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Six Elements of a Liability Action

Duty of Care did the defendant owe the plaintiff a duty of care?o Legal question, determined by court.

Standard of Care and its breach what was the standard of care? Was there a breach?o SoC judicially-determined.o General Rule standard of reasonable person in the circumstances.o Carelessness breach in standard of care, causing unreasonable risk of harm (Mustapha)

Causation did the breach in the SoC cause the alleged injuries?o Factual question

Remoteness of Damages is the link between the breach and the damages too remote to justify damages?o Legal causation

Actual Loss Is there a legally-recognized harm?o Negligence not actionable per se

Defenceso Contributory negligence

Burden of proofo Elements 1-5 to be established by plaintiff.o Element 6 may be raised by defendant.

Dunsmore v. Deshield (SKQB, 1977)F: P injured playing a game of touch football. Appears that P did not get the hardened lenses he had orders.A: No evidence of contributory negligence (touch football pretty safe, players weren’t being reckless). Foreseeability – Lenses broke with little force. Foreseeable whether or not P played sports. Causality Can’t establish with certainty, but judge satisfied on BoP that (1) Hardex lenses would not have broken (common-sense) and that (2) had P known lenses were not Hardex, he would not have worn them. No discussion of DoC or SoC (didn’t establish level of testing necessary)

Mustapha v. Culligan of Canada Ltd (SCC, 2008)F: P claimed severe psychological damages after seeing a dead fly in a water bottle. I: Remoteness of damagesL: Case History (1) General and special damages, damages for loss of business (2) OverturnedA: DoC (as supplier), breach in SoC (providing contaminated water), causality established. In discussing remoteness, trial judge erred by establishing subjective standard, rather than reasonable person (person of “reasonable fortitude”. C: Certain consequences of breaches in SoC, while imaginable, will not be reasonably foreseeable, and thus too remote to recover damages (no legal causation).

The Duty of Care

Definition Existence, nature, and scope of the legal relationship between the plaintiff and the defendant. Provides the basis for any eventual findings of liability.Question of law.

Pre-Donoghue narrow duties arising out of specific relationships. Lack of contractual privity made it difficult to sue manufacturers for negligence. Damages focused on physical damages

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Exception Items that were dangerous per se, like a scaffold or coffee urn. Hard to define what these were, however (Losee v. Clate, 1873)

20th Century Fairly P-friendly, scaled back

Anns/Cooper Process (not a test!)Do the circumstances disclose reasonably foreseeable harm and proximity sufficient to establish a prima facie duty of care?

1) Does the case fall into, or is it analogous to, a category of cases where a duty has previously been found?

2) If not, is this a situation in which a new duty should be recognized? Burden on PForeseeability was the risk of harm sufficiently foreseeable to justify the imposition of a duty?

In cases where D’s purported negligence is an act, foreseeability may be enough to establish duty. In cases where it’s an omission, need to look to proximity (Childs)

Proximity was there sufficient proximity between the P and the D to such that it would not be unjust to impose a duty of care?

Look to expectations, reliance, representation, interests involved. Policy considerations related to the relationship between the parties.

3) Are there residual policy considerations which might negate the duty of care? burden on D (Childs)

Policy considerations relating to broader legal obligations, legal system, and society more generally.Limited only by lawyer’s imaginations, but must not be purely speculative (Childs).

Donoghue v. Stevenson (Engl. CA, 1932)F: P became ill after finding snail in ginger beer that friend had purchased for her (no privity). I: Scope of the DoC.A: P and D shared no privity, so no traditional negligence action.C: Must take reasonable care to avoid acts/omissions which can foreseeably injure neighbours.

Neighbour: any party who you share a sufficiently close relationship with such that you should consider them in acting.

Duty can arise even when no contract between people.Policy argument – Current law did not protect ultimate consumers, only those in a contractual relationship with manufacturer.Take-away: A manufacturer of products, when he sells in such a form as to show that he intends them to reach the consumer without modification, with no reasonable possibility of intermediate examination and with knowledge that the absence of reasonable care might cause injury to a consumer, owes that consumer a duty of care.

Anns v. Merton London Borough Council (Engl. CA, 1978)F: Structural work done by D resulted in damage to P’s property. C: Not necessary to fit an action into a pre-established DoC category.Two-part test for recognizing a new DoC category

1) Is there sufficient proximity between P and D, such that in the reasonable contemplation of, his careless acts might cause harm? If so, prima facie duty2) Any considerations (case-specific or policy) which might limit scope?

Unlike UK and ‘Straya, still an important part of Canadian jurisprudence.

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Kamloops (City) v. Nielsen (SCC, 1984)C: Prior leading Case on DoCWilson J’s two-part test for recognizing a DoC

1) Is there a sufficiently close relationship between the parties so that in the reasonable contemplation of D, carelessness on their part might cause harm to P?2) Are there any considerations (including policy) which might limit (1) the scope of the duty (2) the class of persons to whom it is owed (3) the damages to which a breach may give rise.

Issue unclear whether Part 1 includes only foreseeability, or foreseeability and proximity.

Cooper v. Hobart (SCC, 2001)F: P invested in Eron Mortgage Corp. D, as Registrar of Mortgage Brokers, suspended Eron’s licence. P sued D in negligence, claiming had they acted sooner, she would not have lost so much.A: Fails test. Pre-existing category? No; Foreseeability? Possibly; Proximity? No, precluded by policy reasons. D’s duty is owed to the system as a whole, not individual investors (possible conflict of interest). Furthermore, risk of indeterminate liability if DoC found, and unjust to shift risks of private investment to taxpayers.C: Establishes DoC test. Clears up Kamloops question – analysis includes both foreseeability and proximity.

Proximity reigns in tort – foreseeability can be very broad.

Edwards v. Law Society of Upper Canada (SCC, 2001)F: Companion case to Cooper. P suffered losses when lawyer misappropriated funds in trust account. Brought action against D, claiming loss was caused by D’s carelessness in failing to ensure trust accounts were properly managed.I: application of Cooper analysis.A: P is not a “client” of the lawyer in the strict sense. Legislative scheme in which D operates does not contemplate a private cause of action.C: Fails on proximity.

In general, cases against public authorities fail on proximity, as broader duty precludes a specialized duty to an individual.

Categories in which sufficient proximity has been recognizedPhysical harm to P or P’s property, as well as nervous shock. Negligent misrepresentationMisfeasance in public officeGovernment works

Some policy considerations that might override a prima facie duty of care include:Risk of indeterminate liability: Attis v. Canada, 2008 (ONCA 660)Availability of alternate remedies: Albarquez v. Ontario (2009 ONCA)Non-justiciability of core policy decisions made by the government: R. v. Imperial Tobacco Canada Ltd. (2011 SCC)Interference with commercial negotiations: Design Services Ltd. v. Canada (2008 SCC)Potential conflict with public (Williams v. Ontario, 2009 ONCA) or private law duties Paxton v. Ramji (2008 ONCA)

Reasonable Foreseeability

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Guiding question whether, at the time of the alleged tort, it was reasonably foreseeable to a person in the defendant’s position that carelessness on their part could createA risk of injury (Moule, Amos)To the plaintiff (Palsgraff)

Foreseeable Risk of Injury

Moule v. N.B. Elec. Power. Comm. (SCC, 1960)F: Two trees grew near a power line (33 ft up). Local children had attached a series of ladders and walkways to facilitate climbing. Appellant and friends testify that in the 2-3 months they had lived there, they had never seen anyone play in trees. Further admits that he had climbed higher than ever before, and that he was aware of risks. P fell and hit wire, sustaining serious injuries.I: foreseeability of injuries.A: Company had taken reasonable steps (trimming branches, placing wires high up) to preclude such an accident. A series of circumstances rendered incident not reasonably foreseeable (1) child fell exactly such that he contacted tree and line simultaneously (2) children constructed platforms and ladders to facilitate climbing (3) unusual height from which child fell (4) child had bad luck to step on a rotten branch.C: the mere fact of an injury will not render it reasonably foreseeable.

Amos v. N.B. Elec. Power Comm. (SCC, 1976)F: Infant P climbed to power line approximately 29 feet in air. Tree swayed as he climbed, causing him to contact the wire and sustain serious injuries. Tree was in full leaf, obscuring the wires. Poplar is a fast-growing tree, and D noted that it was their statement to trim such trees every 4-7 years. Unable to say when this one had been trimmed.I: Was there a foreseeable risk of injury, such to give rise to a duty of care?A: Foreseeable that a child would climb the tree, that branches would obscure the wires, that the tree would sway.C: Finding for P, injuries reasonably foreseeable.

Foreseeable Plaintiff

Palsgraff v. Long Island Ry. Co. (Ny, 1928)

F: P was standing along platform of D’s railway when man ran to catch train. Dropped package he was carrying as two guards pushed him onto train. Package exploded, shockwave caused a set of scales to fall and strike plaintiff.I: is it reasonably foreseeable that this plaintiff would be injured by D’s actions?A: not even the most cautious mind would assume that an unassuming package wrapped in newspaper would pose a risk to those on platform. C: Majority Even if negligence is found, it is not related to world at large. Duty of care is limited by scope of reasonable foreseeability in relation to which plaintiff is likely to injured. Dissent Focused on causation, which ought to be focus of reasonable plaintiff analysis.

