the P will rely on his or her representation, and
(b) Reliance by P would in the circumstances, be reasonable.
If these two are met, have a special relationship a prima facie duty of care.
3. Restrict or limit this by (these are policy considerations):
(a) The policy consideration here is indeterminacy of scope, class, damages (IN THIS CASE)
(b) D must know identity of P or class of P (cannot be limitless, they need to know them), and

4.
5.

(c) 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:
What we have seen is tort law is available for $$$ losses but courts are nervous about it b/c of the indeterminacy of
scope, class, and damages.
o Kathleen says that if they cannot find a methodologically viable way of solving the problem then the answer
to the second part of the ANNS test will be HELLA NO

(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.
Court looks at purpose of the audit assist shareholders in overseeing the managing of the company.
o They lose on the first ground b/c the purpose of the audit is not for investment advice
In regards to the loss of shares the plaintiff says they relied on the audit to determine the value of there shares, and the
second argument was that they relied on the audit to oversee the management. Had the audit told them the financial peril
the company was in they could have acts
o Court said there was a flaw I the argument that goes back to purpose. Court agreed that the purpose stated by the
appellant was correct but the shareholders here are individuals claiming there own loss. And the audit is made not
for the purpose of aiding individuals but made for aiding the whole group of shareholders.
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

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:
1. Five categories where recovery in tort for economic loss has arisen:
a) The independent liability of statutory public authorities.
b) Negligent misrepresentation.
c) Negligent performance of a service.
d) Negligent supply of shoddy goods or structures (this case).
e) Relational economic loss (Norsk).
2. 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.
3. Onus is on the plaintiff to show that;
a) There is a serious risk to safety.
b) The risk was caused by the contractors negligence.
c) Repairs are required to alleviate the risk (only recover costs to put building in non-dangerous state)
4. 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.
5. 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.
6. POLICY arguments for establishment of the duty;
a) 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?)
b) Punishes (economically) those who dont fix dangers by disallowing a claim in tort, whereas those who wait until someone is
injured, do (preventative function)
c) 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.
7. 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

Party is third party but seeks to attain damages for economic loss from an incident b/w X & Y

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:
1. 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)
2. Four policy reasons why economic loss should not be allowed;
a) Less worthy of protection than physical injury.
b) Indeterminate liability.
c) Burden of loss should be on victim.
d) Multiplicity of lawsuits.
3. Relational Economic Loss:(AKA contractual and relational) economic loss that arises solely because of a relationship with the
injured party.
4. 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;
(i)
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?
(a) The material side. Quantifiable losses.
(b) Emotional side.
Statutory basis is s.43 of the Domestic Relations Act.
(ii)
A dependant of a family member claims for loss of income when that partner dies.
Statutory basis is Fatal Accidents Act.
(iii)
A claim for loss of services brought forward by employer for loss of services of injured employee.

(limited by DAmato).
Per quod servitium amisit,
Two part Anns test is for economic losses only

Bow Valley Husky (Bermuda) Ltd. v. St. John Shipbuilding Ltd ., (1997), S.C.C., CB: 454
Facts: P is HOOL and BVI, and they had a contract with a ship builder SJSL (for a oil rig). Hool and BVI then transferred the contract
to a subsidiary company BvHB. HOOL made a deal with the subsidiary that if the rig was ever down they would pay the downtime
costs. There was a heating system installed on the rig by a company named RAYCHEM. A fire broke out on the rig, and there was no
circuit breaker which would have mitigated some of the damages. The after effect of the fire was that the ship was out of service for a
few months and damage to the ship amounted to $5 million.
*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

Why didnt the learned intermediary rule apply here for Raychem?
o b/c they solicited there product to SJSL court says b/c they had direct contact, and the flammability of a product is not a
high tech concept that cannot be understood. That warning was not given.

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.
2.
3.

4.

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
(a) duty to warn (Hollis) those who use their products reasonable foreseeability
(b) use public policy analysis general exclusionary rule
(c) did K negate duty to warn?
(d) learned intermediary defence (Hollis)

product is highly technical

product is such that ultimate consumer cant be warned directly

intermediary must be learned

(e) causation
(f) fault allocation
Only in very special circumstances will be liable but categories are never closed
(a) possessory or proprietary interests
(b) average cases
Mcglaughlin says her definition of joint venture would be much broader than that of La Forest
o She goes into looking at the La Forest approach and the her approach and how they apply to the case

La Forest starts for the exclusionary rule (no compensation for relational losses) then he says there are
exceptions to the rule (1) if the defendant has a proprietary or possessory interest (meaning that the own, or
possess, have control they are something that are concrete legal interests), (2) General average, (3) Joint
venture.
o Her approach is based on proximity which includes a two part test

(1) is there a prima facie duty of care

(2) is there a policy reason that negates the duty of care

o She says her and La Forest both agree that only in special circumstances where the aforementioned tests will be used
o She says that these special circumstances are in categories (the categories are La Forests exclusionary clauses) that are
not closed
She says the exclusionary rule can be relaxed when the claimants ability to delegate risk is low, and the rule can be relaxed when
the deterrent effect is low.
o When there is no deterrent there should be relational losses so they act as a deterrent.
o Where there is no opportunity to allocate risk through bargaining there will be in an opportunity for giving relational losses.
Mclaughlin says she approaches these relational loss cases is by using the Anns test.
BVI argued that they were determinant b/c:
o We fall into the known plaintiff rule we were known to Raychem and SJSL

Court said no
o What about restricting the losses to people who used the rig tried to draw analogy b/w this situation and the one in
Winnipeg Condos

The courts said no to that too. There is no logical reason to draw the line here.

o
o

We relied on SJSL and Raychem

Court said everyone relies on the product being safe.

The duty to warn is limited and therefore the class to whom the duty was owed is also limited

Argument is circular throw Anns out the window, we are in the second part of Anns and this
argument relied on the first part of the test.

RELATIONAL ECONOMIC LOSSES:

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)
o It does trump tort if the specific tort is dealt with in the contract.
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.
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).
Jointly liable: both defendants are liable
Severably Liable: plaintiff can severe one party and go after one for all of the money and then let the two defendants can fight it out
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.
Class:: Todays Contributory Negligence Act

Defendant had last chance to avoid the ASS

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

It is not an apportionment decision

Last chance helps out plaintiffs but it does not help the Defendant
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.
No fault of the driver
Safety of the child comes first, the driver has a duty as well.
Child is suing for the injuries suffered
Reasons:
Courts held that when the father was there the driver was entitled to rely on that
Talks about general duty of drivers to assure wearing seatbelts

Denning says that it is so foreseeable that you will be injured if you dont wear a seatbelt


People owe themselves a duty to wear seatbelt

The standard is much higher b/c of statute now

Does the driver owe a duty?

There is a duty on a driver to ensure that passengers wear seatbelts. Especially kids b/c they rely on the guidance of
adults
Duty negated by the parent

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

Driver is control of the car if the parent is present or not

The extent of the duty of the driver

Extent is a matter of fact

Is it enough that the driver says to the parent that the child should be buckled up, does the age matter?

Court says that a mere reminder may suffice, or in dealing with a young child a driver may have to put on the
seatbelt himself.
Class:

2. Assumption of Risk
Volenti non fit injuria:
a) Burden of proof is on the to show that expressly or by necessary implication, agreed to exempt the from liability.
b) must show that the whole risk was voluntarily incurred by the .
c) 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.
d) is restrictively construed.
e) Showing that the took a chance is not enough
Come up often in Drunk driving willingness of passenger cases
Hambley v. Shepley
CB: 406
Facts:
Cops in chase, cop got hurt
Issue:
Did the officer, voluntarily assume risk:? He assumed some risk but not the risk of a negligent driver
Ratio:
You have to explicitly give up the right to sue
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 contributory 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 defense:

must have negligence

must owe a duty of care

must not profit from the crime

injury must be separate and apart

CLASS:
1. 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;
(a) profiting (being rewarded financially for an act of wrongdoing) from an illegal act, or
(b) evading a penalty prescribed by criminal law. In essence, cant have recovery for what is illegal.
2. 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:

a) covers precisely the type of negligence which occurred.
b) attention is drawn to its contents.
c) participant understood the clause.
d) participant voluntarily agreed to take part in the activity, and
e) 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:
a) covers precisely the type of negligence which occurred.
b) waiver is reasonable (the breach is not fundamental, not the very reason you entered into the contract)
c) attention is drawn to its contents.
d) participant understood the clause.
e) participant voluntarily agreed to take part in the activity, and
f) 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.

1. must prove that s failure to mitigate is unreasonable.
2. cannot recover for damages which have been avoided because of mitigation. But, can recover costs incurred in mitigation.
3. Reasonableness of rejecting treatment is a matter of fact at trial. Usually not appealable.
4. 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:
1. 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.
2. 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.
3. Conflicting medical opinions? Consider degree of risk, gravity of consequences of refusing it, potential benefits arising from it.
4. Burden of proof is on the (balance of probabilities) to prove the unreasonableness of the s decision.
5. Injured has a duty to mitigate the damages and may not be able to recover damages if his acts are unreasonable.
6. Whether refusal of surgery is reasonable is a matter of FACT, determined at trial- not altered on appeal.
7. 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.
1. Policy decision.
2. Trier of fact will consider:

a) degree of risk.
b) gravity of consequence.
c) 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:
You dont have the same requirements as negligence
Do not require any carelessness or evil mind WHAT you do need is to attend the consequences of your act.
In Intentional tort you do not have to show any damage
o The law considers intentional torts itself as a wrong the effect of the tort on the bodily integrity of another person will
suffice to enough damage
Notion of direct harm:
o This notion was thought (in earlier cases) to have been a unique feature of 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:
(a) Trespass to person (battery, assault)
(b) Trespass to land.
(c) 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
PG 38 KLAR KEY
:

Where someone acts and produces a consequence that is not foreseeable and not preventable that is an accident

Where a defendant acts knowingly and understanding the consequences and intends those consequences then it is an intentional
tort
Goshan v. Larin Nova Scotia CA (1974)
CB 35
Facts: referee in a wrestling match he was trying to get out the ring and go to the dressing room. Someone threw something at him and
struck him in the head and fell to his knees. He got back up and and walked with his hand over his head and bumped into someone,
they sued him in intentional tort - action framed in 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.

