Class 20: 14th November Introduction to Negligence Readings: Solomon pp.

.283-292 Class 20: 19th November Duty of Care Readings: Solomon pp.293-314 Class 1: 8th January Exam Return & Review No Readings. Class 2: 15th January Duty of Care Continued Readings: Solomon pp. 314-318, n2p318, 320-323. D2L: Childs v. Desormeaux, 2006 SCC 18 Class 3: 22nd January Special Duties of Care Readings: Solomon pp. 327, 329-330, n6p331, 332-337, 356-359, 373-378, 439-442, 551-553. D2L: The Good Samaritan Protection Act, C.C.S.M. c.G65 Dobson (Litigation Guardian of) v. Dobson, [1999] 2 S.C.R. 753 Class 4: 29th January Special Duties of Care Economic Loss Readings: Solomon pp.445-447, 451-459, 463-469, 477-485 (n2n4p483-84), 487-512. Nov 14, 2013 Negligence keywords: carelessness, community, foreseeability 1. Wrongful conduct in negligence consists of a failure to take the necessary care not to cause harm 2. A failure to take reasonable care to prevent foreseeable harm to another person 3. Conduct which falls below the standard accepted in the community History -Writs 1. Trespass vi et armis 2. Trespass on the case (where interference wasn't direct/forceful but careless). Even before the carelessness element was involved, certain relationships allowed for trespass on the case: a. apothecaries b. surgeons c. keepers of animals or other dangerous things d. users of roads Donoghue v Stevenson, 1932 *starting point of modern day negligence F: P's friend bought her a beer @ a pub, stopped her from drinking it when he noticed a snail. 1. Special facts: i. Donoghue couldn't sue the pub because it was her friend who bought the drink. ii. Couldn't sue the server cause they brought her the drink, only. iii. P had to show relationship w manufacturer to sue; Donoghue couldn't show this. 2. Court found that it was reasonably foreseeable that the P would suffer from

manufacturer's failure to fulfill futy of care. 3. Lord Atkin: even though no prior relationship, this shouldn't hinder the P from recovering. Rule = don't injure neighbour. Who's my neighbour? Persons so closely and directly affected by my act that I ought to reasonably have them in contemplation as being so affected i. good samaritan principle ii. Expanded Duty of Care 1. Winfield: nuisance, Rylands v Fletcher (dangerous things), assumpsit (duties voluntarily assumed), common calling (persons pursuing a common calling) --> separate entities brought together in Donoghue v Stevenson 2. Donoghue dissents: a. Buckmaster: (floodgates argument) impossibly wide proposition/makes it difficult to conduct trade (floodgates) i. reach would be too far b. Tomlin (dissent): scope of liability and problem of remoteness 6 Elements of a Negligence Claim 1. Duty of care i. Was there a legal obligation by the D to exercise care? 2. Standard of care & breach i. Did the act fall short of the std of care? (what a reasonable person would do) 3. causation ('but for' test) i. was the loss suffered caused by the D's failure to exercise the std of care 4. remoteness/foreseeability i. was the loss sufficiently proximate? (as opposed to intentional torts, where all consequences can be claimed for) 5. actual loss i. was it a legit loss, something that's recoverable? 6. defenses i. contributory negligence etc. Lord Denning's summary of the 6 elements of negligence: is the consequence within the risk?

Nov 19 2013 Walford (litigation guardian of ) v jacuzzi canada) 1. agreed duty of care; disagreed on causation

2. even if there's a duty of care; there's a std of care 3. dissent: std of care was met 4. causation: failure to respond to inquiries by warning of risks. 5. court found coreena 20% negligent Classical Approach to negligence (pre-donoghue + stevenson) 1. negligence not based on moral responsibility 2. broader duties for the legislators to enact (no assumption that you owed duty to people on a day to day basis) 3. acts more culpable than omissiones 4. physical injuries more compensable than emotional

Donoghue v Stevenson (category vs. arguing duty of care 1. Duty of Care: a. reasonably foreseeable b. closely and directly affected c. reasonably in contemforeseeablityplation

Le lievre v Gould Atkin quoting in donoghue: 1. 'one may may owe a duty to another even though there's no contract between them, if one man is near to another or is near to the property of another, a duty lies upon him not to that which may cause a personal injury to that other or may injure his property'. a. closeness 2. 'the decision of heaven v pender was founded upon the principle that a duty to take due care did arise when the person or property of one was in such proximity to the person or property of another that, if due care was not taken, damage might be done by the one to the other' 3. Atkin: 'if proximity be not confined to mere physical proximity but be used, as I think it was intended, to extend to such close and direct relations that the act complained of directly affets a person whom the person alleged to be bound to take care would know would be directly affected by his act'. aka mere foreseeability not enough: need proximity 4. foreseeability/remoteness 5: keep foreseeability + proximity separate: when thinking about scope of duty, not just confined to people who are physically close (but close in connection/relationship): 6. why impose a duty of care? main quality that restricts negligence actions --> recognition that you want to allow negligence actions to take place; control + moderate behavior

Development of duty of care

1. Hedley byrne & co v Heller & partners 2. Home office v dorset yacht (getting more expansive) 3. anns v merton london borough council (1977) 'Anns test' *peak of expansiveness of duty of care. don't have to fit into categoriesmore general test: a. sufficient relationship of proximity based on reasonable foreseeability? i. in the reasonable contemplation of the former, he ought to consider potential injury b. any considerations to reduce/limit or negative duty of care? -before anns, policy questions were implicit in judgments. decision in anns: policy = something we should consider. (explicit) -diff in anns: court assumes duty of care exists, then they look for policies that might restrict duty of care 4. caparo industries plc v dickman (1990) leading case in UK a. HoL overturned Anns next year in murphy v brentwood district council b. 3 step test: a) foreseeability b)proximity c)policy c. shift from (in anns) default duty of care to (caparo) default no duty of care --> return to a pre-anns, conservative incrementalist approach to duty of care In Canada, anns test accepted in kamloops. Kamloops/anns test refined in cooper (2001). Cooper = seminal case for establishing a DoC in a novel case (where no DoC has been established in that category) Anns (2 stage test): 1)prima facie DoC [proximity + reasonable foreseeability] 2) policy: any reason we should limit imposing duty? Cooper factors in choosing to establish a duty exists: +the harm was foreseeable Moule: 1)ilya foreseeable risk of injury? 2)probability of injury 3)whether the Ps losses are too remote +there is a sufficient relationship of proximity Q of legal proximity, not just physical. Are the P & D so close such that the D will have the P in his contemplation when acting? +the situation is one in which a new duty of care should be recognized (policy) Anns/cooper test: 1. is there an established category for the case? Yes DoC exists. 2. was the harm reasonably foreseeable to P? 3. was there a sufficiently close relationship between the parties? i.e. expectations, representations, reliance etc. 4. Policy considerations to limit DoC? (onus on D) Cooper v Hobart, 2001 Where no sufficient proximity to put Ps welfare in Ds contemplation no DoC P + others invested money in mortgage company. Statute of BC allowed D to investigate

complaints, suspend licenses of brokers etc. When D suspended license of company, investors had already lost a lot. P claims if D acted faster, wouldt have lost so much Clarifies 2 part test of Anns: Stage 1: 2 qs which lead to a prima facie duty of care (foresee able risk? + proximate relationship between litigants?) Stage 2: residual policy reasons to negative duty Court: D may have had foreseeability but insufficient proximity; even if they had found DoC, it would have been negative by policy considerations (indeterminate liability) Foreseeable Risk Moule v NB Elec Power, 1960 While power co. have a duty to prevent foreseeable injuries (kids climbing trees), this doesnt extend to every injury (where kid needs ladder, unusual height). Where there is no foreseeability, no DoC. Foreseeability also factors in at the remoteness stage. 10 yr old climbed tree near power lines, got electrocuted. TJ found there was negligence in not removing tree growing so close to power lines. Damages rescinded in appeal. Amos v NB Elec Power DoC here; distinguished from Moule this case only has tree, Moule had kid swinging from one tree to another. Also lax tree trimming practices. 3 boys climbing tree on side of highway. Tree was leafy and concealed high tension wires. 1 boy caused the tree to bend and touch a wire, electrocuting himself. A neighbor had to cut down the tree to free him, further injuring the child. Plasgraf v LI Railway
Forseeability Keywords Tree climbing Makeshift Ladder/Platform Power Lines Tree climbing Obscured Power Lines Untrimmed Tree Case Moule v. NB Elec Power Comm 1960 - SCC Amos v. NB Elec Power Comm 1976 - SCC Plasgraf v. Long Island RY Co. 1929 NY CA 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 foreseeable consequences Tree climbing competition; power lines obscured by branches of tree; kid climbs, tree sways and touches power lines >Unlike Moule, only casual attempts to trim branches, also no ladder >Foreseeable that kids will climb trees >DOC: Must ensure trees near power lines are properly maintained Man w/ fireworks in suitcase helped into train by attendants; Suitcase drops; explosion knocks down scales which injure P >Attendants negligent, but not in relation to P >Negligence results from breach of duty to particular person or class of persons; Creation of sphere of risk is not enough

Fireworks in Suitcase Foreseeable Plaintiff

Duty of care in canada 1. Kamloops (city) v nielsen (anns/kamloops approach): endorsed 2 stage wilberforce test in anns (considered expansive test of duty of care) (assumption that duty of care existed) a. is there a reasonably close relationshipaction by D could injury P? b. ryan v victoria city c. in ann/kamloops no policy question 2. cooper v hobart (A/K revisited/restated) a. was the harm in question reasonably foreseeable and is there a sufficient degree of proximity between the P and the D to justify the imposition of a duty of care? (broad policy) b. is the situation in question one in which a new duty of care should be recognised? (residual policy) -not that anns/kamloops test rejected in cooper v hobart; just revisited -practical result: P's burden to establish duty of care

Policy issues *this not examinable 1. the proximity analysis involved @ the first stage of the anns test focuses on factors arising from the relationship between teh P and the D. These factors include q's of policy in a broad view...at the second stage of the anns test, the question still remains whether there are residual policy considerations outside the relationship of the parties that may negative the imposition of a duty of care. 2. policy considerations: a. 1st part of the test: consider the relationship between the parties b. 2nd part: not thinking about P & D: thinking about consequences on imposing this type of relationship on the legal system + society Proximity 1. Proximity - type of relationship where DoC arises 2. sufficiently proximate relationships identified through use of categories *canada's reversion back to categories, which donoghue tried to push us away from 3. categories are not closed 4. 2nd step only arises where DoC not in recognized category *problem w hobart and cooper: only argue doc where it's a novel situation

Cooper stage 1 1. prima facie duty? reasonable foreseeability + 'close and direct relationship of proximity or neighborhood?' a. courts start w: whether case falls into existing category. if answer yes, 2. childs v desormeaux (2006) a. burden on P to show prima facie duty

b. proximity analysis doesn't apply to established categories 3. combined effect of cooper + childs: established categories not subject to anns/cooper test. if there's no established category, you have to establish a doc through proximity + foreseeability Cooper stage 2 (residual policy questions) 1. burden shifts to the D (childs) 2. what is the likely effect of recognizing a duty of care on other legal obligations, the legal system and society more generally? a. alternative remedy? b. give rise to indeterminate liability? c. govt policy making that should be immune? d. solomon '(list) is only limited by lawyers' imaginations' -practical result of this stage: if lawyers can successfully argue that there shouldn't be a doc (because of effect on society), Ps don't get their remedy --> balance of protecting P and the 'opening of floodgates' on society Anns/cooper test 4 questions: 1. is there already a category? } 2. reasonable foreseeability }existence of duty of care? 3. proximity } 4. residual policy considerations } negate/limit duty of care?

