Tort Law Notes- PHI2080

8/10/2019 Tort Law Notes- PHI2080

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Philosophy of Law Notes

What is Law?A set of rules, which are enforceable by agents of the state. These agents of the stateare empowered by the state, and we recognized that we will be governed by these

rules. In this course we will be talking about the common law. Our common lawsystem started in England in 1066. William the Conquer established a system bywhich you can have the kings justice and this would make law consistent

throughout the realm. He promised people justice if they came to the court (thecourt was where the king was). People willingly took this on. The King appointedjudges and they dispensed rules, which became the common law. They started towrite down the decisions that they made and they kept the records of thesedecisions in 1 place in the 13thC. they used past rulings from other judges to helpmake current decisions to remain consistent. We call this judge-made law. Thefantasy around judges is that they arent making up the answer, they are figuring outthe right answer. This system of stare decisis, which means the decision stands.

When you get a decision with a legal principle in it, we say that the decision stands.It is not the entire case which is binding, just the reason for the decision. Ratiodecendendi (the reason for the decision) is the binding element in a past case.Obiter dicta (things said by the way) are the elements that help us in the exercise of

truing to determine what is binding and what is not. It is not always obvious todetermine what is the ratio and what is binding in the case. This means that casescould be decided wrongly. This is a flaw in the common law system. The system isslow, laborious and sometimes unreliable which are all weaknesses in the commonlaw system. It is a complicated system, which takes considerable expertise tomaneuver. In Quebec, they have a civil code, so they just have to use 1 document,which has been complied. Statute laws are enactments created by elected officials.

Statutes are often written to clarify or correct problems, which the common lawcannot deal with. Common law affords a defense and statute law often takesdefenses away. Statute law is out there to create a legal regime that protects orgoverns what would otherwise be a common law contractual relation. When thecourts make a decision and interpret a statute, that decision can become binding onother courts, it becomes part of the body of common law. We have a hierarchical lawstructure (with upper and lower courts). We have small claims court, which wascreated by regulations that put them in effect (very small courts). Trial courts arealso called the court of original jurisdiction. The plaintiff is the person who is suing,the person who has to prove his case. The plaintiff sues witnesses to prove theircase. The judge or jury (depending on the case) is the trier of facts. People with no

particular expertise are expected to be able to act on a jury and be able to determinewhether a person giving evidence is lying or telling the truth. The decision at trialcourt is not binding on any other court. Above the trial court, there is the OntarioCourt of Appeal (when you want to appeal a decision). Questions of fact orcredibility are not appealable; you can only appeal a ruling based on a mistake orerror of the law. An appellant court only reviews documents; they dont get to see

the witnesses. You can only go to the court of appeal on a question of law. There canbe 3-5 judges in the Ontario Court of Appeal. The decision at the Ontario Court of


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spreading takes away the emphasis of figuring out whose fault an action is (thetraditional system).

WEINRIB:

Two conceptions of Tort Law (Negligence Law)

U.S.Loss spreading

U.K. Loss fixing

Loss spreading: U.S. Traynor J. in Escola v Coca Cola Bottling Co.,- cost of injury etc. overwhelming to , therefore the law should simply makemanufacturer an insurer for consumer,

- cost of injury spread among the public as a cost of doing business

Loss Fixing: U.K. : Stephen J. : task of courts remains that of loss fixingand not loss spreading

1. insurance should have no impact or relevance in this determination2. let the legislators do this specifically, tort law is to find whether liability

exists on principle

- loss fixing means finding out whose fault it isfixing the blame

Liability insurance: comes after liabilityif no blameworthy conduct on part of tortfeasor or defendant, therefore no liability

Damages or loss only comes after Q of liability -- if the availability of insuranceproceedings is a factor in determining liability, this is backwards, i.e. cant decide is at fault because there is money availab le to pay

Emphasis on loss spreading takes away traditional emphasis on lossfixing, and distorts principled basis of negligence law

Liability is a judgment on interaction, not a tax on activity

II of essay:

Features of tort law:

1. doing and suffering are correlative, make sense only in terms of each other- doing is only significant in terms of suffering and vice versa (this is onlyaccurate for unintentional torts)


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2.justifications for tort law must also be correlative, deterrence is not afactor, because it effects only the doer; compensation alone leaves out the doer

3.justifications yield a normative structure based on above,- normative structure (underlying justifications) must be reciprocal

4. duty violated is also a right owed to

5. the enforces a private right only, not a public interest

6. only entitled to remedy that def is obliged to provide, does not includeblending of policy considerations or other outside factors,- quantifies the harm done by that act to that particular

7. keeps the courts to their proper function, a resolution of a particular dispute,not autilitarianjustification

The central point from the preceding observations: private tort law is defined bythe relationship between plaintiff and defendant, and an insurance company isnot involved in this relationship, at the stage of determining liability.

Part III: p 1-9

- insurance drains relationship of its immediacy- jurisprudence takes on instrumental, social policy aspect (this is a bad thing)- insurance availability becomes a measure of validity of s claim

- loss spreading, deep pockets, etc.

Legislation is different from adjudication

Leg- public policy objectives, specific, spelled out, debated, an expression of thepolitical will- responds to and creates new situations

Adj- resolution of particular dispute- decides cases on existing, previously known, legal principle

In Canadawe keep tort law essentially private

Part IV

Legal Realists- they say thatjudges do what they want to further policyobjectives and pay lip service to principleby looking for cases andinterpretations to rationalize a predetermined outcome.


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5. Do you think this might explain the differences in what you have heard aboutdamages awards in the U.S.? Or perhaps this is what makes the U.S. a litigioussociety. Explain.6. What is meant by the term positivist?7. Is the common law positivist?

THE CASES:

This is the fun part. You are going to read excerpts from actual cases. They mayseem obscure at first, but you will know enough about law and how judgmentsare written, to enable you to know what to look for. Think of it this way: This isyour invitation into the world of secret incantations that would otherwise beunintelligible. You are soon to be party to the strange and seemingly occult worldof lawyers and judges, and with a bit of effort you too will understand what theyare talking about. Now thatsa scary thought.

Some preliminary information about reading cases.

Plaintiff: the injured party, the one doing the suing

Defendant: the party being sued, the wrongdoer, also known in a tort case asthe tortfeasor

Pleadings :Documents setting out the allegations of the parties to a law suit. Ina fairly traditional or historic use of language, the parties make a plea before thecourt.

Statement of claim:plaintiffs pleadings, setting out the allegations of wrongfulconduct and including the prayer for relief, i.e. the remedy sought.

Statement of defence: defendants pleadings, setting out why the defendantclaims he did nothing wrong; or the plaintiff cant prove its case; or the conductdescribed is not a wrong recognized at law, or something similar.

Appellant: A party appealing a decision. Either the plaintiff or defendant can bean appellant, it depends on who disagrees with the decision. As the matter goesup the appellate ladder a plaintiff or defendant can change to an appellant or arespondent.

Respondent:party who responds to an appeal opposite of the appellant.

When you read a case, if there is no name at the beginning of the segment,telling us who is writing the reasons, then this part is likely a headnote ordescription of what the case is about. This would be written by someoneemployed with the reporting service publishing the case. Judges always showtheir name, then the initial to indicate their status. For example, Stephens, J.,


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means Judge (or Justice) Stephens. There are a couple of cases where thearguments of the lawyers are actually provided in the case excerpt. This isextremely rare.

DUTY OF CARE:

What follows is the leading case establishing the legal duty that is owed in anegligence case. It establishes foreseeability as the test for liability, and thisforeseeability is based on the prescient abilities of the reasonable and prudentperson.

Note how the case uses previous case law to draw out the uniting principle toform a rule of law.

In Scotland, the trial judge is known as the Lord Ordinary, and the plaintiff isknown as the pursuer.

MAlister (or Donaghue) v Stevenson

NOTE: the plaintiff never led any evidence, the entire case was argued on thebasis that there was no cause of action based on the pleadings the facts wereaccepted by the defendant as being true, the defendant argued that they did notsupport a cause of actionin other words, even if everything the plaintiff says ittrue, you cant sue for that in Scotland.

