Académique Documents
Professionnel Documents
Culture Documents
DUTY OF CARE
General Test
Keywords
Case
Principe de proximi
Categories Not Closed
Fabrication de biens avec
Aucun examen
intermdiaire
Donoghue
v.
Stevenson
(1932 HL)
tendance
volution / largissement
de la porte du devoir
Modern DOC
Considrations de
principe ces deux
tapes
Anns v.
Merton
London
Borough
(1977 HL)
Cooper v.
Hobart
(2001 SCC)
Facts + Analysis
>P drinks beer with decomposed snail, sues manufacturer
> Beginning of modern law of duty
> Neighbour Principle of Duty Owe duty to neighbours (persons so
closely & directly affected by your action that you ought to reasonably have
them in mind when performing it)
>Mfg of products, no reasonable possibility of intermediate
examination,
knowledge that neg. will result in injury, DOC (despite no direct
connection)
>Expansion from Donoghue
>Two Stage Test
>1. Prima Facie Duty of Care
>Proximity + Reasonable Foreseeability
>2. Policy: Are there any considerations which ought to negative/ reduce/limit
the scope of
duty or the class of persons to whom it is owed or the damages
it gives rise to
P sues D for delay in suspending investment company, causing her to lose
more money than necessary See Test Below
>Fails at 1b because Registrar had duty to entire market, not just investors
Anns/Cooper Test
1. Preliminary: Lobligation de diligence est-elle allgue l'intrieur / analogue une catgorie tablie?
Consider: Pas la capacit grer la situation - que ce soit travers la jeunesse, l'ivresse, ou de
l'incapacit
3. Stage 1(b): Was there a sufficient relationship of proximity between parties?
Consider: Les attentes, les reprsentations et l'autonomie; types d'intrts concerns (physique,
conomique, psychologique, etc), la proximit physique, et tout cadre lgal ou contractuel (not
exhaustive list)
Prvisibilit
Keywords
Case
Tree climbing
Moule v. NB
Elec Power
Comm
Makeshift
Ladder/Platform
Power Lines
Facts + Analysis
Kids climb tree with boards as makeshift ladder; touches electrical
wires; company trimmed branches to height of 13ft
>Unusual circs needed to create risk (cross plank, ladder)
>Duty of care exists only wrt consquences prvisibles
1960 - SCC
Parents non responsables des dlits par les enfants, moins omis de surveiller adquatement
Tree climbing
Duty
?
Amos v. NB
Elec
Diligence envers tierce personne: Parent/Child; Employer/Employee; Invitor/Invitee; Police/Guard & Prisoners;
Doctors/Institutionalized Patients; Coaches/Instructors/Supervisors & Students
Responsabilit pour
Doit avoir une connaissance de l'tat d'ivresse et de prjudice raisonnablement
intoxication
prvisible
Keywords
Case
Facts + Analysis
Duty
?
Hotel serves past point of intoxication; manager ejects P; P stuck by car
Hotel Bar
while stumbling home on highway in front of hotel
Y
Jordan
>RF: Probable risk to P if ejected to walk down highway outside hotel
House
v.
Invitor/Invitee
>Proximate?: Knowledge of Ps prior drunkenness and current intoxication;
Menow
Served past point
breach of
of intoxication
statutory serving limits + Invitor/Invitee Relationship
1973 - SCC
>DOC: When hotel ejects drunk, has duty to take steps to ensure
they get home safely
P enters tubing competition; given alcohol throughout. Manager tries to
Tubing competition
dissuade P, but does nothing else. P severely injured. Invitor/Invitee
Crocker v.
>D aware of Ps condition - Intoxication is a factor of reasonable
Y
Sundance
Served by bar
foreseeability
Dangerous sport
>DOC: When resort establishes competition in highly dangerous
1988 - SCC
for profit
sport and runs competition for profit, it owes a doc to prevent entry
by intoxicated patrons
Dinner theatre serves P with by 3 sober adults past point of intoxication; P
Dinner theatre
Stewart v.
drives home
Pettie
>Serving past point of intoxication does not in itself pose a
N
Sober companions
foreseeable
risk
Driving intoxicated
1995 - SCC
>Must be something more some additional risk factor
>P accompanied by sober adults Not foreseeable that P would drive
Hockey team provided beer at tournament; Player drove while drunk, killing
Hockey team
Calliou
many
N
Estate v.
>No duty Nothing to indicate team knew, or ought to have known, that
Driving intoxicated
Caillou
driver was drunk
Knowledge
>Facts somewhere in between model of social host and model of
Required
2002 - QB
commercial enterprise
Social hosts do not prevent repeat DUI offender from driving home; driver
hits D
>Social hosts do not owe a duty of care to public users of highway
Social Hosts
Childs v.