Jan 22 2013

Last class follow up qs/comments: 1. Who is a social host? (commercial host: someone selling alcohol for a profit) +not employer 2. Blame v responsibility 3. double jeopardy 4. injuries to intoxicated guest -diff between relying on insurance and courts deciding that theres a legal liability -claim by intoxicated guests vs 3rd parties > theres a closer relationship between guests and the host than 3rd parties and the host 5. morality vs legal liability

Affirmative Action 1. Justice McLachlins distinction in Childs between misfeasance (positive acts) and nonfeasance (failure to act): a. Should the court impose duties of affirmative action? 2. Negligence is at its core, about discouraging people about acting in ways that are liable/injurious to others a. Historically, the English courts was too overburdened by others. b. requiring people to act in a certain way violated notions of English personal autonomy c. rule against nonfeasance acted against broader notions at the time: capitalistic economy, laissez faire d. positive obligations are more intrusive than negative obligations 3. General rule: theres no duty of affirmative action, but the courts are beginning to carve out exceptions on this general rule 4. No common law duty to rescue (Osterlind v Hilll) a. Drunk guy in canoe, 1/2 hour screaming for help, he eventually drowned b. Osterlind cites Vanvalkenuburg v Northern Navigation Co (captain ship had no legal duty to help employees who fell overboard) 5. In both of these cases, there was a foreseeable injury if the D failed to act. 2 scenarios where duty may be imposed: a. special relationships i. D voluntarily assumes responsibility/special relationship ii. thus: incremental change in the courts (case by case basis) whereby the duty of care is increasing b. Exceptions (non-exhaustive) a. contractual/quasi contractual: employer/employee b. fiduciary: parent/child c. professional: doctor/patient .d. authority/supervision: teacher/student, guard/prisoner e. occupier/visitor e.g. innkeeper f. professional rescuers: firefighters, police, EMS Courts will look atin determining special relationships (to differentiate D from other members of the public): a. Whether responsibility was voluntarily assumed? b. was there control, authority, supervision? c. did the D derive commercial benefits fr the relationship? d. close family or personal bonds? e. any reasonable reliance of the dependance by P on D? f. any special expertise of the D in emergency services or rescue operations? g. extent of burden imposed if the D acts? h. did the D contribute directly or indirectly to teh peril?

i. statutory obligations? j. cost of action vs benefit it bestows? Tony Weir: you may ignore an infant drowning in a pond unless its your infant, your pond or youre a lifeguard Matthews/(Horsley) v MacLaren: Duty to rescue 1. Canada Shipping Act 1927, s526 a. At the lower court, the court was influenced the master of a vessel must rescue anyone lost at sea or in danger of being lost' 2. Diff in relationship between boat owner and passenger diff between passenger and fellow passengers 3. Factors: a. authority/control of boat owner over passengers b. implied assumption of responsibility of boat owner for safety of passengers c. trust and reliance passengers place in the boat owner d. expertise and competence that passengers expect Statutory Duty 1. Scenario 2: duties established by statute 2. Criminal Code: s129b; s252 (requires a driver of a vehicle in an offense to help someone injured in the accident) Child and Services Act: 18.1 and 18.2 3. Quebec Charter of Human Rights and Freedoms s2: every human being whose life is in peril has a right to aid... every person must come to the aid of everyone whose life is in peril by giving him necessary assistance unless it would be injurious to himself or 3rd persons 5.Context: a. 70 people die making rescue attempts b. CAEP: 1/4 chances that strangers will do CPR and 2000 lives a year could be saved if strangers did CPR half the time 6. Encouraging Assistance: Good Samaritan Laws (a means of reducing the fear of liability for attempting to rescue someone) 7. MBs Good Samaritan Act: unless the person is grossly negligent, a person is not liable for injury that a victim sustains in an emergency (after the person tries to rescue them)

Gross Negligence 1. McCulloch v Murray (SCC) very marker departure from the standards by which responsibility and competent people govern themselves 2. Solomon: less blameworthy than criminal negligence but worse than ordinary tort negligence Duties Owed to the Unborn

1. Pre-conception wrongs (Paxton v Ramji) Paxton: its only after birth that the fetus assumes a separate personality 2. Wrongful Birth (claim by mom)/wrongful life (claim by child): a. where a physician wrongfully informs she has an unusually high risk of not giving birth/giving birth successfully> not an injury, but depriving mom of making an informed choice 3. Wrongful Pregnancy (e.g. pregnancy was unwanted for one reason or the other) Suite v Cooke, Joshi v Wooley, Kealey v Berezowski, Krangle v Brisco (a disability case) pp389 a. what damage can the parents claim? > for child till the age of independence or beyond? b. these cases: regular child rearing costs can be claimed in the cases of wrongful pregnancies c. Krangle v Brisco: 4. Pre-natal injuries (whether a child can sue for prenatal injuries) a. Montreal tramways i. SCC: its OK to pretend that the child was already an independent legal person ( the born alive rule) upon birth b. Winnipeg Child & Family Services v G i. Winnipeg Child and Family Services wanted to rehab the mom who was addicted to glue sniffing. SCC confirmed that the law doesnt recognize that an unborn child has rights > thus Child and Family Services cant force a mom to rehab because the moms interests c. NB: if a child isnt born alive, theres no claim, because youre operating on a legal fiction that juridical personality was available to a fetus

Dobson v Dobson (precedes Cooper v Hobart, thus you have the Anns/Kamloops test, which is slightly different) 1. Mother was driving car insured by father (he was insured against negligence by any driver of the vehicle) 2. Justice Cory: its in everyones best interests for the child to claim insurance money 3. Trial judge said the prenatal child could sue because existing jurisprudence allowed the prenatal C to sue anyone but the mom, so we should allow him to sue mom as well. 4. Paragraph 23: a. for reasons of public policy the court shouldnt allow the ability o f fetus to sue mom, because of the autonomy rights of women. b. Pregnant moms physical proximity to child = too close > anything could possibly harm the child > theres no rational limit to the possible duties that could be imposed on a pregnant woman (slippery slope argument) 5. Legislation argument: a. Maternal Tort Liability Act (Alberta): makes a mom liable to injuries suffered prebirth for automobile accidents if theres insurance

Was Cory J right to deny the existence of any duty of care betw a pregnant woman and her unborn child in Dobson? Would the imposition of such a duty require -as he suggests- the courts to scrutinise a womans lifestyle choices? -Which is the most convincing policy reason Cory J presents for denying hte existence of any duty of care? Which is th least?

January 29 Duty to Warn Jane Doe v Metro Toronto Police (1998): failure on the part of the Toronto Police to not warn potential victims +SCC: Odhavji Estate v Woodhouse; Hill v Hamilton-Wentowrth Regional Police: negligence action against police are possible +Jane Doe: Police owe (and here breached) duty of care to victim that they knew to be at particular risk of attack from a serial rapist +Operational not policy decisions +There must be a very specific risk +Community mobilizing: WAVAW/LEAF s+7&s15 Charter claims > Jane Does security of person was violated. In total she was awarded large damages for failure to warn.

+Police dont have a general duty to warn, but they have lesser duties to warn for specific groups Horsley v MacLaren Duty to rescuers (not the duty to rescue) Issue: standard of rescue duty the captain didnt do the best thing he couldve done but still met the standard of care Because Horsleys rescue attempt was prompted by MacLarens failure to rescue, Liability can only be imposed if the first rescuer was negligent Ritchie J: any duty owing to Horsley must stem from the fact that a new situation of peril was created by MacLarens negligence which induced Horsey to act as he did. I dont think that the evidence justifies the finding that any fault of his (MacLaren) induced Horsley to risk his life as he did. SCC: while MacLaren made a mistake in his choice of rescue techniques, he wasnt negligent. Laskins dissent: there was possibility for Horsleys family to pursue an action against MacLarens family. Duty of Care Owed by a Barrister Demarco v Ungaro 1. A lawyer owes a general duty of care to a client to act competently. Its also possible the lawyer might owe a duty to a 3rd party. Demarco v Ungaro 1969, England Court: if youre a barrister and you mess up a case, you cant be sued A barrister must exercise reasonable care, skill and knowledge B must be properly diligent in the prosecution of the case there is no immunity Policy arguments for immunity: 1. Conflict between duties to client (explore every option to win case) and to the Court (expediency of justice) Demarco found that theres no empirical evidence 2. Harm to public interest in relitigating issues: Demarco founds that bad public policy to confer immunity exclusively on lawyers engaged in court work Also, prospect of relitigation not enough to justify immunity 3. Lawyers have an obligation to accept clients Demarco: doubtful that duty exists 4. Absolute privilege Demarco: concerns special relationship between client and lawyer not involved in negligence claim

Pure Economic Loss History: there was no rule/allowance for pure economic loss. In recent years, Canadian courts have moved from this general rule (i.e. no recovery for pure economic loss), but the approach is still quite restricted These are the categories that come to play in a PEL suit (Bruce feltdhusen) 1. Negligent misrepresentation ** main focus of class 2. Independent liability of statutory public authorities 3. Negligent performance of a service 4. Negligent supply of shoddy goods or structures 5. Relational economic loss If the court wants to recognize PEL outside of these categories, theyll use AnnsCooper +Policy reasons: want to narrow the ambit for PEL now that its somewhat permitted courts are hesitant to go outside these categories Negligent misrepresentation standard duty test Oral & written communication v physical acts & omissions. Negligent misrepresentation Oral & written communication Economic loss Physical injury Negligence physical acts & omissions Physical injury Economic loss

+Encompasses: incomplete/inaccurate advice by professionals +in Hercules, Laforest writes: negligent misrepresentation is a statement made that the plaintiff relies on to their detriment *** proximity and indeterminacy are the crux of the problem +PEL: raises issue of tort law interfering the market law expects biz people to protect themselves through means such as contracts or insurance Hedley Byrne (1963): *only thing you need to know: its the first case that recognizes the scope of PEL. HOL recognized possibility of duty of care for PEL Hercules Management v Ernst & Young +clear position in Canadian law wasnt articulated until Hercules +question in Hercules: how far to extend the duty of care? did the duty extend to shareholders?

