Torts_Fall_Exam_Case_Map

1. Torts Fall Case Map Introduction Crocker v. Sundance Northwest Resorts Ltd . Facts : Man injured in a tubing race at Sundance. He had been drinking heavily and had signed a waiver.  Crocker didn’t know what he was signing (it was in a bar atmosphere)  The hotel knew he was drunk and continued to serve him. Sundance failed to warn him of the dangers of the race.  Didn’t explain the content of the waiver to Crocker Held: Sundance came under a duty not to expose the plaintiff to an unreasonable risk of harm. Ratio: 1. Duty of care: invitor-invitee relationship  one is under a duty not to place another person in a position where it is foreseeable that that person could suffer injury. 2. Standard of care: what steps a reasonable organization would have taken to prevent Crocker from competing in the tubing race. (E.g. could disqualify him from racing. The fact that Crocker was drunk, legally obliged Sundance to take all reasonable steps to prevent him from racing). 3. Causation: The inclination of a drunken person to get hurt is greater. The failure to meet the standard of care, did cause the harm. 4. Voluntary assumption of risk: Can be said that Crocker assumed the physical risk, cause he participated in the race but he could not assume the legal risk, since he was drunk an didn’t know the content of the waiver. 5. Waiver as contractual defense: can’t release fro liability. A waiver must be brought to the attention of the person who is signing it. 6. Contributory negligence: Crocker’s own behavior ( his choice to get drunk) Duty of Care Donoghue v. Stevenson, House of Lords Snail in the bottle of ginger beer. Ratio: You no longer need a contract as a prerequisite for a negligence action. A manufacturer who produces an item to be sold for human consumption in packaging which precludes inspection owes the customer a duty of care and must take steps to reasonably ensure that the product is safe for consumption.  Neighbor principle – opened up manufacturer’s liability. Your neighbors are persons who are so closely and directly affected by your act that you ought to reasonably have them in contemplation of being so affected when I’m directing my mind to acts or omissions which are called into question. Cooper v. Hobart Economic case Facts : Funds were used for unauthorized purposes. Investor sues the Registrar of Mortgage Brokers for a breach of duty for failing to suspend the Broker’s license or notify the investors. Ratio: The court introduces the Anns test. 1. Relationship (proximity + foreseeability). The court held that the proximity must arise from the statute under which the registrar is appointed: the statute doesn’t impose a duty of care to individual investors, but rather the duty is to the public as a whole. 2. Policy considerations: How would the society be affected if a duty is found? How far do we want to go in finding public servants liable? Dobson v. Dobson, SCC Pregnant woman was injured in a car accident. As a result the fetus was injured. The child sued for injuries received while in the womb. Issue: whether or not the fetus can successfully sue his mother for a breach of duty (prenatal negligent act)? Ratio : The Dobson case tells us that the neighbor principle as articulated in Donoghue and Stevenson is only the first step in determining whether or not there is a duty. The second step is to consider any public policy concerns. The implications of finding a duty of care:  The imposition will result in an extensive intrusion into the bodily integrity, privacy and autonomy rights of women.  Too much of a deterrence ( women would be afraid to engage in any kind of activities)  The woman should not carry the additional burden of duty, they already carry the burden of reproduction.  Relationship in the family will be affected. Have to remember that there is already a moral duty of the mother to her child.  Pregnant Mothers are immune from liability for injuries caused to the fetus while in the womb, as a result of negligent behavior of the mother. Affirmative Duties Rescue Horsley et al. v. MacLaren Ratio : There is no duty to take positive action to aid another in peril if the cause of the peril is completely unrelated to that person. There is no obligation in law to be a Good Samaritan.