>No RF based on facts (no finding Ps knew driver was drunk), but even if RF,
N
Driving intoxicated Desormeau no duty b/c wrong alleged is a failure to act in circumstances where there is
x
no positive duty to act
2006 - SCC
>No positive duty to monitor guest drinking or to prevent them from
Social Hosts v.
driving
Commercial Hosts
>No duty of care to members of the public who may be injured by guest
No proximity
>Social hosts different from commercial hosts:
>Commercial hosts have greater ability to monitor alcohol consumption
>Social hosts not heavily regulated by liquor licences
>Social hosts do not profit from sale of alcohol
Duty to Prevent Crime and Protect Others
Keywords
Serial rapist
Specific MO
known
Police fail to
warn
Case
Facts + Analysis
Jane Doe v.
Metropolitan
Toronto Police
(1998 ON Gen Div)
Duty
?
Y
Case
Facts + Analysis
Duty
?
P relied on Ds
assurances
Boat insurance
Property damage
Doctor promises to
attend
Improper medical care
Negligent performance
of gratuitous
undertaking
Gate watchman
absent
P hit by train
Thorne v.
Deas
(1809 NY)
Smith v. Rae
(1919 Ont.
CA)
Zelenko v.
Gimbel
Bros. Inc
(1936)
Soulsby v.
Toronto
(1907 HC)
Exception: Liable for failing to complete task or otherwise act for plaintiffs benefit IF:
D carelessly causes parent to suffer injury that detrimentally affects subsequently conceived
child
Case
Facts + Analysis
Duty
?
Battery factory
Employees at battery factory exposed to lead levels that posed risk
U.A.W. v.
Foetal health
to foetal health
Y
Johnson
Required documentation
>Employer cannot require all female emps to provide
Controls
Debate
documentation of sterility
>Debate regarding what steps a potential D may take to
1991 - USSC
avoid harm to Ps reproductive system
Acne drugs
Infant P suffered disabilities because mother took prescription acne
Paxton v.
medication prior and during pregnancy. D knew of side effects, but
Failure to warn
Ramji
mothers husband had vasectomy, so pregnancy not expected
Y
of side-effects
2006 - SCC
>DOC: D owed duty to warn because of known effects of
drugs
>However, b/c of vasectomy and extreme concern over acne, SOC
not breached
Naissance illicite et
injustifie de la vie
Wrongful Birth
Wrongful Life
Keywords
Physician carelessly fails to inform woman that she faces an unusually high risk of giving
birth with a disability, or may negligently perform tests designed to detect foetal
abnormalities
Because of this negligence or failure to inform, woman may continue pregnancy she
otherwise would have terminated
But for defendants carelessness, child would not have been born to suffer with disability
Issues concerning sanctity of life, and quantification of damages remain largely unresolved
Case
Facts + Analysis
Duty
?
Ardnt v.
Smith
(1994 BC)
More complicated if mother gives birth and then sues, but generally does not hurt claim
Wrongful
Pregnancy
Keywords
Emotional
benefits/burdens
Economic loss
Financial recovery
Sterilization
Lifestyle changes
Pre-Natal Injuries
Keywords
Mother to child
Car accident
May owe duty of care to avoid careless actions that may result in loss upon birth
Unless child born with subsequent injury no cause of action (even if foetus dies)
Different rule with respect to mother
Case
Facts + Analysis
Dobson v.
Dobson
(1999 SCC)
Duty
?
Keywords
Children/Spouse
McLoughlin
v. OBrian
Immediate
aftermath
(1982 HL)
Overcrowded
Stadium
Alcock v.
Chief
Constable
of South
Yorkshire
Police
(1991 HL)
Summary of
English
Position
Case
Facts + Analysis
Duty?
Primary
Victim
Secondary
Victim
Nervous Shock
Victoria
Railways,
Dulieu
Hambrook,
McLoughlin,
Alcock
>Psychiatric injury caused out of fear for the safety for oneself
>P need only establish reasonable foreseeability of physical injury
>Foreseeable psychiatric injury not necessary, even where no actual physical harm
>Proximity easily established
>Psychiatric injury caused out of fear for the safety of someone else
>P must show psychiatric injury in person of normal fortitude foreseeable
(White v. CC of SY)
>Three proximity indicators must be satisfied:
1. Close ties of love/affections btw P and victim (relational proximity)
2. P must have been present at accident or immediate aftermath
(locational proximity)
3. Psychiatric injury caused by direct perception of accident or immediate
aftermath, and not by hearing about it from someone else (temporal
proximity)
Recovery never encompassed many day-to-day emotional upsets (ex. anger, disappointment)
or feelings of grief upon death or serious injury of loved one
Case
Facts + Analysis
Keywords
Traditional:
Required Proof
Beaulieu v.