Matthews v. McLaren; Horsley v. McLaren (ONCA, 1969)

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F: Claim filed by widows and children of Matthews and Horsley. D was piloting his boat, had around 5 drinks, with some food. Matthews fell overboard while navigating a narrow catwalk. D and passengers attempted to help him, with D navigating boat. Horsley jumped in, probably died immediately.I: whether a duty of care was owed (negligence action dealt only with McLaren’s actions during the rescue, not before)A: Duty of Care Principle of negligence that there is no general duty to come to the rescue of a person who finds himself in peril form a source completely unrelated to the defendant. However, quasi-contractual relationship between a master of a pleasure boat and his invited guest should require a duty of aid and rescue on policy grounds – after all, willing to extend protection to enemy combatants under Canada Shipping Act, and clear passengers place trust in masters. Later aff’d at SCC. Standard of Care Defendant failed to follow reasonable rescue procedure that every prudent owner of a large boat ought to be aware of. Judge satisfied that D’s alcohol consumption rendered him unable to exercise proper judgement. Factual Causation P’s unable to establish in fact that D’s negligence was cause of deaths of deceased. D did not cause Matthew’s fall Horsely died immediately due to cold, so no causation there. Matthews was older and in poorer shape, so probably died immediately do. P’s unable to rebut this.C: If defendant affirmatively undertakes the rescue operation, he is assuming a duty to act, and therefore owes a duty of care to the person in danger – decided on different grounds.

Special relationship giving rise to a common-law duty to recue exists between captains and their gratuitous passengers.Quasi-contractual relationship between a master of a pleasure boat and his invited guest should also require a duty of aid and rescue.

Consider factors of control, reliance, expertiseIn general, affirmative duties disfavored Reflects a general reluctance by courts to hold people liable for nonfeasance, but willingness to hold liable for misfeasance.

Bobinski thinks this is not logically sound – either way involves a choice and an action.

Stevenson v. Clearview River Resort (ONCA, 2000)F: P was attending a party for ambulance attendants and their friends. Sustained injuries which left him a quadriplegic. Sued resort and sued D, an off-duty attendant, for failing to advise civilian rescuers on the proper method for stabilizing the victim of a suspected spine injury. I: Does a duty of care exist for off-duty medical personnel?C: No duty of care for off-duty medical personnel with no relationship to plaintiff.

Had P begun advising, would have duty to do so in a competent fashion.

Lowns v. Woods (NSW CA, 1996)F: D physician was not P’s doctor but was working at time. Failed to render assistance to P who was suffering a severe and prolonged epidemic seizure several hundred meters away. C: Ruling suggests physicians cannot “abandon a patient”, nor can they discontinue medical care without arranging future care.

However, NSW also has strong legislation imposing ethical duties on doctors to act in emergencies.

Good Samaritan Act (BC) s.1 leaves no liability for emergency aid except in situations of gross negligence.

s.1 does not apply if person rendering services or aid is employed expressly for that purpose, or does so with a view to gain

Childs v. Desmoreaux (SCC, 2006)

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F: BYOB party held in private home. Hosts had no control over supply or service of alcohol. Only served a small portion of champagne. Desmoreaux was known to be a heavy drinker, drank approximately 12 drinks in the 2.5 hour period. When leaving the home, one of the defendant hosts asked Desmoreaux if he was OK, to which he applied in affirmative. Desmoreaux crashed driving home, killing one passenger and seriously injuring defendant.I: Do social hosts owe a duty of care to those who might be harmed by their guests?L: Case history (1) prima facie duty of care found due to foreseeability of harm but negated for policy reasons (2) dismissed appeal. Found no duty of care unless hosts are actively implicated in creating the risk.A: Cooper Test1) Novel duty? novel duty, can’t analogize. Host duty inapplicable as (1) commercial hosts can monitor consumption more effectively (2) sale and consumption is tightly regulated (3) profit-making motive in commercial.2) Foreseeability of harm? not established on BoP that hosts were aware that Desmoreaux was drunk (this is what matters, drunk driving causing harm IS foreseeable). Prior history not enough, even in commercial context. No foreseeability. 3) Sufficient proximity between the parties? Three situations may apply to third parties, united by theme of reasonable reliance (1) D intentionally attracted 3rd party to inherent and obvious risk (2) D had some sort of paternalistic relationship of supervision and control with Desmoreaux (3) D exercised a public function or engaged in a commercial enterprise that included implied responsibilities to the public at large. No sufficient proximity.Policy considerations (1) respect of autonomy of guests (2) alcohol consumption and associated risks is in almost all cases a personal choice. C: No general duty of care to third parties for social hosts.When an overt act has directly caused foreseeable physical harm, foreseeability alone may establish a prima facie duty of care under the Cooper analysis. When an allegation is that the defendant failed to act, must also look to proximity.

Kennedy v. Coe (BCSC, 2014)F: P’s husband fell into a tree well and suffocated while heli-skiing with a guided group. Before, skiers had signed form notifying them of risk, and had attended safety briefing. D was K’s “ski buddy”. Both men were experienced skiers. The role was accepted merely by nodding, not by explicit agreement, and described by the owner as a “gentlemen’s agreement”. D and K became separated at the top of a log cut. Shortly after arriving at their destination, D noticed that K was missing, and notified guides, who began searching.I: Did the defendant owe the deceased a duty of care? Plaintiff submission D owed a duty of care to K to alert guides as soon as he became aware that K had disappeared. Failure to discharge this duty resulted in K’s death Defendant submission No duty of care to P. Even if there were a duty of care, D discharged itA: Cooper Analysis1) Novel duty? volunteer cases cited by P inapplicable, as there was no clear undertaking, and expectations were not explicitly communicated. Furthermore, professional guides were present. 2) Foreseeability? Seems to be established here. All parties experienced skiers and were briefed on the nature of tree wells and risks they posed.3) Proximity? No relationship of reliance established, as links the proximity cases. For material creation of risk, obviously not here. Reluctance to violate autonomy by imposing paternalistic relationship.SoC even if duty found, D discharged by warning ASAP,C: In volunteer cases, courts will be reluctant to impose a DoC absent clear undertakings and reliance.

Consider in all cases whether imposition of a DoC will actually make things safer.

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Hill v. Hamilton-Wentworth Regional Police Services Board (SCC, 2007)F: J was investigated by police, arrested, tried, and wrongfully convicted. Spent 20 months in jail. Evidence includes a tip-off, an officer identifying a photo of H, eyewitness identification, a potential sighting of H near site, and witness statements that robber was aboriginal. Exculpatory evidence – two Crime Stoppers tips regarding Hispanic suspects, one of who looked a lot like H, and two robberies with similar MOs while H was in custody.I: Police duty of care in investigation – is there a tort of negligent investigation?A: application of Cooper/Anns testForeseeability? – clearly made out. Negligent investigation can clearly harm P.Proximity – identification of H as a particularized suspect and the beginning of the focused investigation is

sufficient to establish a “close and direct” relationship. H was singled out!oHere, looking more at whether the actions of wrongdoer had “close and direct” effect on victim – not focused on relationship, as H was probably unaware. Potential effects on H are enormous.

Duty of care established! – Investigating officers owe a duty to suspects, which their authority to exercise discretion and use own judgement (to follow up on hunch) does not negate.

oDistinguish from Cooper – not talking about broad duty to public as a whole (which police also owe), but a particular duty to a particular suspect.oPolicy – finding a duty of care might help prevent wrongful convictions, but also need to recognize discretion in police duties

Standard of care – certain activities (e.g. interviewing witnesses together) violate today’s SoC, but not the SoC at the time!

Causality – Has not been demonstrated that the alleged breach in the SoC was the cause of H’s trial and wrongful conviction.

Dissent – Proposed duty of care would create conflict with public law duties police owe to investigate crime and apprehend criminals. Potential chilling effect, as well as flood of litigation.

The Standard of Care

Carelessness behaviour breaching the standard of care.Duty of care examination of the existence, nature, and scope of legal relationship between P and D.

Heart of negligence analysis, where law and policy meetQuestion of law to be determined by judge (review: correctness)

Standard of Care standard of behaviour required by the defendant to have discharged the duty of care.Question of law and fact

Law judge determines what standard of care defendant should have met (review: correctness)Fact jury/judge determines if SoC has been met (review: palpable/overriding error

Reasonable PersonGrants rather broad discretion to judges.Exceptions for certain categories, usually those broadly-litigated.

Assessment(a) Probability and Severity of Harm

The more probable and/or severe, the stricter the SoC required.(b) Cost of Risk Avoidance

The lower the cost, greater the expectation to take steps to prevent(c) Social Utility/Value of Conduct

Greater utility/value might justify a relaxed SoC.

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Exceptions for firefighters/ambulance/good Samaritans, etc.

Arland v. Taylor (ONCA, 1955)F: P injured in motor vehicle accident. Issue with trial judge asking jury to place themselves in the shoes of the defendant.C: The correct standard is one of reasonableness, not of perfection. Person of average intelligence and foresight, who makes prudence the guide to his actions. Improper to instruct jury to place their selves in the shoes of the defendant.

Ryan v. Victoria (City) (SCC, 1999)C: Leading Case on Reasonable Person standard. Conduct is negligent if it creates an objectively unreasonable risk of harm. To avoid liability, a person must exercise the standard of care what would be expected of an ordinary, reasonable, and prudent person in the same circumstances. The measure of what is reasonable depends on the facts of each case, including the likelihood of a known or foreseeable harm, the gravity of that harm, and the burden or cost which would be incurred to prevent the injury. In addition, one may look to external indicators of reasonable conduct, such as custom, industry practice, or statutory or regulatory standards [though a statutory or regulatory violation does not automatically equate with negligence].

Holland v. Saskatchewan (SCC, 2008)C: A regulatory or statutory violation won’t automatically equate with negligence.

Roe v. Minister of Health (1954, Engl. CA)F: P underwent surgery in 1947. At the time, common to store ampules in a phenol solution. Phenol permeated through micro-cracks in glass, causing permanent motor damage. By time of suit in 1954, risks were well known.C: Analysis of the probability and severity of harm takes place at the time of the alleged breach in the SoC, not with the benefit of hindsight.

