LAW 406 TORTS1

LAW 406 TORTS c) social utility of defendant's conduct(cost of avoidance) Holding: Defendant's appeal allowed. The risk of harm was extremely small and very unlikely. (Factors included how often the ball went over, chances of being hit, and how busy the road was) Ask?  What is the magnitude of the harm?  Risk to how many?  What kind of damage?  What amount of that kind of damage? Risk assessment also includes:  Probability of harm  Gravity of harm  Not allowed to account for the difficulty of remedial actions/precautions (it shouldn't matter how much it costs to repair something if it will avoid risk of harm)  Notes: Fleming - relevant factors include: the greater risk of injury and the risk of greater injury The greater is the gravity of harm, the higher the standard of care and duty to be imposed CLASS:  FORESEEABILITY TEST= Risk of occurrence + Degree of harm  silent part of this decision is the cost of avoidance and the benefit of the activity (the balancing of this against the risk and degree of harm)  anything that has happened once is foreseeable  What comes out of this case that is really crucial is the principal approach to standard of care (the cost benefit analysis) 2. The Wagon Mound (No 2.) Facts -Appellants servants spilled a large quantity of bunkering oil into the bay as a result of their carelessness -appellant made no attempt to disperse the oil -respondents owned the nearby timber wharf where they carried out refitting activities that included the use of electric and oxy-acetylene welding equipment -oil under the wharf caught fire and spread to the wharf, damaging the wharf and the equipment on it Issues -would a reasonable man with the knowledge of the chief engineer have known that there was a risk of the oil on the water catching fire, and if it did then damage to ships or property was foreeseable? Holding: -If it is clear that a reasonable person would have realized or foreseen and prevented the risk, then it must follow that the appellants [Defendant] are liable in damages. Reasonable foreseeability doesn't have to be a probability , only a possibility . The Defendant can be liable even if the damage is very improbable – it was foreseeable (seems to return to Polemis). Ratio: The level of foreseeability is lower in remoteness than anywhere else; even if there is a small risk, a reasonable person would act against it. Damage doesn’t have to be a probability, just a possibility (more broad again) Retreat from reasonable foreseeability (from Wagon Mound #1) 1. The defendant will be liable as long as the harm was seen as a possibility and there is no justification for the absence of care. 2. Low risk + easy avoidance = liability. 3. Low risk + difficult avoidance = no liability. Page 3 of 50

LAW 406 TORTS R. v. Saskatchewan Wheat Pool , [1983] 1 S.C.R. 205, 143 D.L.R. (3d) 9, (CB 187) Statutory breach does not equal negligence Facts:  Canadian Wheat Board was obligated under the Canadian Wheat Board Act to buy all wheat produced and offered for sale from Saskatchewan (from the Pool under statutory enactment)  September 1975 – approx. 275,000 bushels of wheat were discovered as infested with beetles  The wheat was already in a ship awaiting transport  The cost to detain, unload, fumigate and reload was $98, 250  Board sues the Pool for damages for a statutory breach of the Canada Grain Act  Wheat Pool did all they could – negligence was not alleged, just a statutory breach  Board argues that the duty imposed by the Act is absolute – even in the absence of fault, all that is required is to show that the statute was breached Issue: Did the statute confer upon the Canadian Wheat Board a civil right of action against the Pool? NO – negligence must be proven, statutory breach is insufficient to prove negligence Reasons:  English position: o Emergence of a new nominate tort of statutory breach o Statute defines the duty owed to the plaintiff who must only show (1) breach of statute, and (2) damage caused by the breach  American position: o Civil consequences of a breach of statute have been subsumed into the law of negligence o Statutory breach constitutes negligence in certain circumstances o Violation cannot be an “excused violation” – no negligence when the violation is reasonably justified o Enactment must be one which the Court adopts as defining the standard of conduct of a reasonable person  Canadian position: o Oscillates between US and English positions o Most widely used approach is that a breach of statute is prima facie evidence of negligence o Viewed as more acceptable than the English position that a statutory breach automatically equals negligence o To be relevant, a statutory breach must have caused the damage of which the plaintiff complains  Court concludes: 1. Civil consequences of a breach of a statute should be subsumed into the law of negligence 2. The notion of a nominate tort of statutory breach giving right to recovery merely on proof of breach and damages should be rejected, as should the view that unexcused breach constitutes negligence per se giving rise to absolute liability 3. Proof of a statutory breach that is causative of damages may be evidence of negligence (note may , this is different from shall ) 4. The statutory formulation of the duty may afford a specific and useful standard of reasonable conduct 5. Negligence must be proven  Canada Grain Act – no mention of remedy by civil action, only criminal sanctions  Pool successfully demonstrated that the loss was not the result of any negligence on its part Therefore, while it had breached the statute, it had discharged its duty (followed all appropriate procedures to prevent against infestation) Class -infestation from the rust larvae -load tested prior to shipping, but larvae were discovered enroute -returned to harbour to fumigate the wheat -costs associated with extra fuel, fumigating and handling of wheat -plaintiff argued that a statutory breach was negligence -this is he leading case in this area of law -states that there is no statutory tort in Canada Page 6 of 50

LAW 406 TORTS Recognition of the need to relieve mentally ill defendants of tort liability in certain circumstances Facts:  Defendant was going for a jog when he experienced a severe manic episode, diagnosed later, but never previously, as bipolar disorder  At the time, he believed he was God and had a plan to save the world  Still running, he approached a car stopped at an intersection  Yelling obscenities at the driver, he jumped on the hood, broke through the sunroof and began choking the driver (Chechmanek)  Chechmanek involuntarily hit the gas pedal and accelerated into the intersection, striking a car driven by Fiala, injuring her and her daughter Issue: Should the standard of care be eased for those with a mental disability? YES – if the defendant can show that he had no understanding of his duty of care or was unable to discharge his duty of care due to a lack of control over his actions Reasons:  Linden suggests that the objective reasonable person standard is properly relaxed in instances where a defendant’s mental illness prevents him or her from meeting the standard of care normally required – emphasizes the fault element of negligence  Concerns with the erosion of the objective reasonable person standard have not prevented courts from taking age or physical disability into consideration – such concern should not prevent consideration of a defendant’s mental illness  If mentally ill defendant’s still have the capacity to conform to the objective standard, they will not be relieved of liability  To find negligence, the act causing the damage must have been voluntary and the defendant must have possessed the capacity to commit the tort – the burden of showing the absence of either rests with the defendant  If a strict liability regime is to apply to the acts of the mentally ill, the Legislature must give such direction Ratio: (TEST) In order to be relieved of tort liability when a defendant is afflicted suddenly and without warning with a mental illness, the defendant must show either of the following on a balance of probabilities: 1. As a result of his or her mental illness, the defendant had no capacity to understand or appreciate the duty of care owed at the relevant time, or 2. As a result of mental illness, the defendant was unable to discharge his duty of care as he had no meaningful control over his actions at the time the relevant conduct fell below the objective standard of care -FAULT IS STILL A NECESSARY COMPONENT CLASS -Fiala is suing Chechmanek, who in turn is suing Macdonald -Macdonald is found not liable -on the objective side tort laws purpose is to compensate the injured. The emphasis is on causation not fault. -again on the objective side it is practical to apply an objective reasonable standard because people could fake mental illness to avoid paying -if we make the mentally ill objectively responsible it will encourage their caregivers to take precautions. That will in turn encourage the mentally ill to get out and about because they are treated like everyone else -fault is argued as a pillar of tort law. By holding the mentally ill responsible when they do not have a clue about what they are doing the pillar is being eroded because they are not at fault. This would be strict liability. -justice should be used to correct wrongs, by doling out fault in this case it erodes that principle -another argument is that making the mentally ill liable for everything will alienate and stigmatize them -now that we know more about mental illness the notion of people being able to pull the wool over the eyes of the court has changed. There is expert scientific evidence available in these cases -The court rules according to part one of the test that someone must be suddenly afflicted with the mental illness. It must be something that is completely unforeseen and previously unknown -According to part two of the test that person must not be able to control their actions -This is a new case, and the court is carefully carving out a new area of law -In Buckley, he is found not liable, but we don’t know if it was sudden Page 9 of 50