2. Jordan House Ltd. v. Menow and Honsberger Menow was a patron at a local bar/hotel. He was served liquor past the point of visible intoxication. He was kicked out of the bar and began to walk home while intoxicated. The employees knew that Monow was unable to take care of himself by reason of intoxication. He was struck by a car and killed on his way home. Ratio: “The common law assesses liability for negligence on the basis of a breach of duty of care arising from a foreseeable and unreasonable risk of harm to one person created by an act of omission of another”.  Invitor-invitee relationship (economic relationship- patron owes a duty to patron due to economic benefits).  Breach of Statute (alcohol over serve).  The employees knew that Menow was intoxicated.  Act  turned Menow out, omission  didn’t take preventive measures  The hotel came under a duty to Menow to se that he got home safely. NOTE : Similarities between Sundance and Jordan House: Duty to take affirmative action to save someone from harm in both cases. “Special relationship” in both cases: both participated in drinking. Sundance did not meet the standard of care required by the duty they owed Crocker. They had the power to call the police, stop the race, disqualify Crocker, etc. and they did nothing to prevent Crocker from racing. In Jordan House there is a relationship between the inn keeper and its patron. The owner and its employees also had knowledge of Menow’s habit to drink to excess. They ejected him from the bar knowing of his condition and failed to make sure that he gets home safely. Stewart v. Pettie, SCC (1995) Two couples went to restaurant. The men drank. One of the men (pettie) decided to drive. Sister in the car gets injured. Issue: 1. Did the establishment owe a duty of care to a third party? 2. If yes, what standard of care is necessary and was it met? Ratio: The scope of the duty is extended to 3 rd parties. 1. Commercial vendors of alcohol owe a general duty to the public not to create foreseeable risks. In this case there was a sufficient proximity between the vendor and the injured party. However, a mere over serve doesn’t create liability  need foreseeablity. In this case, the presence of two sober women took away the foreseeability. It wasn’t foreseeable that Pettie would be driving when two other women were present. [The neighbor principle] 2. To take affirmative action to prevent the reasonably foreseeable risk. The standard was met because the only steps that could have been taken were to put the intoxicated patron under a charge of responsible person. In this case, he was already in their care  no breach. Creation of Danger Oke v. Weide Transport Ltd. and Carra, Man.C.A. (1963) The defendant hit sign on side of the road. He removed the debris but did not remove the metal post. Another driver while passing struck the sign and was killed. Reasons: Freedman J.A. (dissenting) : took issue with the defense argument that the defendant was under no duty of care in regards to the broken sign and that his position was no different from any other motorist who drove by and did not report the sign. Other motorists did not collide with the sign; the defendant did, even if it was without negligence. Other drivers had no part in the destruction; the defendant participated in the creation of the hazard, recognized his obligation by way of rectification but failed to do so. Evidence of his recognition of the risk was evident when he told the gas station attendant and then did not report it.  He knew of the risk and didn’t take enough steps to prevent it.  Once a danger is recognized and there is some attempt to ameliorate the debris to prevent danger, you have started a rescue and hence become subject to a duty of care. Reliance Relationships Zelenko v. Gimbel Bros., Supreme Court of New York (1935 ) Plaintiff fell ill in defendant’s store. The defendant moved the plaintiff into an infirmary and left her alone with no medical aid for six hours. Ratio : The general proposition of law is that if a defendant owes a plaintiff no duty, then refusal to act is not negligence. But if a defendant undertakes a task, even if under no duty to undertake, the defendant must not omit to do what an ordinary man would do in performing the task.  The defendant assumes duty by meddling in matters with which it had no concern. Statutory Duties The Emergency Medical Aid Act, R.S.A. (1980), pg 333 If a person (doctor, nurse, medical technician, or any other person) renders aid to someone in a medical emergency (not at a hospital) that person “is not liable for injuries to or the death of that person alleged to have been caused by an act or omission on his part in rendering the medical services or first aid assistance, unless it is established that the injuries or death were caused by gross negligence on his part.” O’Rourke v. Schact, SCC (1973)