Sutherland
>P required to prove nervous shock has manifested itself in some form of
physical, psychiatric, or psychological disorder
>After Case: Scope of liability developed very slowly after time
(1986 BCSC)
Nervous Shock The
Canadian Position
No successful nervous shock claims at court of appeal level; Typically need recognized
illness (see above)
Keywords
Case
Fly in bottle
Normal
fortitude
Rejection of
P/S victim
Factual
Causation
but not
Legal
Causation
Mustapha v.
Culligan
Canada
(2006 Ont.
CA)
Mustapha v.
Culligan
Canada
(2008 - SCC)
Facts + Analysis
P and wife found dead flies in unopened bottle of water. Incident triggered
nervous shock in form of major depressive disorder. P predisposed to injury.
>Rejects P/S victim distinction; Follows Anns/Kamloops
>Does not give judgement on whether 3 types of proximity integral to Anns
approach
>Facts satisfy relational proximity (obsessed by concern of impact on family),
locational proximity, and temporal proximity
>Policy concern over ambit of liability in cases where harm suffered is
significantly disproportionate to event, or is the function of particular sensibilities
of the P
>Accommodated by normal fortitude test
>DOC: Before a defendant will be held in breach of duty, the plaintiff must show
that psychiatric illness in a person of normal fortitude was reasonably
foreseeable.
>Not novel category no need to use Anns/Kamloops
>Culligan breached DOC, but too remote
>Owed DOC as manufacturer of consumable good (see Donoghue); SOC
breached
>Actual loss caused by breach, but P failed to establish that reaction
was foreseeable
>Subjectively and objectively bizarre reaction that was not
probable
>Obj. test: Not foreseeable that person of normal fortitude would
have acted this way
Duty
?
Case
Material risks
Risks of
particular
concern to
patient
Reibl v.
Hughes
(1980 SCC)
Modified
Objective Test
Disc surgery
Alternative
means of
treatment
Informed
decision
Manufacturers
and Suppliers
Duty to Warn
Haughian v.
Paine
(1987 Sask
CA)
Facts + Analysis
>Doctor/care giver must disclose all material risks
>Risks of low probability but serious consequences
>Risks of high probability but relatively minor consequences
>Must disclose all non-material risks that they know/ought to know
would be of particular concern to patient
>Causation: Modified Objective Test
>Put reasonable person in the place of plaintiff, but give it the
knowledge and
characteristics/commitments/schedule of the plaintiff
>Plaintiff must establish that a reasonable person in the plaintiffs
position would
have refused procedure if properly informed (failure to inform must be
cause of loss)
Plaintiff underwent disc surgery that left him paralyzed
>Doctor failed to advise of alternative means of treatment or consequences
of leaving it untreated, which were at worst continued pain, but might have
improved on its own
>Doctor failed to advise of risk of paralysis risk was small, but given
availability of non-surgical treatment with lack of risk, high change of
success, and severe consequences of paralysis, disclosure should have been
made
>Must provide sufficient information for patient to make a decision,
including:
>Alternative means of treatment & Consequence of leaving
ailment untreated
Duty
?
Keywords
Breast Implant
Surgery
Failure to warn of
risks
Learned
Intermediary
Buchan
subjective test
for product
liability
ingested or placed in
body have higher standard of care (said to impose significant risk); Duty persists over time
Causation: Plaintiff must show that they would have done something else if given warning;
Subjective Test
Case
Facts + Analysis
Duty
?
Ps breast implant ruptures. Not warned of risks of post-surgical rupturing from
normal activity. Risk not well known among surgeons
>Dow did not adequately warn consumer
>Cannot rely on Learned Intermediary Did not adequately warn surgeon
>Causation Issues:
Hollis v.
>Would P have consented if properly informed?
Dow
>In cases of product liability, subjective test required (Buchan
Y
Corning
v. Ortho
(1995
Pharmaceutical) Modified objective test inapplicable
SCC)
>Would surgeon have warned plaintiff if properly warned by Dow?
>P not required to prove hypothetical relating to doctors conduct
>Policy Issue: With manufacturers, greater chance that value will be
overemphasized and risk underemphasized; desirous to hold to strict
standard of warning (Buchan)
>Sufficient evidence to satisfy Buchan test Dow breached duty to warn and
caused injury
Keywords
Policy
(1931 NY CA)
Negligent Advice
Reasonable
Reliance
Hedley Byrne
v. Heller
(1963 HL)
PreContractual
Misrepresentat
ion
Queen v.