LAW 406 TORTS and the court will believe them because they are hurt. Is it a question of evidence – is the information reliable, does it stand up under cross-examination, such analysis (well a reasonable person would have done this to show that they really wanted a healthy child versus any child) leads us to the modified objective standard…  Objective: ask what a reasonable patient would have done.  Modified objective standard : allows you to fudge the like circumstances… still considers all factors – but only reasonable factors – “reasonable” fears, not all fears, age, condition, anything brought to the attention of the physician, all with a “reasonable filter”…  You can use the language of an objective standard and make the test more of a subjective one…  Why use the objective test: An objective test is “nicer” – the court doesn’t have to say “we don’t believe” you when using a subjective test Reasoning:  The appeal was allowed. The SCC held that the failure of the doctor to disclose adequate information to the patient gave rise to an action in negligence. There was no basis for the original decision as to the action for battery. The SCC held that actions for battery in medical cases were only applicable when no consent was given to the surgery or medical procedure performed or when the operation went beyond the limit of the authorized consent.  The relationship of doctor patient gives rise to a duty for the doctor to disclose all material risks relationship to the recommended surgery. The Court held that the doctor failed to adequately communicate to the appellant the risks of the operation that he was to undergo. The doctor was negligent in leaving the patient with the opinion that he would be better off for having the operation.  The doctor should have more clearly explained the incidences of mortality and the incidences of morbidity. He was also negligent in not making it plain to the plaintiff appellant that the operation would not cure his headaches. There was no neurological deficit that mandated the surgery. There was also no emergency that required the surgery. The risks of stroke right after the operation were not explained.  In noting the appellant's desire to hang on to his job for another year to collect a minimum pension, it was apparent that there was no reasonable person who on a balance of probabilities would have opted for surgery.  The standard of care for doctors is to disclose all of the risks that Battery:  battery only where there is no consent, or where consent was to something entirely different  NEGLIGENCE occurs through carelessness, BATTERY is an intentional tort, an intentional tort is where you plan to do your actions.  cases where there was a misrepresentation of the surgery or treatment for which was elicited and a different surgical procedure or treatment was carried out. (p.225)  unless there has been misrepresentation or fraud to secure consent to treatment, a failure to disclose the attendant risks, however serious, should go to negligence rather than battery. (p.226) Ratio : MAJOR CASE - GOING FROM DOCTOR KNOWS BEST TO PATIENT KNOWS BEST DUTY OF DISCLOSURE: Doctors must disclose risk in the context of the patients situation – you have to have the conversation with the patient to find out context. THE ONUS IS ON THE DOCTOR . They don’t have to talk about every risk they have to talk about possible risks and probable risks. Possible risks if they could have a dramatic impact on the patients life. 1. Lack of informed consent won't lead to liability for battery unless there is no consent at all, where there is fraud, or where the treatment went beyond the consent. However, negligence principles are to be applied. 2. Modified objective test - relies on a combination of objective and subjective factors in order to determine whether the failure to disclose actually caused the harm of which the plaintiff complains. It requires that the court consider what the reasonable patient in the circumstances of the plaintiff would have done if faced w/ the same situation.  1st QUESTION: Whether the Dr. gave the warning?  2nd QUESTION: Would the patient have gone ahead anyway? To succeed there are 3 steps Page 12 of 50

LAW 406 TORTS  Problem: no causal link between the non-disclosure of epilepsy and the outcome of the surgery. The doctor’s epilepsy did not contribute to her death.  Nothing in evidence suggests that the consequences would have been avoided by another surgeon Ratio:  There is no liability unless the loss is caused by the failure to disclose or inform. The failure to disclose the doctor’s epilepsy did not cause Ms. Halkyard’s death.  When the harm is caused by the lack of disclosure, liability in negligence may arise.  In Canada there is no liability in negligence on a doctor who fails to disclose his personal medical problems in a case where those medical problems cause no harm to the patient.  In terms of information what does the doctor have to disclose – they DON’T have a duty to disclose any personal detail that does not have to do with the outcome. CLASS -Halkyard’s success in this case would have put the medical profession on a slippery slope -the risk created was the loss of a chance to consult another Dr 6. Brenner v. Gregory CB 240 Professional negligence/lawyers Facts: The plaintiff agreed to purchase four town lots after several inspections. The defendant, Gregory, a lawyer, was retained to search the title and to close the transaction, which he did. It turned out that a building on the land in question encroached on the street. The vendor had warned the plaintiff of this danger before closing, but only a survey could prove if this was correct, and none was done. The lawyer did not recommend a survey. The plaintiff sued his lawyer inter alia (among other things). Issue:  Was the defendant negligent in not obtaining a survey or warning the plaintiffs of the danger of purchasing such a property without a survey? NO  Did he meet the standard? YES, the lawyer was not negligent. Reasoning:  No discussion between the purchasers and defendant at any time prior to the closing of the transaction in regard to the necessity of acquiring a survey. Defendant knew that the purchasers had seen the property on a number of occasions before purchasing.  Purchasers knew there was an issue about the location of the building : It was apparent to the purchasers that the building had stood on that location for many years. The purchasers knew there was some question as to whether or not the store was out in the street because of the conversations with him about the closing and the conveyance of the one-half of the street. The fact that they said nothing to defendant in these circumstances indicates that they were prepared to deal with the matter themselves and did with lawyer.  Two experts stated that in the circumstances of this case a reasonably competent and diligent solicitor in that area would not be expected to secure a survey or to advise his client to do so - no negligence Ratio :  In an action against the solicitor for negligence it is not enough to say that he has made an error of judgment or shown ignorance of some particular part of the law, but he will be liable in damages if his error or ignorance was such that an ordinarily competent solicitor would not have made or shown it.  The obligation of a solicitor will have been discharged if he has acted in accordance with the general and approved practice followed by solicitors unless such practice is inconsistent with prudent precautions against a known risk, as where particular instructions are given which the solicitor fails to carry out: The standard of care and skill which can be demanded from a solicitor is that of a reasonably competent and diligent solicitor. Only if the professional adviser should be guilty of some misconduct, some fraudulent proceeding, or should be chargeable with gross negligence or with gross ignorance that the client can maintain an action against the professional adviser CLASS Page 15 of 50