He was justified in moving towards the exit with his hand over his face.
Class:

In the case Cook v. Lewis is cited in an action for damages in trespass the onus falls upon the defendant that his action was
unintentional and not meant to cause injury
o Way different approach than that followed in a negligence case

Applied to this case the court said that the plaintiff did shove him, but did so without malice and not to injure (Kathleen says
this is wrong b/c in intentional torts you do not need malice, or intent to injure)
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.

Does not matter what his motive is as long as he knew that she was going to come back and sit in that chair
Ratio: A battery is established if the defendant, when he moved the chair, knew with substantial certainty the plaintiff would attempt 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).

Intent is limited to the consequences of the act

Intent is not limited to only consequences that are desired
o Fire a gun in the desert and dont intend to hit someone and it does then it is an intentional tort
o Fire a gun at something moving in the far distance and you thought it was an animal but it was a human this
example will result in an intentional tort.

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.
Defendants intention was to injure someone by an unlawful blow the court said it does not matter that the identities changed b/w
the husband and the wife this is a case of transferred intent!!!

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).

Trespass was the Intentional Tort

The guy made a mistake and cut down his neighbors crops and sold it
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.

It is irrelevant that you made a mistake the intent was to mow the grass and that is sufficient to make the tort
Ratio: Mistake is no defense in intentional torts. If one intends the result (actions were voluntary) they are liable.
Class:
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?

You cannot commit an intentional tort without volition

There is a difference b/w voluntaries and intention
Mistake is not a form of defense
Where does motive become important in Tort law?
o Used as piece of evidence that could go to intention, but really helps towards damages. The more serious the motive the
more quantum and tantamount the damages will be.

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.
Reasoning:
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.
o Applied a malicious intent test which goes against what the case law says
o This test allows for a greater shield for the plaintiff
o Apply consequences test (pg 44) and a voluntariness test
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.
Class:

What did the child have to know to have the intent to commit this act?

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

Huge public policy issue here how far do we go making kids liable for there acts

Tender years doctrine

o For criminal purposes that kids under 7 cannot be responsible (however age has now been raised to 12)

The intent is having an evil mind

You need to knw what you are doing is wrong

o For Tort law

The intent for civil law is not an evil mind it is knowing the nature and consequences of the act

If you Do X, Y will result

Kathleen says the court waffles on this issue in this case

They say the act may not have been voluntary and he may not have know what he was doing

Lawson v. Wellesley Hospital

CB: 45
Facts: Patient was crazy, had history of violent conduct. The issue centered around mental health act. Argument was that patient was
so mentally ill that they were not aware of what they were doing.
Issue: What is the intent required for a person in a mentally handicapped person to be held liable for there act?
Reasoning:

Person must be able to direct there mind and must understand the nature and quality of the act.
a. Nature focuses of the physical nature
b. Consequences asks what will follow from the act
i. Does not refer to the moral aspect of the act

Court held that they should go back and make the determination if the defendant had the requisite mind set.
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
Assault is different from battery
It is a threat, it is not a touching
It is a fear of being touched whereas a battery is being touched
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.
Class:
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 favor 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).
Class:
Defense of defendant was that he never hit him
Assault occurred because you had intention to hit him and it was an immediate threat
THERE MUST IN ALL CASES THERE MUST BE A MEANS IN CARRYING IT OUT, IT MUST BE GOING TOWARD HARMFUL
CONTACT
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.
Class:
MEANS, IMMEDIATE THREAT, and UNWANTED CONTACT OR UNWANTED HARM need to all be present
If there is a condition put on the threat there can be no imminent threat of harm i.e.: I would punch you if there were not as many
people here
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.
Class:

Plaintiff was a low roller according to Sugar momma, pimp, dont be fooled by the rocks that I got Mahoney

An actor is subject to assault if he (1) contacts with persons with harmful or offensive conduct, or there is imminent apprehension of
harm

An action done without the intention does not qualify as assault.

3. Battery
An actor is subject to liability to another for battery if:
(a) 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
(b) A harmful contact either directly or indirectly with the other person results.

It is one thing to brush up against somebody but it is another thing to be rude and push on purpose
Battery is harmful contact
o The act is offensive and harmful or there is an imminent danger of harm, there must be touching
Battery: Is the touching. Trespass to person is essentially battery.
Assault: Protects ones right to be free from imminent physical harm.

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

CB 53
Ratio: Holt C.J.
1. The least touching of another in anger is battery. (Intention does not matter the question is w/o/n the person consented.)
2. 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.)
3. 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.
Cannot employ negligence principles into intentional torts
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.
If physical contact was intended the fact that the contact went further than what was expected should be given no weight when
deciding a case of battery
Class:
Recall Reibel v. Hughes the tort of battery applies differently in medical cases.
Very key decision
The defendants lawyer tried to bring in the concept in Wagon Mound No. 1
Cook v. Lewis effect if you can show that your plaintiff was injured by the defendant then the burden shifts to the
defendant and if the defendant cannot prove that he/she was not negligent then the plaintiff will succeed
Kathleen says having an action in battery is way better than negligence
Note 7: tells us that tortfeasors are usually poor and so not have the money so they are judgment proof
Note 9: Ontario Victims Bill of Rights

Statutorily imposed damages for emotional distress

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
Facts:
The appellant non-profit foundation operated residential care facilities for emotionally troubled children. The practiced total intervention
in the lives of the children, basically acting as parents. The Foundation hired a pedophile, Curry, but remained unaware that he was a
pedophile. After discovering that he was responsible for sexually abusing children, the Foundation discharged him. He was
subsequently convicted for 19 counts of sexual assault, 2 of which related to the respondent Bazley.
Issues:

Can employers be held liable for the action of there employees in regards to sexual assaults on clients, customers etc? YES

Should non profit organizations held liable? YES

Reasoning
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.
In the salmon test employers are vicariously responsible in 2 situations:
o (1) employee is doing acts authorized by employer
o (2) employee is doing unauthorized acts that are so connected to the authorized acts such that the employer
can be held responsible:
Court felt that the second branch of Salmon test is very unclear,

The felt that they could clarify the approach by looking at past case law not very good way
Second way is to look at the connection of the employees act in relation to the employment

Did it occur at work, during hours etc

Also look at policy made some comments about vicarious liability being based in public policy

Who should bear the loss the employee

Or the employer who put the employee in the position in the first place

Do all of these things have anything in common?

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.
o
o

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
o 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:
1. The opportunity that the enterprise afforded the employee to abuse his power
2. The extent to which the wrongful act may have furthered the employers aims
3. The extent to which the wrongful act was related to friction, confrontation or intimacy in the employers
enterprise
4. The extent to which the wrongful act was conferred on the employee in relation to the victim
5. 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
Class:

This is an exception the fundamental concept of tort that there is a requirement of fault. Here we can go after the employer who is
not at fault
Jacobi v. Griffiths
SM: 401
Facts:
Boys club, bug takes them to the house and abuses them
Issues:
Reasoning:
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.
Class:

4.
Intentional infliction of mental suffering (Nervous Shock)

Motive makes no difference in intentional torts

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.
Court recognized that someone could inflict shock intentionally that causes damage.
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.).
Court looked at fact that he intended to startle and shock the women
The court create notion of intentional infliction of nervous shock
With nervous shock cases see if you can employ intentional tort b/c its easier to see succeed
o Can you establish direct harm b/c if you can Cook v. Lewis comes into play and the onus shifts from the
plaintiff to the defendant
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.
Trying to protect individuals inherent right to be free
Putting a condition on a persons freedom is false imprisonment (give me your wallet or die)
False imprisonment has a definite subjective element to it.
You can be imprisoned by embarrassment
Do not have to have a physical barrier
Burn an Jones is that the subjective element will only go as far as the reasonable person
You can be imprisoned even if you are out of it. Passed out, drunk, handicapped, inebriated etc
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:
(1) proceedings initiated by the defendant,
(2) the proceeding must have terminated in the plaintiffs favour (acquittal),
(3) 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
(4) 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 willfully 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:
Both the actual conduct and the mind frame of the tortfeasor needs to be looked at.
Motive is not important except when calculating damages
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?
o 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?
o 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.
o 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.
o Punitive damages may be awarded in situations where the defendant's misconduct is so malicious, oppressive and
high-handed 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:
1. Targeted malice: Actual intention to harm
2. Untargeted malice: actual knowledge that harm will result
3. 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
high-handed 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)

Class:
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:
o 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.
o 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.
o 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.

Defences to Intentional Torts

Some defences (theoretically):
(i) Consent.
(ii) Policy reasons person acting to protect another.
(i) Ex turpi,
Burden on defendant.
Practically, the defences are treated similarly.

1.

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).