Probability and Severity of Harm

Bolton v. Stone (HoL, 1951)F Respondent struck and injured by cricket ball while walking along road. In over 30 years, only 6 balls had been knocked out of the park, none had ever struck anyone.I: Is a defendant required to take action to prevent all harms which are imaginable, or only those which are reasonably foreseeable?C: Majority test is whether a reasonable person in the position of the appellant would have thought it necessary to take measures to avoid the risk. Considers both the probability of harm, and the severity of potential harm. Only protect against reasonably foreseeable harms, not all imaginable. Weigh risk against measures needed to reduce or eliminate (no practical means here). Reasonable person justified in ignoring risk.

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Dissent If it’s impossible make cricket safe, it should not be played.

Paris v. Stepney (HoL, 1951)F: Worker injured in his remaining good eye by a steel splinter. Question arose as to whether or not goggles should have been provided.I: risk of harm with special plaintiffs.A: Fact that employee will be blinded if one eye damaged must be taken into consideration. Simple and inexpensive to provide goggles. Risk low, but severity of harm is tremendous, and risk avoidance is inexpensive.C: Special duty of care to vulnerable peoples.

Dissent – risk not so high as to necessitate special care, also concerns of chilling effect making employers less likely to hire vulnerable people.

Costs of Risk Avoidance

Vaughn v. Halifax-Dartmouth Bridge Comm. (NSSC, 1961)F: Bridge operated and maintained by D was being painted. Flecks of paint blown by wind onto neighbouring cars, where they dried and caused damage.I: practical costs of risk avoidance.A: rejected D’s argument that it would be impossible to completely prevent drips. While this is true, only area of concern is parking lot. Low-cost mechanisms (e.g. posting notices, having someone there to warn drivers) existed, some had been done in past (having someone wipe up paint before it dried).C: When costs of risk avoidance are low, D will be held liable in negligence for failing to take measures to prevent risk.

Law Estate v. Simice (BCSC, 1991)F: P sued defendant doctors in negligence after her husband died in their care. Doctors reported feeling constrained by BC Medical Insurance Plan and BC Medical Association Guidelines.I: does the duty to the system override duty to individual patient?A: Some consideration to professional guidelines and budgetary concerns, but noted budget was more for administrators to worry about. Main focus on how risk is very high but cost of risk avoidance (CT scan) is low.C: When confronted with a high-risk situation, a doctor’s duty to their patient prevails over concerns to system.

Issue analysis focused only on a single patient, getting a single CT scan.

Bateman v. Doiron (NBQB, 1991)F: Moncton hospital granted emergency room privileges to GPs in order to keep ER fully staffed. Family of decedent sued in negligence, arguing this created an unreasonable risk.I: Issues of cost of risk avoidance in the medical setting. A: acknowledgement by both majority and minority that care by GPs posed a higher risk to plaintiffs than care by trained ER docs.

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C: Majority risks must be balanced with costs of implementation. Benefits of having a fully-staffed ER outweigh risks of less-competent care. Costs of risk avoidance outweigh risk.Dissent Scathing critique of staffing and administrative practices of hospital.

De Vos v. Robertson (ONCA, 1997)F: P had a dental bridge, informed surgeons and defendant anesthesiologist of such. Bit down on tube during surgery, damaging front teeth. Claimed breach in standard of care for failing to take special needs into account.C: “Production line medicine” may be most efficient overall but attempts to apply to special cases may violate the SoC.

Distinguish from Law Estate pre-existing vulnerability, which he made docs aware of.

Social Utility

Watt v. Hertfordshire County Council (Engl. CA, 1954)F: P, a firefighter, responded to an emergency call requiring the use of a special jack, which had been used once in only 15 years. The truck outfitted to carry the jack was unavailable, so it was outfitted into another truck. Jack became dislodged and seriously injured P. P claimed negligence in failing to secure jack, failing to supervise loading, and allowing him to ride in the back.A: Such behaviour would undoubtedly be negligent in a commercial, non-emergency context. However, risk in sending out trick was not so great as to override value of providing emergency services.C: In activities with a higher social utility, a higher risk may be present without breaching SoC.

Special Standards of CareWe will cover

People with disabilitiesChildrenProfessionals Manufacturers

The Standard of Care Expected of the Disabled

Physical disabilities SoC of a reasonable person with a similar disability.

Fiala v. Cechmanek (ABCA, 2001)F: MacDonald suffered a severe manic episode from an undiagnosed mental illness. Attacked D in her car, causing her to accidentally collide with P and her daughter.I: Standard of care expected of the mentally-ill. L: Case History MacDonald not liable for actions, had no control over his own mind, no reason to foresee the danger an episode might pose.A: central balance between compensating a party which has suffered harm and protecting a party which could not be held to standard of a reasonable person. Argued that mentally ill should be held to normal standard because victim compensation is primary aim of tort; there are practical difficulties w judging disability; would encourage caregivers to take safety measures;

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Looking at corrective justice however, and fairness, cannot hold people to a standard they cannot meet, no deterrence in that; do not want to punish the morally innocent.

C: In order to be relieved of liability when a defendant is suddenly and without warning affected by mental illness, must show EITHER on BoP (standard of care removed):

(1) as a result of the illness, the defendant had no capacity to understand or appreciate the duty of care owed at the relevant time; or(2) as a result of the illness, the defendant was unable to discharge his duty of care as he had no meaningful control over his actions at the time the relevant conduct fell below the objective standard of careConsider when they are aware. Required to take pills, go to doctor?

Standard of Care Expected of Children

General rule SoC of a child of like age, intelligence, and experience (McEllistrum).Exception engaged in an adult activity, then SoC of reasonable adult (McEllistrum).

Currently no specialized SoC for elderly people.

McEllistrum v. Etches (SCC, 1956) C: Where age is not such to make a discussion of contributory negligence absurd, question for jury whether the infant exercised the care to be expected of a child of like age, intelligence, and experience

There is a “threshold” age for when contributory negligence can be a factor.

Joyal v. Barsby (MNCA, 1965)F: P (6y/o) had been educated by her father on dangers of highways, as well as proper safety protocols. P was watching her younger brother when he ran out onto the highway. D way P standing on edge of road, and reduced speed to avoid a collision. When a large truck blared its horn, P dashed out onto the highway and struck D’s car, sustaining serious injuries.I: SoC expected of a child, degree to which a child can be contributorily negligent. L: Case History (1) P found at trial to be exercising SoC of child of like age, intelligence, and experience. No CN, D 100% liable.A: Dissent little analysis of P’s circumstances. Noted she was aware of danger and had training, but chose to run out anyway. Also noted she grew up near highway, should be aware.Majority More contextual analysis. Noted that despite training, would still have less experience than a city child. Attention was focused on the loud horn, distracting attention from traffic on other side of road. Ordinary child of same age, intelligence, and experience would have responded in same way.

Applies McEllistrumWill be held to standard of adult when engaging in adult activity!

Annapolis Country District School Board v. Marshall (SCC, 2012)F: Facts similar to Joyal! 4-year-old boy ran out onto street, struck by bus and suffered severe injuries.C: Finding here that 4 is too young to consider CN.

Perilli v. Marlow (BCSC, 2018)F: P was jogging behind D (10 y/o) and her friends. D and friends were riding on sidewalk, assuming it was safer. P attempted to pass without announcing his intention, and D rode out in front. P struck the back wheel

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of D’s bike, sustaining injuries requiring surgery to shoulder. D alleged that she had looked over her shoulder twice, and only moved out after she concluded that P did not intent to pass her.I: SoC to be applied to children.A: Reasonable for D and friends to be taking sidewalk. Furthermore, D performed two shoulder-checks, and only moved back out once she believed he no longer intended to pass. Judge commended D for lowering her quoted shoulder checks from three to two.C: Reformulated analysis to remove intelligence aspect – D acted in a manner consistent with a reasonable child of similar age in same circumstances.

Oddly, cited McEllistrum, including “intelligence” element, but did not mention it in test.

Professional Standards of Care

Mere error will not itself be negligent. Initially uncommon, now most professions and skilled trades have one.General rule a professional will be held up to the standard of a reasonable professional in the same field (White v. Turner)

Respectable minority Physician may depart from mainstream so long as treatment provided accords with a respectable subset of the profession (and thus is reasonable) – pays respect to customMere error mere error in judgement, in and of itself, typically insufficient to establish negligence.

Burden of proof in most cases, P will need to lead expert witnesses. Common-sense arguments rarely succeed (White v. Turner).

ConsiderIndustry practices in theory, formulated through knowledge and experience

Guidelines and regulations in theory, formulated through knowledge and experience

May be aspirationalBigger focus on medical guidelines in recent years.If D can prove guidelines were applicable to a P, burden shift to P to prove why not.

Legislation democratic ruling on what care to takeVolunteers No explicit SoC but expected to have skills and training to discharge role, and to know when to defer. Agencies required to screen, place, train, and supervise.

Crits v. Sylvester (SCC, 1956F: Every medical practitioner must exercise the degree of skill and knowledge expected of a typical practitioner. Used in a lot of malpractice cases – early recognition of specialized SoC

Ter Nuezen v. Korn (SCC, 1995)C: Physicians have a duty to conduct themselves in accordance with the conduct of a prudent and diligent doctor in the circumstances.

Layden v. Cope (ABQB, 1984)C: Geographic location admittedly limits access to more specialized care, but a professional (e.g. a GP) still must not act outside the confines of their profession – abandons locality rule permitting a lowered SoC in rural settings.