LAW 406 TORTS -The interesting thing is that we don’t even have evidence that this was a real situation, as it did not go to trial. The lawyers involved were arguing whether a case of this kind could even go to court as a tort action Video from UBC – The Paisley Snail This case was the breakthrough case for the law of Tort (opened up Pandora’s box) - New standards of conduct in civilised society - 3 rd party bought the ginger beer but she drank it - Because she did not buy the beer, she had no contract with anyone. Therefore, her only recourse would have been to prove negligence for damages - Stevenson would have to be the respondent - Given the law as it stood, she should have lost – that’s why it’s such a big case - Failed in trial, won in appeal at 2 nd Division - No duty of care existed between manufacturer and final consumer unless contract existed between them - Manufacturer that creates a bottle which is opaque and so cannot be inspected owes a standard of care to the end consumer - Atkins based decision on Christian principle – love thy neighbour and parable of Good Samaritan - Donaghue was manufacturer’s neighbour in spirit – he ought to have had her in mind when making his product - Manufacturer of product owes duty of care where his product is intended for end consumer without possibility of it being interfered with or inspected before it gets to end consumer - This case introduced general law of negligence. In 1932, various strands of existing law brought together into general principle of law that you must take care not to injure your neighbour – anyone you can foresee that may be injured - In the Ams decision – Donaghue case was referenced in order to bring in nonfeasance. You are now liable for nonaction as well as action. (nonfeasance and misfeasance alike) - MacMillian – list of acts of negligence is never closed - House of Lords reversed decision regarding economic negligence (where only damage is to pocket and estate) and only recognises damage to body. However, Canada is still following this aspect as well. STEPS IN ANALYSING A TORTS CASE 1) Duty – proximity of harm 2) Standard of Care – behaviour 3) Caused the harm 4) Remoteness – proximity of harm 5) Defences 2. COOPER v. HOBART , SCC [2001] 3 S.C.R. 536 Case Book 287 There will be a question on duty on the exam Facts -broker using investors funds for unauthorised purposes -a investor brought action against the brokers registrar alleging that they had breached their duty of care Issues -Does a statutory regulator owe a private law duty of care to members of the investing public for (alleged) negligence in failing to properly oversee the conduct of an investment Company licensed by the regulator? NO Reasoning The Anns test: 1) was the harm that occurred the reasonably foreseeable consequence of the defendants act? 2) are there reasons (notwithstanding the proximity between the parties established in the first part of the test) that tort liability should not be recognised here? -the first question is whether the circumstances disclose reasonably foreseeable harm and proximity sufficient to establish a prima facie duty of care . NO Page 18 of 50

LAW 406 TORTS -plaintiff suffered nervous shock at sound of accident 50 ft away. She saw and heard nothing until the noise of the impact -plaintiff saw the blood in the aftermath of the accident -sustained a wrenched back due to shock, and a month later her child was stillborn Issues -Did the motorcyclist owe the plaintiff a duty of care? NO Reasoning -Cyclist was negligent toward the owner of the car he crashed into, but this negligence cannot be built upon to show that he was also negligent toward the appellant. -The primary negligence cannot extend to the third party as secondary negligence. -a reasonable person could not have foreseen that the appellant would have been affected as she was by an accident that she was not involved in. -there is no such thing as negligence in the abstract . Ratio - there is no such thing as negligence in the abstract. The neglect of the use of care must be toward the person to whom that duty of care is owed, not to the world at large. Class: -duty of care is not decided by only looking at the act. Have to also look at the plaintiff and decide whether the defendant owes a duty of care to her too. NO. -the law struggles with the extent to which psychiatric injury of a witness should be compensable 2. Dobson (Resp/Resp/Pl) v. Dobson (Appl/Appl/Def) (son that was injured while in the womb) v. (mother who was in a car accident) (1998) SCC – SM 78 2 nd branch of Ann’s test – policy reason to negate the duty Ann’s test: 1. Proximity and harm 2. Policy Facts: Appl was 27 weeks pregnant when she lost control of her vehicle and collided with another resulting in prenatal injuries to her foetus. Appl gave birth by Caesarean section later that day and the injuries to her child included permanent mental and physical impairment. Child brought action for damages against his mother alleging negligent driving. Trial judge found that the child had the legal capacity to sue for injuries. Court of Appeal dismissed the appeal. Issue: Should a mother be liable in tort for damages to her child arising from a prenatal negligent act that injured her foetus? NO Is there a duty of care? NO (because of public policy considerations) – appeal dismissed Reasoning: (Cory J.) – policy reasons negate the existence of a duty of care - Although it may be possible to establish a duty of care, the son’s case fails because of public policy considerations negating this duty of care - There is a need for judicial restraint in the development of tort law as it pertains to sensitive and far-reaching issues of public policy - Courts should be hesitant to impose additional burdens upon pregnant women - Relationship between expectant mother and her foetus is truly unique - Judicial recognition of this cause of action would cause psychological consequences for the whole family - Best course is to keep the duty of a mother to her foetus a moral obligation rather than a legal one POLICY - There can be no satisfactory judicial definition of a standard of conduct for pregnant women - Imposing a legal duty might interfere with insurance Page 21 of 50

LAW 406 TORTS Ratio: - A born alive child has the right to sue a third party for prenatal negligence [ Montreal Tramway ], but not his own mother because of the unique relationship existing between the two - Although a duty of care to the born alive child may exist, for reasons of public policy (1- privacy and autonomy rights of women and 2- difficulties in defining a judicial standard of conduct for pregnant women), that duty should not be imposed upon a pregnant woman Dissent: (Major J. and Bastarache JJ.) – Policy reasons are not strong enough to negate the existence of a duty - Pregnant mother owed a duty of care to other users of the highway, to passengers in her car, and to her foreseeably injured born alive child. - Policy considerations flowing from concerns about the appropriateness of intra-familial litigation may be sufficient to negate any child’s right to sue his or her parents in tort. However, only barring tort action brought by born alive children who sustained injuries while still in utero is not justified. CLASS: -Grandfather is suing the mom in a “friendly way”, and she is too happy to have this happen as she is now faced with paying for the care of her disabled son -to successfully sue the mother there must be a duty of care to the unborn child. Foetuses have no rights. Until that baby is born and separated from its mother, it has no rights. -the rights are suspended until the point of birth when the rights will crystallise. -live birth is the key element when dealing with pre-natal injuries. -for an unborn child the injury to the foetus is an injury to the mother -driving is the slippery slope. Finding her negligent will open the gates to many other possible torts 3. Note on Psychiatric Damage CB 310 -main test for establishing duty is foreseeability of shock -there must be a recognised psychiatric illness, not a mere emotional upset -mere grief and sorrow are not compensable (Alberta allows suing for grief and sorrow, typically resulting in compensation for funeral expenses) -there is a requirement for the plaintiff to have been at the scene of an accident or its immediate aftermath and witnessed it with his or her own unaided senses. -strongest case is built on actual witnessing -until recently, it was plain that suffering psychiatric damage at being told of an accident is insufficient to qualify for damages -it is still open for compensation for negligent communication of bad news if false info is communicated. 3. FAILURE TO ACT CB 312 -by awarding or withholding damages it may encourage or discourage “ Good Samaritanism ” -Quebec’s Charter of Human Rights and Freedoms mandates Good Samaritanism -tort treats the problem as one of duty on the defendant to take positive action -courts will not impose a liability when there was no duty even if harm was foreseeable and preventable by the defendant -there is no liability (or duty) for nonfeasance -there s liability (and duty) for misfeasance A. Nonfeasance and Misfeasance NON FEASANCE - The non-performance of some act which ought to be performed MISFEASANCE - The performance of an act which might lawfully be done, in an improper manner, by which another person receives an injury. It differs from malfeasance, or, nonfeasance. 1. The Holy Bible In reply Jesus said: "A man was going down from Jerusalem to Jericho, when he fell into the hands of robbers. They stripped him of his clothes, beat him and went away, leaving him half dead. 31 A priest Page 22 of 50

