Yes

Is duty of care a given?

Move on to
page 2

TRIP GS

Must show:
1.
2.
3.
4.
5.

Ultimate Torts Flow Chart

No

No
No
negligence

START HERE!

Any neighbours?
Anns test
Cooper v Hobart
Policy reasons
Proximity and Yes
not to impose
foreseeability?
duty?
Yes

No

Duty of Care exists

Breach of standard of care
Causation
Harm
Proximate Causation

Only owe duty to reasonably forseeable plaintiff, not

the whole world (Bourhill v Young)
Duty to protect subjects of the state (ORourke)

No
Expectations,
reliance, property,
representations

Crazy relationship?

Prima facie duty of

care established!

Police?

Duty to protect subjects of the state (ORourke)

Creation of danger?
Pregnant?

Further questions

Once a person has created a danger, negligently or not, he

owes a duty to those exposed (Oke dissent), even rescuers

Pregnant mother has no duty to unborn child

(Dobson)

Patron?

Duty to Rescue?

If a patrons condition is foreseeably and reasonably likely

to result in harm and the owner has created this, through
overserving then a duty is owed (Jordan House)

Statute?

Further questions
Statutes are evidence, but not proof of duty (ORourke);
Government actors are only liable for operation, not policy

Duty can be imposed and create a positive duty to act when:

1.
2.
3.

Defendant created or controlled risks

Pateralistic relationship
Defendants have a public function and can owe a
duty to the public at large (power plants)

Harm?
1. Personal injury/death
2. Damage to property
3. Pure economic loss (see pg 5)

Yes
Move on to
page 3

Is a breach of standard of care given?

The reasonable person standard is

objective and not based on the specific
defendant (Vaugn v Menlove)

No

- Negligence
No

Yes

+Harm/+Likelihood

Police take certain risks

Preistman;
Such as speeding
Bittner

Harm must be the kind

envisioned by statute
Hatch v Ford
Class of person harmed
must be envisioned
Kelly;Davey
Simple compliance with
statue doesnt exhaust
standard
Ryan v Victoria

+ Negligence
Was the harm forseeable?
Bolton; Blyth

Was the likelihood of

harm trivial?
Bolton

Gravity of potential harm

vs. likelihood
Paris

Yes

No

-Harm/-Likelihood

Yes

Are precautions
expensive?
Bolton; Wares Taxi

No

Yes

Was the negligent activity

one of social utility?
Hertfordshire County

No

Yes

Yes

Was the negligent activity

in compliance with
(reasonable) customs?
Waldick v Malcolm;
Rolls Royce

Was the negligent activity

in compliance with
statute?
Sask. Wheat Pool

No

No

Standard of care special

groups

Children
Should be compared to a child
of like age, intelligence, and
experience (Heisler v Moke)

Mental Illness

Doctors (Skilled People)

Cant be liable if struck with sudden mental

illness that impedes understanding of
standard of care (Fiala v Cechmanek)

Tested against reasonable

Dr. of that specialty
(Challand v Bell)

A mentally ill person who cannot

appreciate a duty of care while driving will
be tested under the objective reasonable
driver (Wenden v Trikha)

Lawyers

Same as above (Brenner)

Move on to
page 4

Must be a necessary condition

of harm, not just possibility
Kauffman v TTC

Yes

Is causation given?

Negligent act must change the

outcome. If irrelevant then not
satisfied. Davidson v
Connaught Labs

No

Yes

Can the plaintiff show that but for the defendants

actions, the harm would not have occurred?
Snell v Farrell
No

Tactical Burden Shift!

Defendants must exonerate
themselves.

Is there a knowledge that only the defendant has?

Snell
Yes

No

Is only one defendant clearly liable but it is

impossible to discern which one?
Cook v Lewis

Must prove that they were not

the responsible party.

No

Causation proved!!

Material Contribution!

Are there two contributing causes of the harm and it

is impossible to discern the single cause?
(Mesothelioma in Fairchild)

Yes

No

Modified objective test!

Would a reasonable person in
the position of the plaintiff have
elected for surgery/procedure?
Reibl v Hughes
This test can include age,
income, family status, beliefs,
fears. Only disregard
unreasonable fears or unrelated
ones.
Arndt v Smith

No

Medical disclosure?