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White v. Turner (ONCA, 1981)F: D (plastic surgeon) performed a breast-reduction operation on P. P suffered several post-operative complications, leaving her breasts scarred and misshapen. Fellow surgeons stated that operation usually takes 2-4 hours, even with an assistant. D performed operation in 95 minutes. Also seemed unaware that checking tissue bulk before suturing.I: Was D negligent in the manner in which he performed operation?A: D’s speed in performing the operation, and failure to check to ensure enough tissue had been removed before suturing, ran contrary to the expert evidence.C: Standard Held to standard of reasonable professional in same field/specialty. Expert evidence critical here, common-sense arguments rarely succeed.Burden Onus on P to demonstrate that D performed in a way that a reasonable plastic surgeon would find unsatisfactory.

Peters v. Peele School Board (ONSC, 2016)F: P injured during a long jump at track and field practice. Made multiple allegations, including improper care of pit, instructions, supervision, and inadequate care after, essentially “abandoning” her.I: What is the standard of care for a coach? Did D meet it?A: Evidentiary difficulties – Peters contradicted self at several times. Found overall that D appropriately instructed P, told her not to jump, that pit was properly inspected, raking it was not needed, that OPHEA guidelines, while not definitive, were useful in assessing risk and that D relied on them properly. Rejects P’s testimony on how long she was left waiting for her ride.C: SoC is that of reasonable and prudent parent, which D met.

Look to nature of activity, training level of participants, condition of equipment, etc. to assess risk. Look at capacity to address risks, and guidelines.

Products Liability and Duty to Warn

Canadian standard negligence, taking on aspects of strict liability.American standard strict liability, taking on aspects of negligence.

Policy argument web of manufacture/supply too complex. Manufacturers in best position to bear costs of risk avoidance.

Lambert v. Lastoplex Chemicals Co. (SCC, 1971)C: Manufacturer of a product had duty in tort to warn customers of dangers inherent in use of products, of which it has knowledge or ought to have knowledge.

Rivtow Marine Ltd v. Washington Iron Works (SCC, 1974)C: duty to warn may be retroactive, may need to inform customers who have already purchased.

Hollis v. Dow Corning Corp (SCC, 1995)F: P received breast implants produced by D in 1983. Literature accompanying the product warned of risk of rupture during surgery, but provided no warnings for ordinary, non-traumatic activities. After one of the implants ruptured, P sued in negligence, for failure to warn of risk. Argued that she would not have taken a baking course, or would not have had surgery, had she known of risk.

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I: Did D have a duty to warn consumers of the risks of rupture during ordinary, non-traumatic activities? Appellant submission Warning given to Dr. Birch was adequate. Even if inadequate, it was not the proximal cause of her injuries.L: Case History (1) D liable (2) New trial ordered. D liable for failure to warn, but not for negligent manufactureA: When manufacturers place products into the flow of commerce, they create reliance from customers who have less knowledge as to danger – neighbor principle from Donoghue. D started warning of risks from non-traumatic activities in 1985. However, their knowledge did not differ significantly between 1983 and 1985. Subjective test for whether P would have gone ahead P established that she would not have got the operation had she known of risk. Rejects D’s argument that onus was on P to establish that Dr. Birch would have warned her had he been informed – unfair to make P prove a hypothetical, and to let D get off w/o warning intermediary. Birch claims that he relied more on medical journals and did not warn all P’s. By 1989, wsas warning all, however. C: Duty to warn varies with risk of harm. High risk of harm from medical equipment – strong duty to warn.

Duties to provide clear, complete, and current information in risk.Learned intermediary Manufacturer may discharge duty in cases where product is highly technical in nature and expected to only be used under supervision of professionals who are better placed to assess risk, or when warning consumer directly is not feasible.Manufacturer has discharged duty when knowledge of learned intermediary approximates their own

regarding risk.Broad obligation to warn learned intermediaries of new developments, even if inconclusive or speculative.Consent casesAssuming that the physician failed to meet the standard of disclosure, what standard of causation must

apply?o NOT like the subjective standard for manufactured products.o Ob/subj would a reasonable patient in P’s circumstances have undergone the procedure,

had they been appropriately informed. Designed to protect D’s from self-serving, post-hoc views of inured patients.

o “In patient’s circumstances” might take into account factors such as age, whether P had dependents, whether or not it’d deprive them of work, whether they needed to work. Don’t get so specific that it becomes subjective!

Austin v. 3M Canada Ltd. (Ont. Co. Ct., 1974) F: P claimed to be an auto-body repairman. Injured by D’s grinding disc, which disintegrated when being used at 9,200 rpm. Although there were no warnings regarding spin speed, court held that any reasonably competent repairman would know that it was unsafe to spin blades beyond 8,000 rpm.C: In certain cases, a professional using a product may be expected to know about the risks of operation, even absent a warning.

Amin (Litigation Guardian of) v. Klironomos (1996)C: Duty to warn generally specific to the intended user of the product – manufacturers should take into account the differing competencies of adults and children and be careful not to write risks off as “obvious”.

Good-Wear Treaders v. D&B Holdings Ltd. (NSCA, 1979)F: Appellant supplier warned a purchaser that the tires he wished to purchase were unsuitable for his heavy gravel truck, but sold them anyway, knowing driver would use them. Driver and children were killed, widow filed against supplier and producer.

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C: Warnings may absolve defendant of liability for injuries to principal party, but may not absolve for injuries to third parties, if supplier has reason to believe that the product will be used in a way that endangers others.

Products Liability – Design

High-stakes design defect will affect every product coming out.Whole product line might be at risk court possibly less likely to find negligenceMore consumers at risk court possibly more willing to find negligence.How much is one expected to spend to reduce the risk?

Arora v. Whirlpool Canada (ONCA, 2013)F: Appellants brought action forward for pure economic loss, due to smells and mildew caused by respondent’s washers. Did not claim damage to property. Other claims were for breach of contract and Competition Act.I: Can a product negligence claim succeed when losses are purely economic?A: Winnipeg Condominium recognized that pure economic losses may be recovered in limited circumstances. However, this was a case of a dangerous building. Furthermore, plaintiffs were precluded from seeking breach of contract, due to privity. P only was able to C: Courts will be reluctant to assign liability for pure economic loss

Factual Causation

Two Questionso What test of causation governs the situation?

General test but-foro Can P prove that D’s breach in SoC caused the loss?

Cause-in-fact testDivisible loss (AKA single-cause) as a practical matter, can only be attributed to one tortfeasor (e.g. multiple injuries in car crash)

o Exception cases where multiple tortfeasors, but only one can be practically sued, where there’s contributing causes, but you were contributorily negligence, so only have on P to bring against.

Indivisible loss (AKA multiple-cause) as a practical matter, can be attributed to more than one tortfeasor. o Exceptions Each act causes different injuries, but all occur so quickly that it’s impossible to

divide (e.g. in a 15-car pile-up).

Kauffman v. Toronto Transit Commission (ONCA, 1956)F: When P was riding an escalator at a subway station, two youths began scuffling above her, bumping into a man who bumped into her. P sued in negligence, alleging that the defendant was negligent both by failing to test an unorthodox handrail design, and by failing to adequately supervise.

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C: Fundamental principle that the causal relation between the alleged negligence and the injury must be made out on the evidence, and not left to conjecture. Gaps in evidence made finding of causality more difficult.

Barnett v. Chelsea & Kensington Hospital Management Committee (UKQB, 1969)F: Three men went to defendant hospital, complaining of vomiting after drinking tea. Nurse called the medical casualty officer, who instructed the nurse to tell men to go home and call their own doctors. One of the men died 5 hours later. At this action, conceded that doctor was negligent in refusing to see patient.I: did D’s negligence in refusing to see P cause his death?A: Judge had a great deal of technical evidence before him but concluded that the only way to save the patient was with a specific antidote. Found no chance that the problem would have been discovered, and the antidote applied, in time.C: A breach in the SoC may not be a cause of death – unable to establish on BoP that but for D’s negligence, P would not have died.

Richard v. CNRF: P, in car on ferry, awoke believing someone had said “we’re here”. Started car and backed off ferry. Alleged D had been negligent in untying rope at end of ferry.C: “sole, direct, proximate, and effective” cause of accident was P’s rash act backing off boat, contrary to warning signs and efforts of crew to stop him. “absence of rope did not induce or cause the plaintiff to back his automobile over the bumper”

3.1 – But-For and Inferences

General definition: that your actions sufficiently contributed to the lossGeneral test: but-for the defendant’s breach of the standard of care, would the plaintiff have

suffered the loss complained of.Links the specific breach of the standard to the specific loss (breach is X, loss is Y, but-for test)Breach must be a cause, not necessarily the causeDivisible loss – can work out who caused what (separate parties caused different things)Indivisible loss – cannot work out exactly who caused what (lump everyone together and sue – joint/several liability)But-for test is the only test ever upheld in Canadian jurisprudence – there are merely modifications/inferences

Established Exceptions to But-For Rule

Multiple negligent defendant’s rule – Cook v. Lewiso Burden of proof shifts from P to D if P can prove that

Both D’s were N One had to have caused his loss It was impossible to prove which D caused his loss

o D must disprove on BoPLearned intermediary rule

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o Hollis – court rejected D’s arguments that P should have been required to prove that, if D had given proper info to Dr., that Dr. would have informed P.

Informed consento SCC established objective/subjective approach to causation in informed consent cases – would

a reasonable person in P’s position had consented, had they been appropriately informed? Designed to prevent self-serving testimony

o Hopp v. Lepp (SCC, 1980); Reibl v. Hughes (SCC, 1980); Arndt v. Smith (SCC, 1997)o Still subjective for manufacturer duty to warn.