LAW 406 TORTS happened to be going down the same road, and when he saw the man, he passed by on the other side. 32 So too, a Levite, when he came to the place and saw him, passed by on the other side. 33 But a Samaritan, as he traveled, came where the man was; and when he saw him, he took pity on him. 34 He went to him and bandaged his wounds, pouring on oil and wine. Then he put the man on his own donkey, took him to an inn and took care of him. 35 The next day he took out two silver coins [ a ] and gave them to the innkeeper. 'Look after him,' he said, 'and when I return, I will reimburse you for any extra expense you may have.' 36 "Which of these three do you think was a neighbour to the man who fell into the hands of robbers?" 37 The expert in the law replied, "The one who had mercy on him." Jesus told him, "Go and do likewise." -Standard of care set out by the Bible, telling you how you should act. -Policy reasons of forcing people to rescue are that people cannot be forced to endanger themselves, people have right to mind their own business, 2. Horsley v. MacLaren (1972) SCC – CB 298 No general duty of rescue Facts: A passenger on a motor boat fell overboard through no fault of the operator. In attempting to rescue him, the operator reversed the engines & approached the passenger stern first instead of following the recommended procedure of turning the boat around and approaching bow on. Nevertheless, the boat was in a position where a pole and a life preserver could be put within the reach of the man overboard after aprox. 2 minutes. The expert opinion was that the recommended approach would also have taken 2 minutes. Because the rescue attempt was unsuccessful, a second passenger dived into the water where he died of shock as a result of the sudden immersion in cold water. Decision: The operator of the boat was not liable for 2 nd passenger. The operator was under a duty to attempt to rescue the 1 st passenger but it could not be said that the method that he had adopted was negligent. In the absence of such negligence there could be no liability to the 2 nd passenger. Ratio: (Jessup J.A.) There is no duty to take positive action in aid of another no matter how helpless or perilous his position is. There is no requirement in law to be a Good Samaritan. No duty to come to the rescue of a person who finds himself in peril from a source completely unrelated to the defendant, even where little risk or effort would be involved in assisting. CLASS: 3. Relationships Requiring Rescue -there is no general common law duty to rescue, but the law does recognise a duty to rescue or to assist in a variety of circumstances -Categories in which there is a duty to assist: a. relationships to economic benefit b. relationships of control or supervision c. creators of dangerous situations d. reliance relationships, and e. statutory duties -there is occasional overlap B. Relationships of Economic Benefit 1. Jordan House Ltd. (Appl/Appl/Def) v. Menow and Honsberger (Resp/Resp/Pl) Page 23 of 50

LAW 406 TORTS (hotel that served Menow) v (intoxicated customer that got run over by a car) (1973) SCC – CB 301 Special relationship created = affirmative duty to take care => participated in creation of risk, gained economic benefit, and had relationship of control or supervision Facts: Menow was a frequent patron of the Def’s beverage room, and was well known to the owner-operator of the hotel. Menow had a tendency to drink to excess and then to act recklessly, which caused him to be barred from the hotel for a time and thereafter the hotel’s employees were instructed not to serve him unless he was accompanied by a responsible person. January 18, Menow arrived at the hotel with his employer and the foreman at about 5:15pm. The employer and foreman departed after a short time. Menow continued to be served beer until past the point of visible or apparent intoxication. At approximately 10pm the hotel ejected him. It was a dark and rainy night and Menow was wearing dark clothes. [This is very important – if the weather conditions had been better the standard of care may have been lower.] Menow was struck by a car driven by Honsberger as he was walking near the centre line of the highway. History: Trial and Appeal found in favour of Menow and he was awarded damages from hotel and Honsberger under an equal apportionment of fault among all 3 parties Issue: Does the operator of a hotel owe a duty of care to a patron who becomes intoxicated at the hotel to safeguard him from the likely risk of personal injury after he is turned out of the hotel? YES Did the hotel breach is affirmative duty to care of Pl? YES – appeal dismissed Reasoning: (Laskin J.) - Menow had a pre-existing relationship with the hotel such that it was aware of Menow’s propensity to drink - Menow was served in violation of the instructions that he only be served if accompanied by a reasonable person and in violation of the Liquor License Act s.53 and the Liquor Control Act s. 81 - Hotel operator was aware that Menow was intoxicated and that he would have to walk home Ratio: The operator of a hotel owes a duty of care to a patron who becomes intoxicated at the hotel where the operator (or his employees) has knowledge of the patron and his condition Where a duty of care exists, the duty extends so far as to require positive action Class: -Jordan house is vigorously appealing this decision due to the policy implications -they would have a duty of care against all patrons -Menow was over-served. -there is a positive duty of care between the parties -this is a case of non-feasance (failure to act), the failure being the failure to protect and letting him go out on the road. - the court asks that a positive step be taken to satisfy the duty of care – phone call to boss, taxi etc... -the court went out of their way to establish a duty of care - C. Relationships of Control and Supervision 326-328 -Relationships of control and supervision require persons in the dominant position to take steps to prevent injury or assist persons in vulnerable circumstances -concomitant with the duty to assist those in ones control is the duty to protect others from being injured by them -If a persons freedom action is limited by another person, then the latter has a duty to protect the former -most obvious relationship of control is that of parent and child -in all relationships of control and supervision the freedom of action of the subservient party is limited by the dominant party Page 24 of 50

LAW 406 TORTS D. Creation Of Danger CB 328 1) Oke v. Weide Transport Ltd. And Carra , Manitoba C.A. (1963) CB:308 Creation of Danger Facts: The defendant driver, without negligence, knocked down a traffic sign located in the middle of a gravel strip dividing the eastbound and westbound lanes of a highway. The defendant stopped his vehicle and removed the debris except for a metal post that was too securely imbedded. This post was left bent over and projecting at right angles towards the near side of the eastbound lane. The defendant subsequently mentioned the accident to a garage attendant and evidenced an intention to report it to the authorities but was dissuaded from doing so by the attendant. The next day, while using the gravel strip to pass a vehicle in the eastbound lane, which was forbidden, a driver passed over the metal post and was fatally injured when he was "speared" by the post which deflected upwards, through the floor boards and pierced his chest. Case History: At trial, the defendant and his employer were held liable for the death on grounds of negligence in failing to notify the police of the hazardous condition created by the projecting metal post so action could be taken to remove the hazard. The majority of the Court of Appeal dismissed the action on grounds of lack of foresight. Issue : Is he liable for the injury caused by a non-negligent act which created a hazard? NO Reasoning: Freedman J.A. (dissenting): Defense argued that the position of the defendant was no different from that of any other motorist who, driving by and observing the broken sign did nothing about it. Judge didn't buy the argument for following reasons: 1. No such other motorist is before the court as a defendant in this case and therefore unnecessary to consider what his position might have been. 2. Other motorist did not collide with the sign; the defendant did, even if it was without negligence. The former, having had no part in the destruction sign, was never anything more than an innocent passer-by who might not be under a legal duty to take active steps to control the situation.  The defendant participated in the creation of the hazard and took some steps towards rectification (removed debris, thought about informing the police) but failed to go far enough .  Once a danger is recognized and there is some effort to address the risk (by starting a rescue), even though you don’t have a duty to rescue, you must carry it out in a non-negligent fashion – and finish the rescue. CLASS -case was made stronger by his saying something to the garage attendant who convinced him to not do anything -demonstrated clear interest and recognition of the risk E. Reliance Relationships CB 330 1) Zelenki v. Gimbel Bros. Supreme Court of New York. (1935) Duty to Rescue/Reliance Relationships Facts: Plaintiff became sick in a department store belonging to the defendant. Plaintiff says that defendant kept her for six hours in an infirmary without any medical care – she died. Issue: Was there a duty of care to the woman? YES Reasoning: The defendant owed her no duty at all — that defendant could have let her be and die. But the defendant undertook to render medical aid to the plaintiffs. The defendant kept her for six hours in an infirmary without any medical care. If defendant had left plaintiff alone, beyond doubt some bystander, who would be influenced more by charity than by legislative duty, would have summoned an ambulance. Aid could not be given under the circumstances. This defendant assumed a duty by starting the rescue. Page 25 of 50