TEST:
o If there are did not show scar then they were consenting
o Was there anything that the woman said that would vitiate the Doctors consent
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:
Problem is that burden is on plaintiff to prove when using the test:
o Usually in an intentional tort all that the P has to show is an unwanted touching and harm resulting from that touching,
and from there the burden shifts to the defendant to show that there was no negligence
o This test used in this case switches that onus back to the Defendant
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:
Court looks at who the parties are:
Plaintiff is very vulnerable
P is young
The D is elderly, he is a doctor, he is wealthy
The D has knowledge of her addiction
D also has a professional oath
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:

Court looked at consent and talked about the fact that consent is a defense to intention tort but the consent must be
genuine and the consent cannot be obtained via fraud or under duress

Where there is unequal power then the court can look at the facts and the context of the situation to protect vulnerable
groups.

Notion of Exploitation:
o Drs act was not professional.
o This notion has to do with relationships that have a power imbalance.

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.
It is easy to jump to conclusion but the fact of the matter is that in a free and democratic society religious beliefs can
come into play
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:
1. In the ordinary case where there is opportunity to obtain consent of the patient it must be had.
2. Such consent may be express or implied. silence and compliance cannot be characterized as consent
3. 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.
The force applied may not be out of touch with the force needed given the context and urgency warranted.
DEFENSE OF 3rd PERSONS:
o Husband protecting wives,
o Parents protected kids
o However the caveat still applies that the force cannot be more than the situation allows
Overiding public policy measure for the caveat is to minimize vigilante justice

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:
o Was the force used reasonable?
o 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.
If the entry is violent then the response can be violent

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.
Class: 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.
Necessity allows you to do damage
The public necessity of using a public highway overrode the farmers private interest

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)
It was out of necessity that the trespass took place
Common law has recognized that in times of peril the government can destroy the property of a few to save the livelihood
of the many
IF the appropriation is done in circumstances that will save a life, or valuable goods, the court will allow for destruction of the
property but will give damages.

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.
Class:
Case was dismissed, not found to be assault. A heavy stress would put on the fact that he cooperated.

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.
Class:

V.

STRICT LIABILITY

A. Origin and Scope

doesnt require fault. no fault principle but it will be applied rarely as it is quite narrow
no intention required for strict liability
liability for non-negligent conduct, despite the fact that reasonable care was taken
Rylands v. Fletcher, (1868), H.L.
CB 489
Facts: R had a contractor build a water reservoir on their land. Unknown to R, reservoir was built over disused mine shafts. No
negligence in the construction of the reservoir. When reservoir was filled, water poured through onto plaintiff 's neighbouring land. F
brought an action for damages against R and H.
Court of Exchequer gave judgment for R. F's appeal to Court of Exchequer Chamber allowed. HL upheld the decision of the Court
of Exchequer Chamber.
Issue: What is the obligation of a landowner towards his/her neighbour in case of escape that can cause harm to that neighbour's
land? ABSOLUTE duty
Reasoning: HL held an owner of land can lawfully use it for any purpose for which the land might in the ordinary course of enjoyment
be used. An adjoining landowner cant complain about any accumulation of water, which by the operation of nature went on to the
adjoining land. The adjoining landowner, it was explained, could have prevented the operation of nature by establishing barriers
between the lands.
HL concluded (in considering the liability to F) the question was not whether R had acted with due care and caution, but whether
their acts had occasioned the damage. As the reservoir was a non-natural use of the land, and the act of having it built and filling it
damaged F's land, R liable for damages.
Ratio: Absolute Liability: If a landowner uses land for a "non-natural" use (putting something into the land that is not naturally in or on
it) which escapes and causes damage to adjoining land, the owner has used the land at his or her own peril, and is liable to adjoining
landowners no matter how careful the owner was and what precautions were taken to prevent the damage.
Requirements: (1) (Blackburn) mischief or danger likely to cause mischief or damage (the activity is dangerous in nature), (2)
(Cairns) non-natural use of land, and (3) escape from the land and causes damage.
Due care and precautions are irrelevant if it is not an ordinary or natural use (implies risk was evident and owner proceeded in the
face of it).
Two defences available in cases of SL (according to Rylands)
1. Act of God
2. Fault of the Plaintiff
3. (Escaping chattle added later)
Comments: When damage is done to personal ppty or even the person by collision either upon land or at sea, there must be
negligence in the party doing the damage to render him legally responsible (traffic on highways cannot be conducted without exposing
those persons or ppty near it to some inevitable risk.
Rickards v. Lothian, (1913), A.C.
CB 494
Facts: Water migrated from the fourth floor of the building to the second floor after a third partly maliciously vandalized the sink in the
fourth floor lavatory.
Issue: Was this a non-natural use (of water as explained in Rylands v. Fletcher)? NO
Reasoning: The provision of water supply to various parts of the house was reasonable, necessary and in the interest of the
community. Although bound to use reasonable care def not responsible for damage not due to his own fault, whether the damage was
caused by inevitable accident or wrongful acts of a third person. Here, not a case where strict liability can be applied.
Ratio:
Strict liability should be rare given the heavy burden on defendant and absence of fault.
Here, escape not caused by the defendant, escape caused by a third party = no liability.

 Here, ordinary reasonable use of land, no special or unnatural use bringwin with it an increased danger = no liability.
Modern plumbing is ordinary = natural use of land.
Comments: Gave Rylands v. Fletcher a very narrow interpretation.
Normal fires not falling under Rylands (considered normal by the community), not strict liability
Non-natural (dangerous) uses of land include x-mas decorations, flag pole, advertising ballons.
Read v. J. Lyons & Co. Ltd., (1947), H.L.
CB 501
Facts: R was hurt by an explosion in a munitions factory in which she worked during WW2. It was established the factory had not
been negligent, but R sought recovery on the ground that the Lyons carried on the manufacture of shells, which to its knowledge were
dangerous things. Trial found for R b/c Lyons was under a strict liability to her. CA allowed the appeal and dismissed the action. R
appealed to HL.
Issue: Can strict liability apply in a case that involves (1) a dangerous activity on the Plaintiff's land, (2) injures defendant on the
plaintiffs land, and (3) doesn't involve escape? NO, no escape present.
Reasoning: Here, escape was absent, so the defendant not liable. Court didnt decide whether munitions was a non-natural use of
land.
Ratio:
Liability = escape + non-natural use of land
Strict liability may not occur in the case of physical injury.
To apply Rylands v. Fletcher need an escape of a substance likely to cause mischief if moving from one controlled part of the land
to another. Also requires a non-natural use of land. Court did not extend Fletcher to dangerous activities on one parcel of land.
CLASS:
Narrow interpretation of Rylands principle
Rejects strict liability for ultra dangerous activities when no escape is present
Ratio later relaxed to include escape of gas or water in the public streets
Curious requirement of accidental release (not intentional/that seems to go under negligence)
In US position is more rational. Focus on escape is irrational.
In UK, no more Rylands: To be liable damage must be foreseeable (and have an escape)
In Australia: foreseeability + duty, subsumed in the law of negligence
In Canada, liable under Rylands but doesnt extend to personal injuries, also found nuisance and negligence applied
Demonstrates confusion inherent in these principles
Escape must be accidental, not intentional escape

Cannot recover form personal injury on a strict liability analysis (Not true!).
Court did not extend Fletcher to dangerous activities on one parcel of land (would need to show breach duty of care as an
occupier).
Remoteness standard: defendant not liable for everything that results from the activity that triggers the liability. There is a
foreseeability factor.
Cambridge Water Company HL: Use of land for a tannery is a non-natural use (because the tannery business is risky?).
Foreseeability of damage of the relevant type was not foreseeable. Therefore no liability found. (Wagon Mound)
B.

Defences
Liability under the Rylands v. Fletcher principle is strict but not absolute.
Can sue for both negligence and strict liability
Defences:
a) Consent
b) Act of God (Idea of cause): natural, extraordinary, unforeseeable by the defendant, unforseeability as a possibility, not
created by people (e.g. Is frost foreseeable, or an unforeseeable act of God?)
Act of the Plaintiff: contributory negligence (fault) in a negligence action vs. defence in strict liability. If the plaintiff has done
something why should the defendant pay for the damages?
Act of a stranger / third party
c) Statutory authority

Peters v. Prince of Wales Theatre (Birmingham) Ltd., (1943), C.A.

CB 507
Facts: Defendant theatre leased a shop and room to P. P knew of sprinkler system installed. Due to a severe frost, the sprinklers in the
rehearsal room burst and water damaged the stock in P's shop. No negligence. P claimed liability under Rylands v. Fletcher, and was
successful. CA allowed appeal.
Issue: Is the defence of consent available? Yes. Plaintiff consented to risk of the water system.
Reasoning: CA stated it is not the purpose to which the water was put that is decisive, but that P took the premises as they were, and
consented to presence of water system with all its advantages and disadvantages. The system could not be treated as analogous to
ordinary bathtubs and toilets, as it is a system, which has the potential danger of an enormous quantity of water escaping. As P was
held to have impliedly consented to the presence of the water system, the rule in Rylands was not applied.
Ratio:
Here there is an escape, a non-natural use, and danger/mischief.

Plaintiff impliedly consents to the non-natural use and agrees to take the advantages and disadvantages (risks) that come with it,
this will constitute a defence of consent for strict liability offences (where there is no negligence).
A sprinkler system is a non-natural use of the land & is risky / likely to cause mischief.
CLASS: Very rare defence. Consent to risk of escape will not relieve a defendant guilty of negligence.
Could have argued Act of God
Martin doesnt think this case would hold up today.
Who should bear the costs who should insure the ppty against water damage?

Hale v. Jennings Bros., (1938), C.A.