The is the appellant:

Facts: attended caf, friend bought her a ginger beer, drank portion ofbeverage, while pouring the rest into her glass, rotten snail fell into the glass- bottle was opaque

1. she was sick2. sued manufacturer for failing in its duty to ensure snails didnt get into

beverages, and failed in duty to inspect beverages and in failing causedthe accident

Held: succeeded at trial (Lord Ordinary = trial judge)

1. on appeal - Second division overturned trial decision and dismissed theaction

2. sole Q before the court: do the pleadings disclose a cause of action ?

House of Lords: for the

1. does the def owe a duty of care to ?


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2. Previous cases decide the particular situation to find a legal duty3. Need to find general common element in the duty found in previous

particular cases4. At 1-16: love thy neighbor, at law -- must not injure thy neighbor5. Who is my neighborpersons so closely affected by my actions

reasonable care, reasonably foresee etc.

1. caution as to extent of duty, proximity, not necessarily in time ordistance, but as such close and direct relationship that a person orproperty could be injured

the foreseeable plaintiff- must have them in contemplation when directing mindto acts or omissions

OUGHT means the same as should this is the objective reasonableperson standard, and not the subjective standard as to what the def

actually thought

NOTE: The objective standard is an extremely important concept to tort law, andis sharply contrasted with the subjective standard found in questions of intentionand knowledge in the criminal law.

An objective standard of the defendants knowledge of potential harm means adefendant cannot defend herself merely by claiming she didnt know any better.What she actually knew about the potential harmful consequences of her actionsis irrelevant. If a reasonable person would have known about the potential forharm, then the defendant should have known and will be held liable.

1. case establishes, as well as reasonable person test for duty - amanufacturers liability

2. ultimate consumer is in the contemplation of the manufacturer

Ratio: at 1-18 My Lords

Questions:

1. Of what significance was the fact that the bottle was opaque?2. Why did the defendant think that there was no law suit for this kind of

situation?3. What is meant by describing the reasonable person standard as an objectivestandard of conduct?4. Do you see any problems in establishing what a reasonable person mightknow?5. Who at law is my neighbor?6. Is this decision a departure from tort law as described by Weinrib?


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Week Two: DUTY OF CARE CONTINUED

PALSGRAPH V LONG ISLAND R. CO.

If the preceding case was about establishing a relationship, and finding a duty of

care, this case is about refining that duty, and clarifying the principle that aduty must be owed to the plaintiff in the particular circumstances beforeliability will occur. The risk is relational, the plaintiff must be a foreseeableplaintiff.

Although all of us are entitled to live our lives free from the risk of injury, the lawwill only extract compensation for our injury from the defendant where there isfault. Fault in negligence is failing to recognize a foreseeableharm, there is noduty if harm is not foreseeable.

This case also clearly establishes the order of the questions for liability in

negligence. We cant simply say that because someone was injured, there mustbe liability, reasoning back from damages and causation. This is a great case tosee the stark contrast between the majority and the dissenting opinion. Themajority opinion stays true to negligence principles, insisting on the duty of careto the particular plaintiff, insisting that without reasonable foreseeability, there isno duty owed to the plaintiff. The defendant acted reasonably in thecircumstances.

The dissent, however, insists that foreseeability requires an almost prescientknowledge, that if the defendant isnt something like a fortune teller, he cant beheld liable. He reasons that we all, as potential plaintiffs, possess a basic right to

be free from wrongful injury. I suppose we arguably have a right to be free frominjury, but to use the word wrongful here is putting the cart before the horse. Weare trying, in a negligence analysis, to establish if the conduct was wrong, wecannot presume it is wrong to establish it so. The dissenting opinion reasons theconduct is wrong because the injuredplaintiffis an innocent person.

The dissenting opinion also holds that any time there is conduct causingdamage, and there was no wrongful act on the part of the injured party, thenbecause there is injury the defendant must be liable. This is wrong, exactlywrong. One cannot reason back from the injury and causation alone is alsoinsufficient.

So, the dissenting judge reasons backwards from harm, and finds liability, orfixes the blame, on whoever caused it.

Dissenting Justice Andrews rejects foreseeability as the test for a duty of care,but goes on to say that foreseeability can be used to determine the practicalquestion of where you stop paying for injury, as the consequences of a single actare potentially unlimited.


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Facts: plaintiff standing on the platform at Rockaway Beach, two men ran tocatch moving train, defs employees pulled and pushed second man to help himonto train, he dropped his package, package exploded, some scales fell down,landing on the plaintiff and injuring her:

Held: at trial for the , and on appeal (state level) for def

On appeal, case dismissed

1. no duty of care owed between defs employee and 2. p 1-19, not a wrong in relation to - nothing in situation gave notice

that package was perilous3. may be a wrong in relation to package guy, but not the , 30 feet away4. negligence once established extends to all damages caused, negligence

is not established in this case5. act did not pose foreseeable danger to any person(* consider, if

contents of package were known, employee would not push person -advert to potential harm)6. since harm was not foreseeable, def owed no duty to 7. p 1-21, risk reasonably to be perceived defines the duty to be obeyed8. p 1-21 the question of liability is always anterior to the question of

the measure of the consequences that go with liability , no tortliability, no measure of damages

9. this second statement at p 121 establishes the order in which theelements of a negligence action must be addressed, the first being theDuty of Care

Dissent:

1. feels that act was a wrong to the world at large, def accepts allconsequences

2. reasons back, if there is damage caused, obviously did something wrong3. objects to proximate cause limitation, objects to foreseeability test4. one should not have to foresee exact nature of mishap or those to be

affected, it is enough that they are affected5. sees proximate cause as a limitation of practical utility, cant make the def

pay for everything that happens

-foreseeability applies here at this point, to determine the extent or scope

of how far

Bourhi l l v Young


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This case further refines the notion of foreseeability. Now we are discussingwhether the kindof injury is foreseeable. The plaintiff in this case is a bystander,her injury caused simply by seeing the incident.

Facts: a woman 8 months pregnant, standing 45 from collision, motorcyclist

was killed in collision, suffered nervous shock as witness to the collision, babywas still-born, sued negligent motorcyclist.

Held: for the def, def owed no duty of care to , *def was negligent, but not inrelation to - nervous shock suffered by the plaintiff is not a foreseeable injury

1. must be negligent to this 2. * p 1-28, if the wrong is established, the wrongdoer must take the victim as

he finds him - thin-skulled rule, only applies after liability is established,3. p 1-28, Q of liability is anterior to Q of measure of the consequences

This case qualifies the notion of foreseeability to say the kind of harm must beforeseeable. This plaintiff sues for nervous shock, the court finds that nervousshock is not a foreseeable injury.

If the injury is not foreseeable, there is no duty of care to this plaintiff.

The thin-skulled plaintiff rule:

The reference to the thin-skulled plaintiff rule tells us that until liability can beestablished, through a duty of care owed, the rule will not apply.

The thin-skulled plaintiff rule takes away an argument that a lack of foreseeabilitymight otherwise give a defendant.

Consider this example. A defendant strikes a person who is, unknown to thedefendant, a hemophiliac, also referred to as a bleeder. An otherwise minor blowto someone without this disease can have catastrophic consequences for thehemophiliac. The injured hemophiliac might sue the defendant for her injuries.

The defendant might defend on the basis that he had no knowledge of theplaintiffs condition. He could argue that he should only have to pay for an injury

that would be sustained by a normal person, because the extent of injury was notforeseeable.

The thin-skulled plaintiff rule precludes this defence. The rule is that thetortfeasor takes his victim as he finds her, and is responsible for all the injurycaused by his wrongful conduct.But recall from the Bourhill v Youngcase, the rule only applies after you find aduty of care, and a breach of that duty. You are only liable for wrongful conduct,


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and if the conduct is wrongful, the rule says you pay for the full extent of theinjury. If the conduct itself is not wrongful, no amount of harm is going to make itso.

We could again look at our hemophiliac example. If the contact was a typical pat

on the back friendly gesture, then injury is not foreseeable. Accordingly, therewill be no liability. If the contact was a punch, or a slap, where some degree ofinjury is foreseeable, then there will be liability, for the full extent of damage.