 Laforest: negligent misrepresentation isnt a separate area of law, doesnt need special consideration just use general rules of negligence laid down in Anns ALTHOUGH Laforest says hes using the same test, he adds reliance negligent misrepresentation test is a modified Anns test Test: 1. Was there a prima facie duty: reasonable foreseeability + reliance? Could the D have foreseen the P would rely on his representation? pp457: Factors: taken into account of (mis)representor seriousness of the occasion excludes casual conversation presence/absence of disclaimer information requested (Premakumaran pp461) if you indicate you want to receive the info, thats some indication that youll rely it: doesnt mean volunteered info will trigger a duty financial benefit (could be indirect or direct) grants a greater value to the advice youre giving even more clear that theyre relying on the information nature of statement made (a murky line to drawn): fact v opinion. Statement of facts have more weight than opinions. However, most often professionals are giving statements of opinion. In Hercules, the court found that there was a duty of care reasonably foreseeable reliance. Court struggled with policy in Hercules: problem of indeterminacy (scope of liability too broad). Liability for an indeterminate amount to an indeterminate class (. Pp455: Laforest: because auditor statements could be used by a variety of people (customers, auditors, etc) this could lead to a risk of loss disproportionate to fault would lead to time and money spent to defend claims/defensive practices would lead to increase in cost of service (detriment to profession) and lessen access (to public). (floodgates argument) The prima facie duty in Hercules was therefore negated for these policy considerations. However, the court left a wedge of door opened for a different case for a different fact scenario not Exam question tip: Q: was there reasonable reliance? You go through factors in checklist

Concurrent Liability (Tort & Contract)

Majority judgment: where theres concurrent liability, you can see in either or both. The contract didnt limit the duty of care owed by Hydro and Chico (no waiver to not sue in torts) Q: why sue in tort if you can sue in contract? A: diff damages: whats remedied is misrepresentation in tort, expectation in contract Martell Building v Canada 1. Negligence shouldnt be extended into precontractual negotiations because: a. No real economic loss to society b. Would discourage economically efficient conduct c. Tort law not insurance scheme for bad bargaining d. Would force court to scrutinize minutae of pre-K e. Would encourage unnecessary litigation Negligent Performance of a Service 1. BDC v Hofstrand Farms (grant was being sent and the New Year happened, affected things) a. Court said: in the performance of a service by a courier, apply normal rules of negligence + Hedley Byrne considerations 2. James v BC (2005): Minister forgot to put the clause in a. Case raised the issue of how to b. Court: distinction between cases such as this (P as passive, not actively relying) vs cases where the P acts on the strength of a misrepresentation diff = voluntary assumption of responsibility by D c. Appropriate test to use: Cooper test but unlike the negligent misrepresentation cases, its unnecessary to prove detrimental reliance d. James v BC: In the absence of detrimental reliance, you can show the D voluntarily assumed responsibility taking out reliance and adding voluntary responsibility Current state of Law: Apply Cooper, policy branch to consider whether detrimental reliance or voluntary responsibility 3. Wills: Will be held liable (to the beneficiary of a will) if negligent in drafting a will. Supply of Shoddy Goods or Services 1. These tort claims normally arise when you cant show privity of contract 2. Winnipeg Condominium Corp v Bird Construction:

a. Considered question of whether contractor would be responsible for negligence to the subsequent purchaser of the building (to which he has not contract with) b. No problem with indeterminacy: i. there wasnt potential class of Ps = owners + inhabitants of the condo building; ii. no indeterminancy risk of cost because it would be limited to cost of repairwork to building; real and substantial danger to the inhabitants of the building pp 496 iii. no indeterminate risk of time; limited to useful life of building 3. Caveat emptor due diligence such as building inspection a. SCC: caveat emptor doesnt apply here. Relational Economic Loss 1. A injures B which results in a loss to C a. Traditional approach: deny recovery in such cases 2. Canadian National Railway v Norsk Pacific (The Jervis Crown) a. First decision to recognize REL b. A really strong dissent from Laforest: forms basis for Bow Valley continuous dialogue i. Court: the adoption of the Ann/Kamloops 2 stage approach was enough to put a brake on the problem of indeterminacy ii. 3. Bow Valley Husky (Bermuda) v St John Shipbuilding a. Exclusionary rule of REL (no recovery) with 3 exceptions i. Claimant has a possessory or proprietary interest in damaged property ii. General average cases iii. Joint ventures Wed, Feb 5 Duty & Standard of Care The std of care is behavior required by D to satisfy the duty of care Differences between duty of care and std of care Duty of care Who is my neighbor? Q of law (legal relationship) Std of care How should I act toward my neighbor? Q of mixed fact and law: bec youre setting out what the std is (law) and whether the std was met (fact) Determining law vs fact: important bec. questions of fact are resistant to appeal Judge/jury (fact + law)

Judge

The Reasonable Person D must act according to the std of care of the reasonable person Blythe v Birmingham Waterworks (1856) Negligence is: the omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a reasonable and prudent man wouldnt do Arland v Taylor (1955) a person of normal intelligence who makes prudence a guide to his conduct. 1. Charge of judge to the jury: Consider respondents negligence, put yourself in the drivers seat of the car, ask yourself if you wouldve done what he did 2. CoA: the judge was wrong because he emphasized too much their own biases PLUS hindsight is 20/20 the jury knew something that the D didnt Thus the problem of putting the personal into the reasonable person concept The subjective vs the objective contrast Reasonable man: not extraordinary, reflects the ordinary person Morans essay Rethinking the reasonable person 1. Vaughn v Menlove: court rejected the best efforts test that the test to be used is based on the individual Its the law, not the individual that determines the best efforts Objective test: Interpersonal equality o reasonable under the circumstances o eliminate subjectivity (mindset of the individual is irrelevant) o objective standard has a higher standard of expectation Issue: objective test still allows subjectivity because of the idea of the reasonable person under the circumstances 2. Critiques (feminist) Vehicle for judges own beliefs/attitudes: because the std is so flexible based on the circumstanceit thus reflects the bias of the judge i.e. Reinforces privilege of the powerful The std is always calibrated by what is reasonable under the circumstances. But what the case law reveals isnt a uniform norm of reasonableness applied to all but rather a std that is often adjusted to mirror the actual qualities of the litigant in q o Should the std be changed or should the std be more nuanced? (can it be redeemed)

Factors in determining breach Factors to determine whether a risk was reasonable or not: 1. The probability and severity of the harm? (affected: the victim) +Bolton v stone (1951) +paris v stepney borough council 2. the cost of risk avoidance? (affected: the accused) +Vaughn v Halifax-dartmouth bridge comm +law estate v simice 3. the social utility of value of the conduct? (affected: the community) +watt v Hertfordshire country council The probability and severity of the harm 1. Probability (Bolton) +the greater the risk of an activity, the higher the std of care 2. Severity (Paris) +the greater the harm of an activity, the higher the std of care Bolton (probability of harm) 1. Facts: P was standing outside her house, near a cricket field when she got hit with a ball 2. Ps argument: Because it had happened before, it would happen again std of care had been breached. 3. Court: the test for whether the D had breach the std a. whether the risk was so small that the reasonable person in the shoes of the D (from the point of view of safety) wouldve taken reasonable steps to avoid the danger. b. in the crowded conditions of normal life, even the most careful person will incur some risks ::::this case was borderline, but there was no negligence in exposing the P to such a risk. But if the risk was high and avoidable, then maybe the cricket field will have to be closed down damages had been awarded to P by CoA, but when HoL overturned CoA, they didnt order damages to be returned they were looking to establish the principle, not concerned about the damages Paris v Stepney (severity of the injury) 1. Facts: One-eyed worker was rendered blind 2. Issue: should the standard be different for a one eye vs a two eyed worker? 3. Ds argument: because it wasnt customary to provide goggles for other workers, it wasnt needed to provide goggles for the one eyed worker

4. HoL: although the degree of risk wasnt greater, there was a risk of greater injury to the one eyed worker +the reasonable employer wouldve taken better care of the one eyed worker Law = algebra US v Carroll Towing Co Formula for standard of care: B<PL *b =burden p = probability l = loss Cost of Risk Avoidance +Severity and probability of harm must be balanced against consideration of costs of risk avoidance +Vaughn/Law Estate: P must prove there was a reasonable practical precaution that the D failed to adopt +courts stance: if the physican has to choose between the interests of the patient vs. medicare, the patient must take precedence aka the money argument wouldnt succeed +issue of cost vs allocation: court seems to ignore the reality of resource allocation +Bateman: the non-availability of trained and experienced personnel, to say nothing of collateral resource allocation, simply makes this std unrealistic albeit desirable +different position from Vaughn/law estate

Social Utility (*2 cases Labman left out off the syllabus @ pp 530) 1. Watt: you must balance the risk against the end to be achieved. + (Fireman case): Denning: saving life and limb entails taking considerable risks 2. (*2 cases Labman left out off the syllabus @ pp 530) Priestman v Colangelo + Burbank v Bolton: police chases +Police etc., although cant be reckless, have the leeway to take legal risks that regular citizens cant 3. Osbornes argument: if were taking into account positive social utility, we should also look into the negative social utility no reason to tolerate ANY risk from activities with negative social utility Standard of care for a teacher (class discussion) 1. Standard of care is in proportion to probability of risk (e.g. gym/chemistry lab vs English class) 2. Careful or prudent parent (Myers/Williams) considering: +the # of students being supervised +the nature of the exercise/activity in progress

+age/degree of skill/training the kids have in the activity +the nature + condition of the equipment in use +the competency and capacity of the students +a host of other matters 3. Thornton et al v Board of School Trustees of School District Supraparental expertise (teachers more multifaceted than the average parent): +is the activity suitable to the age, mental and physical condition of the participants? +have the participants been progressively taught and coached to perform the activity properly and to avoid the dangers inherent in the activity? +is the equipment adequate and suitably arranged? +is the activity being supervised properly for the inherent danger that is involved?