LAW 406 TORTS 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 it, the defendant must not omit to do what an ordinary man would do in performing the task – they must finish the rescue – they can’t walk away. CLASS: - employee recognizes peril, took some positive action but did not go far enough -form of misfeasance Gimbel Principle: by admitting they were going to help, they need to make a concerted effort at an attempt to rescue. The store was found negligent b/c they didn't finish the rescue. NOTE: Where a person gratuitously and w/out duty to do so undertakes to confer a benefit upon or to go to the aid of another, he incurs no liability unless what he does worsens the condition of the others. F. Statutory Duties CB 334 1. O’Rourke v. Schacht SCC [1973] CB:314 Facts: A well-lighted barrier that marked a detour around some highway construction was knocked over by a car, at night, so that it was no longer visible to other motorists on the highway. The OPP investigated the accident, but failed to warn traffic about the danger on the road. The plaintiff was injured when he drove his car into the unmarked excavation. Issues: Holding: Court allowed the plaintiff to recover 50 per cent of his damages against the police administration. Reasoning: The respondent police officers were under a statutory duty to maintain a traffic patrol of the highway in question. These officers were under a positive duty by virtue of their office to take appropriate measures in the face of a hazardous condition such as they encountered here to warn approaching traffic of its presence. Duties extended upon them stem from statutes and from common law which recognizes the existence of a broad conventional or customary duty in the established constabulary as an arm of the State to protect the life, limb and property of the subject… Dissenting : …found nothing in the legislation that would “indicate an intention on the part of the Legislature to impose a liability upon a member of the Force who fails to carry out a duty assigned to him under the Statute. Ratio: Police officers are under a statutory duty to maintain a traffic patrol and under a positive duty by virtue of their office to take appropriate measures in the face of a hazardous condition such as they encountered here to warn approaching traffic of its presence. CLASS -overlapping statutory duties and common law -police discovered the dangerous situation and failed to act -court looks at statutory duty of care and questioned if there was a further duty of care owed by police -passivity was a statutory breach -non-feasance amounted to misfeasance -Jane Doe case mentioned in notes. A rapist was in Toronto – he would operate in a certain area and would attack women living in apartments with balconies and would climb in and attack them. Police predicted where he would attack next but didn’t tell the people living there. Rapist raped Jane Doe on the street predicted by police. Jane Doe sued the police. Police moved to strike the case. Appealed -Police have a duty to warn of impending danger when there is knowledge that something can/will happen Note two: Pl collided with a cow on the road -cow had escaped from a broken farm fence along the railway right of way -pl sued the railway for damages to his bus -Laskin J said that the railway was partially responsible to the pl due to their statutory obligation to build fences -court held that statutory duty to keep fences in good repair morphed into a common law duty of care towards people using the adjacent roadways - used the foreseeability test Page 26 of 50

LAW 406 TORTS -had the duty not existed in the first place, then there would have been no common law duty of care Note three: Asian woman had applied several times to work at Seneca College and other less qualified people had been hired -sued college for race and gender discrimination -Def moved to strike claim to show that there was no common law cause of action -ON human rights code was in place to deal with these situations -Nevertheless she had a right to sue despite the placement of the statute -Human rights code simply recognises a pre-existing situation - G. Categories or Principles? SM 22 1. Childs v. Desormeaux, [2006]1 S.C.R. 643, 2006 SCC 18 FACTS -Desormeaux crashed his car head-on into oncoming traffic -he was impaired at the time having had about 12 beers at a BYOB party -hosts served a small amount of champagne -known to hosts as a heavy drinker -host asked if he was okay before leaving to which he replied “no problem” ISSUES Do social hosts who invite guests to an event where alcohol is served owe a legal duty of care to third parties who may be injured by intoxicated guests. NO REASONING The Anns test: 1) was the harm that occurred the reasonably foreseeable consequence of the defendants act? 2) are there reasons (notwithstanding the proximity between the parties established in the first part of the test) that tort liability should not be recognised here? -in determining whether a duty of care arises, the focus is on the nature of the relationship between the parties -Three differences in the relationship suggest that the duty of care is not the same for social hosts as it is for commercial hosts: 1. Commercial hosts enjoy an advantage over social hosts in their ability to monitor alcohol consumption 2. Sale and consumption of alcohol is regulated by legislatures, and the rules over commercial establishments make it very different from social gatherings 3. The contractual nature of a tavern is different from social relationships -foreseeability alone does not establish a duty of care There are three situations where a positive duty if care may exist if foreseeability of harm is present and if other aspects of the pl/def relationship establishes a special causal link: 1. when a defendant deliberately attracts and invites third parties to an inherent and obvious risk that he or she created or controls 2. paternalistic relationships of supervision and control – such cases rest on the special vulnerability of the plaintiff 3. defendants who either exercise a public function or engage in a commercial enterprise that includes implied responsibilities to the public at large. -private social hosts are not acting in a public capacity therefore do not incur duties of a public nature -holding a private party at which alcohol is served is insufficient to implicate the hosts in the creation of risks sufficient to give rise to third party liability RATIO A social host at a party where alcohol is served is not under a duty of care to members of the public who may be injured by a guests actions, unless the hosts conduct implicates him or her in the creation or exacerbation of risk. CLASS Page 27 of 50