Factual causation inferences (gap fillers):Adverse causal inference (Snell)Robust and pragmatic approach (Snell)Common sense approach (Athey)Scientific proof not needed (Benhaim)Material Contribution to Risk (Clements)Inferences mean same thing, basically that: judges are unable to, on incomplete information, infer from this information the presence (or absence) of a causal linkAristorenas v Comcare Health Services (ONCA, 2006) F: P was overweight woman who got c-section; Dr. S delivered baby and gave anti-biotic because weight put her at high risk of infection; Dr. G took over post-natal care, continued anti-biotics, 4 days later she visited Dr and he noticed redness/discharge; home-care nurses were arranged; later sent P to Dr to change treatment, but Dr continued old; 3 procedures then took place to treat Necrotizing Fasciitis TJ finding (1) an infected wound left untreated will develop serious complications (2) one possible

complication, albeit rare, is necrotizing fasciitis (3) NF developed in P’s infected wound (4) Whether or not NF would have developed anyway is not a matter susceptible to scientific proof and parties did not lead proof (5) NF developed in the very area allowed to deteriorate by D’s lack of care.

Duty of care – established doctor/patient Standard of care – fell below standard when Doctor failed to realize treatment wasn’t working; should

have immediately treated her on 2nd visit to him when tissue looked infected Whichever test applies, the Court is entitled to take a ‘robust and pragmatic’ approach to fact finding in

causation analysiso Snell - "an inference of causation may be drawn although positive or scientific proof of causation

has not been adduced"o “the burden of proof is the same, but a series of facts and circumstances established by the

evidence led at trial may enable the trial judge to draw an inference even though medical and scientific expertise cannot arrive at a definitive conclusion”

o Approach is not a test, and it does not substitute for evidence, must be applied TO the evidenceo “mere application of common sense cannot conjure up a basis for inferring an injury must have

been caused in one way rather than another” combined negligence is essentially 3 days’ delay – no evidence here that necrotizing was caused by that

delayDissent: TJ’s findings were supported by some evidence, regardless there is no overriding / palpable error hereNote: majority held that establishing causation based on procedure rarely, but at times causes NF is error in logic

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Material contribution test : an alternative to the ‘but-for’ test that may be used where it is impossible to determine causation on the traditional standard.

The majority opinion discusses the development of case law concerning the material contribution test, including Fairchild, a UK case on material contribution at paras 52-53.

What are the salient factual differences that made the material contribution test applicable in Fairchild and that do not exist in Aristorenas?

Fairchild involved mesothelioma – caused by a single fiber of asbestos – which could have come from one of several employers over the years. P exposed to harmful substance from various sources but could not prove precisely that the substance resulting from the D’s negligence actually caused the loss. The salient feature was that the P was definitely injured by the N of one of the defendants and there was no other operative cause or explanation for the injury. This is not the case in Aristorenas.

Snell v Farrell (SCC, 1990) F: D performed cataract operation on P; D injected anaesthetic into muscles in eye and noticed slight discolouration; stated was due to bleeding; later found no other signs of bleeding, waited 30 mins and started; blood in the eye after surgery; cleared 9 months later, but optic nerve atrophied and blinded; could have happened naturally or as the result of continuing the operation Lower courts relied on McGhee burden shift, reinterpreted by Wilsher (inference of causation permissible) Do not need causation to be proven w scientific precision – “in many malpractice cases, the facts lie

particularly within the knowledge of the defendant, in these circumstances, very little affirmative evidence on the part of the plaintiff will justify the drawing of an inference of causation in the absence of evidence to the contrary”

o Burden remains on Plaintiff, but in absence of contrary evidence, the inference can be drawn D’s continuation of operation found negligent by TJ. Blindness could have been from natural causes, but

expert evidence suggested continuation of operation more likely. By continuing operation which was a breach of standard, he made it impossible for anyone else to detect

bleeding – in these circumstances, was open for TJ to draw inference of causation; no evidence to rebut inf

Where there is not much evidence, but evidence of factual causation is put forth, a judge is permitted to infer from that evidence a reasonable conclusion

Benhaim v St-Germain (SCC, 2016)

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F: P’s husband went for annual checkup and B told him to get chest x-ray even though no symptoms; saw O who noticed lesion in lung; told B to look at medical history of x-rays and if none, get follow-up; B did not look at history, merely ordered follow-up; no change and said to do another follow-up in four months, but never happened; saw again for annual checkup – grew and was diagnosed with incurable stage IV cancer P’s experts said it was only stage 1-2 when should have been diagnosed; D’s says stage 3 and likely

would’ve died CoA found that TJ erred by failing to draw adverse inference against D However, Snell – inference may be drawn, but is not required to be drawn to discharge P of burden of

proof – a question for the trier of fact which deserves deference from CoA (permissive inference)o Did not create a rule of law that requires an adverse inference to be drawn

An approach that triggers adverse inference on the basis of scarce evidence has the same effect as reversing the burden of proof, and should generally be avoided

TJ did not commit error of law, so only overturnable on overriding and palpable error (not present) Cautions relying on merely statistics – if 499 of 1000 people at a show paid for tickets, would be wrong to

says a randomly selected attendee didn’t pay because there’s a 50.1% chance o Does not count as proof for what actually happened on a given occasiono While they are important in analysis, cannot be only basis for causation (suggestive not

determinative) Note: loss could be premature death, even if the P would have died 10 years later from cancer, that is still a loss, and would be factored into damages

Cheung v. Samra (ONSC, 2018)The robust and pragmatic approach describes the manner in which evidence is to be evaluated, not some special burden of proof: see Aristorenas, at para. 56. [...] [It]takes into account the nature of the factual issues underlying the causation question and the kind of evidence that the parties are reasonably capable of producing on those issues. The approach acknowledges that the causation inquiry is essentially a practical one based on the entirety of the evidence and made with a view to determining whether the plaintiff has established causation on the balance of probabilities and not to a scientific certainty.

Bigcharles v. Lomax (BCCA, 2001)“Because of the nature of the evidence, this case raises what to me is the most elusive concept in the common law - a concept which arises in many branches of the law - "causation". In the very close case, which this is, that essential ingredient is made not less elusive by being dependent on the doctrine of burden of proof. That doctrine is easy enough to put into words but in every close case its proper application is an intellectual minefield made more dangerous in medical malpractice cases where, if the law is all or nothing, by which I mean that no matter how grossly incompetent the physician is, the plaintiff gets nothing unless he can "prove" "causation" but if he can show some act which is on the very borderline of negligence, he may recover an enormous sum of money no matter how tenuous his moral right. What, in my opinion, the law requires in order to do justice is some sort of middle ground.”

3.2 – Multiple Causes

Multiple causes – several parties, some negligent, some not, had to have some involvement in the outcome If divisible – each injury can be attributable to different people, P will have separate actions against each

tortfeasor and the but for test, subject to modifications, will apply

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If indivisible – three categorieso Joint tortfeasors – D’s are not independento Independent insufficient causes – b/f test will worko Independent insufficient causes - b/f produces anomalous results

Joint tortfeasors – liable for torts committed by fellow JTs, even if a JT did not specifically cause or contribute to P’s loss

o categories for joint tortfeasors – principal and agent relationships, employees and employers, and group actions (working together on illegal or inherently dangerous acts)

o the issue of joint vs independent should be considered prior to analyzing other elements of the cause of actions – also, only need to prove that one of them was a negligent cause

independent insufficient causes – several factors combine to cause P’s loss. Each factor is individually necessary to cause the harm, but no factor is individually sufficient to cause the harm

o Factors can be mixed (culpable and non-culpable, like Athey) or all culpable Independent sufficient causes – P’s indivisible loss results from two or more sufficient causes (e.g. two N

hunters fire fatal shots, hitting P simultaneously?o Under b/f, no liability for either D, because harm would have happened even without D’s negligent

act.o “Significant or substantial factor” test

Athey v Leonati (SCC, 1996) F: P had back condition, suffered neck / back injuries in two car crashes negligently caused by Ds; on doctor’s advice began program at Fitness World; One day heard pop; herniated disc – had to quit his job and take less demanding job because of disability TJ and CoA held that 75% of damages reduced because of contribution of pre-existing condition. SCC

rejects apportionment of loss. As long as D is part of the cause of an injury, they are liable, even though their act alone was not enough

to create the injury – there is no basis for a reduction of liability because of the existence of preconditions, D remains liable for all injuries caused or contributed to by their negligence

Single indivisible injury here – herniated disc; any D found to have neg caused / contributed to it is fully liable

Thin skull recognizes that a D is liable even if the injuries are unexpectedly severe because of a pre-existing condition

Crumbling skull basically says that the defendant is only liable for additional and not existing damage – that P would have suffered the debilitating effects anyway

o If there is measurable risk that P would have experienced same damage in the future, regardless of D’s negligence, this could reduce the award (recognizing that P must be returned to original position in tort)

o But, based on findings of fact, no evidence to suggest there is this measurable risk present Fitness world program was not another cause of the damage; it was the effect – stretching at a gym is not

sufficient to cause a herniated disc 3 options – (1) if herniation would have occurred at same time anyway, causation not proven;

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o (2) if necessary to have both accidents and pre-existing condition, then causation is proven because the herniation would not have occurred but for the accidents, and D would be fully liable because the accidents were still a necessary contributing cause

o (3) if the accidents alone, or pre-existing alone would have both been sufficient causes, then unclear which is the cause-in-fact (oversubscribed causation); the TJ must determine on BoP whether D’s negligence materially contributed to the injury (making a bit of a guess)

TJ gave 25% damages as she recognized that the accidents contributed to some degree to the herniation, but it was not the sole cause – this still states that both were needed, that the accidents were necessary ingredient; 25% is outside de minimus range for material contribution

Cook v Lewis F: 2 hunters, not sure who actually hit the plaintiff when you have exactly 2 defendants, each of which could point to the other as the factual cause, the court

will reverse the onus, forcing the defendants to disprove that they caused the harmo exception is extremely rare (response to circular causation problem)o Has to be only 2 parties because balance of probabilities disturbed if more than 1 other option o Also keep in mind whether parties are lumped together in joint purpose or not as separate

Not JS liability!