Wednesday, February 12 1. clearly identified thesis 2. accurate and critical understanding of substantive law 3. an appreciation of how the issue relates to theory and policy issues discussed in class 4. compelling and convincing advocacy of a psotion Creative 1. effort + attention to detail in composition 2. innovation and original expression 3. thoughtful and intentional linkage between expression and legal comment

Special Standards of care Mental Disability 1. Arguments against liability: a. liability will not be a deterrent on behavior b. only those who are morally at fault (blameworthy) should be held liable c. treat in a manner consistent with other disabilities that tort law excuses (childhood and physical disability) 2. Arguments in favor of liability: a. compensation argument: when one of 2 innocent parties are injured the one who caused the damage should bear the loss b. imposing liability will make guardians of mentally ill take greater are c. if theres no liability tortfeasors will be apt to feign insanity

d. courts are unable to deal effectively w these kinds of evidentiary or credibility questions tort laws primary purpose is compensation and therefore it would be unfair to the victim not to be compensated e. its too difficult to draw a lien betw severe mental incapacity and mere variations of temperament and ability (low intelligence, clumsiness) Case law: 1. Buckley & Toronto Transportation Comm v Smith Transport 1946 On CA: driver was under severe delusions, found he had syphilis of the brain; a. court held: because drivers illness prevented him from understanding the nature/quality of his act, he couldnt be held liable i. argument: 2. Fiala v Cechmanek (2001) a. Facts: Mcdonald went for a run, had a manic episode, not previously diagnosed; went through sun roof of the car of one woman, put foot on the gas b. Court: fault v compensation debate. +Compensatory nature of tort law is paramount concern; function of negligence law = compensate victim rather than punish wrongdoer +negligence is all about fault +corrective justice: if compensation is the goal of tort law, there will have to be a lot of legal fictions we need fault to keep the structure of tort law other purposes can be served by other stuff e.g. compensation schemes +TEST of for accommodating mentally ill (as a result of sudden mental illness without warning the D: a. had no capacity to understand or appreciate the duty of care owed at the relevant time OR b. was unable to discharge their duty of care as they had no meaningful control over their actions at the time the relevant conduct fell below the objective std of care +Wenden v Trikha (1991): Trikha had been warned not to drive while his illness was manifest. Implicit in such warnings was he posed a danger to himself and others. Court held: the reasonable man, having been forewarned, would have seen to it in the event he became mentally ill that someone wouldve . Physical disabilities 1. Carroll v Chicken Palace: reasonable person with a similar disability 2. Linden: negligence law has departed from its obj std in its treatment of physical disabilities; it has made the std of care partially subjective in order to take them into acct. A person with a hearing disability is not required to hear, a physically disabled person neednt be nimble nor is a blind person obliged to see; although they are expected to avoid getting themselves into positions of danger. Children 1. McEllistrum v Etches (1956): mixed obj/subj test for children children of similar age, intelligence and experience

2. reasonableness doesnt come to play w children 3. Joyal v Barsby (1965) (kid crossing busy highway) a. court: ordinary child wouldve act differently +pp552: she was thoroughly trained on dangers of highwaywo looking had entered place of danger; had she looked she wouldve seen the vehicle. If contributory negligence couldnt be found in this case, it wouldnt be found for children +pp553: court judge: the trial judge didnt say children couldnt be capable of contributory negligence, only that it wasnt found here she was distracted by honking other children wouldve been also distracted 4. Children of tender years (under 5): no possibility to be found liable (Tillander v Gosselin) 5. Children who conduct adult activities subjected to the adult std (Ryan v Hickson) 6. Parents are not vicariously liable for the actiosn of their kids: but they can be if they fail to supervise kids reasonably parents have the duty to supervise (SOC of a reasonable prudent parent) +(Thomas v Hamilton, Laplante v Laplante /dad allowed 16 yo kid drive on icy highway on large speeds/, CS v Miller /volunteer camp counselor didnt report sexual assault of kid/) Elderly 1. Responsible to know their own limitations Professionals 1. White v Turner: surgeon negligent in performing surgery of breast reduction a. judged by std of profession 2. error in judgment by professionals not automatically negligence P must prove that the bad result was brought about by negligent conduct 3. Location: std of care the same (Layden v Cope small city doctor has same SOC to SOC of big city doctor) 4. Interns/residents/volunteers/secondary field: dont need to know case names in notes: a. person practicing in secondary field only needs to satisfy liability of primary field midwifery: no consistent practice: Carere v Cressman (child delivered prematurely)/Rowlands v Wright +Carere v Cressman: para 70: because there was no std practice at the time, the court has to now determine the SOC based on the evidence. Judge: no idea what was going on 1985; conflicting evidence from witnesses; its up to me as judge to decide things from common sense. Judge found Damages: 3.5 million +Rowlands v Wright: CoA said judge was not entitled, in the face of conflicting medical opinions, to rely on common sense to determine the SOC wasnt

met. While there was conflicting evidence, there were matters on which the experts all agree on: the CoA disagreed with the matters agreed upon 5. You need expert evidence on the SOC too technical for judge 6. professional codes of conduct dont amount to expert evidence: a. Galambos v Perez (2009): a bookkeeper that was also a client of the firm. Rule of conduct: lawyer cant borrow money from client; didnt know she was a client. Custom 1. ter Neuzen v Korn: can judge/jury find that std of practice itself is too low for SOC? a. Court: on complex area of medical practice, its unreasonable to judge that std as a non-professional that its inappropriate EXCEPTION: if the std of practice fails to adopt reasonable precautions (obviously dangerous) which are readily apparent to a trier of fact, its no excuse that she was conforming to standard practice Anderson v Chasney 1950 (5 yo boy died after operation because sponge had been left in his throat. Evidence: at time of surgery, there was tape on the sponges that enabled them to be pulled out. It wasnt common practice to used tape on them to pull them out. Court: not a question of skill there were obvious precautions that couldve been taken (not leave sponge in someones throat) b. Ter Neuzen: 2 SOC: a. screening for HIV was beyond what could be expected at the time, b. screening for STDs was expected

Wednesday, February 26 By the time of causation, the P has already breached the std of care Causation: connection between fault (breach of SOC) and harm Fact & Law Cause in Fact (Causation)

Cause in Fact (Causation) 1. D' negligence caused P's loss 2. Connect between act & loss

3. justifies imposing liability 4. factual causation Cause in Law (remoteness stage) 1. good reasons to limit inability for reasons of fairness, because it's too remote 2. 'legal causation'

But-for test 1. would the loss ot the P have occurred but for the actions of the D? but for the Ds breach of the std of care a. if yes, no negligence 2. A cause not sole cause (Athey v Leonati 1996) 3. Guy had herniated disc in back; preexisting condition; got into a couple of car accidents; got into incidents of his own doing before the herniated disc occurred. P had history of back problems, suffered 2 separate accidents; because of rehabilitation exercises he was doing, he suffered from herniated disc. Judge found herniated disc was combo of preexisting problems + Ps negligence: P 25% responsible she awarded 75% of damages to him. a. SCC said no: on the balance of probabilities, judge found D was ONE cause of injury, even though not sole cause liability found 4. Snell v Farrell: need a robust + pragmatic + common sense approach on a balance of probabilities a. although courts advice that, theres always some level of hypothesizing involved b. Jane stapletons comment: where this analysis actually plays out 5. Kauffman v Toronto Transit Commission: P taking the escalator, in front of her two ppl having a scuffle. The subway authority had put in a new handrail that wasnt a standard handrail: a cause of the accident a.argument: if it hadnt been a new handrail the P wouldve been fine b. no evidence that the P wouldve grabbed onto the handrail, no evidence that that the old handrail wouldve saved her c. evidence found no dutiful testing but this is not an issue given the causation part fails 6. Barnett v Chelsea & Kensington host: a. Facts: arsenic in tea, theyd been vomiting several hours; doctor didnt see them; they were sent home. Claim: doctor breached the std of care, shouldve checked them. b. It was found that even if there had been intervention one of the Ps wouldve still died: so even though theres a breaech of std of care, it wasnt what caused the injury 7. Lucy & Ethel: Ethel ran through a stop sign because she was talking on her cell phone, she accidentally crashed into Lucys vehicle. a. But for test:

Knutsen: that Lucy mightve been drinking, doesnt matter because we should be looking at Ethels action, which was A cause BUT FOR ethels actions, lucy would not have been injured. Exceptions 1. Multiple negligent defendants: 2. learned intermediary (hollis v dow corning) a. an intermediary who has expert knowledge. The public doesnt have knowledge and it only passes to the public through the intermediary b. duty to warn: as a general rule is owed by the manufacturer directly to the ultimate consumer UNLESS theres someone in between if so the manufacturer can pass the knowledge to the middle man, and it then falls on the middle man to pass on the knowledge to the consumer b. hollis v dow corning: manufacturer hadnt dutifully informed the doctor of the risk. The doctor didnt have the knowledge the manufacturer had, so the doctor couldnt be expected to pass on the info to the patient. d. SCC: not that the learned intermediary rule doesnt apply, it just dont have the context in this case: because the doctor (intermediary) didnt have the knowledge 3. Informed consent (Hopp v Lepp, Reibl v Hughes, Arndt v Smith) objective/subjective test a. patient has to argue that if it hadnt been for the lack of information by the doctor, b. the but for test doesnt work in this scenario where one party, who holds power of testimony, has an interest in saying she wouldnt have done it c. to reduce subjectivity/bias, the test is whether the reasonable person wouldve still gone ahead w the procedure 4. Material contribution a. fact scenarios create an evidential gap/causal indeterminacy: impossible to know if negligence caused loss (P cant prove that if it wasnt for X she wouldnt be injured, because there is a second or third or fourth variable etc that mightve prevented the injury) b. material contribution test: a but for test that doesnt work because theres insufficient evidence for the but for part. Actions caused or contributed to the injury c. walker estate: material contribution outside of the de minimis level d. MC test set out in Athey v Leonati, then Walker Estate v York Finch Hospital (HIV/American blood screening case): case law sets out cases where MC test will work (Solomons argument: no diff between MC test and but for test) e. preconditions to trigger (Hanke v Resurfice Corp, 2007): the manufacturer of the ice surfacing machine didnt mark clearly where gas and water had to go: poor labeling led to P pouring water into the wrong part of the machine, caused injury SCC: MC applies where it must be impossible for the P to prove causation under the but for test. This impossibility must be

beyond the Ps control: Cook v Lewis (circular causation), Walker estate v York Finch (dependency causation) Circular causation: factual causation where impossible to prove which of 2 situations cause the harm Dependency causation: situations where impossible to prove if 3rd party wouldve taken steps that wouldve prevented the injury P must prove: that D breached the std of care, that breach created risk of injury, and the injury was of the same type as the risk MC is easier than but for test bec. P needs only show that the breach created the risk, and that the injury was due to the risk Knutsen: MC test = loophole for those strange cases where the using the weight of evidence of Ds behavior is just plain wrong 5. Materially increased risk But for versus Material contribution test (MC test = very narrow, only in multiple defendants case) 1. Clements v Clements Problem: if the nail was in the tyre, it wouldnt have mattered what speed the husband was going. **issue of material contribution will make its way on the test in some way a. court found MC test inapplicable in this case. b. SCC: scientific precision isnt need for but for causation. The but for test allows judges to make common sense inferences from the test. c. but for test : factual enquiry, whereas MC test: jumps evidentiary gap for policy purposes d. restated Hankes limits (impossible to prove/exposed to risk of injury) e. Define meaning of impossible to prove MC Test: where impossible to prove causation and its clear that D breached duty of care, which created risk of injury and same injury type suffered Not just insufficient facts: because MC Test goes against grain of negligence law Where MC test used: Cases of multiple Ds in which each contributed to the risk of harm; impossible to know which created risk of harm Cook v Lewis MC test shouldnt be applied in single defendant cases But for needs certain factual link; MC test: inference can fill in evidentiary gap Multiple causes pp583-591 (unassigned) 1. Are the injuries divisible or indivisible? a. divisible losses: Can the injuries be divided into distinct losses that are each attributable to distinct defendants?