CB 510
Facts: H tenant of a stand on a fairground belonging to JB. While she was at her stand, a chair with its occupant became detached
from a ride severely injured H. Accident due to the recklessness of the chair occupant. Ride's chairs found to be properly maintained.
Trial found for JB. Hs appeal to CA allowed.
Issue: Could the defendant use the defence of the act of a stranger to escape liability? NO
Reasoning: CA stated that if H could establish that JB had brought upon its land something likely to do damage if it escapes, H need
not show any negligence on the part of JB. Court found the occupant's behaviour in causing the chair to detach was just the kind of
behaviour that ought to have been anticipated by JB as being likely by a percentage of users of the ride. As a result, the kind of
accident that occurred fell within the rule in Rylands v. Fletcher, the apparatus was inherently dangerous within the meaning of the rule
because of the sort of person who was likely to use it, and was thus likely to produce the very danger that occurred. CA decided
because ride was set up for profit and was inherently dangerous non-natural use of the land, JB had to take the risk of any damage and
could not use defence of stranger.
Ratio: In case of ST, the defence of stranger will not apply where apparatus is inherently dangerous and a non-natural use of land
(for profit) but the dangerous (silly) activity of the stranger was foreseeable.
In some cases, the intervention of a third party is foreseeable, and therefore is no defence.
Comments:
Plainitiff could have sued in negligence maintenance, foreseeability of risk
Opted to sue in strict liability Chair-o-plane is dangerous or unnatural. Defendant should bear the costs because he is doing it for
profit. There is clear escape and damage to the plaintiff. Court spoke of the overall risks created by the rides. And people will play
with things and may not heed to the customs of safety. It is more than a possibility that a third party would intervene. This should
have been contemplated.
Northwestern Utilities v. London Guarantee and Accident, (1936), A.C.
CB 511
Facts: Defendant maintained, pursuant to a statute, a 12 gas main below public streets. City built built water works under it. Gas
leaked and entered Pls building, caught fire, destroyed building. Pl sued for damages. No negligence here.
Issue: Are statutorily authorized activities subject to strict liability? NO, its a defence
Ratio: Defence of statutory authority: Not liable for strict liability when specifically authorized under the statute. (Fletcher will not
apply.)
Comments:
How express must the duty be? If you must do something you are protected, if you may do it then you are not protected.
1. Courts strictly construe statutes to identify liability. Some courts look to the legislation to abrogate the private ability to sue.
2. Must be expressly authorized or necessarily incidental to what was authorized.
3. You can only claim the benefit of a stat authority if the public authority has acted carefully. With reasonable care.
Greenman v. Yuba Power Products Inc., (1963), Cal. S.C. USA case
CB 522
Facts: While G using a power tool, a piece of the wood he was working on flew out of the tool and hit him in the forehead. Trial found
manufacturer liable, dismissed action against retailer.
Reasoning: SCC found a manufacturer is strictly liable in tort when an article it places on the market, knowing that the article will be
used without inspection for defects, has a defect that causes injury to a person. Court explained in these cases strict liability has usually
been based on the theory of an express or implied warranty running from the manufacturer to the plaintiff.
The purpose of strict liability on the manufacturer is to ensure the costs of injury resulting from defective products are borne by
manufacturer, rather than by injured persons powerless to protect themselves.
SCC held the manufacturer's liability was established, as C proved he was injured while using the tool in a way that it was intended
to be used, and that the injury resulted from a defect in design and manufacture, of which G was not aware, that made the tool
unsafe for its intended use.
Holding: Manufacturer liable.
Ratio:
US case: Manufacturers liability / product liability = Here, personal injury resulted
Strict liability: To establish manufacturers liability the plaintiff must prove he was injured while using the product in a way it was
intended to be used and that the injury resulted from a defect in design or manufacture, of which the plaintiff was not aware.
Plaintiff does not have to show that he read the instructions or knew of defect (warranties).
Manufacturer is strict liable when exposing consumers to a defective good in the market. More than reasonable care is required in
the design and delivery; they are contracting for the safety of the product.
CLASS:
Escola/Coca Cola case bottle explodes in market Implicit warranty that if it is in the market it's safe
In Canada, no strict liability for manufacturers; reasonable care is enough. Courts have maintained a fault-based negligence
standard from manufacturers.

VI. NUISANCE
Conduct nuisance attacks is broad. Can be any indirect use of the defendants ppty (usually land).
Not intentional, not direct, not negligent, not dangerous, it is ordinary but it is still a nuisance it has caused you harm, it is too
much, beyond the community norms, beyond what is necessary to live in harmony. Too much noise! Too stinky! Too much junk!
Pollution!
To get an injunction you need irreparable harm.
Think nuisance when there is an Infringement or impairment to the use and enjoyment of land
Dangerous use of land also relevant include negligence and trespass and strict liability
A.
Introduction
John P.S. McLaren, "Nuisance in Canada"
CB 531
Public Nuisance: Look to the kind of trouble caused by the activity? Injury? Impinging on financial interests? Inconvenience? Stress,
discomfort? The court will look to the ease or difficulty to lessen or avoid the risk. What could a defendant have done to lessen the
impairment? The court will look for a balance. In doing a balance the court will consider what the custom is, what others in the same
position have done. The court will also consider the usefulness of the activity of what the defendant is doing. The more it is needed in
modern society the more the court will protect it. A municipality providing sewage system or a factory providing jobs will be considered.
The utility of railway tracks will be considered in the overall balance. The court will also consider the character of the neighbourhood
(does the activity come with the territory). The court will consider the reasonableness argument in the balancing of interests. The
defendant is interfering with the plaintiffs possessory or proprietary right. Ought you to have foreseen the nuisance? should think of the
possible consequences of your actions on your neighbours.
There is no requirement that the activity be a crime in Canada for it to be considered a public nuisance. Navigable rivers, excessive
smells or noise, have been considered public nuisances.
There are two kinds of cases in which public nuisance can arise. Ontario Hydro intentional placement of its lines therefore a public
nuisance. The damage occurred from the operation of what they built, and there was carelessness in what was built.
Difference between nuisance and negligence? was it negligently attached and simply in public? Questionable!
To collect damages or get an injunction there is a requirement of special damages in the plaintiff. Whether it is public or private
nuisance it will always be easier to recover if the plaintiff is claiming physical damage to ppty or personal injury.
Private nuisance: existed to protect an interest in land from indirect and continuing interference from neighbouring land (vascinity,
neighbours). The balancing of multiple interests in resource allocation. Sometimes nuisance is also being used to protect from invasion
but for compensation for damages for accidental occurrence (e.g. Victoria v. Ryan). Ryan is a member of the public and not an adjacent
land owner. Nuisance doesnt require an unreasonable lack of care (this is similar to strict liability). The courts are using this no fault
nuisance to adjust and allocate accident costs and they are doing it in instances where unlike strict liability there is no dangerous or
unnatural use.
Private Nuisance:
Smaller nuisance, usually a limited nuisance involving adjoining neighbours
An interference of an indirect or consequential nature with the use and enjoyment of land by the occupier thereof.
Issue: Whether the degree of interference complained of is such that it should not be tolerated by the "ordinary occupier" in the
position of the plaintiff.
No concern with comparison of plaintiff's position with any other member of society
Is exclusively a civil wrong
Public Nuisance:
Quasi-criminal offences involving actual or potential interference with public convenience and/or welfare (obstructions of
public highways/brothels).

Remedy = Prov AG responsible for starting action as defender of public interests

Solely within the context of an administrative discretion

Public nuisances can have private impacts: An act or omission that may be characterized as a public nuisance causes
substantial damage to a particular private individual (high degree of inconvenience and financial expenditures).
Need a public interference + nuisance = public nuisance
The plaintiff must show that it is a public nuisance and that the public nuisance has led to special damages to the plaintiff.
What type of loss is involved? Economic loss is not special enough to be considered public nuisance (Hickey).
Public Nuisance: any unreasonable interference with a public interest
When is an interference a private vs. public nuisance? not always a clear distinction.

Private nuisance = land occupier + damages incurred relate to use and enjoyment of land
Public nuisance = land occupier + damages not directly related to land
Special or unique damages

B.