Patients must be give

information about alternative
procedures Van Mol v Ashmore
Patients must be give
information about risks,
including psychological harm
Meyer Estate v Rogers
Doctor must be able to judge
degree of understanding.
Usually must be discussed in
person. Byciuk v Hollingsworth

Defendant must have already

breached duty of care owed,
exposing the plaintiff to
unreasonable risk, with injury
resulting. Resurfice

Yes

Medical malpractice?

No

Yes

Very little evidence needed to

infer causation when lopsided
distribution of knowledge.

Doctors health only need be

disclosed when there is no
abnormal risk Halkyard
Information need not be
repeated unless no new risks
and risk/benefit hasnt changed
Ciarlariello v Schacter

No

No causation!!!!

Move on to
page 6

Yes

Is proximity a given?
Damage is too remote

No

No

Is this a mental injury?

Yes

No
Yes
No

Does the mental injury must rise to the level of

physical injury to be recognized. Mustapha
Would a reasonable person of ordinary
fortitude have suffered injury? Mustapha

Is the kind of harm forseeable?

Wagon Mound #1
Yes

No

Is the kind of harm a real risk

and not a mere possibility?
Wagon Mound #2
Yes

Was there an intervening cause?

The harm is too
remote for liability to
arise!!

Yes

No
Apply

Does the plaintiff have a

previous condition?

Complete defence. But if fails may still be

evidence of contributory negligence.
Harris; Contributory Negligence Act

Yes
Thin skull: A defendant must only foresee the
type of injury, not the extent of injury
Leech Brain

No

Apply

The harm is sufficiently

proximate for liability to arise!!

Crumbling Skull: If a plaintiff would have

eventually suffered the same harm anyway the
defendant is only liable for the harm between
when the harm did occur and when it would
have occurred. Athey v Leonati

Move on
No

Policy Considerations

Does there appear to be

economic loss?

Can find more with an

Anns test (Martel)

Apply in negligent construction of

buildings and contractual relational loss
(Winnipeg Condo)
Who is the best person to insure the risk?
That person should bear the loss. CNR

Yes
What kind?

Negligent
Misrepresentation

Negligent Service

Negligent Goods and

Structures

BDC Ltd v Hofstrand

5 requirements (Queen)
Duty of care from special
relationship? Cooper,
Hercules
Yes
Representation was untrue,
inaccurate or misleading?
Yes
Representor acted
negligently?
Yes
Creates
prima
facie duty
of care;
Hercules

Reasonable reliance? D
expected reliance?

Does the building pose real

and substantial danger to
inhabitants?

Yes
Did D assume risk by
providing service?

Yes

No

Yes
Did Ds undertaking affect
Ps actions?

Doesnt
apply to
chattels
(Rivtow)

Duty owed to
subsequent purchasers
Winnipeg Condo

No

Yes

Duty of care found

under Cooper

No duty owed!

Reasonable Reliance? Hercules

Yes
Did D disclaim
responsibility? Hedly Byrne

No
duty
found

No

Yes
Reliance was detrimental?

Yes

No

Did P rely on D?
(Required)

No

Duty of care found

under Cooper

a. Defendant had a direct/indirect financial interest

in the transaction in respect of which the
representation was made.
b. Defendant was a professional or someone who
possessed special skills, judgment or knowledge.
c. The advice or information was provided in the
course of defendants business.
d. The advice or information was given deliberately,
and not on a social occasion.
e. The advice or information was given in response
to a specific enquiry or request.

Contractual Relational Loss

Strong presumption against recovery
CNR.
McLachlin Anns test good enough
La Forest Only in exceptional cases
Current categories (not closed) Bow Valley
a. cases where the claimant has a possessory or
proprietary interest in the damaged
property;
b. general average cases (maritime sacrifice
made by one party in a joint sea activity in
imminent peril to save the ship);
c. cases where the relationship between the
claimant and property owner constitutes a
joint venture. [no legal test for joint
venture].
Yes

Is there a physical contract?

Star Tavern

No
No

No duty found

Yes

Personal injury is not recoverable

under contracted loss (DAmato)
Action for fatalities can be brought
by spouse, child, etc.