In Bourhill v Young, the court held that harm to a by-stander, caused by merelywitnessing the collision, is not foreseeable. Accordingly, no duty of care, and noliability, to this plaintiff.

VICARIOUS LIABILITY:

1. through actions of another

2. does not require any fault on part of party vicariously liable3. most often seen in employer employee situation,4. employers are vicariously liable for damages caused by employees, acting

during and within the scope of their employment

OAKE v. WEIDE TRANSPORT

Facts:Plaintiff (deceased) driving on a gravel shoulder / median, trying to pass a slow-moving truck, at the end of median, was impaled by sign post sticking up out of

the ground. The defendant Carra had been driving a truck in the other directionand knocked the sign down. killed when he was impaled, estate sued driverand company (vicarious liability), sued defendants for negligence for leavingthe sign in such a manner as to cause the death of the .

Held: at trial for the , def Carra was negligent in not removing or reportingthe damaged signOn appeal Man. C.A.: for the defs; the was not a foreseeable , as theaccident was not foreseeable in the circumstances

1. no negligence when def hit signpost

2. surrounding signage, and layout of the road indicated that ordinaryreasonable driver would not be driving where the was driving, i.e.on the gravel median that was almost at an end, highway went fromdivided to undivided at end of median

3. as used road in an unusual manner, kind of accident that occurredwas not foreseeable

4. at p 1-32, damages and injuries not foreseeable and too remote


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5. freak accident -- could not reasonably have foreseen would attempt topass at gravel divider

Dissent: not necessary to foresee precise nature of accident in order tofind liability

1. when def cleaned up debris and asked attendant about reporting,indicates he did foresee potential danger

- may also consider the second argument advanced by the defendant - if he wasnot negligent in knocking the sign down, he was not negligent in leaving it as itwas, - he was in the position of any bystander - there is no legal duty to warngenerally- the dissent rejects this argument

MOULE v NEW BRUNSWICK ELECTRIC POWERCOMMISSION

Rule in Rylands v Fletcher

There is a brief mention of this rule in this case, and it is a rule that would findliability if there was injury, no matter how careful the defendant was in itsconduct. The court did not use this rule, and instead resolved the case onnegligence principles.

Strict Liabi l i ty (in the civ i l sense)

- generally referred to as the rule in Rylands v Fletcher, Ryland filled a reservoir,filled up his neighbor Fletcher's coal mine with water, "anyone who accumulatessomething non-natural on his land...is liable"- no matter how careful you are to avoid injuring others, if you do the above, youare liable- eg: transporting hazardous waste- products liability cases

Facts:Defendant power company had high voltage wires on towers, cleared tree limbsat 32 distance from wires. There was a maple tree 5 from wire at bottom, 32from wires at top, branches near wires were trimmed off on wire side, at wires to

40, but not on the other side. Branches on other side from 25 to 40. Wires were336 from the ground. Spruce tree near by, branches trimmed to height of 13,someone put steps on tree, climbable. There was a platform on the Spruce treeleading to maple tree, and more straps to allow climbing of maple tree. Therewas a crotch in the tree at height of the wires. At trial, court held that the hadclimbed the trees, and fallen and thereby come in contact with the wires.


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The s lawyer argued that had reached out and touched the tree, thereforethe tree was too close to the wires, and was a foreseeable accident, i.e. boysclimb trees, trees were close enough to wires to be touched - court held boycould not reach wires, touched them when he fell

Held: at trial, for , trees are alluring to boys, foreseeable they would nail cleatsto trees, foreseeable child would slip and fall, even though not probable,reasonable and prudent person would foresee danger and remove treealtogetherOn appeal: judgment reversed,On appeal SCC: facts disclose so fortuitous(unexpected) a sequence ofevents, the injury and fall were not foreseeableThis is not a foreseeable , def precautions were sufficient to avoidforeseeable accidents

Duty of Care

Amos vs. New Brunswick Power CommissionWhat happened in this case, it is against the NB power commission. Kids areclimbing poplar trees and they were close to the power lines. The tree bent over andcame in contact with the power lines. The kids hair was actually on fire and a guychopped the tree down. At trail, the plaintiff was successful because the accidentwas foreseeable and the defendant had a duty of care to the plaintiff, but the casewas appealed. The NB court of appeal overturned the decision of the trail judge andfound in favor of the defendant in this case. The trail judge made his decisionbecause the NB power commission didnt trim the trees like in the previous case.

They overturned the decision because they felt that they were bound by the decision

in rule, but when you look at the similarities, they are a lot fewer than thedifferences. The defendant in the previous case took care of the trees and trimmedthem, so the ruling from that case was taken over to this case. In the Moule case theincident was also unlikely and in this case, the accident was actually somewhatlikely. The SCC didnt see the similarities and noticed that the defendant took nocare to trim the trees like the NB power commission did in the previous case. Theinjury in this case was foreseeable and the defendant did not take the

necessary precautions towards the potential situation; therefore the

defendant is liable and the plaintiff won.

Standard of Care

A duty is a fairly easy threshold to meet and you have to worry about if you mightinjure someone if you do something. A standard of care is, is it just foreseeabilityalone, or is there something else to turn our minds to?

Bolton and Others vs. StoneIn the cricket club, someone hits a ball over the fence and it actually hits someone inthe head. This person who was hit in the head sues the cricket club. This was an


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unlikely event but the plaintiff sues. The defendant wins at trial and on appeal, theplaintiff wins. The House of Lords say that anything is foreseeable, but how likely isit? Maybe we must consider how likely is the event to happen when we aredetermining liability. The street is a quiet one and it is also very unlikely that theball goes over the fence (6 times in 30 years). It is clear that it is not that likely that it

is going to hit someone if a ball goes over the fence. The question is: Are we liable toavoid our conduct with the potential to injure someone else or is it to avoid conflictonly when that injury is likely? We will also ask: how likely is it that someone will beinjured and what is the likelihood that it will be a serious injury? If a risk is remote,it is reasonable to run that risk. The risk was so unlikely that a reasonable manwould have refrained to taking steps to worry about it. The likelihood of the injury islow and the likely of severity of the injury is also low.

The 4-factor test that courts will apply is:1. How likely is it that someone will be injured?2. What is the likelihood that it will be a serious injury?

3. What is the cost of avoiding the injury?4. What is the social utility of the conduct of that issue?

Paris vs. Stepney Borough CouncilA guy working in a factory who only has 1 eye caught a chip of something in his goodeye because his employer didnt give him glasses. He wins on trial but thedefendants win on appeal. His employer knew that he only had 1 good eye so hislikeness of severe injury is much higher because he only had 1 good eye. This madean obligation on the employer to give him safety glasses.

CausationWe have to establish all these things to win. Causation can become complicatedbecause you need to prove that the actions causedthe result.

McGhee vs. Nat. Coal BoardThe defendant worked empting pipe kilns. They changed his job to emptying brickkilns, which was a lot dustier and a lot hotter. He noticed an abrasion on his skinafter working in the brick kiln. It turned out to be dermatitis and he got it fromwork. He sued because the only known way to prevent dermatitis is to shower. Herode his bike to and from work and there were no showers in work. Causation is theissue in this case and expert witnesses were brought to trail who said that

dermatitis is caused by abrasions on the outside layers of the skin. The underlyinglayer of skin is vulnerable to injury. Medical science cannot determine the exactnature of the injury but they know that you can prevent it by washing. They alsoagreed that the longer the exposure to dust, the greater the risk of dermatitis. Theplaintiff must show that the defendant caused or materially contributed (multipletort feasers) to the injury. In order to say that it materially contributed to the injury,we need to know the causation. In Bonnington Castings, the plaintiffs injuries werecaused by dust coming from 2 sources and inhaled onto his lungs. Both sources


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materially contributed to his injury and caused his injury. In the current case wedont have that. In this case, we have a material increase in risk, not in materialcontribution. We dont know what really causes dermatitis. The injuries could havebeen caused by: 1. An accumulation of minor abrasions or 2. A single abrasion thatspread to others. We have to take a broader view of causation. He says that if the

plaintiff proves what the defendant did and that it materially increased the risk toinjury and the injury takes place, then that is good enough to cause causation(according to Lord Reid). Lord Wilberforce (concurring opinion) says that thedefendant should have known to provide showers to prevent this risk. He says thatwashing after work is standard in this industry and showers should have beenprovided. He says that it is foreseeable for injury if showers are not provided. Theinjury here is the cause of the accumulation of exposure and not washing. All theexperts could show is the accumulation of risk. When you have an increase in riskof injury and the injury occurs then the onus falls on the defendant to disprove

causation. He doesnt place the onus on the plaintiff if both those elements

took place.