b. indivisible losses: cant divide and attribute neatly to defendants e.g. of divisible loss: 2 gunshot wounds, each from defendant 1, defendant 2; whereas blood loss suffered because of gunshot wounds is indivisible loss 2. Are there independent sufficient causes or independent insufficient causes If insufficient but for test and no single factor is itself the but for test, the but for test still works (Athey v Leonati) If sufficient, significant or substantial factor (may be reframed as material contribution now) & possible burden shift substantial factor test: burden shifting: if there are multiple negligent Ds, the P only has to prove that injury caused by one of the multiple negligents, and the burden falls on the Ds to disprove causation 3. Independent or joint tortfeasors: if youre an independent tortfeasor, youre only liable for your own actions if youre a joint tortfeasor, youre responsible for the actions of other tortfeasors o agent acting on principals behalf o employee action on employers behalf o acting in concern to bring about common end thats illegal, inherently dangerous or in which negligence can be anticipated Tortfeasors and Contributory Negligence Act (Manitoba): makes all tortfeasors liable for full amount of damages awarded, and P can opt to execute final judgment against any of the judges this makes it easier for P to get award; can pick those who can pay OR Ds can look each other up to split costs, this pushes the burden of coughing up money to Ds Materially increased risk (a jump/an inference) 1. complex conditions/disease where extremely difficult to prove that the injury wouldnt have resulted but for the actions of the defendants 2. Snell v Farrell: a but for case with a causal problem a. cataract surgery performed by eye doctor; Ps eyes had hemmorhaging; months later P suffered stroke in optic nerve and became blind P had causal proof problem couldnt prove the blindness caused by doctors negligence; could also have been caused by the stroke should the burden of proof shift for causation shift to the D to disprove a medical causal link? court found for P: that the but for test is inappropriate in medical cases because medical knowledge rests with defendant; although its for P to prove causation, an inference in causation may be drawn in absence of scientific proof inference can only be made if the weight of the evidence supports the case of negligence; a weighing of proof

 mcLachlin: smudging of some evidence to sufficient evidence; in the absence of evidence to the contrary, an inference of causation may be drawn although factual causation hasnt been adduced inference of causation in absence of proof; still for P to prove Thin & Crumbling skulls 1. Knutsen: the causation step in the negligence analysis deals w the Ds responsibility for the Ps injury occurring. Remoteness and damages steps deal w the Ds responsibility for the extent of the harm 2. thin skull: remoteness/proximate cause stage 3. crumbling skull: Ps deteriorating, preexisting condition condition that Ps condition wouldve been brought about anyway gets asses in damages stage Wednesday, march 5 Causation step has already been established (the FACTUAL step) remoteness is the legal question on the relationship between the breach and the harm Two control mechanisms to contain negligence: 1) duty of care 2)remoteness Causation and remoteness + causation is logical/factual +remoteness cuts off logical based on policy (causation) breach of SOC -------------- Ps harm/loss problem with remoteness = its an arbitrary cut off point Directness test +Ps loss is not too remote if it was a direct result of Ds act +Re Polemis (spark exploded into fumes; ignited ship) +court: reasonable foreseeability didnt apply here but liability was imposed because of the directness of harm and injury +polemis test out of favor by mid-20th century because unworkable, unfair, pro-Plaintiff, logically unsound Reasonable foreseeability (this test replaced directness test) +Wagon Mound #1 (oil escaped from ship, water carried it over to Ps; some molten metal fell on oil and it ignited; the fire was found to be unforeseeable but the court applied the directness test to impose liability case was appealed to much higher court: directness rule was repudiated in favor of reasonable foreseeability dismissed polemis/directness test

 test finds foreseeability only where negligence is reasonably foreseeable original articulation of foreseeabilty seems strict, seemingly pro-defendant approach, but jurisprudence has shaped it more fairly Modifications/interpretation (KIND OF INJURY IMPORTANT, not specifics) A. judicial discretion * consequence for this test: if you know the steps and apply the analysis where your conclusion amounts to doesnt matter because of the amount of discretion given to judges in the remoteness step parameters of judges discretion: 1. kind of injury (hughes vs lord advocate) construction workers left lid off manhole + put up lights that were lit by paraffin lamps; some kids came along, kid explored manhole, exited manhole, upon exiting.dropped lamp down manhole; kid fell down manhole and hurt himself the means by which the harm happened was scientifically shown to be a very unlikely consequence court: not necessary to foresee manner/mechanics of accident (explosion) what was SUFFICIENT to establish foreseeability: foreseeability of KIND of injury/harm (burns) court: both accidents were burning incidents; how the injury materialized (the manner in which it occurred) is not of import 2. thin skulled P (smith v leech, marconato v franklin) a. as long as some injury was foreseeable, the D is liable for all consequences of injury even if consequences themselves werent foreseeable (even if due to unique condition of the P) must take V as you find her and compensate for FULL EXTENT of loss (even if disproportionate to what would otherwise occur in a quasiparallel situation) b. Smith v Leech Brain (facts: man predisposed to cancer; molten fell on lip and incurred cancer) court recognized that the P was predisposed to cancer and the burn was considered a promoting agent sufficient that injury (burn) was foreseeable, not necessary that CANCER or death foreseeable (injuries that FOLLOW the first injury) crumbling skull rule reduced damages for D (P was doomed to have cancer anyway) c. marconato v franklin (predisposition leads to psychiatric injury person reacts extremely emotionally to something). Psychological consequence from physical injury still considered foreseeable due to thin-skull idea. Is this too harsh? The thin-skulled rule can result in a grossly disproportionate liability for defendants. d. policy rationale for thin skulls: +promotes compensatory goals of negligence law +relieves the court of determining foreseeability in context of uniqueness of individual (efficiency) +harshness mitigated by crumbling skull rule at damages stage **crumbling skull =

a. not only thin but doomed to damage (the wrongful act merely accelerates injury from being complete, versus thin skull where the injury might never have occurred) b. (only comes in at the damages stage) 3. Possibility of injury (wagon mound @2) a. different facts in wagon mound 1 and 2: WM #1: D was owner of wharf; WM #2: P was different; owner of boat WM #1 court found that fire wasnt foreseeable WM #2 court found that fire wasnt probable but it was foreseeable *in NSW, contributory negligence = full defense P was contributorily negligent in WM #1 (he kept welding after he was aware of the fire) needed directness test b. assiniboine school v Winnipeg gas (P lost control of snowmobile; hit a gas something; led to gas leak + explosion in school) it is enough to fix liability if one could foresee in a general way the sort of thing that happened. The extent of the damage and its manner of incidence neednt be foreseeable if physical damage of the kind which in fact ensues is foreseeable. c. mustapha v culligan (Mustapha changing the water for the water cooler; sees flies in new water cooler Mustapha nor his family drank any of the water but his family had been dependent on the water for 15 years) +Mustapha was horribly traumatized by what he saw; became obsessed with what couldve been reality; M diagnosed with phobia + dissociation with reality lower court found that Mustapha case was bizarre nevertheless awarded huge amounts of money for loss. Court found it was clearly foreseeable that anyone who saw the flies wouldve suffered some kind of nervous shock. SCC: i. difference between probable/possible is misleading (everything that has already happened mustve been possible in the first place) +unusual reactions to events caused by negligence are imaginable but not reasonably foreseeable. objective test must be imposed on the type of reaction (must be reasonably foreseeable) +P failed to show that person of ordinary fortitude wouldve suffered serious psychological injury from the discovery EXCEPTION: it would be different if the D knew of the Ps particular susceptibilities (knew of the thin skull) how do you reconcile this with the thin skull rule? +the thin skull rule applies, but it applies in a later step +remoteness test (first step) = separate from thin skull rule (second step, distinct conception of remoteness) thin skull only applies after the remoteness hurdle (person of ordinary fortitude Mustapha didnt get past the remoteness hurdle) a. establish that injury was reasonably foreseeable (objective) (the type of harm???? Serious psychiatric injury)

b. if injury is legitimate, then meet this injury with the thin skull rule (how serious it is doesnt matter fully compensable) ****negligent infliction of nervous shock not examinable 4. intervening acts (Bradford v kanellos; price v milawski) a. Ds breach + subsequent intervening act that causes or contributes to loss b. by this step, causation has already been established (causation = look at multiple causes and whether there are diff acts that caused the injury) c. intervening acts = the intervening act contributes or increases to the loss d. Ds act is always cause-in-fact of the damage (the causation has been met for damages) e. issue is remoteness of damage and unfairness of holding D liable when Intervening act triggers or worsens loss f. historically, D was relieved of liability and last wrongdoer responsible g. modern approach within the scope of risk: foreseeability test threshold for IA: when the D triggered the wrongful act, whether the intervening act was foreseeable Bradford v kanellos a. P caused fire in restaurant; fire got put out with extinguisher; Fire with automatic extinguisher; made popping, hissing noise while being used; someone thought there was a gas leak (yelled out fire, gas) and P was trampled in the ensuing commotion b. not cleaning the grill properly = the negligent act c. SCC: intervening act was unforeseeable. minor grease fire not foreseeable that people would think it was a gas leak, that P would get trampled as a result. d. SCC dissent: the intervener acted in a very usual, human way and it was foreseeable that someone would think it was a gas explosion and cause panic. e. the contrasting SCC judgments reflect the unevenness fo the decision making price v milawski (compound negligence) 1. F: soccer injury; x-ray doesnt look at ankle but foot due to doc giving wrong instructions to x-rayer doc diagnoses it was normal sprain; orthopedic uses docs xrays, gives wrong diagnosis P suffers permanent disability 2. two negligent doctors Dr. M = 1st tortfeasor Dr. C = 2nd tortfeasor 3. Court: it was reasonably foreseeable that Dr. C would use the xrays from Dr.M. reasonable foreseeability of continued negligence an intervening action is not in itself enough to relieve the primary tortfeasor of liability 1st negligent doctor can be held liable for additional loss caused by 2nd docs negligence where there are joint negligent tortfeasors, the first tortfeasor can be liable for own acts + acts of second negligent feasor, if the second negligent act was reasonably foreseeable in light of the action fo the first negligence