Cognos
(1993 SCC)
Financial
Statements
Auditor Liability
Policy
Considerations
Hercules
Management
v. Ernst &
Young
(1997 SCC)
New Categories of
Economic Loss
Negotiate in Good
Faith
Renewal of Lease
N
(NBP
)
Martel
Building v.
Canada
(2000 SCC)
Policy
Considerations
Shoddy exterior
Winnipeg
N
(NBP)
>Until recently, P could not recover if he/she could not establish privity of contract
>Can recover if problems caught before actual damage occurs (Rivtow v.
Washington (1974 SCC)
D contracted to construct building. Subsequent owners sue after exterior
walls fall apart, and inspection reveals structural defects
>Anns/Kamloops - RF to contractors that if their negligence causes
defects, subsequent purchases may suffer injury/property damage. Prima
Facie duty of care
>Policy: (1) Allowing recovery for cost of repair encourages
Y
walls
Policy
Considerations
Condominium
v. Bird
Construction
(1995 SCC)
Damage to
bridge
Joint Venture
Anns/Kamloops
General
Exclusionary
Rule
Categorical
Exceptions to
Exclusionary
Rule
Categories in
Norsk not
closed
General
Exclusionary
Rule
Potential for indeterminate liability is particularly pronounced, but courts have recognized
positive policy considerations to support the imposition of such a duty of care
Case
Facts + Analysis
Duty
?
P entered into contract with government for use of a bridge. D carelessly
damaged that bridge, causing plaintiff to sustain considerable economic
losses.
>McLachlin (maj): Rejected traditional exclusionary rule. Anns/Kamloops
applies. Stressed concept of proximity, which encompasses the existence of
a relationship between the parties, physical closeness, assumed/implied
Canadian
obligations, and close causal connection. Duty of care owed to P. Given
Pacific
contractual relationship, they were essentially joint venture
Y
Railway v.
>La Forest (diss): General exclusionary rule should apply except when
Norsk Pacific
negated by policy. Duty should be recognized only if: 1) Plaintiff held a
Steamship
possessory or proprietary interest in the damaged property, or 2) Plaintiff
and the owner of the damaged property were parties in joint venture.
(1992 - SCC)
Refused to accept that contract gave rise to joint venture.
>Reasons why exclusionary rule is preferable:
>Puts incentives on parties to act to minimize losses
>Only one party has to purchase insurance; >Will save judicial time
and resources
>Eliminate worry about making defendants overly liable; >Rule is
clean and definite
>Joint Venture: Association of persons, natural or corp., who agree to
engage in some
common undertaking for joint profit without
forming formal legal relationship or corp.
D built rig for BVH, using heat trace system. Did not mention that system
flammable in certain circumstances. Rig caught fire, and was out of service
for months. HO and BV, who held contracts with BVH for use of the rig,
Bow Valley
suffered economic loss.
Husky
>Case does not fall within La Forest categories in Norsk, but categories are
N
(Bermuda) v. not closed. Prima Facie duty of care D knew of existence of P and other like
Saint John
them; RF
(NBP)
Shipbuilding >Policy: (1) Indeterminate liability if D owes duty to P, would owe similar
(1997 SCC)
duty to host of others: ripple effect (2) Facts do not support need for
deterrence; (3) If plaintiffs ability to allocate risk to property owner by
contract is slight, liability may be supported BV and HO did allocate risk;
cannot be said that they suffered from inequality of bargaining power with
BVH, the company they created.
>Liability for relational economic loss is to be generally excluded,
with above category exceptions.
Relational Economic
Loss
Keywords
2. STANDARD OF CARE
Common Law Standard of Care: The Reasonable Person Test
Keywords
Case
The Reasonable
Man
Arland v.
Taylor
MVA
(1995 ON CA)
Facts + Analysis
>Standard of care is that of a reasonable and prudent man
>Reasonable man is a man of normal intelligence who makes prudence his
guide to conduct
>Not proper for trier of fact to consider, after the event, what he/she would
Reasonable Person
The Three
Factors
Ryan v.
Victoria
(1999 SCC)
Factors Considered in
Determining Breach of the
Standard of Care
Keywords
Case
Surgery
Assess
Factors at
Time of
Breach
Roe v.
Minister of
Health
(1954)
Case
Probability
Cricket Ball
Bolton v. Stone
(1951 HL)
Severity
Paris v.
Stepney
Borough
Council
One-eyed
Man
Metal Splinter
(1951 HL)
Cricket Ball
Miller v.
Jackson
(1977 QB)
Facts + Analysis
P struck by cricket ball while walking on road adjacent to cricket ground
>RF that accident might occur, but likelihood very small
>Ball driven into road only 6 times in 30 years, and road very quiet
>Reasonable men take degree of risk into account
>Must avoid creating risks that are substantial
>Must consider probability of harm and severity of consequences
>Test: Was risk of damage so small that a reasonable man, considering the
matter from the point of view of safety, would have thought it right to
refrain from preventing danger?