4. Gorris v. Scott, Exchequer Court (1874) Sheep washed overboard in storm while in transit. Rely on the Contagious Diseases Act. Ratio :  The statute breach must be a statute that was designed to prevent the damage at hand .  Sometimes an action may be maintained were damages were caused, where the object of the statute is to confer a benefit on individuals and to protect them against the consequences a statute was designed to prevent .  Not only must the act be of a type the statute was meant to prevent, but the claimant must be someone whom the statute is designed to protect.  Court: The purpose of the statute had nothing to do with the tort that the defendant is sued for. Ryan v. Victoria (City), SCC (1999) The appellant was injured while riding his motorcycle across a Victoria street railway tracks. There is a long-standing common law rule that the standard of care owed by railway companies to the public was normally limited to the discharge of statutory obligations. Ratio: A mere compliance with the statute doesn’t preclude the finding of civil liability , if negligence is found. The behaviour of a person has to be viewed in the scope of negligence and assessed according to the standard of care of a reasonable person under the same situation.  Compliance with statue doesn’t supersede the obligation to comply with the common law standard of are.  The railway complied with the statute but failed to meet the common law standard – failed to warn of danger and hazard. The Role of Custom Waldick v. Malcolm, SCC (1991) Waldick fell on ice at the Malcolm’s home. Malcolm’s claimed it was local custom not to ice driveways. Malcolm breached the statutory duty imposed by the Occupiers liability Act. Ratio : Customs can provide with a fairly precise standard of care to facilitate the courts’ task of deciding what is reasonable in the circumstances. However, customs can be negligent (as in this case) and therefore will not be acceptable.  Customs are not absolute, but they do provide guidance to court in establishing the standard of care. Neuzen v. Korn, SCC (1995) Woman contracted HIV while being artificially inseminated. The Doctor claimed that he did everything that was known and customary acceptable at the time. Issue:  Whether the custom was negligent? Yes  Whether the professional standard should be replaced with the reasonable person standard. -Yes Ratio :  The court held that what the doctor failed to do is screen the donor for HIV.  The standard of care of professionals can be replaced by the courts where any ordinary person would be able to understand and decide on what a reasonable person would have done in the situation. It was very reasonable for any person to see that a reasonable person would have takes precaution to make sure that the donated semen is not HIV infected.  The old notion that “doctor knows best” is not the case anymore. Altering the Standard of Care Lower Standards Emergency Emergency Medical Aid Act, R.S.A. 1980 – lowers the standard of care Those who render assistance in emergencies are protected from liability up to the level of gross negligence. The legislature recognizes that medical professionals are held to a higher standard of care. It will be very hard to argue against this standard because the legislature has specifically dealt with the issue in order to encourage people to aid in rescue. Mental and Physical Disabilities Wenden v. Trikha, Alberta Court of Queens Bench (1991) Trihka was mentally disturbed and stole a car. He was under delusions while driving. He struck the plaintiff who was injured as a result of the accident. Issue: Whether or not a disabled person should be held to the same standard of care of a normal person? Ratio : There is no room in tort law for mental incapacities. These individuals are subject to the standard of care of the reasonable, ordinary individual.  Even though, he didn’t understand the duty to the public, the court is able to impose such duty. Buckley and T.T.C. v. Smith Transport A driver suffering form an insane delusion that his car was being powered by a remote control caused a collision. Court : A person who by reason of mental disorder was either incapable of appreciating the duty to take care or incapable of discharging that duty, wouldn’t be liable in negligence.  His insanity prevented him from discharging his duty.

5.  On the one hand, disabled should be held to the standard of a normal person, because that would encourage these who take care of them to take a better care to prevent risk and liability. On the other hand however, holding disabled liable, if they could not appreciate the duty and therefore were incapable of discharging it, would create strict liability (liability without fault).  Physically disabled shouldn’t be treated differently form mentally disabled  If had no control over the actions, should not be liable.  However, If there is knowledge that an “insanity episode” may happen ( if its foreseeable – the person has history), then that person can be found liable even if at the time of the episode he had no control over his actions. Fiala v. Cerhmanek pg. 207 MacDonald was suddenly afflicted with a severe manic episode. He humped on a car and started choking Cechmanek. As a result, Cechmanek involuntarily hit the gas pedal and stroke a car of Fiala. Held : MacDonald was afflicted suddenly, and without prior warning. His condition left him with no control of his behaviour and inability to appreciate the duty of care owed to C and others. Ratio: To find negligence, the act causing damage must have been voluntary and the defendant must have possessed the capacity to commit the tort. In order to be relieved of liability, the mentally ill must show on the balance of probabilities: 1. Had no capacity to understand or appreciate the duty of care owed at the relevant time. 2. As a result of the illness, was unable to discharge his duty as he had no control over his actions.  Court applied a lower standard of care. The Young Heisler v. Moke, Ontario High Court (1971 ) A nine year old boy pushed on the clutch of a tractor and injured his leg. The leg had previously been injured by the defendant. The case deals with the contributory negligence of the boy in regards to the second injury. Ratio: When determining the contributory negligence of children one must apply both the objective and subjective tests to the child in question. 