Relationship between negligence and nuisance

Ryan v. Victoria
SM: 427
Facts: negligence and nuisance and strict liability Motorcyclist was injured while attempting to cross railway tracks located on urban
street. Tracks extended along street for several blocks and meandered from west to east side of street. When faced with oncoming
traffic, motorcyclist attempted to cross tracks and was thrown from motorcycle when front tire of motorcycle was trapped in flangeway
gap in tracks. Construction of tracks was authorized by railway board in early 1900s. Regulations provided that flangeways could be 2.5
to 4.75 inches wide and flangeways in question were between 3.75 and 3.94 inches wide. Evidence suggested that railways were
aware of prior accidents involving flangeways and motorcycles.
Suing the municipality (gvt liability)
Suing 2 railways (owner and operator)
At trial, motorcyclist was held not to be contributorily negligent. Motorcyclist's action for negligence and nuisance against railways
was allowed. Appeal by city and railways allowed and motorcyclist held 50 per cent liable for damages. Motorcyclist appealed
Reasoning: Rule that standard of care owed by railway companies to public was limited to discharge of statutory obligations was
abolished, and railways were subject to ordinary principles of negligence.
Railways owed duty of care to motorcyclist respecting flangeways and was required to exercise reasonable care in circumstances
Railways' compliance with regulatory standards did not replace or exhaust requisite standard of care
Because tracks were not typical highway crossing, railways were required to take precautions beyond mere compliance with safety
standards which govern highway crossings
Railways should have taken steps to minimize risk to two-wheeled vehicles by building flangeways at minimum allowable width or
by installing flange fillers.
Railways were negligent about width of flangeways. Appellate court erred in finding that railways were entitled to defence of
statutory authority. Liability would not be imposed if activity is authorized by statute and defendant can prove that nuisance is
inevitable result of exercising authority. Not practically impossible for railways to avoid nuisance arising from flangeways. Because
railways had discretion as to width of flangeways, their failure to minimize hazard was not inevitable consequence of exercising
regulatory authority
Appellate court erred in reversing trial judge's findings on issue of contributory negligence -- Assessment of liability against
motorcyclist for 50 per cent of damages was set aside -- Appeal allowed.
Ratio:
Nuisance could not be avoided in exercising authority because
Were negligent (about the width of flangeways) because you built it this way, you didnt put in the adaptation, didnt warn when you
knew of dangers, because you didnt do anything and a reasonable person would have done these things.
Statutory authority provides, at best, a narrow defence to nuisance. Liability will not be imposed if an activity is authorized by
statute and the defendant proves that the nuisance is the inevitable result or consequences of exercising that authority. To
determine public nuisance ASK: was the hazard an inevitable result or practically impossible to avoid? If yes, then not liable. If
no, and it was avoidable then they are liable.
Can still be liable when complying with statutory standards
Comments:
Major: (1) proximity you can reasonably foresee that people within that proximity will be injured (2) policy the social
circumstances no longer indicate that you can rely on statutory compliance and a total defence to negligence.
Is there a case in negligence or nuisance against the city?
Foreseeable and actual knowledge of real risk and actual injury (six injuries of this nature reported)
To show that one breached the standard of care must show that he was not prudent because of (1) a failure to warn because of
actual knowledge, and (2) no warning, no alternative routes, whats it doing there in the first place (its inherently dangerous),
negligent in keeping it in this way, how wide are safe flangeways? Was this the best size at the time it was constructed, what ways
have other cities prevented such injuries (go to San Fran),
When goals of common law and statute the statute does crystallize the common law duty. However, in this case compliance with
statute = compliance with common law will show there is no negligence. look at the relationship. Here, the statute is not an
absolute defence. It provides a margin because it is intended that the railway will use its own judgment, skill and experience in
determining where in that range the flangeways will be. In some circumstances it may be reasonable to have such large
flangeways, in order circumstances it will not. This range is not a blanket of immunity. You still have to make reasonable choices
within that range and if you dont we will question the reasonableness of your judgment in negligence. This takes away the defence
of statutory compliance. This narrows how the defendants can use the statute.
Negligence: good stmt of negligent principlespara 52+
Public nuisance
442: Even in the tort of negligence that having a stat discretion will not prevent the liability of the defendant. A court said
that a statute allows a latitude, it cant envision everything, there may be other circumstances that may arise. A reasonable railroad
will decide what is reasonable in that range given the circumstances. Being within the range is no defence. Must independent prove
that you made a reasonable choice of the range available.
Para 53: To determine if it is a public nuisance the court will consider: inconvenience casued by the activity, difficulty in avoiding the
risk, utility fo the activity, general practice of others, character of the neighbourhood. Once considering these factors, ought have
the risk been foreseen? They do not need to show that the city built a bad railway or that the railway was unreasonable or that they
were negligent in the construction of the railway. Here, it was a foreseeable risk to their health and enjoyment of public ppty.

Defence of statutory discretion:

C.
Public Nuisance
Two ways for the Plaintiff to proceed in cases of public nuisance:
1. Private nuisance: Interest in his own land
2. Public nuisance by a private individual is affected in a very specific, unique way (when it's not land)
Hickey v. Electric Reduction Co. of Canada, (1970), Nfld. S.C.
CB 532
Facts: Discharge of poison from ER's plant (legitimate commercial activity) destroyed fish in adjacent waters. H (fisher) brought an
action for damages for loss of livelihood (claiming economic loss). ER claimed facts disclosed a public (not private) nuisance and
remedy for public nuisance not available to H. Trial: ER won.
Issue: Is it a nuisance particular to the plaintiff or was it a nuisance committed against the public? public
Reasoning: The trial judge concluded nuisance was not peculiar to H, but was a nuisance committed against the public. The release
from this plant did to the water infringed the publics right to fish. Right to fish is a right in common with all. Therefore, private action not
maintainable.
Ratio:
For a plaintiff to recover from a public nuisance, the damages must be special particular, direct, substantial and over and above
the injury inflicted on the public in general. Interference or interruption is not sufficient. (Compelling and specific and above that
which others have suffered.)
Where the damage is common to all persons of the same class, it is a case for public nuisance (and a personal right of action is not
maintainable).
Comments: Public nuisance public and economic loss
Mint v. Good, (1950), C.A.
CB 539
Facts: A boy injured by the collapse of a wall separating a highway and house owned and leased out by G. Trial judge found although
the wall was a nuisance, G was not liable for it. CA allowed the appeal.
Issue: Was the owner (G) or the occupier liable for the nuisance? Both can be? The owner.
Reasoning:
Argument by plaintiff: collapse of wall interfered with his health
CA held the occupier of an adjoining premise has a duty to passers-by to see the structure he keeps beside a highway is safe as
reasonable care can make it. If the structure falls into disrepair (is a potential danger to passers-by) then it is a nuisance and the
occupier is liable to passers-by injured by reason of the disrepair.
There is no liability either for latent defects (undiscoverable by reasonable care) or for the acts of trespassers about which the
occupier neither knew nor ought to have known.
In many cases the owner has a like duty to passers-by, when the occupying tenant does not perform the structural repairs, but the
owner does. The liability of the owner to passers-by depends on the degree of control exercised by the owner for the purpose of
repairs. An owner is liable even when he or she has no express or implied right to enter, but has been given permission to do so
whenever he or she asks.
SCC determined G had not reserved in the lease a right to enter, but had in practice always performed the structural repairs, and
thus was liable for nuisance.
Ratio: The occupier of premises is liable for structures fallen into disrepair next to public highways.
2 Defences: There is no liability, for
1. latent defects (undiscovered by reasonable care), or
2. for the acts of trespassers about which the occupier neither knew nor ought to have known.
The owner's liability depends on the degree of control exercised by the owner (in law or in fact) for the purpose of repairs. An owner
is liable even when he has no express or implied right to enter, but has been given permission to do so whenever he asks.
The LL has de facto control of the structure for the purpose of repairs and is therefore answerable in law for its condition.
Comments:
Both can be liable. The owner can be subject to nuisance even if the owner has not retained the obligation to go on to the land and
fix it.
Collapse of wall and personal injury. Public highways are protected under public nuisance.
D. Private Nuisance
Nor-Video Services Ltd. v. Ontario Hydro, (1978), S.C.C.
CB 550
Facts: OH located an electrical power installation close to N's cable television operation, which resulted in interference with reception
and transmission of TV broadcast signals. N forced to stop supplying one channel. N brought action against OH, alleging nuisance
resulting from negligence. Trial: judgment for N.
Interests at stake: commercial, new technology, tv vs. power. Hydro has a stat authority to provide power. Nor-Video was there first.
Hydro chose this location because it was cheaper. Defendants claimed the plaintiffs land was too sensitive (recreation is not protected)
and that tv is not a use and enjoyment of the land.
Issues: Did they commit a private nuisance? YES
Reasoning: Trial: Pointed out harm suffered was not, as in most nuisance cases, physical harm to land or tangible property, nor was it
persons discomfort, annoyance or inconvenience. The harm was caused by the inability to use and enjoy property to the same extent
and with the same result as before the intervention. As television reception was an integral part of the beneficial enjoyment of Ns
property, the interference with broadest reception prevented N from freely enjoying its property and putting it to its full business use.

Trial judge stated television viewing is an important incident of the ordinary enjoyment of property in Canada today, and, as such,
should be protected. Inability to receive, or unreasonable interference with, television reception would undoubtedly detract from the
beneficial use and ownership of property. The judge saw no justification for refining the broad and comprehensive notion of
nuisance.
Ratio:
1. Harm caused by the inability to use and enjoy property (such as interference with the television reception) is an integral
part of the beneficial enjoyment of one's property.
Nuisance encompasses a wide variety of interferences considered harmful and actionable b/c of their infringement upon or
diminution of an occupiers interest in the undisturbed enjoyment of his ppty.
o The category of interests covered by the tort of nuisance should not be closed to new or changing developments with
normal usage and enjoyment of land.
o Law doesnt extend protection through nuisance to hyper-sensitive individuals/industries. (TV operation is using ppty
in a normal manner, its federally licensed and regulated)
2. Unreasonable conduct is being used in finding nuisance. Reasonable conduct is test for nuisance.
When conduct is likely/foreseeable to have unreasonable detrimental consequences it is subject to liability. (Nuisance = fault +
foreseeability). Here, the locations were not prescribed by statute and the defendant benefited in cost-savings from selecting this
location.
Injunction usual remedy for nuisance
Who was there first is not always relevant because it is simply a matter of what is to much!
CLASS:
Private nuisance doesn't apply to recreational uses - TV integral part of enjoyment of property (must balance the interests)
Easier to sue in nuisance rather than negligence b/c there is no proximity/remoteness requirement
Public or private?
Use and enjoyment of the land that can be foreseen. The defendant must consider the impact of their actions on other peoples
land. What would a good neighbour do? He would do what is customary.
Things change over time and nuisance covers a wide range of issues. The guiding principle is what is reasonable according to the
normal usages of people in that particular society.
Court found that the use was not delicate or sensitive and finds hydro liable b/c it failed to properly calculate the possibility of risk to
the plaintiffs legitimate interests.
The nature of the activity was considered and is generally considered but didnt protect Hydro in this case because what they did
was not acceptable. They could not choose their own economic activity over the videos use and enjoyment of the land.