One-eyed P not supplied goggles for pounding steel. Blinded by metal
splinter.
>Must take Ps background into account when determining
standard of care
>Severity of harm higher to one-eyed man, therefore standard of care is
higher
>Ordinarily prudent employer would supply goggles to one-eyed
worked in situation
>Risk slight; Harm severe; Simple and inexpensive precaution
>The more likely the harm, and the more grave the harm, the
higher the standard
New subdivision built on edge of cricket ground,; Fewer than 10 times per
year, balls left ground and landed in someones backyard; P sued in
negligence
>Risk foreseeable; Methods used to prevent balls leaving grounds are
inadequate
>No obligation on the plaintiffs to have to protect themselves
>Ds will be liable if by a million-to-one chance the cricket ball does go out
of the ground and causes damage, but cricketers not required to leave No
injunction granted
>Shows balancing of interests of public at large and interests of
private individuals
Breac
h?
Case
Facts + Analysis
Breac
h?
Burden/Co
st
Bridge
Planning
Severity
vs. Cost
Medical
Procedure
Vaughn v.
HalifaxDartmouth
Bridge
(1961
NSSC)
Law Estate
v. Simice
(1994
BCSC)
While bridge being painted, flecks of paint blown onto nearby cars, including that
of P
>Inevitable that paint should fall on cars
>D hired man to wipe off paint flecks, but this was inadequate
>D argued further steps impractical due to high cost, particularly because of large
area
>However, only concerned with one parking lot. D could have posted warning
signs, communicated via press, etc. with little cost due to short painting season
>D must take reasonable measures to prevent or minimize damages.
Where precautions can be taken with minimal expense, the defendant
must take them
P claimed husband died because D doctor failed to provide timely and appropriate
care, including not giving him an expensive CT scan
>Severity of the harm that may occur to a patient who goes undiagnosed is far
greater than the financial harm that will occur to the medicare system if one more
CT scan procedure is performed
>Where life at stake & treatment avail. but expensive, patient should be
given treatment
Social Utility
Keywords
Case
Facts + Analysis
Social Utility
Watt v.
Hertfordshire
County Council
Public Services
Firemans Jack
(1954 CA)
Improper Storage
Police Standard
Priestman v.
Colangelo
(1959 SCC)
Public Service
Breach
?
3 Aspects
Hand
Formula
Cost of
accident
Case
United
States v.
Carroll
Towing
(1947)
McCarty v.
Pheasant
Run
Facts + Analysis
>Duty to prevent against injury has three aspects:
1. Probability of accident (P)
2. Gravity of resulting injury (L)
3. Burden of adequate precautions (B)
>Liability depends upon whether B < LP; If Burden > LP, it is too great
>Hand indicated an economic meaning of negligence
>Benefit of Preventing Accident (Cost of the Accident) = PL
>Cost of Preventing Accident = B
>If cost of prevention > benefit, society would be better off to forgo accident prevention,
and there is no
reason to condemn defendant for not taking measures to avert accident
>If benefit > cost, society is better off if accident is avoided, and enterprise is made liable
in the expectation
that self-interest will lead it to adopt the necessary precautions to avoid tort costs
>More difficult to calculate the cost of accidents than the cost of prevention
Blind P went jogging at 6AM and fell into manhole, which was only protected by low fences
>P found to have been acting unreasonably by jogging at that hour with his disability
>D took all reasonable steps to prevent injury to those who could reasonably be expected to
use the sidewalk
Two Approaches:
1. Unfairly prejudicial to accident victims if allowance made for defendants mental abnormality
D suffered delusions while driving, sped through intersection, and seriously injured the P
>Tort law is not concerned with punishing tortfeasor; Central concern is
compensation. >Standard applied is that of a reasonable person
>There are exceptions (young and physical disability), but these are matters of policy.
>Mentally disabled should be treated the same way as everyone else
Wenden v. Trikha
(1991 Alta. QB)
2. Negligence presupposes ability for rational choice, so if mentally disabled individual is such that he/she cannot choose,
he/she is released from liability (Current Test) Focuses on system of fault
>Follows Buckley and TTC v. Smith Transport Ltd (1946 Ont. CA) which held that D
is not liable for mental illness if he/she can show on balance of probabilities that
Hutchings v. Nevin
he/she (1) Could not understand and appreciate the duty of care, or (2) Did not
(1992 Ont. Gen. Div.)
have the ability to discharge that duty (no meaningful control over his/her actions at
the time the relevant conduct fell below objective standard of care)
>Negligent act must be shown to have been the conscious act of the defendants
volition
Man experienced sudden, severe manic episode while jogging and caused car accident
Fiala v. Cechmanek
>Tort law should refocus on system of fault. Objective reasonable person test is
(2001 Alta. CA)
properly relaxed in cases where a defendants mental illness prevents him or her from
meeting the normal standard of care. Follows Buckley test given above.