Causation- you did something and that caused an injuryMaterially contributed- we have more than 1 thing that caused injuryIncreased risk to injury- it is a lot more likely that you will be injured so causation isnot our primary worry.

Remoteness of Loss/Damages

Lauritzen vs. Barstead; Wananesa Mutual InsuranceThe plaintiff was a carpenter and he asked his foreman on a highway for a ride hometo call his wife. His foreman and the rest of the guys in the car are drinking in bars

along the way and the defendant (foreman) came out of the beer parlor with 2 casesof beer. He made the plaintiff drive home because the foreman is too drunk. Beforereaching the turnoff, the defendant wanted the plaintiff to turn in for more beer andthe plaintiff refused. The defendant then hit the plaintiff and knocked off his glassesand then grabbed the steering wheel and the car slipped off the road. The weather isvery poor (Alberta in December). They ended up in a deep ditch and then decided towait until the daytime to figure it out. The defendant then drove the car into theriverbed. The car was stuck for a long time and then the defendant walked to a farmand eventually got to hospital. He has a lot of frostbite and lost significant parts ofboth his hands. The defendant was negligent in drinking and driving, in grabbing thesteering wheel and in driving the car further into the riverbed. The defendant

argued that novus actus intervineusoccurred (a new intervening act) thatinterrupted the chain of causation. The intervening event being argued was that theplaintiff let the defendant have the keys when he knew that he was drunk, whichlanded them into the riverbed. He also argued that the defendant landed them in theditch and that is was partially his fault. The court said that the defendant wasreasonable in all his actions to survive the events that were risking his life thanks tothe defendant. The carpenter could not be compensated for his wife leaving himbecause he was crippled by the defendants actions because it was not foreseeable.


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DamagesAndrews vs. Grand & Toy is the definitive case in damages on how to calculatedamages in tort law. Whenever you see the word damages, it means money, not aninjury or damaged property. There are different kinds of damages, most are

considered to be compensatory, which is just compensation for loss (wages,property, etc.). Punitive damages are for punishments. You can be punishedmonetarily but the purpose of the damages is to punish. These are often directedtowards corporations because corporations cannot go to jail. There are also nominaldamages, which are trivial damages, which are very small. Those are when you winyour case but there is no harm or injury proven so the court gives you a little bit ofmoney. You cannot have nominal damages in a negligence case because you need toprove harm/injury in a negligence case. Only in an intentional tort case can nominaldamages be rewarded, never in unintentional or negligence cases. Another type ofpunitive damages is exemplary damages, which try to make an example of theperson.

General DamagesIn tort law we have general damages, as distinguished from special damages. Specialdamages are something that is easily and precisely quantified. General damages arenot easily quantified and there are 2 types of general damages. Pecuniary losses aremonetary losses that are hard to quantify such as long-term care and lost wages forthe future. The other type of general damages losses are non-pecuniary losses. Theyare losses that are not money, but are still losses. These are generally pain and

suffering. This makes it very hard for the court to determine how much your painand suffering is worth.

The purpose of compensatory damages in tort law is to put the plaintiff in thesame position that he or she would have been in had the tort not occurred.

Andrews vs. Grand and ToyThis case tells the courts how to deal with damages that are problems. The courtassesses damages and has to look into the future. There is no ability in the court forit to revisit the case every once in a while to reevaluate the money your given. Thecourt has to make predictions of what is going to happen in the future and make asingle monetary payment at the time of the case. The big money is a judgment is thecost of future care from injuries. Before this case, it was not unusual for a wrongfuldeath suit in Canada to be resolved for $10,000. In this case, a truck hit Andrews and

we are looking at a vicarious liability case. There is a decision by the trial judge andthe insurance company appeals to the Albert Court of Appeal and they make all sortsof changes to the damages. He lost the function of both his legs and his trunk; he wasalmost fully disabled. He still has normal mental functions and is learning how todrive. He is also living on his own. He would have been able to live independently ifthe accident never happened. He will need someone around for 24 hours a day forhim to live in a home of his own. The trial judge thought that it was okay but theAlberta Court of Appeal reduced the damages substantially. They said that living


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alone would be a luxury and a privilege. The SCC thinks that it is not extravagant toexpect him to live on his own. The Alberta Court of Appeal says that normal peoplewho have an injury like this to live with their family for the rest of their life. The ACAsaid that they knew that the plaintiff would be better off to live on his own, but itwould be vastly too expensive. They also said that if you give him all this money, he

could just go to the casino and blow it all away. They also ask: what if he goes tohospital for the rest of his life, then the money given to him wouldnt help him live

on his own. There is a reference in this case to insurance availability. The courts

reference to insurance availability is not appropriate here because you shouldnt betalking about insurance. The Alberta Court of Appeal also just randomly chose$1000 to be the home care. They also reduced the amount by contingencies at trialfrom 20% to 30% of the total damages. Since we dont know what is going tohappen with care improving and other things getting cheaper, so you maybe mightnot need as much money. The court gave Andrews a lump sum that should last himfor 45 years (his estimated life span). It is very difficult to compensate for non-pecuniary damages such as pain and suffering and other damages. What do you do

to compensate for this? It becomes a policy and philosophical exercise. There are 3ways to approach this. 1. The Conceptual Approachdifferent injuries are worthdifferent amounts. 2. The Personal Approachthe loss of a limb to one personcould be much greater than the loss to another person, such as someone who needsa hand to do his or her job. 3. The Functional Approach (used in this case)Thisapproach recognizes from the outset that you cannot really compensate someonefor the loss of something, but money will provide some kind of reasonable amountof solace. The SCC said that there should be a cap for the money to be providedbased on different damages.

Matthews v McLaren, Horsely v McLaren

This is an example of a hard case.The Rules of Rescuing1. You have no legal duty to rescue- unless the law recognizes or imposes somespecial relationship (such as your child drowning).2. If you start to rescue somebody you have no duty to complete the rescue as longas you dont make his or her situation any worse- unless you make the situationworse for the person, then you have a liability.3. If you start and you attempt is negligent then the would be rescuer may be liableif the negligent causes/ worsens the situation of peril4. Rescuee owes duty of care to would-be rescuer- unless rescue attempt is

obviously futile and reckless.

This case is a companion case because it involves 2 peoples deaths, and the facts ofthe case are identical. McLaren had a boat and he and his guests were going back tothe yacht club after consuming a little bit of alcohol. Matthews fell off the boat intothe water. Nobody knows why he fell off but it isnt so important in this case. Thewater was pretty damn cold; it was 39 degrees. The defendant stopped the boat

when he realized that Matthews fell off and he backed the boat up to get back to


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Matthews. As they were reaching to get him, the boat drifted away. As it driftedaway, Horsely jumped into the water to help Matthews. Matthews vanishes underthe water and Mrs. Jones jumped into the water to get Horsely out. Jones then grabsthe steering wheel and turns the boat around to get them. Horsely died of cardiacarrest from the temperature of the water and they never found Matthews. Horsely

had no previous heart condition before this episode. This is important to show thatit is this event that caused the heart attack to happen and that it would not havelikely happened otherwise. Since Matthews body was never recovered, cause of

death was never determined. Therefore you can't prove causation because he couldhave already been dead before he hit the water. At trial, the judge found that thedefendant in the case was negligent when he attempted the rescue because the bowon method is the recommended rescue method, not the backing up method. Sincehe didnt use the right technique, it was a negligent rescue attempt. Experts said that

he should have known to use the bow on method. During the rescue attempt,McLaren created a situation of peril for any other people who would have attemptedrescue, he induced others to rescue Matthews. They said that the wrongful conduct

caused Horsely to jump into the water and subsequently die. The trial judge thoughtthat Horselys conduct was completely reasonable in the case. It was irrelevant that

ultimately he used the right rescue method to eventually get Horselys body.