E.

Defences

Russell Transport Ltd. v. Ontario Malleable Iron Co. Ltd., (1952), Ont. H.C.
CB 546
PRIVATE NUISANCE
Facts: An iron foundry was in one location for 40 years. R moved his business of storing new trucks on adjacent land. Emissions from
the iron foundry destroying the Pl's vehicle (suffered substantial damage to property). Pl launched an action in nuisance and asked for
an injunction.
Issue: Was there nuisance? YES
Reasoning: The following are not defences to nuisance:
1. No defence that the Pl came to the nuisance
2. No defence that the nuisance is beneficial to the public at large
3. No defence that the place where the nuisance starts is a suitable one for the operation complained of and that no other place is
available in which less harm would be done.
4. Due diligence/reasonable care is not a defence - not a branch of negligence
5. No defence that the act of the defendant would not amount to nuisance unless other persons acting independently of him did
the same thing at the same time.
6. He who causes a nuisance cannot avail himself of the defence that he is merely making a reasonable use of his own property.
No use of property is reasonable if it causes discomfort and damage to property.
To establish a nuisance must look at the circumstances and context
In nuisance the defendant is not necessarily acquitted if he took reasonable care. Must look at the context.
Here the Plaintiff came to store trucks, a compatible use w/ the industrial area
Ratio: here, ppty damage to cars, not injury to land (ppty on the ppty but court is still allowing it to be nuisance) Here, def took no
reasonable care, took no precautions,
One may still be liable in nuisance even if he did take reasonable care. To establish nuisance it must be decided by looking at the
context and the circumstances of the parties involved. (Reasonable is not same as in negligence.)
He who causes a nuisance cannot avail himself of the defence that he is merely making a reasonable use of his own property. No
use of property is reasonable if it causes discomfort and damage to property. It is not about whether there was reasonable care
taken it is a question of the balance of the injury and the steps or precautions taken to prevent the injury. In the balance the
defendant was creating a nuisance.

Even if reasonable care is established there still might be an action for nuisance if the actions interfered with the use and
enjoyment of the neighbours land. It is also possible the court will consider the steps taken and met the foreseeable risk and was
cognicent of someone elses use and enjoyment of the neighbours ppty. You took steps to lessen the risk and you conformed to
the custom of the activity and based on the character of the neighbourhood youre ok.

CLASS:
Nature of damage is an important factor in deciding the nuisance issue but it's not determinative.
Applying different criteria to those activities that result in MATERIAL DAMAGE to a neighbour's property, as opposed to those which
only interfere with tranquility and amenity, to determine the REASONABLENESS of the use.
Property interests must be weighed against the interest of others.
3 MAJOR FACTORS to restrict the ability of the pl. to insist on too high a degree of protection:

the reasonableness of the use of property by the defendant

character of the locality where the property is situated

special sensitiveness of the PL's enterprise that he/she wishes to protect

Tock et al. v. St. John's Metropolitan Area Board, (1989), S.C.C.
CB 562
Facts: Installation of sewer by the city. House flooded after storm sewer was obstructed during rainfall.
Issue: Whether there is a nuisance and if the defence of statutory authority applies in the circumstances to absolve the municipality of
liability for this nuisance.
Ratio: STATUTORY DUTY
Wilson:
o If the statute says there is a DUTY: And the nuisance is an inevitable result of the duty then statutory authority is a
defence. (Nuisance is authorized).
o If the statute is PERMISSIVE: can be held liable for nuisance.

If the statute is permissive but identifies the manner and location in which to conduct the activity and the
nuisance is an inevitable result then statutory authority is a defence.

If there is discretion but no requirement of manner or location then statutory authority is no defence
Laforest:
o Can only rely on statutory authority when the statute prohibits liability for nuisance.
o To determine if there is a nuisance ASK: Whether in the circumstances it is reasonable to deny compensation to the
aggrieved party. (The law will only intervene to shield people from interferences to their enjoyment of ppty that were
unreasonable in the light of all circumstances. )

Court will consider (in cases of interference w/ tranquility & amentiy:

Severity of the harm

Character of the neighbourhood

Utitlity of the defendants conduct

Question whether the plaintiff displayed abnormal sensitivity

Sopinka:
o To use the defence the defendant must negative that there are alternative methods of carrying out the work. If one
method is practically feasible, it must be established that it was practically impossible to avoid the nuisance through
an alternative method. (Cost doesnt matter.) To determine public nuisance ASK: was the hazard practically
impossible to avoid?
Nuisance: caused by acts or omissions where someone is unlawfully annoyed. It can be material damage or something like
inconvenience or discomfort. To determine if something is a nuisance must balance the interests of the activity and the plaintiffs
interests. In these circumstances is it reasonable in the circumstances to deny compensation? Who should bear the loss? Is this
plaintiff overly sensitive?
Consider to determine the ambit of a nuisance: Severity of the harm, utility of conduct, abnormal sensitivity, and character of
neighbourhood.
Statutory authority as a defence for nuisance: the court is not settled on when a statutory authority will shield a nuisance.
VII. DEFAMATION
Based almost entirely on the rules of strict liability
Seeks to protect the reputation of individuals against unfounded and unjustified attacks
Defamation Act

A.

SM 20

Damage is presumed, you do not have to prove damages in the case

Sets out in the legislation what the appropriate steps are to take once defamation has taken place:
o i.e. written apologies etc
Anything written is libel
Required Readings

Hill v. Church of Scientology, (1995), S.C.C.

CB 621
Facts: Church took action in criminal contempt against H, a gvt lawyer and called a press conference to reveal charges against H.
They failed in their action. In response the lawyer sued for defamation.

Issue: Was there defamation? YES

Reasoning: Values of freedom of speech (1) search for truth, (2) self-fulfillment, and (3) advance community interests. But limits must
be placed even on freedoms of speech. Quotes Keegstra and Butler Defamation has similarities to hate speech and pornography:
value of the individual.
Reputation is protected b/c of innate worthiness - affront to a person's dignity.
In present case particular importance was given that H was a lawyer and his reputation is very important
Ratio:
FALSENESS OF SPEECH is the key component in defamation.
The publication of defamatory comments constitutes an invasion of the individuals personal privacy and is an affront to that
persons dignity.
Consideration must be given to the particular significance reputation has for specific professions.
CLASS:
Libel (written) and slander (spoken)

Murphy v. LaMarsh, (1971), B.C.C.A.

CB 625
Facts: Book by L said, "A brash young radio reporter, named M heartily detested by most of the Press Gallery and the members M
sued L and book publisher. Awarded damages to M for libel at trial. CA dismissed appeal.
Issue: Was there defamation? YES
Reasoning:
Usually in a libel suit, a shameful action, character, course of conduct or condition is attributed to a person. Such words are
considered defamatory because they tend to "lower [the person named] in the estimation of right-thinking members of society
generally".
Libel alleged in this case was less specific than usual. Under proper circumstances, the Court went on to say, it is generally open to
writers to express opinions as to the popularity or unpopularity of certain persons. The words used, the circumstances, the person
who commented and the person to whom the comment was made must all be considered in assessing these opinions. The test is
what the ordinary reader of average intelligence would think after reading the statements.
The Court of Appeal decided that the words in the book clearly had intended to lower M in the estimation of right-thinking members
of society generally. It was reasoned the ordinary reader would have thought, after reading this, that there must be "something
wrong or bad" about M to make these people detest him. Saying someone is heartily detested is a statement of fact rather than of
opinion. Furthermore, no facts justified the comments. Court concluded, as the words used were not capable of a harmless
meaning but were disparaging in any sense, the tendency to defame was present.
Ratio:
The words used, the circumstances, the person who commented and the person to whom the comment was made (plaintiff) must
all be considered in assessing these opinions as to certain persons.
The test is what the ordinary reader of average intelligence would think after reading the statements.
Three different tests for defamation:
1. If words bring person into hatred, contempt or ridicule
2. More modern defamation: Words lower the plaintiff in the estimation of right thinking people
3. If right-thinking members interpret the words as defamatory
Must be specific + must reflect bad character
Class:
Defamation was attributing a shameful act to a person (that was the old definition)
Reasonable reader test: what would the reasonable reader say?
Meldrum v. Australian Broadcasting Co. Ltd., (1932), Vict. S.C.
CB 637
Facts: M brought an action for slander and alleged in the statement of claim that the defendant "wrote a script" and "read out" the
words during a broadcast.
Issue: Was it slander when he was reading on the radio? YES
Reasoning: The Supreme Court held that it cannot be said that when hearers know that the speaker is reading from a written
document it is libel, and when they do not know this it is slander. Rather, the distinction lies in the mode of publication. So long as
the communication is by word of mouth, it is slander and not libel. If the defamatory words are communicated by means of printing,
writing, pictures and the like, it is libel. If a defendant verbally describes to a third person a defamatory picture, sign or sculpture, so as
to communicate by word of mouth its defamatory nature, it would be slander and not libel.
The Supreme Court determined that because the statement of claim alleged that the defamatory words complained of were published
by means of spoken words, not written, it disclosed a cause of action of slander, not libel. The allegation that prior to such publication
the defendant "wrote a script" from which the alleged defamatory words had been read out thus was held to be irrelevant and the Court
concluded that it should be struck out.
Ratio:
Mode of communication will identify whether it is libel or slander.
LIBEL: Publication by means of printing, writing, pictures, signs. Showing a document containing written defamatory matter to a
third person is libel. No need to show special damages.
SLANDER: Publication by means of words spoken of matter defamatory to the plaintiff. Reading it to him is slander. Must show
special damages. If a defendant verbally describes to a third person a defamatory picture, sign or sculpture, so as to communicate
by word of mouth, it is slander.
Class:

Makes distinction b/w the two

If it is slander you have to have special damages
Libel has the damages presumed

McNichol v. Grandy, (1931), S.C.C.