Standard of Care
Expected of Children
Keywor
ds
Case
Highway
Cont.
Neg.
Joyal v.
Barsby
(1965 Man CA)
Standard of Care
Expected of
Professionals
Keywords
Doctors
Breast
Reduction
Negligent
Operation
Case
White v.
Turner
(1981
HC)
Can raise custom as indicator of SOC, but onus is on P to prove that on a balance of
probabilities
Court is not obliged to respect customs not all customs are desirable as standards of care
Custom in the Medical Field: In the medical field, acting according to standard practice
will often act to shield a defendant from liability
Case
Facts + Analysis
Breac
h?
P contracted HIV during artificial insemination. D was responsible for screening
donors, and used standard medical practices
>Specialist must demonstrate the conduct of an average specialist in his field
who possesses a reasonable level of knowledge, competence, and skill
N
Ter
>When
doctor
acts
in
accordance
with
recognized
and
respectable
practice,
Neuzen v.
he/she will generally not be found to be negligent
Korn
>Conduct of physicians must be judged in light of knowledge at time of alleged
(1955
negligence
SCC)
>Practice itself can be found negligent if it fails to adopt obvious and
reasonable precautions that are readily apparent to the ordinary trier of fact
Standard of Care:
Custom
Keywords
Artificial
Insemination
HIV contraction
Degrees of Negligence
Courts recognize sudden peril doctrine, under which conduct that normally would be considered careless is
exempted from liability if, in the context of an emergency, it was reasonable
Occasionally, statutes restrict scope of liability to injuries inflicted as a result of gross negligence
Gross negligence falls between ordinary tort negligence and criminal negligence
Liability of medical professionals who provide medical assistance during emergencies: A person who
voluntarily provides medical service is not liable unless the damages were caused by gross negligence
Does activity pose a real and substantial risk such that something might happen?
Ex. Bolton v. Stone: Cricket balls may injure individuals, cars, etc.
3. CAUSATION
Plaintiff need not prove that the defendants negligence was the sole, immediate, distinct, or even most
important cause must just establish that defendants negligence was a cause
Divisible Loss: Attributable to the conduct of a single tortfeasor;
Indivisible Loss: Attributable to the conduct of more than one tortfeasor
Proportionate Cause: P would recover based g a probability that the D was a cause
If 30% chance that Ds negligence was a cause, P would recover 30% of his/her loss
Loss of Chance: Ds negligence denies P a possibility of avoiding a loss
Typically recovery denied because P cannot prove on a BOP that Ds negligence was a cause of his/her
loss
Ex. Doctor negligently delays treatment causing death; If timely, deceased would have had 25% chance
of life
But-For Test
Keywords
Fall down escalator
Wood vs. rubber
handrails
Escalator with new hand-rail design put into subway station. Two
youths on escalator get into fight and fall backwards, causing P to
fall. P argues standard hand-rails could have prevented injuries
>No evidence that youths grasped hand-rail before or during fall
>No evidence that plaintiff would not have fallen if the rails had
been of standard design.
>Not possible to say injuries would not have occurred but-for the
hand-rail.
Barnett v.
Chelsea &
Kensington
Hospital
Management
(1959 SCC)
Case
Facts + Analysis
Cook v. Lewis
(1951 SCC)
Independent
Sufficient
Exception: Learned
Intermediary Rule
Keywords
Case
Breast Implant
Hollis v. Dow
Corporation
(1995 SCC)
Manufacturer/Doc
tor
Plaintiff shot in the face by one of two negligent hunters who fired at the
same time. P could not prove on the balance of probabilities who had shot
him
>If P could prove the 2 Ds were negligent, one had to have caused the loss
>If it is impossible to prove which one, burden of causation shifts to D
>Each will be negligent unless they can prove otherwise on balance of
probs
Case
Reibl v.
Hughes
(1980 SCC)
Ardnt v.
Smith
Facts + Analysis
>Healthcare professionals have a duty to put patients in a position to
make informed decisions about whether the consent to proposed
treatment
>Objective/Subjective test of causation: Would reasonable person in
the Ps position have consented if adequately informed?