Diff between Bradford and price (courts focus on which phase of the IA was foreseeable as determinant of the negligence): a. whether the intervening ACT was foreseeable or whether the loss caused by the intervening act was foreseeable (act vs. loss created by act) b. Price: whether it was foreseeable that the injury would be worsened as a result of the IA or whether the IA was foreseeable c. Bradford: test = foreseeability of the consequence Foreseeability funnel (pp 603 n3) General particular ----------------------------- Duty (great) breach remoteness (least great) (foreseeability inquiry is raised at 3 stages declining from the general to the particular, increasing foreseeability restriction) *write down the diff in foreseeability in each of the phases. In ann Kamloops test, court imposes foreseeability only wrt to injury incurred by P; in SOC analysis, look at foreseeability of injury as a factor in which duty was breached versus in remoteness analysis.. Jerushas notes Previously, if causation was successfully established, the quick argument of the thin skull rule and the principles of Athey v. Leonati, (the P must be put back in to the position he would have been in absent the Ds negligence) followed, leading many practitioners and courts to conclude the injury was compensable. Mustapha has now added the remoteness of damage element to the analysis. Remoteness is assessed AFTER causation but before assessing damages. Its assessed on the standard of the reasonable person. Only if the damages are not too remote does the thin skull rule apply *extra on Mustapha nervous shock: hesitancy of the court in allowing it as an injury narrow definition of loss: severe emotional trauma o psychiatric harm: lesser emotion distress tend not to be sufficient grounds for triggering a claim duty of care: foreseeability of nervous shock in person of average psychological resilience not possible for NS to be reasonably foreseeable o at trial: judge found it was foreseeable

o CoA: not reasonable foreseeable: didnt focus enough on objective component of test for reasonable foreseeability (foreseeability at the duty of care stage). o SCC: echoes CoA+ manufacturers duty to consumers Remoteness analysis Psych injuries thought to be lesser harms: normally get kicked out of court at duty stage (before foreseeability at remoteness stage) SCCs analysis at remoteness stage is more confusing than CoA:

Wednesday, March 12 DEFENCES 1. Contributory negligence* 2. Voluntary assumption of risk 3. Criminal/immoral act 4. Inevitable accident 5. Burden of proof on D 6. May plead/prove multiple choices Evolution of negligence in common law (from 1 to 4) 1. Tort liability for a single injury was indivisible 2. P had right to recover damages for the entire loss from any tortfeasor who shared liability (can pursue action against multiple Ds) 3. Tortfeasor who paid wasnt entitled to contribution from other tortfeasors 4. D had complete defense to an action for tort if the P own negligence contributed to the injury (any insignificant contributory act by P allowed full defense for D) Last Clear Chance doctrine 1. Developed by the courts to avoid the harshness of the contributory negligence bar 2. Who had the last chance to avoid the injury? a. P can recover in full if the D was the one who had the last opportunity to avoid the injury caused by negligence and FAILED 3. Considered P-friendly but still all or nothing approach 4. All provinces have enacted legislation to abolish the contributory negligence bar and to provide for the apportionment of fault between D and P 5. Doctrine no longer really relevant in Manitoba Tortfeasors 1. Joint and several liability: tortfeasors who have combined to cause a single indivisible loss are each liable to the injured person for the full amount of the damage suffered (liable whether separately or together either one)

a. Where the actions of one or more tortfeasors cause the injury they can be severally or jointly liable 2. Joint tortfeasors where one is the principal of or is vicariously responsible for the other, a duty imposed jointly upon both tortfeasors isnt performed or there is a concerted action to a common end a. actions of different tortfeasors cause different damages OR cause the same damage Tortfeasors: common law procedure 1. P required to claim against all joint tortfeasors in the same proceeding 2. Judgment against one joint tortfeasor discharged all joint tortfeasors 3. if there was a divisible damage all the actions in CL had to be separate. P required to claim against several tortfeasors in several proceedings Manitoba tortfeasor & contributory negligence legislation 1. legislation to alleviate harshness of CL 2. Tortfeasors act came in force in 1939; modified twice in 1973 + 1980. 3. Ds liability is joint & several Defendants' liability joint and several s5 Where two or more defendants are found negligent they are jointly and severally liable to the plaintiff for the whole of the damages apportioned against both or all of them legislation means that each D bears the risk that the other may not pay up: if found liable, they have to pay up even though the other might not do so. 4. joined of parties is now dealt with by the Court of queens bench rules (5.02-5.05) 5. SCC (athey v Leonati para 22): P is compensated till shes put back in her original place. Each D remains fully liable to the P for the injury since each was a cause of the injury. The legislation simply 6. proportionate liability: distributed by the court to the P from each D. Up to P to hound the D for each portion. 7. the amount of the contribution recoverable will be found by the court to be equitable; court may exempt contribution from each person Apportionment (MB)* 1. s2.1-s2.2 TCNA 2. No mechanism for apportioning any shortfall in payment: the Ds who found liable in the initial court action has to deal w the shortfall a. the law reformed commission recommends a redistribution: once its clear that theres a portion of the liability that is not collectable, should be reallocated among the remaining Ds. 3. Sasketchawan is the only province with reallocation of shares (where legislation provides for equitable redistribution)

4. Mortimer v Cameron, 1994: rare case of appellate court interfered with trial courts apportionment of liability. a. At trial level, city found liable for failing to keep up with building code: found 25% liable for failing to upkeep building. Trial judge apportioned liability: 40% city, 60% building owner. Contributory negligence wasnt found. 5. Ryan v Victoria City: apportionment is a question of fact that can only be overruled at the appellate level if theres an overriding error in the trial level 6. Court of Queens bench: CROSSCLAIM WHERE AVAILABLE 28.01 A defendant may claim against a co-defendant who, (a) is or may be liable to the defendant for all or part of the plaintiff's claim; (b) is or may be liable to the defendant for an independent claim for damages or other relief arising out of a transaction or occurrence or series of transactions or occurrences involved in or related to the main action; or (c) should be bound by the determination of an issue arising between the plaintiff and the defendant; and shall do so by way of crossclaim. 3 CATEGORIES OF CONTRIBUTORY NEGLIGENCE 1. Ps negligence may be a cause of the accident e.g. horseplay by P on driving D 2. P put herself in position of foreseeable harm from Ds negligence e.g. sober P getting into car of drunk D 3. P fails to take measures e.g. P doesnt wear seatbelt Contributory negligence 1. Walls v Mussens: fire at gas station caused by Ds employees who were fixing a timberjack on the Ps premises. When the fire started, everyone forgot there were fire extinguishers on property, tries to put it out with snow. P arrives on scene, doesnt point out theres extinguishers. i) Court: no contributory negligence. Reaction of P/owner coming to the scene in a panicked state and reacting the way he did = reaction of prudent ordinary man with no context (the standard) ii) What is fire spread to neighbours property: P became D? The standard wouldve changed in this case: from ordinary person to ordinary owner of service station still considered an objective std takes into account similar things e.g. foreseeability of harm only difference is the courts assessment is more lenient 2) Osborne: conventional, arbitrary and lenient a) Conventional: pretty standard apportionment formula: reduce by 20-30% (contribution by P) or 50-50 responsibility (if equally negligent)

b) Arbitrary: pretty consistent reductions of 20-30% for different levels of blameworthiness on the part of the P: same reduction in Steward & Petty (P 25% liable) compared to Crocker(P 25% liable) c) Lenience: very rarely see a reduction of more than 50% of Ds liability (Mussen v Walls). Reason for leniency is partly insurance. Seatbelts 1. Gagnon v Beaulieu, 1977: car accident and passenger thrown into windshield. Ps injuries: couldnt remember if he was wearing seatbelt. Evidence = P wasnt wearing seatbelt. Court creates 3 part test for seat belt wearing: a) did the P know/ought to have known the seatbelt lessened injury? B) was the P wearing seatbelt? C) would seatbelt have lessened/prevented injury? 2. Rewcastle v Sieben 2003 3. Highway traffic act s186: Manitobas legislation on seatbelt wearing Voluntary assumption of risk 1. Volenti non fit injuria : to one who is willing no harm is done (volenti defense) P consented to risk of harm generated by Ds negligence full defense: precludes recovery theoretically defense is available but its rarely accepted/applied, mostly in sports scenarios volenti test is very narrow, set out in Dube v Labar: D must prove there was an express/implied agreement to physical and legal risk of injury to Ds negligence. Legal risk = abandoning right to sue +in Dube v Labar, despite having signed the waiver, the court was hesistant to apply it because the P was so drunk +where the volenti does apply is where P is sober. Courts tend to leave volenti and go to contributory negligence. Criminal or Immoral Acts 1. Ex turpi causa non oritur action: from a dishonorable cause an action doesnt arise 2. complete defense/precludes recovery 3. Hall v Hebert, 1993: P and D drinking in excess and then driving. Action of ex turpi causa was based on the fact that the driving was under influence and therefore illegal. Judge rejects justices corys suggestion that Ps conduct is legit policy reasons for denying recovery. McLachlin: look @ basis of defense + rationale. Conceptually its better located as a defense after claim has been made out. The ETC principle most naturally acts as a defense: the power of the court to deny recovery represents concerns independent of this relationship. The power to preclude recovery on the basis of moral conduct is in derogation of relevant principles of tort in society: therefore onus has to rest on D to prove ETC. The defense can only apply when the integrity of the legal

system is potentially compromised by allowing a claim. Thus it only applies in 2 situations: a. using tort action to make direct profit from illegal conduct BC v Zastowny: illustrates what it means to profit from illegal conduct: sexual assault case + young man with a mild coke habit + while in prison assaulted by prison guard twice. After released from prison, he became a heroin junkie. Assault responsible for drug addiction and criminality: awarded damages + expenses for counseling + wage loss (time spent in prison following initial assault) b. P using tort action to circumvent, subvert or negate criminal penalty Inevitable accident 1. Rintoul v X Ray & Radium, 1956 SCC +SCC acknowledges of defense of inevitable accident exists. Denies applicability to the facts because +test for IA: D must prove he had no control over accident and couldnt avoid it + defense not applied in Rintoul because it gets stopped in SoC stage +is it a true defense? Seems like a breach question: doesnt really matter here. o reality: no liability for accidents: an accident is not negligence. The question is whether it was a question or not o its kinda a faux SoC: whether D met the standard of care o D must show that the SoC was taken and that the accident unavoidable o Osborne: a legal curiosity, neither helpful nor particularly harmful; merely emphasizes the centrality of fault pp 118 Exam: open book, bring anything you want; advice: bring in clear organized outline + charting of questions this semester = massive tort & you will get lost in the steps. Exam = similar to last terms. more nuance to questions. Two or three small fact patterns to deal with particular elements e.g. discuss causation in this fact pattern. Last 2 classes = review.