LAW 406 TORTS - looked to see if there was a novel category, which there was -foreseeability of harm is not enough to form a special relationship -to turn this into a non-feasance case you need more than foreseeability D DAMAGE, CAUSATION, AND PROOF 1. DAMAGE -negligence is not a state of mind but below standard conduct -negligence is a basis of liability which protects some interests and not others -NEGLIGENCE -(narrow)conduct that falls below the standard required by society or -(broad) cause of action for negligence -to establish a cause of negligence several elements must be present - ABC Rule: a) a duty of care exists b) there has been a breach of that duty c) damage has results from that breach TROUBLE WITH THIS RULE IS ITS SIMPLICITY American Scholars rules: a) duty b) failure to conform to the standard required c) a reasonably close causal connection between the conduct and the resulting injury (proximarte cause or remoteness) d) actual los or damage resulting to the interest of another Fleming adds a fifth rule: e) absence of any conduct by the injured party which would preclude or limit recovery Defences of contributory negligence, voluntary assumption of risk and illegality are included Linden’s six to determine if a cause of action arises: 1. the defendants conduct must be negligent (breach of standard of care set by the law) 2. the claimant must suffer some damage 3. the damage suffered must be caused by the negligence of the defendant 4. there must be a duty recognised by the law to avoid this damage 5. the conduct of the defendant must be a proximate cause of the loss 6. the conduct of the plaintiff should not be such as to bar or limit recovery Damage – recognisable loss Damages – refers to the dollar amount assigned for compensation Limitation period – most common problem that lawyers are sued for. Something to be sensitive to. Set by statute for the start of an action otherwise it dies. -most limitation periods have stipulated that the time is to run from the date the cause of action arose Incest –due to the nature of this harm the limitation period does not start to run until the victim becomes aware of the impact of the harm and the causal link Medical negligence – some jurisdictions have as little as one year or less. There is a discoverability rule. The pl has to have had time to discover that a harm was done and how it has manifested itself. Minors – need to be granted the time to become mature enough to appreciate what happened 2. CAUSATION - Cause-in-fact issue- there can be no liability for negligent conduct unless some damage is caused by it. BUT FOR test – “if the loss would not have occurred but for the conduct of the defendant, it is a cause of the loss” Page 28 of 50

LAW 406 TORTS -the issue of causation must be proven on the balance of probabilities “but for” X, Y wouldn’t have happened. -problem with but for is that there are sometimes multiple X factors that can cause Y 1. Kauffman v TTC, ON CA (1959), aff’d SCC (1960) FACTS -Pl was ascending an escalator and was injured when she fell backward due to two scuffling youths falling on a man who in turn fell on her ISSUES - two problems of causation : 1. would the presence of a better hand rail have prevented the accident? NO 2. would the presence of an attendant have avoided the accident? NO REASONING -There is no evidence in this case to justify a finding that the type of handrail was a contributing factor -no evidence for the court to prove that if she had been holding a hand rail she would not have fallen. RATIO -it is a fundamental principle that the causal relation between the alleged negligence and the injury must be made out by the evidence and not left to the conjecture of the jury CLASS -causation sometimes overlaps with standards of care(to provide an attendant or hand rail) -the plaintiff’s burden is to prove that there is evidence of causation – they failed to do so -court had to conclude that the presence or absence of a hand rail was not proven to have been any kind of factor. Horsley and Maclaren (Famous causation case) (good exam type question) -get together of friends on the boat -Mathews was on deck of boat and he fell off -this was in the fall, water was cold -McLaren tried to rescue him by backing up the boat, -people were throwing life rings to him but he was too cold to save himself -rescuer #1 jumped in water – same thing -2 nd rescuer dove in -husband rescued woman using a bow on rescue of the boat -question up to the SCC was whether McLaren was negligent -court found no, he was not negligent, but he did not conduct a proper text book rescue -rescue attempts were not negligent, so he was not liable for the second rescuer. -had he been found negligent of the first rescue, he would have been found negligent for the second -court concluded that Mathews was dead before the rescue began. Cannot be negligent in rescuing a dead person Principle in obiter is that a negligent wrongdoer can be liable to a second person if you exacerbate the harm to the first person -once you embark on a rescue you have a duty of care 1. Athey (Appl/Appl/Pl ) v. Leonati (Resp/Resp/Def) (1996) SCC – SM 185 Facts: Pl Athey had a history of back problems and suffered back injuries in two separate car accidents. Pursuant to his doctor's advice, he resumed his regular exercise routine after the second accident and suffered a herniated disk while warming up. The trial judge found the accidents played some causative role in the disc herniation and assessed liability at 25 per cent for his injury. Athey appealed from this assessment. -car accidents were caused by the negligence of the drivers in the accidents Issue: Causation - Should non-tortious activity be accounted for in apportionment? NO Page 29 of 50

LAW 406 TORTS Reasoning: Causation was established where the Pl proved that the Defs caused or contributed to the injury. A Def was liable for any injuries caused or contributed to by his or her negligence. - Pl need not show that the Def’s negligence was the sole cause of the injury. - The disc herniation was not an injury that could be apportioned between tortious and non-tortious causes. It was a single non-divisible injury. - As the trial judge found that the accident caused or contributed to the disc herniation, it was not an independent intervening event and did not reduce the net loss experienced by the Pl. Once it was proven that the accidents caused the disc herniation, Def was fully liable for this injury. Ratio: General Principle: Def is liable for any injuries that he caused or contributed to. If the Def's conduct is found to be a cause of the injury, the presence of other non-tortious contributing causes does not reduce the extent of the defendant's liability. - The plaintiff must prove the Def’s conduct caused or contributed - but causation need not be determined with scientific precision Note: Multiple Tortious Causes: Apportionment between tortious causes is expressly permitted by provincial negligence statutes and is consistent with the general principles of tort law. BUT Divisible Injuries: apportionment is permitted when there are different injuries. Apportionment when some injuries are from tortious causes and others from non-tortious. Class: Here we have an indivisible injury that can't be divided up -There can be no splitting of liability between tortious and non-tortious act. If there is an injury that occurs as a result of the first tortious event then the def will be liable due to the but for test. -de minimus "of minimum importance" or "trifling." Essentially it refers to something or a difference that is so little, small, minuscule, or tiny that the law does not refer to it and will not consider it. In a million dollar deal, a $10 mistake is de minimis -“BUT FOR” test will not work in this case because of the pre-existing back injury, two crashes, and the stretching -instead there has to be an examination of the “ material contribution ” of the injury -court cites Snell and Farrell -Apportionment is designed to get 100% of the damages to the pl and be fair to those who have to pay -Divisible injuries argument- defines for the defendants what their responsibilities are -Contingencies are argued to project what the plaintiff’s earning potential would be over their working life Defendant tries to argue that the injury was a contingency outside of their control. Court says no, contingencies are future, what the def was arguing is past -independent intervening events – the def can win on this one either -Thin skull a pre-existing infirmity– the defendant must take his victim as he finds him. If the defendant’s action causes more injury to the pl due to the pre-existing injury, they are liable for all the injury -crumbling skull is not opposite, but the pl would have experienced the herniated disc anyway as a result of the pre- existing bad back. Court again says pound salt, you can’t prove that the disc would have eventually herniated 3. PROOF a. Proof of Negligence Except for statutory changes, the onus of proof is on the plaintiff 1. Wakelin v. London & S.W. Ry. Co. (1886, HL) CB: 247 Best example of a plaintiff who failed to meet the burden of proof to show negligence. Facts: A man died and was found near the crossing of the train tracks. There was no evidence of how he got there, although the defendant admitted that be had been hit by a train. There was no special signal at the crossing, and pedestrians had a clear view of the track. No evidence of how this happened. Plaintiff was successful at trial. Page 30 of 50