>Majority defended objective/subjective approach on the basis that a
purely subjective test would require the court to hypothesize about how
the patient would have reacted if properly informed
(1997 SCC)
Recent Attempts to Modify the But-For Test
>Can only be applied if two conditions are met (Hanke v. Resurfice Corp (2007 SCC))
1. P must establish that it is impossible to prove causation using but-for test and that this
Material
impossibility results from factors beyond the Ps control
Contribution
2. P must establish that the D breached the standard of care and that his or her injuries
fell within the ambit of risk created by the Ds breach
Keywords
Case
Facts + Analysis
Caus
e?
Case
Fails to Provide
Showers
McGhee v.
National
Coal Board
Burden Shifts to
D
Eye Operation
(1972 - HL)
Doctor
Negligence vs.
Natural Causes
P received HIV-tainted blood, argued hospital D did not screen donors with
up to date pamphlets donor would have eliminated himself with
information
>But-for test unworkable in cases of multiple independent causes
>In cases of negligent donor screening, may be difficult/impossible to
prove hypothetically what donor would have done if properly screened
>Proper test for causation is whether the Ds negligence
materially contributed to the occurrence of the injury (outside
de minimis range)
Walker
Estate v.
York Finch
General
Hospital
(2001 SCC)
Snell v.
Farrell
(1990 - SCC)
Modern
Approach
Reversing
Burden
>Using but-for test, increased risk must be such as to make it more probable than not
that the Ds negligent act was a cause of the Ps loss
Facts + Analysis
Caus
e?
D hires P for sweaty job, but does not provide showers. P bikes home, and
develops dermatitis
>Impossible to tell whether showers would have prevented injury (but for
Y
fails)
>If Ds negligence materially increases risk of Ps injury, burden
shifts to D to disprove causation on a balance of probabilities
Doctor ignores bleeding in Ps eye during surgery and continues. P later went
blind. Blindness either caused by continued operation or occurred naturally.
>Modern Test: Burden of proof should lie with party who has the ability to
prove the point; Use common sense approach; Since D has more
knowledge, very little evidence will be needed to justify an inference of
causation, which D can refute
>Reversing burden may be justified where injury clearly not caused by
neutral conduct (ex. in Cook). It is quite different to compensate a P by
reversing the burden of proof for an injury that may be due to factors
unconnected to the D and not the fault of anyone
Case
Facts + Analysis
Dillon v. Twin
State Gas and
Elec. Co.
(1932)
Child P played on bridge with exposed power lines. P lost balance, and
instinctively grabbed the power line to stop himself from falling. He was
electrocuted to death
>Ps probable future after accident affects liability and damages
>If the fall that P tried to prevent would probably have killed him, D would not be
liable, except for suffering of family members sustained by shock
>Ps life would have had no earning capacity or value
>If the fall would have caused serious injury, loss of life resulting from
electrocution would be measured by its value in such injured condition
>D only liable for electrocution, not fall
> Whether or not P would have recovered from fall are issues of fact ,which must
be found from evidence
Multiple Causes
Independent Tortfeasors: D only liable for injuries he/she causes or contributes to bringing about
Joint Tortfeasors: D liable for torts committed by his/her fellow tortfeasors, even if he/she did not cause or
contribute to Ps loss
Independent Insufficient Causes But-For Test; Either party can be held fully liable
Independent Insufficient
Causes
Keywords
Case
One NonCulpable,
One-Culpable
Athey v.
Leonati
(1996 - SCC)
Three
Possibilities
Crumbling
Skull
Roof Damage
Rot from
Leakage
Nowlan v.
Brunswick
Construction
(1972 NBCA,
affd 1975 SCC)
Keywords
Case
Lambton v. Mellish
(1894)
Penner v.
Mitchell
(1978 - CA)
4. REMOTENESS OF DAMAGES
Caus
e?
Y
Caus
e?
Keywords
Case
Facts + Analysis
Dropped Plank
Ship Explosion
Re Polemis and
Furness, Withy &
Co.
(1921 - KB)
Remot
e?
Case
Oil into
Harbour
Wharf
Explodes
Facts + Analysis
Ds carelessly allowed oil to spill into harbour; floated underneath Ps
wharf. P undergoing welding; molten metal fell and the oil ignited,
damaging Ps property.
>Ps loss direct result of Ds negligence, but D did not and could not
reasonably be expected to have known that the oil was capable of
igniting when spread on water. >Re Polemis should no longer be
regarded as good law P held liable, but not RF
>Foreseeability becomes the effective test; Objective test
reasonable man.
Remot
e?
Case
Paraffin
Lamp
Open
Manhole
Hughes v.
Lord
Advocate
(1963 - HL)
Rats
Bites vs.
Urine
Tremain v.
Pike
(1969)
Courts can use whatever generality they see fit to reach the decision they want (more
detail, less liability)
Facts + Analysis
Remot
e?