At appeal, justice Schroder said that there is no negligence in Matthews originaldifficulty. An improper rescue method was used and that caused a delay in therescue. This delay created a situation of peril and should have foreseen that thedelay in the rescue would have caused others to jump into the water. The issue ofduty arises. Is there a duty to rescue? Yes, because he is the master of the vessel andin common law, you are responsible to care for the passengers on his ship. He has aduty under common lawto rescue Matthews. It is a duty to take reasonable steps to

rescue a passenger in the situation. Was he negligent when he tried to affect thatrescue? The experts say that the bow on way is the only proper way to do a rescuebut Schroder says that since everyone is panicking, backing up is a reasonable wayto act in the panic of the situation. This is too high a test because you are imposingperfection on this rescue attempt. His conduct was a reasonable response in thecircumstances because this was an emergency. The trial judge said that once heundertook the responsibility, he could not carry out his responsibility negligently.Schroder says that what he did was reasonable. He says that it was an error injudgment, not negligence. He also said that it was not foreseeable that therescue attempt would cause others to jump into the water.Justice Jessupconcurs in the result but has different reasons. Jessup says that there is a duty on

McLaren to effect a rescue, which is different than attempting a rescue. Effecting arescue is completing the rescue properly, not just trying. He says that negligence inthe discharge of the duty to affect the rescue would result to a liability being owed toanyone involved in the rescue. You are no longer a bystander. He says that thedefendants negligence did prolong the situation of peril and he should have

foreseen that his conduct would have caused other people to attempt a rescue,except in the case of Horsely in particular because McLaren told Horsely to go belowand stay back. That is what saves McLaren in this case because he told Horsely to go


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below and therefore it was not foreseeable for him to think that Horsely wouldattempt a rescue.

It is now appealed to the SCC and Justice Ritchie says that there is a duty to rescue asa master of a vessel. There is no breach to Matthews but there is a liability due to

Horsely due to defendants negligence of conduct. He says that duty is to take allreasonable steps. If Matthews was conscious he would have been able to helphimself when the boat backed up, so backing up would have been alright. He saysthat there was no evidence that Matthews life could have been saved and the

evidence of alcohol was dismissed. He agrees with Schroder and says that youcannot expect prefect rescue. The appeal was dismissed with costs. Justice Laskin(dissent) says that there is a duty to properly rescue, a duty owed to passengers bythe master of a vessel and also if a situation of peril arises when caused by thedefendants negligence. The defendant did not put Matthews in a situation of peril,but he did put Horsely in a situation of peril. Laskin thinks that a duty was owedand Horselys attempt was not wanton of reckless. He agrees with Jessup and the

trial judge and he rejected Jessups position ofHorsely having to go below. In theend, the SCC decided that McLaren is not liable.

Reibl vd. Hughes

NOTE:Now here is an odd case. The court must consider whether a doctor is required toinform the patient of the nature and the risks of a surgical procedure as part of histreatment of the patient. It is not a case about a negligent surgical procedure.You will note that the trial court gave judgment for the plaintiff both in negligenceand in battery. You will recall battery is an intentional tort, defined as the

intentional application of force on the person of another, without that personsconsent.

The Court of Appeal disagreed with battery as a cause of action in thesecircumstances, I disagree with that but who am I?Another difficult problem for the court is that the plaintiff is suing on the basis thathe would not have had the surgery if he really knew the risks. Hindsight is 20 / 20they say, every plaintiff would make this claim, once they knew the operation didnt

turn out they way they had hoped. So look for the way the court recognizes,articulates, and ultimately deals with this problem.

It is also worth noting what the Supreme Court has to say about expert evidence. Anexpert is supposed to give her evidence in hypothetical terms, it is the only opinionevidence that is allowed in a trial, and the expert is not to decide the facts. The

expert provides an opinion that will inform and educate the trier of fact, be it

judge or jury, and the trier of fact will decide the facts. Letting the expert giveevidence about the particular takes away the job of the trier of fact, and this isagainst our legal tradition.


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REIBL v HUGHES - PHYSICIANS DUTY TO DISCLOSE RISKFacts:

Plaintiff had an operation, removal of occlusion of carotid artery - during orright after operation, had massive stroke, paralysis over right side of body,

impotent formally consented, but alleged did not know risks of surgery

Held: at trial, for the , def did not properly explain risks, duty to disclose, would have refused surgery with knowledge of the risk,

liability in negligence for negligently informing liability in battery - intentional application of force without (informed)

consent

The risk is the important thing because no doctor can predict what can happen so itis not the result but the risk of the result. It negates consent if you dont have proper

information. Lack of knowledge will negate consent. That is why this is a battery

case. In battery you dont have to show harm, the issue is if you knew everythingthat you know now, and then at least you would have been able to make aninformed decision.

@ 1st appeal:

In the trial a new trial was ordered on liability and damages The case was restricted to negligence only, dismissed battery (reject vitiated

consent as non consent) both sides appealed - appealed whole case; def accepted damages award,

appealed decision re: new trial, asked for dismissal on issue of liabilitySCC:

refer to Hopp v Lepp, in which the doctors duty to disclose to patientwasdescribed, 1-97

The doctor must answer questions, and without being asked, disclose nature ofoperation; gravity of operation; material risks, special or unusual ones to you inparticular. It includes serious risks even if remote.

The trial judge did find a full duty to warn of particular risks of that procedure. Thefactors that need to be considered are: is it an emergency requiring immediatetreatment, the patients emotional and intellectual ability to understand, the gravity

of known risks and the likelihood of the risk and severity of the risk. The jury foundit hard to rely on the experts advice because experts are only supposed to give theirevidence in the hypothetical. The experts are allowed to give testimony of opinion.The jury had to decide after hearing the evidence what the facts were. The court ofappeal had concerns about the trail and the experts brought statistical informationthat were complicated for the jury to understand. That was one of the objections atthe Ontario Court of Appeal. The trail judge said that if the patient knew of the risks,


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he would have refused the operation. He found that there is a duty for the doctorto advise the patient of a risk of death or danger.

There is a contest between an objective and a subjective opinion. If it was purely asubjective test, then when we ask the patient if he would have had the operation if

he knew what he knows now he would have definitely said that he wouldnt havehad the operation. The real question should be: would an ordinary reasonableperson with this knowledge of the risks of the operation have had the operation?That is the objective test. The courts think that if it was purely a subjective test, thenthey would never figure it out because the patient would for sure say he wouldnthave the surgery. The court is going to use an objective test with some subjectivecharacteristics. The fact that if the plaintiff knew of the risks of the operation, hewould have definitely waited 18 moths to have the operation because he would havethen got his full pension. There is important information that the patient did notknow about. The subjective aspect is also still important. The doctor didnt tell him

that 8 out of 60 patients have died. He didnt tell him that it wouldnt fix his

headaches and he didnt tell him that there was no immediate need for theoperation. The immediate risk was greater from the surgery than it would havebeen to forgo the surgery.

Under the heading of causation, would a reasonable person in the plaintiffscircumstances have forgone the surgery having been given all the properinformation? The answer is yes.

Crocker vs. Sundance Northwest Resorts LtdThis case covers a duty of warn and contributory negligence.NOTE:

Here is a classic case that raises the hackles of the arm chair critic. A guy gets drunkand hurls himself down a ski hill on an inner tube, and successfully sues the ski hillfor his devastating and entirely predictable injury. At what point, we might ask, dopeople become responsible for their own actions?In fact, the plaintiff will be allotted some responsibility, the court finds that his ownnegligence contributed to his injury.Contributory negligence: under the Contributory Negligence Act the court is obligedto apportion the degree of responsibility between a plaintiff and a defendant, whereappropriate. If a person does not wear a seatbelt, that may be negligent conduct thatcontributed to their injury.The legislation was required because historically, if a defendant raised the issue of

contributory negligence on the part of the plaintiff, courts often did not want to tryto apportion the damages between plaintiff and defendant, and often gave theplaintiff nothing at all.