Duty of care found

under Cooper

Does the defendant want to

defend themselves?
Obviously!
Yes

Did the plaintiff sign a

waiver?/Assume risks
No

No

Was the plaintiff hurt while

doing something immoral or
illegal?

Volenti defence (complete)

Genuine inference that the plaintiff
consented to both the risk of injury and
the lack of reasonable care that may
produce the risk; Hambley v Shepley
Signing party must have his attention
drawn to it, cant be buried in fine print,
must be aware of nature of the clause;
Crocker v Sundance

Yes

No

Ex turpi defence (complete?)

Cant profit from legal (and possibly
moral) wrongs; Hall
Cant negate or partially negate a
criminal penalty; Zastowny

No

Integrity of legal system at stake

Was the plaintiff incarcerated?

Yes

No

Yes

Were they driving a car?

No

No

Contributory negligence?
Yes

No

Yes

Cant recover lost wages for time

incarcerated; Zastowny

No

Yes

Yes
All occupants have a duty to wear a
seatbelt. Driver must ensure <16yo wear
seatbelts. Parents of <16yo must ensure
seatbelts; Galaske.
Failure to weat a seatbelt is only relevant
when the injury would have been
significantly less serious when worn.
Labbee v Peters

Yes

Court can determine the degree of fault (s.2(1))

CNA) and apportion as such (s.2(1)) CNA).
If apportionment cannot be determined then
liability will be apportioned equally (s.1(1) CAN).
Defendants have burden of proof to prove that harm
would have been reduced if the plaintiff had not
been negligent Labbee
Last clear chance rule does not exclude harm when
someone could have avoided consequences and
failed to do so. (s.3.1 CAN)

No
Yes

No defence granted!

Partial defence granted!

Complete defence granted!

Occupiers Liability?

Applies to condition, activities and

conduct of third parties on premises
s. 6(a-c)

Occupier owes a duty of care to every visitor that they will

be reasonably safe using the premise for the purpose of
their invitation or permission. Waldick v Malcolm; s. 5 OLA
Occupier?

S. 1(c)

(i)

S. 1(d)

Premises?
(ii)

Physical
possession of
premise?

Or

Control over
premise?

Scaffolding affixed or not

(i)

Yes

Poles, pylons, wires used for power,

communication, or transport affixed or not

(ii)

Railway cars

Through
contract?

(ii)

(i)

Or

Ships

(iv)

Leaving after
unlawful entry

Or

Duty found!

(iii)

By right?

(iii)

Or
Can be more than one

Lawful
presence?

Or

Or

Occupier!

S. 1(e)

Or

Or

Yes

Visitor?

Trailers used or designed for

offices, shelters, residences

(v)

Yes

(iv)

Yes

Visitor!!

Premise!

Defences

They are a child. s. 13

No duty owed to trespassers
unless:

Or
Occupier has acted wilfully
(s.12(1)) or recklessly (s.12(2))

Warning not enough for defence

unless it enables a visitor to be safe
s. 9

Visitor willingly accepts risks

s. 7

Express agreement or notice

to visitor s. 8(1)

Strict Liability
(No Fault Liability
Non-Natural Use?
(Rylands)

vii.
viii.
ix.
x.
xi.
xii.

Increased danger to others

Not merely the ordinary use of the land
General benefit of the community (e.g., Sewers (Tock))
Necessity/obligation.
How others view it (e.g., aerial spraying, Ratke)
Time, place, and circumstances (e.g., landfill, Gertsen)

Yes
Escape?

Harm?

Yes

iv. According to Read (HL 1947), escape is from a place which the defendant has
occupation of, or control over, to a place which is outside his occupation or control.
v. In Dokuchia (ONCA 1945), Rylands was not confined to landowners but made the
owner of a dangerous thing liable for damage caused by it, whether caused on or off
the defendants premises.
vi. In Ekstrom (Alta SC 1946), Rylands applied to a person who takes a dangerous article
onto another persons property and damages that property.

i. Traditionally, only property damage (Read).

ii. May include personal injury (Perry).
iii. In ON, includes personal injury to anyone to whom the probability of such damage
would naturally be foreseen (Aldridge).

Strict Liability
Found!

Yes