1. Whether a child can be found negligent? Look at the age, intelligence and experience of that child (subjective test). 2. If yes, whether a child was negligent and to what degree.  What would a child of “like age” have done in the circumstances (objective test)  In this case the child was 9 and it was found that he was capable of being found negligent. However, the court decided that a child of “like age” couldn’t have known to take a proper care and recognize the risk, so he was not found negligent. McErlean v. Sarel Collision caused by two trail bikes driven by two teenagers. The court held that where a youth engages in adult activities, they would be held to the standard of an adult. Because when they engage in such activity it is reasonable to assume that they know the risks and assume the responsibility. Ryan v. Hickson Parents can be liable for the acts of their children. The liability depends on whether in the circumstances the parents were negligent in the way they trained their children or in a way they supervised them. The Parental Responsibility Act holds parents liable for damage caused intentionally by their children, unless they can establish that they were not at fault. Professional Negligence Challand v. Bell, Alberta SC (1959) Plaintiff suffered a compound fracture to his arm. The rural doctor cleaned out the wound, set the fracture, and then put a cast on it. The wound ended up developing gas gangrene and the arm had to be amputated. The patient brought an action for negligent treatment. Ratio: Doctors are expected to live up to an objective standard of care. S.C.C laid down the following test : 1. The surgeon undertakes that he possesses the skill, knowledge and judgment of the average. 2. In judging the average, regard must be had to the special group to which he belongs. From a general practitioner at a rural point, a different standard is expected than from a specialist at an urban point. 3. If the decision was the result of exercising that average standard, there is no liability for an error in judgment.  The standard of care for a doctor is that of a reasonable and prudent doctor in his or her area of expertise.  The court heard the evidence from urban specialists that testified that the rural doctor provided the treatment that would have been provided by any other specialist.  How practical is it to bring urban specialists to testify? (What do they know about appropriate rural treatment?). A standard that might be sufficient for an urban doctor may not be sufficient for a rural doctor who is assumed to know more of the rural type infections and diseases. Reibl v. Hughes, SCC (1980) The plaintiff underwent a surgical procedure on the advice of his doctor. The doctor didn’t disclose all the material risks. The patient suffered a stroke/was paralysed as a result and was unable to work. The doctor did not inquire into his circumstances. The plaintiff claimed that if he had known the risks he would not have undergone the procedure. That his consent to the operation wasn’t an informed consent. Ratio: Doctors can be negligent in more then one way: 1. treatment and its application, 2. negligent in disclosing information.

7.  No causal connection between the failure to disclose epilepsy and the death of the patient.  She would not have avoided the procedure but rather would have consulted another doctor. Had she known of this doctor’s condition she would have probably gone to another doctor to perform the operation. However, there was no evidence that the results would have been different. Rato: The failure to disclose didn’t cause her death but she was denied of the opportunity to make a choice of whether she wanted this doctor or not (she was put to a risk she didn’t consent to).  Kathleen says that just because the death wasn’t caused by the failure to disclose doesn’t excuse the doctor from the duty to inform the patient and provide her with the opportunity to make an informed decision. (she was a nurse and could have made a different decision then any other reasonable person with respect to whether to allow this doctor to perform the operation). Walker Estates v. York Finch General Hospital (The Canadian Red Cross), SCC (2001) All 3 plaintiffs received blood from the Canadian Red Cross that was tainted with HIV. Ratio: Where the “but for” test is not applicable due to potential multiple causes then the court can apply a material contribution test and all the P has to prove is that the cause was a material contribution to their injury. Brenner v. Gregory, Ont. H.C. (1973 ) Lawyer sued for professional negligence for failing to do a survey on the property. Ratio : The standard of care and skill that can be demanded of a solicitor is that of a reasonable competent and diligent solicitor. Special Standards: Occupiers Liability Occupiers Liability Act , R.S.A. 1980, SM pg. 3 Section 5: “The occupier owes a duty to every visitor on his premises to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the proposes for which he is invited or permitted by the occupier to be there or is permitted by law to be there .” The duty of the occupier is limited. If the visitor goes beyond the purposes for which he is invited then the occupier will not be liable for any injuries sustained to the visitor. (The occupier sets the term of what the visit consists of.) Section 7: If a visitor has willingly accepted the risk then the occupier is off the hook for injuries sustained by the visitor. Section 12(2): An occupier is liable to a trespasser for damages for death of or injury to the trespasser that