Ds left paraffin lamp and manhole unattended. A boy knocked the lamp into
the manhole, causing an explosion. The boy fell into the manhole and was
burned
N
>Expansion of Wagon Mound #1: Type of injury, not just any injury, must
be foreseeable
>Explosion was unforeseeable, but injuries from burns were foreseeable, as
there was more than one way such burns could occur
>P is liable for accidents caused by a known source of danger, but
caused in a way which could not be foreseen
D did not control rat population on his farm; Farmhand got disease from rat
urine
Y
>While it was foreseeable that the boy could have been injured by rat bites, it
was not foreseeable that he could be injured by rat urine
The Thin-Skulled Plaintiff Rule
Keywords
Case
Burn on Lip
Triggers
Cancer
Smith v.
Leech Brain
(1962 QB)
Minor
Injury/Major
Change
Morconato v.
Franklin
(1974 - BCSC)
Facts + Analysis
Ps husband was operating a crane while galvanizing articles when his lip
was burned. The burn promoted cancer in tissues that already had a premalignant condition. He later died from the cancer
>Test is not whether cancer was foreseeable, but whether burn was
foreseeable
>Cancer developed from the burn
>Tortfeasor takes his victims as he/she finds them
P suffered minor injuries in car accident caused by D. Following the
accident, she developed unexpected pain and experienced a major
personality change due to her pre-existing personality traits
>Though she had predisposition, no indication change would have
materialized naturally
>D could foresee probability of physical injury, and must take victim as she
finds her
>D must pay for all the consequences of her negligence, even
Remote
?
though unusual
>If it was reasonably foreseeable that Ds carelessness would
cause some injury of a particular type, then P can recover in full
even if, because of a special vulnerability, he/she suffered to a
greater extent than could have been reasonably foreseen
>If injury not foreseeable, P cannot recover even if, because of a peculiar
vulnerability, he or she actually suffered a great deal
The Possibility of Injury
Keywords
Possibility
vs.
Probability
Automatic
Toboggan
School
Explosion
Case
The Wagon
Mound #2:
Overseas
Tankship v.
Miller
Steamship
(1967 PC)
Assinboine
South School
Division, No.3,
Greater
Winnipeg Gas
(1971 Man CA;
affd 1973 SCC)
Facts + Analysis
Remot
e?
Above
>PC finds that, contrary to Wagon Mound #1, the ships engineer ought to
have known it was possible to ignite the oil
>Possibility of ignition very rare, but reasonable man would not dismiss
such risk when it was so easy to prevent it
>Follows Bolton v. Stone: For D to be liable, possibilities of damage
must be significant enough that a reasonable man would guard
against them
>For foreseeability, rather than requiring that the type of injury be
probable, the injury only needs to be possible as long as there is a real
risk
>Risk that would occur to RP and not be brushed off as far-fetched
>Deals with degrees of foreseeability Not dealt with in WM #1 b/c the
finding was that the fire was not reasonable at all
Auto toboggan negligently operated, runs into exposed gas pipe; Gas
leaked into the schools boiler room, causing an explosion
>The extent of the damage and its manner of incidence need not
be foreseeable if physical damage of the kind which in fact ensues
is foreseeable
>Damage by fire and explosion was not RF, but physical damage to the
pipe was
>Possible for large vehicle, at impact, to create fire and explosion (WM#2)
>Gas company guilty of contributory negligence
Keywords
Case
>If intervening act neg., arguable that it is not RF (cant anticipate that another will
act negligently)
Facts + Analysis
Remot
e?
1.Fire in
Restaurant
Bradford v.
Kanellos
2. Someone
yells Gas!
(1973 SCC)
Negligent IA
1. Wrong X-rays
2. Neglect to
Get New Ones
Negligent IA
(Medical)
1.Leave Tractor
Unlocked
2. Someone
Sets in Motion
Illegal Acts
Second
Accident
Gross Neg.
Statutory
Regime?
Price v.
Milowski
(1977 ON CA)
Hewson v.
Red Deer
(1976 Alta
TD)
Wieland v.
Cyril Lord
Carpets
(1969)
Kolesar v.
Jeffries
(1976 affd
SCC)
Ds negligence caused injury to Ps neck that required her to wear a collar. Collar
prohibited normal movement of her head. She fell down some steps, sustaining
further injury.
>Difficulties in seeing were within the risk created by the original negligence
>WM #1 does not call for foreseeability of precise events that transpire
>Not necessary to show each possible consequence within foreseeable scope of
original injury
>Gross negligence automatically not foreseeable
>May anticipate original amount of stupidity but not gross stupidity
>If hypothetical mentions statutory regime: In policy section, bring up fact that statutory regime
exists, but mention that there is not enough information to know whether or not that regime
sufficiently covers the problem, or whether it is an efficient way of solving the problem