LAW 406 TORTS Issue: Whether the plaintiff is bound to establish negligence of the def.  Trying to establish a presumption of negligence from the fact that he was killed by the train. The def will then have to rebut that presumption. Holding: This was not Res Ipsa Loquitur (no presumption). There was no evidence to infer that the train hit him, because it is equally likely that he hit the train. It could just have been an accident. The Defendant wins because the Plaintiff failed to discharge the burden under the balance of probabilities proving that the death occurred as the result of the railway’s negligence. Ratio:  General Principle: Defendant is liable for any injuries caused or contributed to by the defendant. If the defendant's conduct is found to be a cause of the injury, the presence of other non-tortious contributing causes does not reduce the extent of the defendant's liability.  The plaintiff must prove the defendant’s conduct caused or contributed to the man’s death. The plaintiff must prove it on the balance of probability. An even balance isn’t good enough. Have burden on standard, duty, causation, etc. Plaintiff must prove there is a case, if they don’t the defendant will ask for a non-suit (because plaintiff has not met the burden of proof.) CLASS :  Plaintiff has the burden here - she hasn't met it and the court needs more.  The burden of proof may shift from time to time  Legal burden : who in law is required to prove the overall allegation? Normally, the plaintiff.  Evidentiary burden : plaintiff brings one piece of evidence in and if the defendant says nothing the judge may find that supports the plaintiff’s case – the evidentiary burden was not met for that piece of evidence. The evidentiary burden goes back and forth. They can vary in weight.  Note 1 p 245 - the burden of proof is on the plaintiff because if it was on the defendant, they would be vulnerable in all instances, courts would be flooded with litigation. Much potential for vindictive, unfounded causes of action 2. Byrne v. Boadle (1863. Ex) CB: 250 Res Ipsa Loquitur(the incident speaks for itself) – Prima facie evidence of negligence Facts: A flour barrel fell out of a window above the Defendant's store and onto the Plaintiff. Holding: That the barrel fell is prima facie evidence of negligence: the Defendant had control of the barrel; normally barrels don't fall out of windows; and, it is not possible for the Plaintiff to prove exactly what caused the situation. The "happening" raised an inference that someone was negligent. Therefore, this is a case of res ipsa loquitur (the thing speaks for itself). The Plaintiff is relieved of the burden of proving negligence because it is self- evident. It is still open to the Defendant, however, to disprove negligence (no employees worked that day, etc.) Issue: Is there negligence based on an event occurring alone or does P have the burden of proving the negligence?  Res ipsa loquitur , “the thing that speaks for itself”: captures the notion that the event wouldn’t have happened if someone wasn’t negligence. The fact the event occurred shows negligence. Ratio: The accident alone is prima facie evidence of negligence. The onus shifts to the defendant to bring out any facts inconsistent with negligence. Res ipsa loquitur (event speaks for itself) – negligence must have been present because the event would not have happened without it.  If there are any facts inconsistent with negligence it is up to the D to prove it when the Res ipsa loquiter is being used by the P. CLASS:  How would a plaintiff prove negligence in this case? This man was simply walking down the street and knows nothing about what is going on in the store.  In this case, the act itself is negligent; it speaks for itself (barrels don't fall out of windows) and shouts of negligence. Page 31 of 50

LAW 406 TORTS  This was thought to be a doctrine. Whenever a person couldn’t prove their case they would try to use res ipsa loquiter to shift the burden to the defence.  This is now relic of the past.  RIL was used an attempt to shift the burden to the other side  If those inferences go unanswered the balance of probabilities may not be answered 3. Fontaine v. Insurance Corp. of B.C. CB: 251 No value in res ipsa loquitur Facts: Fontaine and his friend (driver) were found dead in their truck that had been washed along a flood swollen creek flowing alongside a mountain highway. No one saw the accident and no one knew when it had occurred. Fontaine’s widow wants compensation but must prove negligence or will get nothing. She argues res ipsa loquitur (event speaks for itself) and would win if it can be applied because no one saw the accident, there is no evidence of what happened. Issues: When does res ipsa loquitur apply? PRIOR TO THIS CASE: When damage was under sole criteria under D’s control, it would not have happened without negligence, and no evidence as to the cause – it follows that if these are there then res ipsa applies And the effect of applying it. (Does the fact that the car went off the road imply that the driver was negligent?) Holding: Appeal dismissed, could not prove causation, no evidence of negligence. Reasoning:  Res ipsa loquitur , “the thing that speaks for itself”  The doctrine applies (1) when 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. Also, (3) there must be no evidence as to why or how the occurrence took place . If there is, then appeal to res ipsa locuitur is inappropriate, for the question of the defendant’s negligence must be determined on that evidence. (If #3 is true the plaintiff would win every time!!)  The effect of the doctrine: it does not shift the burden of proof to the defendant, but a plaintiff can overcome a motion for non-suit. If the defendant produces a reasonable explanation that is as consistent with no negligence as the res ipsa locuitur is with negligence, this will effectively neutralize the inference of negligence and the plaintiff’s case must fail.  Major J.: value of res ipsa locuitur is gone, meaningless to refer to it as a doctrine of law. It was nothing more than an attempt to deal with circumstantial evidence; the evidence is more sensibly dealt with by the trier of fact, who should weigh circumstantial evidence with the direct evidence, if any, to determine whether the plaintiff has established on the balance of probabilities a prima facie case of negligence against the defendant. Ratio:  The question that must be asked is whether, in the particular circumstances established by evidence, the accident would ordinarily occur in the absence of negligence. – turns into what we call circumstantial evidence which may lead to an inference of negligence but that does not mean that there is negligence or that the party is negligent. o Shifts not the legal burden but the evidentiary burden – legal burden is still with P to show negligence. D must disprove the circumstantial evidence. o Ping Pong Ping Pong Ping Pong  No longer a value in res ipsa locuitur. Why? It started to become a legal doctrine (like the bible). It started to create prima facie evidence of negligence and the burden therefore shifted to the defendant to prove they were not negligent. Not fair because defendants have no choice to respond to the plaintiff’s allegations. It would open up the flood gates if the defendant had to disprove allegations brought against him and the plaintiff had no burden. There is confusion over what weight to be given to res ipsa .  Res ipsa won’t shift the burden of proof and won’t apply as a doctrine any more. Instead it will simply be another piece of circumstantial evidence (of varying weight – whisper or shout of negligence) and the case will be decided using other legal principles. Page 32 of 50