Clements v Clements (SCC, 2012)F: Wife riding on back of motorcycle with husband, bike was 100 lbs over capacity; tried to pass a car and hit a nail at 120km in 100km zone, tire burst and bike spun out; wife got traumatic brain injuryMCTR: Exceptionally, a plaintiff may succeed by showing that the defendant’s conduct materially contributed to risk of the plaintiff’s injury, where: (a) the plaintiff has established that her loss would not have occurred “but for” the negligence of two or more tortfeasors, each possibly in fact responsible for the loss; and (b) the plaintiff, through no fault of her own, is unable to show that any one of the possible tortfeasors in fact was the necessary or “but for” cause of her injury, because each can point to one another as the possible “but for” cause of the injury, defeating a finding of causation on a balance of probabilities against anyone One person of group 100% for sure caused the damage – but if P can’t show anyone of them in particular

as necessary, can find causation on BoP against anyone – BUT very rare again Two errors leading to new trial (1) insisting on scientific reconstruction evidence as a necessary condition

of finding “but for” causation (2) applying a MCTR test when there was only one defendant.

Legal Causation / Remoteness – get case on falling through sewer, school explosion

4.1 – Introduction / Overview

Even if breach causes a loss, liability will be denied if connection between the two was too remote (rule of fairness)Courts have struggled to develop a test that strikes an appropriate balance between the desirability of holding D responsible for a loss that they carelessly inflicted on P, and the desirability of relieving D of unreasonable burden Factual causation is an exercise in facts and logic, remoteness is a matter of policy, which makes cutoff

point somewhat arbitrary

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“this is not logic; this is practical politics” – Palsgraf v Long Island Railway Company [1928]o P waiting to board train, employees of D see man rushing to board train, they push him onto the

train, causing him to drop package of fireworks, that upon striking floor, detonate, fireworks caused a scale 30 feet away to strike P; court said it wasn’t RF (would be different today); emphasized that geographic prox

Directness Test (Re Polemis and Furness, Withy & Co [1921]) – “a close temporal and spatial connection” between the defendant’s breach and the plaintiff’s loss” In case, benzene fumes igniting on ship from someone dropping plank of wood was not RF – D nonetheless

held liable, as there was a direct connection between D’s breach and P’s loss. Criticized, as small degree of D could lead to extensive liability for harms directly connected to breach.Remoteness acts as a bounding and limiting concept to cut the D liability where the connection between breach and injury is not reasonably foreseeable

Wagon Mound No 1 (1961)F: See belowA: Trial court found that while oil flammable, D did not know and could not reasonably be expected to have known it could be set afire when floating on water.Summarizes critiques of Polemis – reasonable foreseeability is essential element in legal causation.

oCanadian courts largely follow, with some “flourishes”o“It is the foresight of the reasonable man which alone can determine responsibility”

Wagon Mound No 2 [1967] F: D carelessly let oil spill into Sydney Harbour while refueling – welders were working nearby and started a fire; P owned two boats that were damaged in the harbour fire; there was no act by the Plaintiffs (like in WM No 1) which contributed to damage Evidence was led that shows that it would be fairly rare that furnace oil would ignite on water like this Two different kinds of cases – (a) where event was basically impossible and a mere possibility which

would never occur to the mind of a reasonable mano (b) And there was a real and substantial risk that something like the event would happen and a

reasonable man would have taken steps necessary to eliminate risk But, Bolton v Stone posed a new problem – chances of cricket ball striking someone on the road was very

tiny even though the event was plainly foreseeableo Court held that risk was so small that in circumstances RP would have been justified in

disregarding ito But, does not follow that no matter what circumstances, it is justifiable to neglect a risk of such a

small magnitude – must weigh risk against expense to eliminate it no justification for discharging oil into harbour; weighing risks, it was his duty and his interest to stop

discharge Oil spill took much time and the engineer would have noticed early – he ought to have known it may

ignite Degree of probability that would satisfy RF requirement is a “real risk”, one which would occur to the

mind of a reasonable man in the position of the defendant, and which he would not brush aside as far-fetched.

Smith v Leech Brain Co [1962]

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F: P’s husband was galvanizer employed by D; P used crane to lower objects into tank of molten metallic zinc – one day, molten metal hit his lower lip and burned him; had pre-malignant cancerous tissue from being exposed to chemicals in past (thin skull); treated wound but later developed cancer, killed him Specific breach is faulty and inappropriate safety equipment that allowed burn to happen The Wagon Mound case did not have ‘thin-skull’ cases in mind – always take the victim as they come WM1 was not intended to alter thin-skulled P rule. Test is not whether D could reasonably foresee burn would cause cancer and death, question is whether

D could foresee the type of injury suffered – namely, the burno Amount of damage suffered as a result of the burn depends on characteristics and constitution of

victim

Marconato v Franklin F: P suffered minor physical injuries in car accident, but triggered a substantial change in her personality, leading to substantial psychiatric illness. Psychiatric injuries are not inherently unforeseeable – when based upon physical injury, psychiatric injuries

become more foreseeable than psychiatric injury alone (thin skull applies) P’s minor physical injuries would not lead one using reasonable foresight to anticipate the scope of her

psychological injuries. P had a pre-existing vulnerability – take your victim as you find them.o Liable for all consequences of N.

Different from Mustapha as there was no physical injury (not overruled, but was before fortitude test) Seems to be thin skull rule for everything other than pure psychiatric, where you go ordinary fortitude

testo But, piggybacking psychiatric harm could go either way – Lachlan

Mustapha v Culligan [2008] F: P found dead flies in bottle of water supplied by D; became obsessed with ‘revolting implications’ as is family consumed for 15 years (depression/anxiety). TJ awards significant damages, overturned at ONCA, as not RF.

o Duty of care already recognized by Donoghueo Breached standard – water for personal consumption should not be contaminated; Prima facie case

meto Factual causation and damage (loss) satisfied by evidence at trialo Remoteness - must look beyond basic probabilities of results into whether P should be considered

objectively or subjectively (do we think its fair to hold them accountable?)o The law expects reasonable fortitude from citizens and will not impose liability for

exceptional frailties of certain individuals (objective) – threshold test for establishing compesnsability, doesn’t violate thin/eggshell skull!

If you can show person of reasonable fortitude would suffer, D must take P as it finds him for damages.

o Does not penalize vulnerability, but harm is judged with reasonable foresight, not as insuranceo If evidence shows D knew of P’s vulnerability, damage would be reasonably foreseeableo Unusual or extreme reactions to events caused by negligence are imaginable but not RF

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o P failed to show that it was foreseeable that a person of ordinary fortitude would suffer any injury from seeing the flies.

Full legal causation TEST1. Was there a real risk of the injury being occurred? (inquiry as to likelihood of harm) (Wagon Mound

(No. 2))2. Was the kind of injury reasonably foreseeable to a reasonable person (inquiry as to kind of harm)

(Mustapha or Marconato)a. Purely psychological injury – apply person of ordinary fortitude test (Mustapha)

3. Was there an intervening act – was it within the scope of the risk created by original negligence? (Jolley)

4.2 – Intervening Causes

P’s loss was caused by D’s breach as well as subsequent intervening actIntervening act – causes P’s loss after original D’s breach has taken effect e.g. contractor blocks sidewalk, forces pedestrian to walk on road and gets hit by negligent driver –

contractor caused it but should he be liable? Traditionally, this severed the chain of causation (novus actus interveniens – do not use)

o The last wrongdoer was held solely responsible for P’s loss, even if conduct was minor cause of injury.

Courts then divided intervening acts into 3 categories based on their nature and moral blameworthiness:o Naturally occurring – would generally not break chain, not relieve original tortfeasor of liability.o Negligent – would generally break chain, relieve original TF of liability.o Deliberately wrongful or illegal acts – generally break chain

This elaborate categorization was then replaced by more general principle of “within the scope of risk” test Eg. was the harm caused by intervening act within the scope of risk created by original tortfeasor? – Jolley

v. Sutton Borough Council Other courts ask whether intervening act itself was within scope Difficult to apply, as courts have interpreted in two ways

o Whether the loss caused by intervening act was within the scope of the risk caused by original TF.o Whether the intervening act itself was within the scope of the risk.