Facts:Crocker had a membership at the defendants ski hill. The defendant had advertised

the tube race. They go down the hill on an inner tube and he sues the ski hill for hisdevastating and entirely predictable injury. Him and his friend drink before they get


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to the event and when they get there they are required to sign a waiver. He is wellhammered by the time they get to the contest and they win their 1stheat. Hestaggered up the hill and it was obvious that he was drunk. A guy at the top of thehill said not to go because he was drunk but he said that hes fine. He goes down andbreaks his neck and becomes a quadriplegic. He sues for: Failure to warn of

dangers on the hill (it was a mogul hill), failure to warn of the dangers of tuberacing and failure to stop him from competing when he was drunk. Thedefendant says that there are no unusual dangers on the hill because you know whatyoure getting into. There are no dangers in tube racing that are required to warn

you about because you should have known that it was dangerous. They argued thathis own negligence caused his own risk. They also said that he voluntarily assumeda risk (volenti non fit injuria). They relied on the exclusion clause on the waiver.

Held for the plaintiff because the defendant could not rely on the exclusion clause.The defendant had a duty to ensure that the premises were safe. The premises weresafe but the plaintiffs use of the premises was not safe. There is a duty to warn that

tubing is not particularly safe. The dangers of tube racing are not as obvious asexpected; therefore the company had the duty to warn. The duty arises by thecontract and the duty also arises because the ski resort was an occupier of the land.They also had a duty to save the person from his own carelessness (preventing adrunk man from racing). They should have called the police to resolve the issue,Sundance didnt do anything to stop him from racing. The cost of avoidance wassmall compared to the likely severity of the injury. Therefore, the defendant wasnegligent. There was no voluntary assumption of risk on the part of the defendant.The plaintiff said that he did not read the exclusion clause on the ski ticket, but itdoesnt matter because the ski-pass is about skiing, not tubing. The waiver does notbind him because if a person is going to rely on the term of a contract, then the other

party has to explicitly draw his attention to the specific dangers of the activity.Therefore, there is no voluntary assumption of risk. He was found to becontributory negligent and they apportioned the damages.

Norsk vs. CN PureEconomic Loss

NOTE:You are in the theatre, watching a movie. A car slides off of the road outside andknocks a hydro pole over. The lights go out, and you cant watch the rest of themovie. You cant really sue the theatre owner for a refund, but what about the driver

of the car? You are out the price of a ticket. We accept that the owner of the hydro

pole can sue the driver, but what about all the other people that have lost somemoney because of the accident?

One can easily imagine that allowing everyone affected to sue would beoverwhelming, logistically and financially. That vision of limitless claims produced ageneral rule: you cant sue in tort if your only loss is purely economic. You hadto suffer either harm to your person, or your property to sue for negligence. And forproperty, you had to be the owner of the property to sue. In Hedley Byrne, the


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plaintiff sued for economic loss on something that the other party had said(detrimental reliance/negligent misrepresentation). You can't recover for pureeconomic loss but can also now sue for detrimental relianceafter Hedley Byrne.

In the Norsk case, the plaintiff, CNR, is not the owner of the bridge, the bridge

belongs to Public Works Canada, so the plaintiff is suing the defendant for itsdamaging of someone elses property.Norsk runs their boat into the bridge anddamages it. CN is going to lose money because they can no longer use that bridge fora little while when it is being fixed. It is not their bridge, so Norsk says that CN can'tsue them because their loss is purely economic. At trail, the judge allows the case.The judge said that the old rule about economic loss in Canada is gone, but nowthere is no rule left so they will just look at some factors: 1. Is the damageforeseeable? 2. What is the proximity between the conduct and the injury? 3. Isthere knowledge of the person who will suffer loss?

Norsk appealed and the plaintiff won again. The defendant appealed again and the

case went to the SCC. In the past the law restricted the recovery to the person whoseproperty or person had been damaged, to avoid unlimited liability. The SCC wantedto consider the following elements: 1) should be limits on liability 2) limits to beclear 3) should include legal, economic policy, individual fairness

They come to the conclusion that no single simple rule is available. They then lookto the different jurisdictions.

UKThey followed the old rule, then to Hedley Byrne v Heller- reliance on statementgood enough to create relationship; extended to all negligence cases where shown

1) foreseeability and proximity between and def; and 2) no reason to limitliability; ** but in UK, reverted to former rule, couldnt get a single simple rule, back

to physical injury and reliance

USThey were worried about floodgates, strict application, limited to particular class ofcases1) In cases where economic loss is closely related to physical damage2) In pollution casesfisherman were rewarded because of pollution which led totheir economic loss3) In products liability cases, where the defective product creates unreasonable risk

of harm to people and the harm materializes.

Civil Law jurisdictions: Quebec/ France (codified)In Quebec there is no distinction between physical and pure economic loss. Youneed only show, fault, damage, direct and immediate causal connection. Theexample is a bus company, which recovered damages from a driver who had anaccident and congested traffic; farmer recovered from someone who knocked overhydro pole - caused power failure


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Canadado not obey the old ruleIn Rivtow Marine: the court allowed damages for loss of use of crane (dissent wouldallow damages for to repair crane - even though didnt own crane)

City of Kamloops v. Nielsen, - city official negligently inspected construction, houseworth less money, required repair in order to find liability 1) is there a dutyrelationship sufficient to support recovery; 2) is there any practical rule to extendfor recovery?

We need a rule to allow recovery where appropriate, but limit frivolous cases.

Doctrinal Considerations:

1-123 - law resides not in set of a priori principles, but in decisions of the courtstask of doctrine is to identify the factors common to decisions, to find emergingprinciples - single simple rule not available

a priori prior to experience, on principle only

We cannot obsess on doctrine and say that it is only on a set of principles. We needto take the real world into account.

The 2 opposing views here are doctrinal and incremental. If you stick with the oldrules, then you can have an unfair result. The law has to change with new times andnew situations. We say that uncertainty is inherent in the common law. Uncertaintyis the price we pay for flexibility. We are going to use a proximity rule. There are 3kinds of proximity between the act and the injury, which are physical proximity,circumstantial proximity (employer vs. employee) and causal proximity. The court

says that pure economic loss is prima facie recoverable where there is a negligentact and a foreseeable loss and a sufficient proximity between the action and the loss.Note that the court does take notice on some of the arguments made by thedefendant that were purely economic arguments.The Economic Theory arguments: to support limiting recoveryInsurance argument- in better position to assess risk, - but -1) reduced recoverytakes away incentive to take care = more accidents = more insurance cost; 2) withincreased risk, neither party could afford the insuranceLoss spreading argument- loss should be spread on everyone because it ischeaper that way. The court asked: why should be the insurer? Just anothervariation of 1), so - find there will be more accidents, and some victims will

experience larger losses than others,, and where only one victim, no loss spreadingargument is availablleContractual allocation of risk- CN would contract with PWC to absorb cost ofproblems -yeah right - argument is to retain old rule, parties will be smarter whenthey contract for use - build in indemnity - PWC would never go for this, plus putsthe onus of the victim to insure against tortfeasor

Boarelli v. Flannigan


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NOTE:The principle of compensation in tort law: to use money to put the plaintiff in thesame position he would have been had the tort not occurred. When you calculate thecompensatory damages, you use all the numbers at your disposal. The plaintiff mayhave lost his ability to work and sues for lost wages. The defendant notes that while

he was sitting around the plaintiff was collecting welfare. That amount should besubtracted from the claim for wages; after all, the plaintiff was receiving somemoney. And what if the plaintiff has a plan at work, or the neighborhood takes up acollection? Although it sounds reasonable to subtract these amounts from theplaintiffs damages award, still it seems that a welfare scheme actually assists the

defendant wrongdoer by reducing his liability.

Incidentally, this case is from 1968. The plaintiff was receiving $280.00 (approx.)per month from General Welfare. A nice one bedroom apartment cost about $75.00per month. Today a singe person on welfare receives, at most, $512.00 per month.An apartment cannot likely be had for this amount of money. Welfare recipients in

Ontario, and I suspect other jurisdictions, are starving. If you can actually survive onthis amount of money, welfare officials may start to reduce your amount ofentitlement because it is presumed you have undisclosed or hidden income.