Wednesday, march 19

P = legal balance on a balance of probabilties Legal burden circles evidentiary burden During trial, D has to persuade Legal burden = burden as establishing your case i.e. major burden/persuasive burden/primary burden Evidentiary burden of putting the issue into play = minor burden/burden of moving case fwd/burden of producing evidence Circumstantial evidence = re ipsa loquitor (the thing speak for itself) Re ipsa loquitor: the fact that it happened was enough to show the Ds negligence (because this sort of accident wouldnt have occurred wo Ds negligence) o Means of overcoming lack of prima facie case (can see theres negligence wo evidence) o Classic case: Bryne v Boadle (1863). Facts = barrel falls out of windmill, P walking by when it hits him. Res ipsa loquitor = Ds negligence that caused the barrel to fall. Onus shifts to D to disprove evidence Circumstantial evidence points to fact that D was negligent unless D can prove otherwise 3 things to trigger res ipsa loquitor: occurrence must not, in ordinary course of events, occur without negligence D must have sole control of instrument of harm There has to be no direct evidence as to why the harm occurred (if there was direct evidence, you wouldnt need circumstantial evidence) o Problem with Res ipsa loquitor Some felt it shifted BoP to D Some felt it allowed trier of fact to make the inference if they chose Clarification: Fontaine v BC: P + D were dead; had been missing for 3 months; there was bad weather that weekend but no one when they crashed; skid marks on the road Fontaines widow brought action that occurrence of accident established that it was attributable to drivers negligence; argument = accident wouldnt have happened but for his negligence. TJ + CoA said P hadnt shown that in the ordinary course of events the accident wouldnt have happened wo negligence of D SCC: res ipsa loquitor more confusing than helpful. The maxim has expired + no more value. All the maxim is a way to deal w circumstantial evidence, when really is

should be dealt w either way by trier of fact, maxim or no maxim. Application of this shifted interpretation: 1) was there any direct evidence of cause of accident? 2)if theres no direct evidence, dont consider direct + circumstantial evidence as mutually exclusive 3)was there circumstantial evidence by which to infer the accident was caused by negligence attributable to D? o does not happen without negligence o D in sole control Court felt any inference was deducible. Moral of the story: taking away the label of res ipsa loquitor, but still keeping the gist of it lessens the formal weight of circumstantial evidence but the process of weighing it is still the same Wakelin v London 1886: Man was killed by train while crossing footpath. Wife brought suit for damages claiming Ds train drove across footpath wo taking precautions. Train line countered: Wakelin wasnt paying enough attention he was the one who didnt take enough precautions. o Jury found 800 pounds for widow yes it was Ds negligence o Division court + CoA Ps husbands negligence o HoL nothing to show that the train ran over the man, rather than that the man ran against the train its incumbent on the P to prove that husbands death was caused by some sort of Ds negligence. Also, the jurys award of 800 pounds was made wo fragment of evidence to justify such a finding. 3 Burden of proof exceptions: o Statutorily reversed onus (Highway Traffic Act s153) Onus is on Driver to disprove negligence not on P to prove negligence like application of Wakelin v London on Manitobas Highway Traffic Act Up to legislature to implement reverse onuses o Directly caused injury (Dahlberg v Naydiuk) MBCA decision Negligence and trespass Not only shot P but they had trespassed on his land: circumstances 2 different onuses: With negligence, onus on P. But with trespass, the onus is on the P to disprove it. Trespass is actionable per se a mere blade of grass thats touched trespass: Once the P has proved the interference, BoP on D. compelled to follow Cook v Lewis: onus to shift onto D D failed to prove not negligent

When there is a directly caused injury (negligence is indirect), when theres a trespass the onus shifts to D o Multiple negligence parties 1. Both D & P were negligent & caused injury e.g. car collision in which both cars were not in their proper lanes both parties equally liable (Leaman v Rea) where theres proof that both parties were involved 2. if EITHER d & p negligent & caused injury: cant decide from facts whos responsible + facts dont point that BOTH were causes NEITHER party is liable (Wotta v Haliburton) multiple negligent defendants: both Ds negligent but only 1 caused injury (Cook v Lewis): both fire but only one bullet hit eye. Cook v Lewis: because impossible to say whose gun had fired the bullet, negligence cant be found for either SCC: instructions for jury is that they can find both liable if thats how the proof goes. Rand Js judgement: P must prove that the evidence speaks to inseparability (of consequence of both parties negligence) for onus of proof to shift to D Distinction between Rands and Cartwrights judgments: both emphasize inseparability of negligences consequence but Rand emphasizes evidence need to articulate the Ps conundrum of destruction of evidence Similarities between both judgments: because you cant prove which did it, the onus shifts to D, if they cant disprove it both held liable despite only one person having shot it overrides negligence general rule that there must be fault before you can establish negligence It is still for P to show the breach (either one or both of Ds) of SOC

March 26, 2014 Damage awards; 3 types: COMPENSATORY Punitive Nominal

Negligence = primary = compensatory damages bec negligence wants to put o There is compensatory to award aggravated damages bec of stress of P felt bec of Ds actions; but negligence = mostly lack of intentionality thus very rare (focus on Ps interests) Punitive damages = possible but extremely rare/ D wouldve had to act in a high handed manner (focus on Ds action) Nominal: only in intentional torts you dont have to prove damages/ in negligence, you need to prove damages thus no nominal damages

Negligence Damage/actual loss Not actionable per se Basic premise: no liability in negligence unless P suffers damage as a result of Ds wrongful act The argument could be made that theres a case for negligence wo damage suffered: why wouldnt we want to deter ppl fr acting negligently for future interests? floodgates argument: court too busy, inefficient use of judicial system +what constitutes harm? The marginal cases usually exclude the marginal claims; psychiatric laws kinda define negligence harm. But more to do w remoteness rather than what constitutes damages +q of what damage is is rarely discussed bec its normally self evident +P bears burden of proving suffered a recoverable loss and proving quantum of damages claimed standard of proof for losses Prior to trial Balance of probabilities; if successful, 100% if not, nothing Post trial +Historically BoP (all or nothing); nowadays reasonable or substantial possibility e.g. 20% likelihood = 20% damages

Mitigation +P must mitigate: P must take al reasonable steps to avoid or minimize the loss P may recover for losses incurred in taking reasonable steps P cant recover for avoided losses if no requirement to avoid
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+ D bears burden to prove P failed to mitigate in practice it all blurs together e.g. complications: contributory negligence, issues of causation, remoteness, mitigation Set off + the idea that D can set off against damage claims that the P wouldve incurred in any case (expenditures must be parallel) +must be parallel and calculable e.g. child care, food avoidance of duplication +to succeed Lump sum +compensate both past and future loss +award consists of general (broad ranging non quantifiable) and special (specific quantifiable) damages. ~prove special damages on a balance of probabilities. Special damages arise pre and post trial ~general damages can also arise prior to trial; ALL post trials (because future costs cant be quantified) everything post trial is in the general damages realm // also suffering, pain etc. +ADVANTAGES of lump sum: finality, certainty, administrative efficiency (no protracted dealing) +DISADVANTAGES: accuracy (most likely under or over compensate V), adjudication of quantum, pressure to settle (time consumingness creates pressure to settle) no opportunity to reassess quantum after its done +trier of fact decides damages amount: -when the trier of fact is jury, its complicated: when its special damages its easy. Quantum for general damages is much harder for jury to decide whats reasonable plus wont get much guidance on general damages e.g. wont be told whats awarded in similar cases (makes for significant inconsistencies). Appellate courts dont want to butt in; damages awarded in trial wont be overturned on appeal unless its error of law or whole erroneous -in MB: we have possibility of periodic payments -> s88.2 Manitoba Queens Bench act e.g. for fatal accidents -options to avoid lump sum: structured settlements (tax advantages: no tax on interest), where you settle out of court before court proceedings

Damages that need to be calculated pre Andrews General damages: future loss 1. Future care costs (pecuniary loss) 2. Loss of earning capacity (pecuniary loss) 3. non pecuniary losses e.g. future pain and suffering **** plus special damages (pre trial, precisely calculated) Andrews 1. prior to andrews = single global damage award. Problematic lower than deserved, inconsistent 2. SCC in Andrews: when assessing damages, therell be a separate assessment for each head of recovery (breakdown) 3. special damages can be precisely calculated (however, youre just still guessing, although it IS an educated guess) Andrews: Future care 1. goal: put P back in status quo ante position +Dickson says in Andrews: this is an impossibility, but we shall try +includes all cost of care, modifications to ones home and care etc 2. standard of care = standard the P wouldve lived his life had he not been in the accident he wouldve had home care (what hes legally asking for) had he not been in an accident Future care 1. standard of care (basic monthly expense) i.e. location fo care: basic rule is the amt that a reasonable person w adequate means would be willing to spend to meet the Ps needs 2. life expectancy (actuarial tables): 50 yrs; because of his quadriplegic condition & bec this head of assessment is based on reality adjusted to 45 years old 3. contingencies of life: future considerations of events which will either reduce or increase cost. 4. capitalization/discount rate & grossing up: taking into account stuff like inflation etc. a. grossing up means adding to award to cover taxes (structured settlements have tax benefits) 5. self extinguishing: youll die on the day your (predicted) money runs out. theory: only enough for individual P, not for D to provide for his estate or his family idea: not leave any residue upon Ps death Loss of earning capacity 1. distinction btw future care (care required to give them in future, to restore them to SQante) & loss of earning capacity (this is hypothetical: youre imagining the position they wouldve been): 2. 2 approaches: capacity asset or real possibility

a. capacity asses approach: assess capacity of P to have earned (what P would theoretically have been capable of earning) b. real possibility: more fact-based; what in fact the P wouldve earned but for the accident ********Justice Dickson uses factual test (real possibility approach) to make a determination of the income he couldve made 3. what P wouldve earned but for the accident: look at Ps current earning potential post -accident; deduct from that the prior earning potential whats the loss: what theyre earning less now than before accident in Andrews: currently, Andrews earning zero (thus no deduction) thus $1200/month 4.children: a. old children: evidence of ability, aptitude, interests b. younger children: education of parents, education level of older siblings, parental plans 5. work expectancy & contingencies e.g. maternity leave, Christmas hols McCabe, 2001 Historical differences in earning capacity (race, gender, country of origin, disability) F: McCabe = girl rendered quadriplegic in gym class TJ: bec of historical inequalities, itd be unethical to assess womens earning capacity based on actuarial tables for women TJ based it on actuarial tables for men unethical to sanction inequality in labor market o Issue was really about contingencies, not pay equity: contingencies assessed were very different o Mccabe gave evidence she wanted to have 4 children CoA: fundamental purpose of compensation & use of male contingencies ignores evidence (in this case) o Burden on female P to argue why male tables should be used Damages & discrimination Should the court recognize special contingencies for women (marry etc)? Should courts assume that present gender (and other) discrimination reflected in present earnings differentials will continue in the future? Does continued discrimination justify judicial recognition of lower earning capacity for women and historically disadvantaged group? Other factors Loss of ability to find long term partner Non pecuniary losses +in Andrews, SC rejected valuation of loss approach no yardstick for translating non pecuniary losses e.g. pain/suffering into monetary terms. +This area has been subject to wildly flagrant claims