Bradford v Kanellos (SCC, 1973) F: grease fire started; approved automatic extinguisher system released CO2 onto fire to extinguish it, but it made hissing noise when gas was released; one patron yelled that gas was going to explode, and in the panic, Ps were knocked over and wife injured – suing restaurant for their negligence in letting grease fire to start Breach = not properly cleaning grease traps. Case history – TJ awards damages, as panic from extinguisher was RF, unanimous CA overturns. the system which activated, fulfilled its function and put out the fire – on the facts, the injuries resulted

from hysterical conduct of customer when hissing noise happened Martland J Majority – This consequence cannot be regarded as within the risk created by original

negligence in permitting an undue quantity of grease to accumulate on the grill

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Spence J Dissent – in this case “person guilty of original negligence ought reasonably to have anticipated such subsequent intervening negligence and to have foreseen that if it occurred the result would be that his negligence would lead to loss or damage”

o Any reasonable person who knew a greasy grill might cause fire and extinguisher system to start which makes hissing and popping sound, should anticipate that panic may result

o Shouting guy was not negligent – was utterly foreseeable and natural consequenceo Even if he was negligent, P would still have a right of action against D

Price v Milawski (ONCA, 1977) F: told D doctor that he heard his ankle crack and thought it was broken; D sent P for x-rays but told technicians to x-ray his foot, not ankle; D examined and said no break, just sprain, even though it was broken; suffered for some time with swelling, went to new doctor, who instead of ordering new x-rays diagnosed him with strained ligament, put on cast for 4 weeks; Then got new x-rays from 3rd doctor, but delay caused perm dmg At trial, both of the first 2 doctors were found liable and negligent 1st D says it was not foreseeable by him that such dire consequences would flow from his acts Was 2nd doctor’s act fairly regarded as within the risk created by 1st doctor’s negligence? – Bradford

o Wagon Mound No 2 – damages can only be recovered if injury complained of was not only caused by alleged negligence but also an injury of a class / character foreseeable as a possible result

A person doing negligent act may be held liable for future damages airing in part from subsequent negligent act of another, and in part from own negligence, where such subsequent negligence and consequent damage were reasonably foreseeable as a result of his own negligence

o It was RF by 1st doctor that once information generated by negligent error got into hospital records, other doctors treating P would rely on the accuracy of the info

o Foreseeable that doctors would do so without double checking, even if that in itself is negligento Such a possibility ‘was not a risk which a reasonable man would brush aside as far-fetched’

Both Doctors are equally liable and not possible to apportion the extent of each separately (indivisible loss)

Chinsang v Bridson [2008] F: D claims injuries suffered by P were too remote to allow recovery; physical injuries and then psychological symptoms like memory loss, depression, etc. Remoteness is question of law for the Judge; causation is a question of fact for the jury D submits that is not foreseeable that person of ordinary fortitude (Mustapha) would suffer psychosis

from a car accident, or that P would suffer career deficit I find that the injuries found by the jury are not too remote; On the evidence before me, they meet the

objective tests of “real risk” and “person of ordinary fortitude” set out in Mustapha I should add that in so finding, I agree with Fraser v. Haukioja, “it is sufficient if one can foresee in a

general way the class or character of injury which occurred” o The brain injury, cognitive deficits and resulting partial disability in this case were foreseeable o However, unlike Fraser, the extent and exact nature of the partial disability from the plaintiff’s right

hemisphere brain injury, though unusual, is reasonably foreseeable as a real risk from the head trauma

The case before me has no resemblance to a unique reaction based on a highly individual constellation of psychological attributes such as that of Mustapha where no physical injury occurred at all

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Lachlan: may be authority for piggy-backing not requiring ordinary fortitude test – take Plaintiff as you find themJolley v. Sutton London Borough Council (HoL, 1998)F: D left a dangerously decrepit boat on property under his authority, failed to remove it due to administrative dithering. P and friend (both 14) found boat and decided to repair. While lifting onto car jack, boat fell and left P paraplegic. L: Case history – TJ awards damages, reduced 25% due to P’s contributory negligence. CA overturns, as boy’s actions too remote, broke chain in causation.C: Restores TJ’s decision, boys actions were foreseeable, and did not break chain.

Hussack v. Chilliwack School District (BCCA, 2011)F: 13 y/o P struck in fact with field hockey stick in PE, causing a concussion. Question of whether a child whomst missed a lot of school should be playing hockey in first place. P brings action for harms, including a somatoform disorder, loss of future employment, and severe psychological consequences.A: Reject’s D’s first argument that person of ordinary fortitude would not suffer – injuries were predicated by physical injury, so much more foreseeable (Marcanato). Also rejects second line that father’s actions represented intervening act – kid already had issues in home life, many absences. After accident, father took him to many doctors, demanded CAT scans, MRIs, etc. C: D held liable, father’s acts RFInteresting fairness arguments on both sides.

Repetition in RF (NOT the same though for every step; Mustapha would have passed first 2, not second 2)1A of Cooper – exceedingly general – test is very low bar – for Smith v Leech, looking at general riskiness of working at a galvanizing plant; Kennedy v Coe – skiing is generally pretty dangerousStandard of Care assessment – fact specific – Smith, was receiving burns reasonably foreseeable? What facts suggest that it was (heavy machinery, closeness to fire) – basic endeavor to ask whether D did something wrongLegal Causation step (1) – more fact specific, looking at ‘real risk’ of burns in SmithLegal Causation step (2) – exceedingly fact specific – was the kind of harm RF? Not the loss, harm (death v burns)

Note: in analysis, state that there are issues in categorizing the harm in particular way, but then characterize it as best you can with supporting reasoning (this is policy / politics)

Deloitte & Touche v. Livent Inc (SCC, 2017)

C: Duty analysis is focused on the type of injury that is reasonably foreseeable, while remoteness analysis is concerned with the reasonable foreseeability of the actual injury suffered by the plaintiff!

Contributory Negligence

Go back to Jolley v. SuttonTraditional view – P denied recovery if their conduct contributed to injury, even if relatively minor

oNo apportionment of loss!Equity stepped in with last clear chance/last opportunity rule.

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oPermitted P to recover, despite their CN, if D had a “last clear chance” to avoid accident, and negligently failed to take it.o Issue – still perpetuates all-or-nothing rule by placing all loss on D.

Burden of proof on D, BoPDavies v. Mann (1842) – first case where “last clear chance” clearly articulated.Legislation later whittled away much of CN bar, due to its patent unfairness.Negligence Act – eliminates last clear chanceBow Valley Husky (Bermuda) Ltd v. Saint John Shipbuilding Ltd. (SCC, 1997) – McLachlin emphatically rejects

common law CN bar, even in absence of legislation.Forms of CN (non-exhaustive)

oP carelessly enters into a dangerous situation – e.g. sober passenger taking ride from drunk driver.oP carelessly contributed to an accident – e.g. P engaging in horseplay with driver.oP carelessly made injuries worse – e.g. failing to wear seatbelt.

Marshall (Litigation Guardian of) v. Annapolis County District School Board (SCC, 2012) – 4 y/o too young to be considered for CN.

Walls v. Mussens Ltd (NBCA, 1969) F: D drove a logging machine to P’s service station for repairs. Propane torch operated by D lit a pool of gasoline on the floor. TJ found fire started by D’s negligence – not appealed here. When fire started, P’s employee, a 17 y/o (H), was operating the station. D called for a fire extinguisher, H instead shovelled snow onto blaze, and D helped. Experts testify that had the easily-available extinguishers been used, fire would not have burned place down. Owner helped shovel too, tried to tow timberjack, which made it worse.A: Test is not whether P exercised careful and prudent judgement, but rather whether he did something an ordinary prudent man might reasonably have done in the stress of the moment – P is entitled to agony of the moment.Modified standard of care in “agony of the moment”

Ackley v. Audette (BCCA, 2017)F: P and group of friends hanging out in front of restaurant, drinking and smoking the devil’s lettuce. Started harassing D, making threats. As he left restaurant, jostled and pushed him. P at some point disengaged, but in confusion, D struck him with car.I: Contributory negligenceA: Confusing, discordant stories. D told of whole encounter, where inebriated P harassed him. P picks up story after he disengaged from confrontation. P created risk where D would act unpredictably, and thus was CN.

Vandendorpel v. Evoy (BCCA, 2016)F: P struck by D’s vehicle at intersection. P wore dark clothes and darted out in front of D’s vehicle before light changed. D was speeding, but only going 55 in a 50 zone.C: TJ finds P 100% liable, BCCA finds 80% liable.CN may account for a significant portion of liability

Heeny v. Best (ONCA, 1977)F: P’s chickens died of asphyxiation when D negligently cut off power to P’s farm. As such, alarm system did not go off. Only 25%-50% of farms in area had alarms, so P argued no CN, as it was not custom. Issue though,

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as Nevertheless, court found CN. Raises questions of what precautions one must take to protect against tortious or illegal conduct of others – expected to get alarm?

Doctrine of identification – common-law doctrine, attributes negligence of one party to conduct of another if a special relationship exists between them.

o Galaske v. O’Donnell (SCC, 1994) – D held liable for failing to ensure that 8 y/o passenger was wearing seatbelt. Fact that boy’s father may have been negligent will not discharge DoC.

Gagnon v. Beaulieu (BCSC, 1977)F: P injured as passenger in car driven by D. Suffered lacerations across face, a crushed cheek, and damaged right eye. These injuries are consistent with P getting close and personal with a windshield. I: Whether P was wearing a seatbelt and if not, whether this should count as CN contributing to nature and extent of his injuries. D submission – P not wearing provided seatbelt. Had he been, injuries would have been less severe. P submission – not wearing seatbelt is not negligent per se, as P may be an absolute moron who believes seatbelts are unsafe. Evidence suggests that the plaintiff did indeed have the IQ of a decorative autumn squash. A: Yuan v. Farstad (BCSC, 1967) – in light of modern understanding of safety, P whomst fails to wear seatbelt is negligent.C: Current state of law in BC

oFailure to wear seatbelt is failure to take a step which person knows or ought to know is reasonably necessary for their own safety – P’s personal beliefs irrelevant.o If a seatbelt would have prevented or lessened injuries, P is CN.oOnus on D to establish on BoP that injuries would have been prevented or lessened.

Expert evidence suggests that P would not have hit head if wearing seatbelt.

Rewcastle v. Sieben (ABCA, 2003)F: 16 y/o P travelled home in an overloaded car (more people than belts) despite having phone and credit card, her decision to travel in car was reasonable, not CN.I agree here, close to midnight, she was 16 and didn’t want to be left alone.

Negligence Act Fact that P is negligence will now not completely bar recovery. P’s actions will be considered alongside

actions of other parties.oLiability determined based on degree of fault.