Facts:- injured - sued def successfully- received welfare payments after injury and before trial- at trial, judgment ordered damages calculated by subtracting amount of welfarepayments- welfare payments called collateral benefits: a benefit received not directlyrelated to or as a result of the injury or loss

- after trial, lawyer sought to lead fresh evidence that had made an assignmentto City of Toronto to repay welfare benefits from judgment- new evidence adduced- all parties conceded if this was known then judgment would not have beenreduced- judgment said, however, if no assignment, had to be deducted

The courts said that it is not fair for the wrongdoer to enjoy the benefits from theplaintiffs welfare.

Ont Court of Appeal

Held:- previous cases - Redpath, p 1-136- startling to subscribers to realize distress funds were to the benefit of thenegligent railway company- welfare was not designed to be for the benefit of wrong doers- no difference between welfare and charity, i.e. public or private benevolence- let legislation resolve the problem


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- Analogous to tax argument: defendants complain that single payment for loss ofwages is not taxed, and wages received would be taxed- court says: too bad, let the legislation take care of it- none of the defendants business- wrongdoer not to enjoy the benefit

- same as employment benefits, paid for them in his wage / benefit package, defdoesnt benefit from s wages- payments ex gratia; out of charity- same as above

Dobson vs. Dobson

FactsA woman is driving her car when she is pregnant and was in a car accident. Herchild was born on the day of the accident prematurely and he suffered injuriesbefore he was born. He later on sues his mother for negligent driving.

The child is a minor so it might be the case that if she was successfully sued, thenshe would get the money from insurance. This is an anomaly in the case. She is goingto admit negligence in the case and the money will go to her to look after her child. Itis counter-intuitive to us. At trial, her son wins because (1) there is nothing incommon law baring the suing of your own parents and (2) although a fetus is not alegal person, once that child is born alive, the child can sue 3rdparties for injuriesthat were sustained in utero. These are the 2 principles that lead to the conclusion inthe trial courts.

At the court of appeal, they recognized the 2 principles from trial, and also saw a

difference between the actions brought by a fetus and by a born alive child. Theyworried about this lawsuit because it could lead to the mothers being sued for somany different things that affected their children in utero (smoking, drinking). Theydidnt want to impose standards on the mothers lifestyle down the road. They

resolved the case on a narrow issue of liability to the born alive child for negligentdriving. The court thought that they could restrict the narrow issue, because theywill allow for the suing of a born alive child for negligent driving. It is a very narrowissue that might be taken out of context down the road.

They look at some other cases:Duvalforeseeable plaintiff unborn child, once born - legal relationship

crystallizes, and claim for damages can be madeMontreal Tramways - foetus is injured, once born, deemed to be have been born atthe time of the accident

SCCJustice Cory gives us an analysis of what the problem is in this case. He follows

Kamloops vs. Neilson. A) Duty of care/proximity, B) are there any policyreasons for limiting the scope of recovery. The duty of care is obvious. Cory


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says that it is a case of autonomy and privacy. He says that the fetus is part ofthe mother and gives the analogy that between the mother and 3rdparty, theliability wont work. The mother is actually suing herself because only afterbirth does a fetus have a separate personality. An argument against it is thatthe child is deprived of compensation because it has a mother. The other

problem is that the mother is potentially subject to tort liability throughevery waking moment. The most mundane decision could have severeconsequences. They cited the Winnipeg case where a woman was going to beput away because she was pregnant and a glue-sniffer. It was too much of anintrusion on the fundamental rights of the person.

1: duty of care intrudes on fundamental rights no longer an autonomous decisionmaker2. cant define a standard of care for a pregnant woman3. life-style choices like drug addiction may be beyond womans choice, - nodeterrent value (secondary purpose of tort law)

4. attracts too severe a level of external scrutiny argued - Winnipegis different, was a foetus, this one is alive, but Corey J. says -same policy issues arise in both cases

In the UK, they see the problem the same way that Cory sees it but there is tortimmunity, except in the narrow case of negligent friving, as long as there iscompulsory automobile insurance by statute.

In the US, there is no consensus on how to deal with the problem.- Stallman v Youngquistdenied the claim, noted that 3rd parties are liable, in sucha case, interests of mother and child are one and the same, dont have the policy

issues and problems of child suing mother- excessive scrutiny of all decisions a mother makes- Bontein US - same as trial judge in Dobson- but Corey disagrees for policy reasonsCorey : 3rd parties can continue their lives as before with recognition of a prenataltort mothers cannot, implications are too huge.

Consequences of recognizing the Tort- mother would be liable in situations where a third party would not, every decisionis called into question, every decision about her doing anything- restriction of activities

- this should only be undertaken by the legislature not the courts- emotional trauma to be sued by your child- real issue is lack of financial support for injured children, the way to do this isthrough better health care, not tort liability

Problems with Standard of Conduct-No such standard exists, there is no such thing as a clearly defined reasonablepregnant woman standard


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- suggested by intervenor that standard would not make the mother an insurer ofthe child, only for reasonable standard of activity- Corey - unworkable, too strict, no smoking and drinking, etc.,, takes awayautonomy

Lifestyle choices particular to parenthood Fleming on Torts

- this is unworkable, anything can be related as particular to parenthood, drivingsure is

general duty of care- rejected by Corey - the litigants before the courts are theissue - ** this is wrong, we always judge them on a hypothetical reasonable personstandard, and reasonable foreseeability

Motor Vehicle exception

- this has to be done by statute, if the court does it, the reasoning can always beexpanded to generate more claimsInsurance dependant rationale

- there is insurance available the availability of insurance is antithetical to tort lawprinciple, compensation and liability cannot be based on either available insuranceproceeds or the defendants ability to pay

- even though the insurance would help the mother and child and family, judicialdecisions cannot take this into account

Summary on page 13:

McLachlin concurring, but for different reasons- unacceptable interference with liberty and equality- liberty, the woman would lose the freedom to make her own choices- all other Canadians can decide what to eat or drink, except a pregnant woman

Dissenting Opinion:

Major

two objections raised in majority

1: trial judge wrong to compare mothers duty to that of a 3rd party

- mother and child are not 2 separate entities

2. policy implications are too substantial, freedom, autonomy, etc

foetus has no cause of action - so this is not an issue


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- the case is about a born alive child, which has a cause of action, all this talk aboutfetuses is just bunk

- duty of care is owed to born alive child issue becomes one of causation

- duty of care is obvious - this was conceded by the majority- so the issue is policy considerations

- in this case the womans perspective must compete with her born-alive childsinterest

- the mother owes duty of care to all users and passengers on the road, likewise aduty to her child if she knows she is pregnant- her obligation to drive safely does not restrict her freedom, she has no right todrive dangerously because of her liability to 3rd parties- this is surely not an imposition on her right to freedom of choice

- mother owes d of c to 3rd parties, and owes d of c to her child

- disagrees that actual parties before the court are the issue, negligence law basedon the reasonable person- her conduct was below that of a reasonable person- if freedom of action is not in issue, then there is no compelling reason to denycompensation to child

- bare assertion of a policy interest is not enough to deny compensation

- equal acknowledgment of the rights of the child

- the removal of the plaintiffs right to sue in tort for negligence lies within theexclusive purview of the legislature

In the US, when you pay interest on a mortgage, you can deduct that from taxes. Itsounds like a good idea because you get to pay fewer taxes. This legislation benefitsthe banks. The government passes legislation without really thinking it throughbecause it has now put them all in a terrible position. James doesnt like Mitt

Romney! This tax thing is a really bad idea because money is taken away from those

who can't give money up.

JORDAN HOUSE v. MENOW AND HONSBERGER

NOTE:

They are running a tavern inn in this case.


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Occupier's Libility:

An occupier is an occupier of land, and includes a person who owns or leasesland. An occupier owes a duty of care to anyone who enters his or her land.