CB 642
Facts: G and M had a conversation in G's drug store. M, in an angry tone, spoke words that G alleged were slander. W, an employee
of G, overheard the conversation. Neither knew anybody could hear them.
Trail: held no evidence of publication and dismissed the action. CA ordered a new trial. M appealed SCC.
Issue: Is intent required for defamation? NO. Deemed to intend the natural consequences of own act.
Reasoning:
SCC held in an action for slander the plaintiff has the onus to prove publication in fact by the defendant. Where defamatory
statements are made and overheard by a third person, the question is whether the defendant intended anyone but the plaintiff hear
the words. Court stated, people must be taken to have intended the natural and probable consequences of their acts in the
circumstances.
The Court found the publication to the employee took place while the employee was performing her employment duties and was
not brought about by an improper act on her part. When it was established that the employee had overheard the statements, a
prima fade case of publication had been made out; the natural and probable consequences of speaking the words was that all
people with normal hearing who were within the carrying distance of M's voice would hear what he said.
To displace this prima facie case, M had to satisfy the jury that he did not intend anyone other than W should hear him, that he did
not know and had no reason to expect any other person might be within hearing distance and that he was not negligent in not
foreseeing probability of a person being within hearing range. CAs decision affirmed.
Ratio:
In an action for slander the plaintiff has the onus to prove publication in fact by the defendant.
Where defamatory statements are made by a defendant and overheard by a third person, the question is whether the defendant
intended anyone but the plaintiff hear the defamatory words (knowledge or foreseeability of person overhearing?). People must be
taken to have intended the natural and probable consequences of their acts in the circumstances.
Defendant not liable if third party was engaged in a wrongful act.
E. Hulton & Co. v. Jones, (1910), H.L.
CB 645
Facts: EH published defamatory statements of J, believed by author and editor of paper to be a fictitious person with an unusual
name. J brought action for libel. Neither the writer, editor, EH intended to defame.
Trial found in favour of J, and CA dismissed appeal. HL dismissed appeal.
Issue: Does one have an action in libel if there is no intention to defame the person defamed? YES
Reasoning: HL held libel consists of using language that others, knowing the circumstances, would reasonably think to be defamatory
of, and injurious to, the person complaining of it. It is no defence to a libel action that the defendant acted in good faith and did not
intend to defame, or that he did not intend to defame the plaintiff, as the defendant has nonetheless imputed something disgraceful by
false statements that injured the plaintiff. HL decided that if EH could not be excused by showing the words were written in a benevolent
spirit, they could not be excused by showing the libel did not concern J by proving neither the writer nor the editor had ever heard of
him. The intention can be inferred from what was written.
Ratio:
No defence to say that comments were not intended to defame, or not intended to defame the plaintiff.
No defence to say that comments were written in a benevolent spirit.
Cannot argue the libel was not in relation to the plaintiff b/c he had never heard of him.
Intention or motive of the writer is not important. Intention can be inferred.
The question is not so much who was aimed as who was hit.
Class:
Test is the reasonable reader test
Motive is not relevant!!!!
Cassidy v. Daily Mirror, (1929), Court of Appeal
CB 648
Facts: C was married to Mrs. C. At a race meeting he posed with a lady to a photographer and told the photographer he was engaged
to her and allowed the photographer to announce the engagement. It was published in Daily Mirror. Acquaintances of Mrs. C thought
she was not really married to C and formed bad opinion of her. Mrs. C sued for libel by innuendo (that she was an immoral woman).
Issues:
1. Was this libel defamatory? Yes, by inference.
2. Are the defendants liable if defamation was innocent? Yes.
Can you be defamed even if your not in the picture or words? YES people could draw inferences
Reasoning:
(1) words found to be indirectly defamatory of Mrs. C (A is illegitimate = inference parents are immoral = defamation)
(2) If one publishes words reasonably capable of being read as relating directly or indirectly to another and they are capable of a
defamatory meaning, he must take the consequences of the defamatory inferences reasonably drawn from his words.
Newspapers must make inquiries as to the truth of statements published to make papers sell better or be liable, take the
consequences if these statements are later found to be untrue or capable of defamatory inferences.
Ratio:
Statements can be found indirectly defamatory

Newspapers must take the risk of publishing defamatory statements if they don't make proper inquiries as to the truth of what they
publish (they will be liable)
Class:

There is no liability for intentionally defamatory matter published accidentally, unlike accidentally defamatory matter published
intentionally.

Vizetelly v. Mudie's Select Library, (1900), Court of Appeal

CB 650
Facts: Book contained a passage defamatory to V. Settlement occurred, publisher undertook to take the libel out of circulation, copies
recalled. V then discovered M lending copies of original book and selling surplus. V brought action in libel. M did not employ a reader
(cheaper to take the risk).
Issue: Was there publication by the Def given his subordinate part in dissemination? Yes (negligent)
Reasoning:
A man who published a libel is guilty regardless of no negligence.
Defendant here guilty prima facie of dissemination but circumstances must be considered.
To be considered as "not publishing" must show:
1. he was innocent of any knowledge of the libel contained in the work disseminated by him
2. there was nothing in the work or the circumstances under which it came to him or was disseminated
by him which ought to have led him to suppose it contained libel
3. when the work was disseminated by him, it was not by any negligence on his part that he didn't
know that it contained the libel
Onus of proving this lies on the defendant. Jury found negligence by not hiring a reader (failed 3).
Ratio: (Innocent Dissemination defence)
Onus on defendant to prove no publication. No publication when a subordinate agent disseminates if:
Three elements of the test:
1. No knowledge of libel
2. Nature of the material or circumstances of dissemination (no reason to think it contained libel)
3. No negligence when work was disseminated by him
B.
1.
2.

3.

4.

Defences
Truth: falsity of defamation is presumed until dispelled by the defendant (onus on defendant). Acts as a deterrent
Absolute privilege: Granted in few occasions so that they can speak freely. Most of these immunities are legislated. Scope of
these privileges is interpreted narrowly
a) judicial proceedings (judges, juries, witnesses, etc)

Some limits a witness cannot get on the stand and just say random things about people
b) Solicitor Client Privilege
c) parliamentary proceedings
d) husband and wife
e) one that consents to the defamatory statements
Qualified privilege: Provides partial immunity. In relation to legitimate purpose of the occasion.
a) protection of one's own interest
b) common interest or mutual concern
c) moral or legal duty to protect another's interest
d) public interest
Fair Comment on matters of public concern or interest is protected from liability for defamation provided it is based on fact.
a) matters of which the public has a legitimate interest: government activity, political debate, etc
b) works of art displayed in public: theatre, music, literature

Sunlife Assurance v. Dalrymple, (1965), S.C.C.

CB 659
Facts: The plaintiff, D, a local manager of SLA, brought action against SLA and 3 employees for damages for slander uttered by them
in the course of their employment. D had been engaged in a dispute with SLA's head office regarding the management of D's district.
Trial: Judge dismissed action on the grounds that the slander was spoken on an occasion of privilege and that there was no evidence of
express malice. CA: agreed with the judge's first ground, but held there was extrinsic and intrinsic evidence of express malice. SLAs
appeal to SCC dismissed.
Issue: Should the question of malice have been put to the jury? YES
Reasoning:
Statements fairly made by a person in the conduct of his own affairs in matters where his own interest was concerned are prima
facie privileged.
Statements irrelevant to protecting a person's interests result in the loss of privilege.
Malice does not necessarily mean personal spite or ill will; it may consist of some indirect motive not connected with the privilege.
Although in determining whether there is evidence of malice fit to go to the jury in a situation of qualified privilege, a court should
not look too narrowly on the language used in the alleged slander; slander that is utterly beyond and disproportionate to the facts
may provide evidence of excess malice. It was explained, moreover, that a piece of evidence tending to establish malice on which
a jury could find for the plaintiff should be submitted to the jury.

Occasion on which the slander was spoken was one where the employees were concerned with what they believed to be a
wholesale resignation of agents a situation with which they could have been validly concerned. Court concluded the occasion
was one of qualified privilege, and the statements were not so irrelevant to the proper protection of SLA that this privilege was lost.
Comments were an attempt to show to the agents that their loyalty to D was not justified in their own interests.
Court noted express malice must be found against each employee for them to be liable, but SLA is liable if one of the employees
had express malice. Given there was extrinsic and intrinsic evidence of express malice on the part of each employee, question of
malice should have been put to jury.
Ratio:
The limit on a qualified privilege is malice
Malice is not just personal spite or ill-will your motive has to be looked at as well.
Privilege + No malice = Not liable
Privilege + Malice
= Liable
Privilege: Statements fairly made by a person in the conduct of his own affairs in matters where his own interest was concerned
are prima facie privileged.
Statements irrelevant to protecting a person's interests result in the loss of privilege.
Malice: (1) personal spite or ill will (2) may consist of some indirect motive not connected with the privilege (3) Slander
disproportionate to the facts = malice. One piece of evidence is sufficient and should be put to the jury.
Liability: Three are severally liable: Must prove malice against each and every defendant.
Vicarious liability applies in this case and other cases of this kind

The Globe and Mail Ltd. v. Boland, (1960), S.C.C.