Incorrect to conflate fault with causality.s.1 – where there’s CN, there’s no longer joint and several liability.

oDamages in proportion to which each party was at fault, can’t pursue all the loss from any single D.s.2 – if you can’t establish degree of fault, apportion as appropriately as possible.s.4 – Where there’s no CN, if two or more persons are at fault – joint and several liability.

oD’s have right of contribution and indemnification against each other.

Aberdeen v. Zanatta (BCCA, 2008)F: P was riding bike along winding road, forced off road of D’s van and suffered catastrophic injuries.

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A: evaluating fault involves assessing the relative degree to which each tortfeasor departed from the standard of reasonable care.Aberdeen factors

Nature or duty owed by tortfeasor to injured person.Number of acts of fault or negligence committed by person at faultTiming of various negligent acts – party who commits first will usually be more at fault than party whose

negligence comes as a result of initial fault.Nature of conduct held to amount to fault – e.g. indifference to results may be more blameworthy.Extent to which conduct breaches statutory requirements – e.g. in a motor vehicle collision, driver of vehicle

with right of way may be less blameworthy.Gravity of risk createdExtent of opportunity to avoid/prevent accident or damagesWhether conduct in question was deliberate or unusual or unexpectedKnowledge one had or ought to have had of conduct of the other person at fault.City found 25% at fault for failing to properly maintain guardrails, D 75% for speeding, P 0%.

Assessing Damages

Monetary Equivalence

Pecuniary losses – monetary, can be calculated (e.g. medical bills, lost earnings).Non-pecuniary losses – non-monetary, cannot be subject to exact calculation (e.g. pain, humiliation,

disfigurement).

Pleadings

Special damages – can be exactly quantified at time of trial. P must plead and prove.General damages – incapable of quantification. P need not strictly plead and prove, because of speculative

nature.

Purpose or Function

Nominal (token) – not typically available in N actions, where damages must be proven.Disgorgement – gain-based, not typically available in traditional N actions.Punitive – rare to be assigned in N actionsAggravated – rare to be assigned in N actionsCompensatory – by far the most common

Punitive Damages

Not available in most “regular” N cases.Whiten v. Pilot Insurance Co (SCC, 2002) – PD can be awarded in those N cases where D has acted with an

arrogant, high-handed, or blatant disregard for P’s safety or other interests.Vlcek v. Koshel (BCSC, 1988) – ATV case. Court found that D’s act could give rise to PD where not directed to

P, but demonstrated maliciousness or recklessness sufficient to demonstrate complete indifference to welfare or safety of others.

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Robitaille v. Vancouver Hockey Club (BCCA, 1979) – PDs awarded when D ignored P’s injuries and made him play injured, leading to permanent disability. Judge described behaviour as high-handed, arrogant, and with reckless disregard.

Kraft v. Oshawa General Hospital (ONCA, 1986) – No PDs where anesthesiologist doing crossword rather than monitoring P, who suffered cardiac arrest and severe brain injury.

Intoxication – decisions both ways, in part due to criminal liability, which typically means no PD. o McIntyre v. Grigg (ONCA, 2006) – Court allowed deliberate choice to drink to be demonstration of

conscious and reckless disregard for lives and safety of others.

Aggravated Damages in N

Form of compensatory – awarded to compensate P for additional injuries such as humiliation or distress arising from D’s reprehensible conduct.

Two traditional requirementso P must establish that they suffered additional injuries to their feelings.o D’s conduct must be highly offensive or particularly repugnant, not simply tortious. However, if

D’s conduct is sufficiently outrageous, some courts assume that it caused additional injuries to P’s feelings.

Burden and Standard of Proof

P has burden of proof for both damages and quantum of damages.Pre-trial losses – balance of probabilities. Will recover all or nothing.Post-trial losses – difficult to calculate.

oPreviously on BoPoMore recently, courts have turned to reasonable or substantial possibility test

Once P has established substantial or reasonable possibility of injury, she is entitled to recover for whatever probability of loss is (e.g. if 35% risk of blindness, entitled to 35% of damages that blindness would cause).

Delay Between Trial and Judgement

Significant developments may occur between trial and judgementMonahan v. Nelson (BCCA, 2000) – D negligently injured P. Trial court heard evidence about several heads of

damage including loss of future income, cost of future care, and future nonpecuniary losses like pain and suffering. P then died before trial court rendered judgement. BCCA found that trial court must reduce award of damages accordingly, insisting that recovery reflect actual losses to the greatest extent possible.

Mitigation

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P must act reasonably in all the circumstances of the case to mitigate her loss.D has burden of proving P failed to do so.Three principles of mitigation

oP must take all reasonable steps to avoid or minimize lossoP may recover for losses incurred in taking such reasonable stepsoP cannot recover for losses successfully avoided, even if he or she was not required to have avoided them under the first rule.

Cases involving surgeryo Janiak v. Ippolito (SCC, 1985) – serious back injury. P told there was a corrective surgery with a 70-75% chance of complete recovery, but a 10% chance of poor outcome, including 1% of quadriplegia and 0.1% of death. P refused to undergo. Was this an unreasonable failure to mitigate? Court held that this issue was to be resolved by a trier of fact, and answer depended on risks of surgery, consequences of refusing, and potential benefits. Court concluded TJ was correct in determining P unreasonably failed to mitigate his loss.oCourt also stated that P’s pre-existing fear of surgery did not justify an unreasonable failure to have operation, unless he or she suffered from a psychological infirmity that precluded rational decision-making. Is this consistent with thin-skull rule?

Appellate Review

CA should override trial court determination of damages only whereoThere was no evidence upon which TJ could have reached this conclusionoWhere judge proceeded upon a mistake or wrong principleoWhere result reached at trial was wholly erroneous.

Additional possible grounds for reviewoDisclosing that D had liability insurance – it depends upon prejudice and appropriate cure.

Damages for Personal Injuries

Trilogy of damage cases in 1970’soAndrewsoArnold v. TenooThornton (Next Friend of) v. Prince George

Andrews v. Grand & Toy Alberta (SCC, 1978)

General Policy Issues – Method of assessing general damages in separate amounts (as done here) is sound. Only way in which any meaningful review of the award is possible on appeal, and only way of affording reasonable guidance in future cases. Also discloses to litigants the various components of the overall award, assuring them that each of the various heads of damage has been given thoughtful consideration. Subject of damages for personal injury is an area of the law which cries out for legislative reform.

Critique of lump sums – subject to external factors (inflation, fluctuation on investment, tax), and do not reflect continued needs of injured party, which may change over time, particularly if there’s a need for

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intensive and expensive care and a long-term loss of earning capacity. Method for determining lump-sum amount is grounded in probability, does not accurately reflect situation of each individual.

Renewable, periodic payments more effective – no administrative structure in place to do so, that’s something for Legislatures to address. Not taxable, whereas interest on lump sum is – creates favourable situation for settlement, as P might prefer periodic payments and D might want to make so they can purchase an annuity for less money.

As seen below, legislation sometimes specifically provides for periodic payments or structured settlements – Vehicle Insurance Act, BC.

99(1)The court must order that an award for pecuniary damages in a vehicle action be paid periodically, on the terms the court considers just,

(a)if the award for pecuniary damages is, after section 83 has been applied, at least $100 000 and the court considers it to be in the best interests of the plaintiff, or

(b)if (i)the plaintiff requests that an amount be included in the award to compensate for income tax payable on income from investment of the award, and(ii) the court considers that the order, that the award be paid periodically, is not contrary to the best interests of the plaintiff.

(2)Despite subsection (1), the court must not make an order under this Section

(a)if one or more of the parties in respect of whom the order would be made satisfies the court that those parties do not have sufficient means to fund the order, or

(b)if the court is satisfied that an order to pay the award periodically would have the effect of preventing the plaintiff or another person from obtaining full recovery for damages arising out of the accident.

(3)If the court does not make an order for periodic payments under this section, it may make an award for damages that includes an amount to offset liability for income tax on income from investment of the award.

Non-Pecuniary Losses

From Andrews – Andrews used to be healthy, athletic young man. Injuries left him disabled and in serious pain. How to calculate compensation?

oDifferent from pecuniary – no medium of exchange for happiness or life expectation.oPhilosophical and policy exercise more than legal or logical.oAward must be fair and reasonable, fairness being engaged by earlier decisions

Main concern for courts is that there will be adequate future care.Theoretical approaches

oConceptual – treats each faculty as a proprietary asset with an objective valueoPersonal – values the injury in terms of the loss of human happiness

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oFunctional – same premise as above, but assess compensation to provide injured person with reasonable solace for his misfortune.

Third approach makes most sense, seems most compensatory – only award compensation to properly provide for future care.

oKeep in mind value to each person – loss of a finger means more to a pianist.Andrews placed upper limit of $100,000 – now $360,000.

Damages for Property Loss

When personal property lost or destroyed, P entitled to restitution of value.Three general methods, used in different circumstances

oCost of repairoCost of replacementoDecrease in value

Commonplace chattel – P generally received the lesser of the amount of the options.Unique chattel – Generally focused on P to prior position, even if more expensive.

o If repaired or replaced chattel more valuable than pre-N chattel, court may allow a “betterment” deduction.

Real estate – P generally entitled to lesser of amount of three options.o In special cases (e.g. residence or difficult-to-relocate business), P may be entitled to cost of repair.oAlso chance of betterment deduction.

Consequential Economic Losses/Mitigation

Damage to P or property may sometimes cause economic losses – implicit in earlier discussions of compensatory damages.

Mitigation – P’s duty to mitigate may be more expansive in cases of property loss. P has duty to act reasonably in a business sense (e.g. to purchase replacement machinery to reduce consequential economic loss.