Occupiers liability, together with the law of negligence, is an expanding area oflaw. It would be hard to deny the impact of the availability of insurance proceedson this area of law. This is not to say that courts are finding defendants liablebecause they are insured, but there is no doubt that injured plaintiffs are far morelikely to sue when they know there is a deep pocket to pay their claims.Homeowners are usually insured, many residential tenants are insured, mostbusiness occupiers as tenants or owners of land are insured. In reality, in atypical slip-and-fall case at the mall, a plaintiff could be suing the storeproprietor, the entity holding the commercial lease, the actual land owner, andpotentially the municipality, to name but a few.

This area of law applies to taverns, hotels, and even private parties.

At common law, there are three categories of persons entering lands not theirown, and the occupier owes varying duties of care to each one. The categoriesare: Trespasser, Licensee, Invitee.

1. trespassers- lowest duty owedto avoid deliberate injury,- an exception - persons with swimming pools, small children are trespassers,still have duty to protect them, - under statute- trespassers assume all risks, occupier has no duty to warn except of "traps" ordevices, eg. beware of dog

- if occupier knows of trespassers use, and acquiesces, implies consent = duty towarn of any dangers

2. licensees- with express or implied consent of the owner, usually for ownbenefit- duty to to protect licensee from concealed dangers occupier knows about

3. invitees- highest duty, invited onto lands, usually for benefit of the owner- customers of stores, theatres etc., invitation to enter

* Occup ier 's Liabi l i tyActR.S.O. 1990,abolished the distinction between

invitees and licensees, the same duty is owed to both.

Now theActsets out obligations and liabilities of occupiers and persons enteringthe lands.- duty to take reasonable care to ensure safety of persons- note the obligations to trespassers


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Held:At trial:

1. 2 grounds for finding a duty: 1) under Liquor License Act, there is a dutynot to serve person intoxicated

2. 2) under same Act, you are allowed to throw them out, but to do so not insuch a way as to subject them to danger3. Act supported proposition of common law duty not ton injure them while

you are throwing them out, evidence of a breach of standard of care4. Even though entitled to throw him out, right qualified by a common law

duty to make sure you dont harm him doing so this is because theplaintiff is an invitee, tavern invitorcommon law of occupiers liabilityapplies

Held on appeal:- again, for , breach of common law duty of care, the common law duty of care

was the one imposed by the common law in relation to an occupiers liability

Def argued:

1. Section .67 of the Act sets out exclusive and is the only place in the actthat describes liability

2. other party giving ride was a new fact that removed from scope of theirobligation

3. the second argument is a Novus Actus Intervieniensdefense4. court rejected these arguments

Supreme Court of Canada

1. Act evidence of common law duty of care owed, Liquor License Actdoesnot describe a statutory right to sue, (if it did, this would be limiting)

2. Common law duty arises from foreseeable risk of harm, and riskunreasonable to harm

3. Foreseeable risk - guy was drunk, def knew about propensity to drink,knew where he lived, knew drunk on that occasion, hotel on a highway,knew took highway to get home = foreseeable risk

4. Reasonable to run the risk: look at Bolton & Stone: not reasonablebecause:

5. A) likelihood of injury high6. B) cost or burden of avoidance is low when compared to potentialseverity of injury

7. Could have called a cab, the police, someone to give him a ride, gave hima room for the night, lots of opportunity. The cost of avoidance was prettylow and the likeliness of injury and extent of injury was high.


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There was no Voluntary Assumption of Risk because he was too drunk to beaware of the risk, and he lacked the legal capacity to agree to it

He was Contributory Negligence : all three defendants equally responsible for theinjury

Nespolon v Alford

The defendant, Snyder, is 14 years old at the incident. Him and his 2 friends go tothe house of Albert to drink underage. Snyder drank 2 liters of wine. They went to adance after and Snyder was really drunk. His friends left him in someone elses car

that they knew. It is Alfords car (defendant). Alford could see that this guy wasdrunk and they took him to drive him home. They didnt know where he lived so

they went to Burger King. A police officer saw Snyder being drunk and said that ifthey dont take him home, that theyll go to jail. They set out to take him home and

on the way to his house he told them to let him out because he knew the people who

lived in a house along the way. Snyder gets out of the car and staggers off down acouple of lawns and back onto the road. They turn around and another car comesalong. The other car slows down to ask him if he is okay. Snyder is on the road on hisknees facing Nespolons car and he doesnt even see Snyder and he ran over him and

killed him. Nespolon feels terrible and he never returned to work and got verydepressed. He was overwhelmed with guilt and he was diagnosed with PTSD. Takinga step back we have to remind ourselves that Nespolon is suing because he killed aperson. It is an unusual case. The court found that Nespolon was not found negligentin his driving because it was too dark and he wasnt wearing bright clothing. The

trial also said that the guy who gave him the wine was not negligent because therewere too many intervening acts in-between. They found that a duty of care was

owed by Alfred and Bedard. They ought to have known that Snyder would have hurthimself and brought others into a situation of peril. Snyders liability was based on

the fact that he should have known that he could create a situation of peril if he gotthat drunk. Nespolons PTSD was forseeable and is therefore compensable. Anordinary and reasonable 16 year old should know that seeing a person who you justkilled could cause nervous shock. The difference between this case and the othercase with the motorcycle accident where the woman gets nervous shock is that inthis case, Nespolon was the instrument of death and is more intimately involved inthe situation. At trail the entire test was met, but the court of appeal doesnt agree

with the trial decision.The court of appeal (SCC) says that Alfred and Bedard acted reasonably in the

situation because they figured that he knows the people who lived there. Theycouldnt reasonably foresee that dropping Snyder off at the roadside could causePTSD to the plaintiff. She says that there is no causal connection between droppingSnyder off and the injuries caused to the plaintiff. Their behaviour was reasonablebecause he said the he knew the family. All you need to do is act reasonably in thecircumstances. They didnt have any reasonable alternative. She says that it was notforeseeable to them that someone on a clear night would not notice a person on theroad. She says that there is no liability for dropping him off. The court says that the


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law only compensates the injuries that are caused by someone elses conduct,liability for nervous shock is rare and a relationship must exist for one to be foundnegligent for this. She is concerned that liability will be expanded to an everlastinggroup of plaintiffs by recognizing nervous shock. Nervous shock is notforeseeable and not caused by their actions.That is the majority opinion. The

dissenting opinion is Justice Brooke, who says that once the police confronted them,Alfred and Bedard accepted a duty not to abandon him at the side of the road. Theywere responsible enough to take the car to a dance. The police officer thought thatAlfred and Bedard were adults and the affects of alcohol were obvious. Theyunderstood their responsibility to Snyder. They could have walked him up to thehouse or taken him directly to his house. The alternatives were not outrageous andthey knew that Snyders intoxication could lead to a situation of danger. Nervous

shock is not foreseeable Nespolon was directly involved in the accident and was nota bystander. There is no reason in this case to differentiate between physical andmental injuries in this case. Snyders own intoxication is negligent.

Mustapha v Culligan

Mustapha orders water from culligan and he finds 2 dead flies in the water. Hethinks that he was drinking contaminated water his whole life. He sends it back toculligan and became obsessed with the event and the revolting implications of thewater. He developed a depressive disorder and anxiety. The trial judge found thatseeing the flies caused an anxiety disorder and awarded his with damages.

We can wonder if that is a reasonable response to the fly in the water. They refer toDonaghue vs. Stevenson. The duty of care is easy to establish. The standard of carewas below the norm when culligan allowed the flies to get in. Next comes did the

plaintiff suffer damage/injury? Nervous shock is injury, but being upset is not aninjury recognized by law. It has to be substantial. On the findings of the trial judge,Mustapha developed a major depressive disorder, which had a serious impact on hislife. He established that he sustained injury/damages. The causation andremoteness asks whether the harm is too unrelated to the wrongful conduct to holdthe defendant liable? Any harm is actually possible and we know this, but it doesnt

provide a meaningful standard. It was not foreseeable that a person would have thisreaction. It is not caused in law, it may be caused in fact, but not law. It is too remote.The trial judge got it wrong because he was too subjective on the characteristics ofthis particular plaintiff. He should have thought on terms of a reasonably normalperson. You have to establish duty of care by foreseeability.

PRACTICE QUESTIONS1. C2. D3. A

3. A4. A5. A


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6. D7. C8. C9. B10.F

Tort Law Notes- PHI2080

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