CB 669
Facts: B, a candidate in a election, sued G&M for libel re: editorial published. Trial judge dismissed action on the ground the
publication was made on an occasion of qualified privilege and no evidence of malice. CA ordered a new trial b/c was evidence of
malice to put to the jury. G&M's appeal to SCC dismissed.
Issue: Can the defendant use the defence of qualified privilege? NO
Reasoning: SCC reasoned that the defence of qualified privilege, based on the plea that G&M had a duty to inform the public and the
public had an interest in receiving information relevant to the question of B's fitness for office, was not open to a newspaper that
published defamatory statements about B. To hold otherwise would be contrary to authority and harmful to the "common convenience
and welfare of society", which is the underlying principle upon which the rules as to qualified privilege are founded. It would mean that
all candidates would have to be prepared to risk the loss of their reputations without redress, unless it could be proven that those who
defrauded them had actual malice. Court maintained the interests of the public and of the publishers of newspapers would be
safeguarded by the defence of fair comment.
SCC ordered a new trial where the defence of qualified privilege would not be open to G&M.
Ratio:
Defence of qualified privilege not open to newspapers: An extension of the qualified privilege to the publication of defamatory
statements concerning the fitness for office of a candidate for election would be harmful to common convenience and welfare of
society.
Defence of fair comment is open to newspapers. Interests of the public and newspaper publishers are sufficiently safeguarded
by the defence of fair comment. Criteria: public must have a legitimate interest OR be a work of art
Class:
The defense of qualified priviledge was not available
You cannot use the fact that someones name is in the news as a way to invoke qualified priv.
When someone puts themselves in the public eye like for political office, the defense of fair comment is available
Chernesky v. Armadale Publishers, (1979), S.C.C.
CB 675
Facts: Two law students wrote a letter to a newspaper that was published, complaining of the racist attitude of a local alderman. He
sued the paper for libel. Paper did not agree with the students' views.
Issue: Could the defendant use the defence of fair comment? No.
Reasoning:
Majority: Defence of fair comment applies when:
1. the facts upon which the comment are based are true,
2. the comment is fair
3. the person making the statement believes it
The newspaper and its editor can't sustain a defence of fair comment when it has been proved the words used in the letter are not
an honest expression of their opinion and there is no evidence as to the honest belief of the writers.
Ratio: Dickson (dissent): Followed in AB. To establish defence of fair comment, the comment must:
1. be of public interest
2. be based on fact
3. be recognizable as comment (not fact)
4. satisfy the objective test: Could any man honestly express that opinion as the proven facts?
5. objective test in #4 can be defeated if the plaintiff proves the defendant was actuated by express malice
Newspapers not in a different position as rest of population.
Malice is essential.
A defendant who publishes opinions expressed by another will not lose the defense of fair comment by virtue of the fact that the
publisher did not share the opinions published.

Class:

The SCC held that yes the paper was entitled to the defense of fair comment but that the criteria of fair comment were:
o (1) the facts upon which the comment is based are true
o (2) the comments are fair

Is there room to come to that conclusion

o (3) the person making the comments believes that they are true

Very controversial because of the 3rd element of the test

o In response to this public outrage Dicksons Dissent was adopted as the test
o Look at the Ont. legislature
Watt v. Longsdon, (1930), Court of Appeal
CB 666
Facts: W sued L for sending W's wife a letter indicating W had immoral relations with the housemaid while living in Morocco. L was a
friend of the wife. The wife sued for divorce. Trial judge held publication was privileged.
Issue: Was the publication privileged? No. Not a moral or social duty in these circumstances.
What constitutes a moral duty?
Reasoning:
Privileged: A person may make defamatory statements without incurring any legal liability b/c instead of unlawfully and maliciously,
the speaker had a duty or an interest to publish. This duty or interest confers a privilege.
May lose privilege if:
1) go beyond the limits of the duty or interest or
2) they may be published with express malice
Ask: Was there a duty, legal, moral, or social to communicate?
Objective test: Is there a duty recognized by English people of ordinary intelligence and moral principle?
Look at the circumstances of each case: (1) nature of the information (2) relation of speaker and recipient
Each judge must decide moral or social value himself sounds very subjective
Ratio:
Privileged: A person may make defamatory statements without incurring any legal liability b/c instead of unlawfully and maliciously,
the speaker had a duty or an interest to publish. This duty or interest confers a privilege.
May lose privilege if:
go beyond the limits of the duty or interest or
they may be published with express malice
Ask if there is a duty (moral or legal) to communicate. If no duty, then not a privileged communication. If there was a duty, then it is
privileged communications and he is not liable.
Where there is no duty (moral, legal or social) there is no defence of privileged communication
Exam Preparation:
Dont spend time on both questions discussing the same thing. If you talk about duty in the first question, dont bring it up again.
Framework;
Duty might only be a line.
Standard of care might only be a line
Causation (in fact and remoteness)
Damage must be suffered!
Defences
Try and deal with parties individually.
1 1 2 etc.
2 1 2 etc.
Discussion of 1997 Final exam:
A - Nervous shock, property damage. Mrs. A loss of consortium, time to care for him
- Government , little is Tim the contractor
3 types of allegations;
1. Failure to repair
2. Misrepresentation
3. When do repair, do so negligently.
Issue: Whether government owes a duty to the s
Anns test; (policy and legislation)
1. Proximity between government and citizens.
2. Anything to negative? Policy vs. operational considerations (look at Act)
What is the standard of care? Look to the statute.
An argument raised was whether or not cleaning of the dykes was congruent to repair.
- policy, operation, etc will take some time.

The next issue is the negligent misstatement ( Hedley)

Special relationship? One of reliance? (Fletcher, Manitoba)
Is the statement A flood like that will never happen again an example of negligent misstatement?
The other statement regarding someone cleaning the dyke is more a statement of fact and should be treated differently.
Last aspect of neg. miss. Is damage. The cows dying before his very eyes!
Third type of tort v a v the government is the repair of the dyke. Operation vs. Policy. Dont repeat previous discussion.
The government has tried to do something. They send a cheaper worker to perform the duty , one who is not qualified.
You can treat Tim as an arm of the government or treat him separately.
The causation issue is different than the last question (#1).
This was a situation that begged discussion of Wagon Mound.
Was result foreseeable by the government (Wagon #1)
Could look at Bolton v. Stone.
Were Tims actions a novus actus (treated as arm of government, then no issue. Treating Tim as independent, then he could be a
novus actus).
Defences;
Contributory negligence, he had the equipment to repair but didnt. To be successful youd have to show that performing the work would
have prevented the mishap.
Another defence is the failure to mitigate in not taking the electroshock treatment.
Mrs. As claims, while purely economic, fall into those types of claims involving family loved ones.
REMEMBER, dont overkill issues on both questions.

John v. City of Calgary

Who are the parties? John suing a municipality
Is there damage? Ppty damage, but would the rules be different if his damage was personal? Business (in basement) interruption?
What is the proximity?
Is there a duty?
Relevant cases? Tock, negligence, gvt liability
1.

2.

3.

4.

nuisance (Tock) what kind of nuisance do we have here? Private action for a public nuisance. not the fisherman case
because John is asking for damage b/c of ppty damage, not econ loss. Tock is close. Ryan v. Victoria, nuisance case
(personal vs. ppty loss). Mint v. Good (pipes vs. fence). Can take the criteria from Ryan and apply it to the facts of this case:
Inconvenience caused, difficulty in avoiding the nuisance, utility of the activity, general practice. The utility was high but there
were ways to prevent the nuisance. Citys defences: no nuisance? High utility, cant be expected to enforced bylaws, good
reason for not having storm sewers, this is the cost they must pay for the utility of the conduct. Too remote? Because no
scientific evidence. They were there first? Not a good defence. The mere fact of the injury privatizes the nuisance. Statutory
authority? Tock and Ryan.
negligence test in Just to determine if there is a duty. Takes the anns test (1) is the relationship close enough is there
sufficient proximity? Yes, because John is the cits neighbour in law, it is foreseeable that such damage will result. (2) policy
issues anything that limits the prima facie duty of care? Procedural / operational distinction. Does the gvt owe a duty of care
in relation to the safety of sewers? Is a private law duty of care owed based on the decision made? Can you establish
causation factual cause. Is there any way to negative causation thru consent or contributory negligence. citys decision not to
enforce the bylaw policy or operational? Criteria identified by Corey, the nature of the decision is the most important (the
hierarchy is not the most important thing). May be an operational or policy decision. Also look at Cohens 7 criteria for
consideration re: gvt liability. Is it bona fide reasonable or rational? Is there a duty on the city to put in storm sewers? Funding
allocation was a policy decision (the mayor spoke about the budget). There is no private law duty of care owed re: sewers but
there is re: paving. Even if both policy, take the next step assuming they are operational and the standard of care was
breached. If one is found to be policy and the other operational then factual causation might be an issue of concern (not
proximity). Defences: contributory negligcne, statutory authority (more relevant to nuisance not negligence) need to know if a
statutory section prohibits liability. Ex turpi (engaged in illegal activity). Failure to conform to a bylaw is not ex turpi.
strict liability not the strongest tort. There is an escape but depends if a non-natural use and dangerous. Here, it was a
natural use but water could be dangerous. City knows about flooding and many previous incidents. Does their knowledge help
create a peril that makes the water dangerous? Defences: Act of God? Not unusual, not reasonably unanticipated.
Contributory negligence? non-compliant house, plaintiff brought it on himself. Consent? Breaking a by-law with his house.
Rylands v. Fletcher.
trespass no trespass because this is a consequential loss, an indirect interference.

Person against whom the cause of action is against

Type of action
Is there an interrelationship? Can I plead both? All? Are any inconsistent.