results from the occupier’s wilful or reckless conduct. Section 13: A different standard applies to child trespassers. Subsection (1) states that “the occupier owes a duty to that child to take such care as in all the circumstances of the case is reasonable to see that the child will be reasonably safe from that danger.” If the occupier knows that his premises might attract children, or there is a reasonable reason to assume so, the occupier will be liable for injuries sustained by the child trespasser. Subsection (2) considers the age of the child, the ability of the child to understand the danger, and the burden placed on the occupier to avoid the danger. The standard is very high when it comes to children , even when they are trespassers. Waldick v. Malcolm, SCC (1991) Failure to sand and salt the driway. Issue: 1. Did Malcolm breach hid duty under the occupiers’ liability Act, s. 5? 2. If yes, Did Waldick willingly assumed the risks of walking over the ice, therefore relieving Malcolm from liability? 3. Was Waldick contributory negligent? Held: 1. By doing nothing to render the driveway less slippery, the Malcolm’s breached their duty under the Act. Customary practices which are unreasonable in themselves, or not otherwise acceptable to courts, don’t ousts the duty of care owned by occupiers under the Act. 2. “Willingly assumed the risks” means had knowledge of the risks and consented to the risks  volenti defence. In this case, there was no evidence that Waldick consented to the risks. 3. It was argued that by not wearing a winter coat, it contributed to the injuries  court dismissed the argument. Inferring Causation Snell v. Farrell, SCC (1990) The patient became blind in one eye following a cataract operation. The decision to continue despite the bleeding was determined to be a possible cause of the blindness, although there were other possible causes. Ratio: An inference of causation can be drawn where the facts lie within the knowledge of the defendant (e.g. medical malpractice cases.) Another way to look at it is that materially increasing a risk of injury is an injury itself. Or, in other words, to negligently deprive a person of a chance to avoid injury is to damage the person. The Burden of Proof Wakelin v. London & S.W. Ry.Co., H.L. (1886) Wakelin’s body was found near a railway crossing. The defendant railway admitted that he was struck by a train. Court: The plaintiff has the burden (legal) to prove that the death was caused by the negligence of the train company. The wife was unable to do so, the case was dismissed. Ratio : Neutral evidence is not good enough for the plaintiff to meet their burden of proof. There is a difference between the evidentiary burden and the legal burden. The evidentiary burden is a piece of evidence which the defence (railway) answers with its own evidence. The evidentiary burden does go back and forth but the legal burden does not. The legal burden is who in law is required to prove the case (usually the plaintiff). Byrne v. Boadle, Exchequer Court (1863) Inferring negligence: Res ipsa loquitur - the thing speaks for itself.

8. The plaintiff was walking past the defendant’s shop (a dealer in flour) and a barrel of flour fell from a window above the shop and seriously injured the plaintiff. Ratio : The court created the doctrine of res ipsa loquitur which created a prima facie case of negligence, which meant that the legal burden shifted to the defendant t o disprove negligence. This wasn’t fair because it is much harder to disprove something rather than to prove something. This created an extremely onerous burden on the defendant.  The court held that barrel of flower doesn’t just fall by itself. The fall must have happened as a result of prior negligence on the part of the defendant, which created the situation that allowed for the barrel to fall.  In order for the defendant to avoid liability, he has to show that the barrel could have fallen without negligence  If the burden were on the plaintiff, he would have been unable to prove negligence of defendant (he had no knowledge of what went on upstairs), so the court shifted the burden to the defendant to disprove negligence. Fontaine v. Insurance Corporation of British Columbia, SCC (1998) The husband’s body and that of his hunting companion Loewen were found in Loewen’s truck which had been washed along a flood swollen creek flowing along a mountain highway. No one saw the accident and no one knew when or how it occurred. Issue: Whether there was direct evidence from which the cause of the death could be determined, or failing that, whether there was circumstantial evidence from which it could be inferred that the accident was caused by negligence attributed to Laewen. Ratio: The court sets aside the res ipsa loquitur doctrine (which operates to provide evidence of negligence in the absence of an explanation of the cause of the accident)  The plaintiff still had the burden of proof beyond a balance of probabilities. NOTE : Res ipsa loquitur applies when; 1. The thing that inflicted the damage was under the sole management and control of the defendant, or of someone for whom he is responsible or whom he has a right to control; 2. The occurrence is such that it would not have happened without negligence. If these two conditions are satisfied it follows, on a balance of probability, that the defendant, or the person for whom he is responsible, must have been negligent. There is, however, a further negative condition; there must be no evidence as to why or how the occurrence took place. If there is, the appeal to res ipsa loquitur is inappropriate…