+applied functional approach Ps need for solace making life more endurable e.g. entertainment expenses +put a cap for non pecuniary losses ($100,000now~$350,000): Andrews was alert etc. qualified for upper value limit + Death +common law: cheaper to kill than to maim +no liability for killing: the family of someone killed x sue for losses +legislation took up this issue: can sue for deceased (even today, no avenue for death in CL, only legislative) +Fatal Accidents Act (MB) provide remedy for family members suffering for death of relative +Trustee Act (MB) form of survivorship legislation: most provinces have survival of action act. control liability for deceaseds estate: gives deceaseds estate as an entity to pursue action against tortfeasor (also allows itself to be sued) April 2, 2014 Exam review session 1. Exam ethics a. Osborne textbook allowed; bring notes; b. Dont directly copy from notes/regurgitate show you understand and LINK to question c. Condensed notes deeper issues; big chart to link me overall d. Relevance of cases: cite where cases are international 2. History: a. YES: need to know history if she taught it; b. Why know? i. Current dominance of negligence due to expansionary forces unleashed in early cases (Donoghue, hedley byrne, anns) ii. Further growth in scope of liability is expected; to argue for expansion you will need nuanced and historically contextualized arguments. iii. Re exam: history not in fact patterns but in Qs 3. Anns/Cooper Test i. Childs update: of Anns/Cooper? b. Existing category? -> if yes, DoC among the facts; policy already decided when negligence established c. Reasonable foreseeability? d. Proximity? e. Residual policy considerations } negate/limit DoC 4. DoC existing category cases a. Existing category (cooper v Hobart)

i. Childs: P argued it fit within existing category of commercial host liability therefore dont need to go through DoC analysis. SCC rejected this argument; explaining why social host liability was distinct from commercial host liability The reference to existing categories DoC+ sufficient proximity already established; if foreseeability is there, a prima facie duty of care will arise if theres an existing duty, skip all b. Keep Childs in mind: in your clients favor to presume existing category (argue; its pretty clear that this fits within); making analysis that theres already an existing category insufficient; have to go through whole thing because SCC might not agree (however, if court doesnt agreethey would go through this test.). 5. DoC Special relationships: in situations where the court has already established (because of policy reasons) that a duty will or wont arise dont need to proceed with analysis a. Duty to rescue b. Control the conduct of others c. Prevent crime n protect others d. Duty to the unborn e. Barristers duty f. Economic loss i. These categories are here cause theyre a little quirky; look at them specifically through the tests we used when approaching them in special relationships 6. DoC foreseeability a. TWO reasonable foreseeability? i. Did the Ds conduct create a foreseeable risk of injury to the P? (moule, amos) ii. Foreseeable risk to the plaintiff? (palsgraff) 1. P must not only prove that conduct gave rise to DoC but duty was owed to a particular class of plaintiffs therefore DoC owed because p falls into this class; highlights that negligence = relational not out to the world; have to be contained in this relationship 7. DoC proximity a. Proximity? (cooper/childs i. Cooper extracts proximity as a separate consideration: intros idea that reasonable foreseeability of harm has to be there because of special relation. Pp305; proximity is used by SCC to categorize TYPE of relationship which might give rise to duties: categories not closed + new categories may be introduced ii. Cooper not clear on relationships that proximity is premised on. 1. Childs clarifies: applies to factual nature of relationship betw P and D; looking at factors of THAT relationship

compared to relationship between D and entire world what makes this Rship special? 2. Mclahclin: sometimes proximity established simply through reasonable foreseeability the cases where this applies misfeasance a. Childs was a case of nonfeasance not misfeasance b. A separate liability arises in nonfeasance vs misfeasance c. Nature of proximity needs to be examined; d. A positive DoC may arise if duty of harm is present + special relationship establishes a special factual link where duty should arise e. Scenarios where proximity relationships exist; if new case should exist should fall into this: i. D intentionally attracts and invites 3rd parties to inherent or obvious risk that D created or controls (crocker) ii. Paternalistic relationships of supervision and control parent- child, teacher-student, power-vulnerability iii. Public function or commercial enterprise that includes implied responsibilities to the public at large (Jordan house: drinking at bar case) 3. Childs: SCC found neither reasonable foreseeability nor proximity; host had no reason to believe X was intoxicated; in the event the risk had been reasonably foreseeably, proximity analysis wouldve stopped at duty no duty to act (negative duty), simply duty to not act (positive act). A situation where social host would be liable = where social host creates actively implication/exacerbation of risk; otherwise host should respect autonomy of guest CHILDS: analysis stopped at proximity stage because of this 8. Residual policy considerations (Cooper) a. Broad policy considerations at first stage (proximity is about relationship between the parties); however there are residual policy considerations (relationships OUTSIDE the parties) this falls in second stage. What to be concerned: policy considerations on legal system, society etc. b. Questions the court will ask to determine policy: i. Does the law already provide a remedy? ii. Give rise to indeterminate liability? iii. Government policy making that should be immune (separation of powers)? Social utility important in STANDARD OF CARE phase; individualized assessment of social utility in each fresh case

1. When determining whether a D has acted reasonably and met the SoC, key question is whether an unreasonable risk was taken? negligence only aim to punish unreasonable risks of harm unreasonably taken; court balancing utility of conduct with risk. Factors: a. Cost of risk avoidance b. Value of conduct: i. Social utility: 1. govt services provide a necessary benefit to public creates necessary increased risk Watt v Hertfordshire County Council (jack loaded onto wrong fire truck; firefighter injured when suddenly braked) Lord denning: balancing act must be achieved: saving someone gives permission to take increased risk 2. priestman v colangelo (bullet hit tire, ricocheted, killed 2 pedestrians) Court: officers under positive duty to apprehend suspect + justified under CC to use as much force as permissible 3. Burbank v Bolton (PO thought driver doing sketchy stuff; actually 15 yo unlicensed driver on meth; during a stop, crashed and killed others due to police officers) Court: the assessment of risk is a human process; trier of fact has much discretion. The legislation necessitated PO to exercise discretion: judge must balance utility in But-for & material contribution (Clements = authority) 1. Clements makes distinction between but for test and MC test. Causation may be seen as involving 2 subissues: a. What test? i. General test = but for test, subject to modifications b. Based on test, can P prove on probabilities that SoC was cause? second issue = cause in fact test i. Cause in fact = questions of causation vs. cause in law = questions of remoteness 2. Solomon = First test for causation: but for/modified but for/material contribution. Then, determine cause in law knutsen article for more nuance 3. Athey v Leonati, Walker v York Hospital (HIV screening test): cases where material contribution is set out by court but for test wouldnt work in these evidential gap scenarios a. Then Clements appeared: what are types of special circumstances where court can apply MC test instead of but for test? i. SCC never applied it incredibly rare in any court ii. Judge: for but for test, P must prove on balance of probabilities that injury wouldnt have occurred but for Ds act. iii. Only proof of causation (factual) can be replaced by proof of material contribution.

1. Application of MC according to Clements: (knutsen says circular loop) 2. It is impossible for the P to prove causation on the but for test 3. Its clear that the D breached its DoC (acted negligently) in a way that exposed the P to an unreasonable risk of injury iv. SCC on impossible to prove (Clements) 1. Inability to provide factual proof for but for causation, enables court to use MC test SCC trying to hold onto clear but for causation. 2. The kind of logistical impossibility arising in cases of multiple Defendants in which each contributed to risk of harm, but impossible to know which created harm (Cook v Lewis) a. MC ONLY APPLIES IN CASES OF MULTIPLE DEFENDANTS v. materially increased risk: not clear, just know it, know that its there wont be there in fact pattern 4. Legal profession code of conduct =/= SoC a. galambos perez: court found difference between code rules and negligence i. although a lawyer violated Code of Conduct, such a violation doesnt necessarily create a foundation for a cause of action in negligence. ii. Court: not that theres a lower std of care but that the Code doesnt determine the std for negligence (2 diff stds). 5. REMOTENES: Wagon Mound 1 & 2 decisions clarified a. Wagon mound 1: got rid of directness rule (Polemis is old law!) changed test to reasonable foreseeability i. D must foresee damage was a probable consequence ii. Foreseeability funnel: before wagon mound 1 decision, foreseeability wasnt at remoteness stage (which was only about directness), only @ DoC and SoC stage. 6. Wagon Mound 2 a. Same facts as WM1 except for P was owner of ship at wharf where fire occurred. NSWales: contributory negligence = full defense for negligence. Oil was spilling in wharf in WM1 not in Ps interest to establish contributory negligence (welding near oil) there WM1 didnt argue foreseeability b. WM2: not worried about foreseeability; while fire wasnt probable it was a reasonably foreseeable possibility if a real risk wouldve occurred to the mind of a RP in the position of D which RM wouldnt have brushed aside as far fetched i. WM risk of fire was low yet not so far fetched as to not occur to mind of RP

ii. Directness and foreseeability are diff things but if you set the std for foreseeable At possible scenario, then anythings foreseeable. iii. Canada: Assiniboine v snowmobile assoc: court held that its enough to fix liability if you can foresee in a general way the kind of thing that happened dont need to foresee specifics of how injury will arise, only that a injury/fire was gonna arise (not focused on the incident, but on the injury) 7. Foreseeability funnel: 3 diff foreseeability tests for each stage : a. Duty of care: only if D created a risk of injury to class Ps i. Carelessness of ANY kind on part of D may result in damage of SOME kind to P ii. Donoghue focus on how close relationship of D & P iii. GENERAL foreseeability b. Breach: the KIND of carelessness charged against D might cause damage of SOME KIND to P i. Focus on Ds act c. Remoteness: i. KIND of damage suffered by P was foreseeable as outcome. ii. Remoteness diff from DoC + breach about extent of liability, not establishing liability ***make charts april 9: 1-4pm office hours