LAW 406 TORTS  Three criteria still applies but they still go to the weight of the evidence and may show that there is no other evidence available; it can be strong circumstantial evidence . Just don’t use the words, don’t assume an automatic result of res ipsa .  An inference can be drawn using this case – with the three conditions present – to say that there is an inference of negligence. The inference must have a threshold weight (a persuasiveness) before the defendant is forced to respond. In this case the defendant was able to create/respond with an equally plausible story (the weather (storm and mud) was the cause of the accident) – which neutralized any inference that could be drawn from the plaintiff’s arguments (because the plaintiff has the burden of proof). CLASS: -Fontaine estate tries to use res ipso loquiter. You can’t have an accident without negligence. This doesn’t work out for them at all. -  There are alternative explanations to this accident- at the time the weather was dangerous  We don't need RIL - it's a matter of evidentiary principles - inferences could be drawn, like in Snell The Burden of Proof and Res Ipsa Loquitur  "The facts speak for themselves;" draw the common sense inference from the facts before you that: there was negligence, and, it was the defendant's.  There are 2 ways of proof: 1. Direct evidence 2. indirect/circumstantial evidence (ask the court to draw common sense, reasonable inferences)  Use res ipsa to prove breach of the standard of care— but it's not enough to say that "somebody" is negligent— that doesn't prove that the defendant was negligent. The plaintiff must have additional evidence to show that the defendant was negligent. This is useful when dealing with an accident that wouldn't have happened in the normal course of events-e.g. falling objects, air crashed, car accidents, fires, defective items, medical malpractice. The plaintiff discharges its 51% burden of proof by putting in facts and asking the court to draw inferences. Criteria for res ipsa to apply: 1. Unusual (this kind of thing doesn't usually happen) 2. Defendant is in control (someone is in charge of that object) 3. No evidence as to how it actually happened The effect of res ipsa :  the plaintiff bears the burden of proving on a balance of probabilities that negligence on the part of the defendant caused the plaintiff's injury – no shift with the invocation of Res ipsa loquitur  If defendant produces evidence that is as consistent with no negligence as RIL inference is with negligence this will effectively neutralize the inference of negligence and the plaintiff's case must fail.  we are talking about the effect of an inference For res ipsa loquitur to arise:  The circumstances must permit an inference of negligence attributable to the defendant.  The strength or weakness of the inference will depend on factual circumstances of the case.  If there is direct evidence to show how an accident occurred, the case must be decided on that evidence alone. The question that must be asked is whether, in the particular circumstances established by the evidence, the accident would ordinarily occur in the absence of negligence . 4. Leaman v. Rea (N.B.S.C., Appeal Division) CB: 252 Multiple defendants / Negligence (fault) established / Cause hidden / Both equally liable Facts : Head-on collision of two cars. Each testified other was on wrong side of road. Unclear how accident occurred and who was at fault. Trial judge thought both were slightly on other's lane. Trial Judge dismissed both claims. Issue: Page 33 of 50

LAW 406 TORTS Who should be held liable in a case where negligence is established but can't decide which of the two parties was at fault? Both, with judgment for each party for 50 per cent of the damages Reasoning: Accident occurred in the middle of the road – therefore both were at fault. There was clearly fault. Accidents don’t happen without fault. When there is fault you cannot find no negligence. Ratio: Where there is clearly fault, in the absence of any evidence enabling the court to draw a distinction between the parties at fault, they must be held both to at fault and in an equal degree. Problem: but what if there were a third party who was injured? Judge’s duty to make a ruling.  Fontaine: In Fontaine there was no evidence of negligence. In this case, there was evidence of fault. 5. The Contributory Negligence Act SM: 30 Before CNA the common law said that if the P was in any way negligent in relation to their injury they are out of luck. CNA made the playing field more level for plaintiffs.  s. 1(1): apportionment of liability based on fault (based on degree they caused the plaintiff's harm); if it's not possible to tell than it should be equally apportioned between them o (Judge still needs to identify %)  s. 2: when two or more people are found at fault they are jointly and severably liable (separately or together to sue for the losses) o (sue one and you can sue them all)  s. 6 &7: eliminates "last chance" doctrine (where the consequences could have been avoided) o (person with last clear chance of avoiding harm used to be responsible for the damages) 6. Highway Traffic Act CB: 260 Statute trumps the Common Law. 193. (1) When loss or damage is sustained by any person by reason of a motor vehicle on a highway, the onus of proof that the loss or damage did not arise through the negligence or improper conduct of the owner or driver of the motor vehicle is upon the driver . (2) This section does not apply in cases of a collision between motor vehicles or to an action brought by a passenger in a motor vehicle in respect of any injuries sustained while a passenger.  (1) The burden of proof can shift to driver/owner to prove that there was no negligence when there is loss/damage. Particularly relevant to pedestrians injured by drivers.  (2) Burden doesn’t shift (still on plaintiff) if there was a collision between vehicles or when it involves an action of an injured passenger.  Shifts burden – this is an example of the statute trumping the common law.  The occurrence of the collision creates an obligation to disprove negligence. Where that cannot be done both parties are found at fault. 7. NOTES CB 257 -Purpose of the onus section is to overcome difficulties experienced by plaintiffs in obtaining and presenting sufficient evidence of a motorists negligence to avoid a non-suit at the end of their case -this is a variation of res ipso loquitur. b. Proof of Causation 1. Snell (Resp/Resp/Pl) v. Farrell (Appl/Appl/Def) (became blind in one eye following cataract surgery) v (ophthalmologist) (1990) SCC – CB 262 Page 34 of 50

LAW 406 TORTS **most important causation case Inference of negligence - (what to do when there is an evidentiary gap) Facts: Appl was sued by the Resp for loss of vision in her right eye following surgical removal of a cataract performed upon her by the Appl. There was bleeding during the operation but the doctor didn’t stop the surgery. The decision to continue with the operation despite the bleeding was determined to be a possible cause of the blindness, although there were other possible causes. Issue : Does the Pl in a malpractice suit have to prove causation in accordance with traditional principles (“but for”) or do recent developments in the law justify a finding of liability on the basis of some less onerous standard? LESS ONEROUS STANDARD (patient couldn't tell what happened during operation - defendant was best situated to prove that) - appeal dismissed Reasoning: (Sopinka J.) - Trial judge already found that doctor did not meet standard of care by continuing the operation. - Causation need not be determined with scientific precision – causation is essentially a practical question of fact that can best be answered by ordinary common sense (decides to use causation instead of shifting burden ) - In many malpractice cases, the facts lie particularly within the knowledge of the Def who is usually in a better position to know the cause of the injury than the patient. In those circumstances, very little affirmative evidence on the part of the Pl will justify the drawing of an inference of causation in the absence of evidence to the contrary. (Sort of shifting the burden – Def runs the risk of an adverse inference in the absence of evidence to the contrary ) - “Imposing on the defendant a provisional or tactical burden” (not really a burden of proof). - In this case, the appellant was found negligent in continuing with the operation when retrobulbar bleeding had occurred. This finding was not contested and was fully supported by the evidence. By continuing the operation, the appellant had made it impossible for the patient or anyone else to detect the bleeding which allegedly caused the injury. Ratio: In cases where the facts lie within the knowledge of the Def (such as malpractice suits): The legal or ultimate burden remains with the plaintiff, but in the absence of evidence to the contrary adduced the by defendant, an inference of causation may be drawn, although positive or scientific proof of causation has not been adduced. NOTE: There are two alternatives: 1. Plaintiff prove that the defendant created a risk; 2. Def disprove that the risk led to causation. - In this sort of situation where you have a piece of circumstantial evidence that infers causation (the risk is created) - if the inference is displaced then the risk created will be seen to be a causal factor. - The court says that yes we just have an inference, merely circumstantial evidence - but causation need not be proved with scientific certainty =~> we can draw inferences and can infer causation CLASS -court says that scientific precision is not necessary -pl does not have to show that the def actions are the sole cause -so long as the pl can show that the def is part of the problem, then that person may be liable even though their act alone did not cause the harm -pl was in a position where she could not prove causation -the court canvassed the law of other jurisdictions. The leading case of the time was McGhee - the policy implication of shifting the entire duty onto the defendant could have included opening the flood gates of litigation and skyrocketing insurance rates -this does not throw “but for” out Three principles 1. Causation need not be proven with scientific precision 2. Allocation of burden of proof is not immutable, it can be shifted Page 35 of 50

LAW 406 TORTS 3. where facts are known only by the defendant, very little evidence from the plaintiff will support drawing an inference of causation -the ultimate burden of proof still rests with the plaintiff -the court does not say that an inference will be drawn in all cases, just that one may be drawn McGhee and Colbourg Case, UK HL Facts: Coal Company did not provide showers. Worker covered with coal dust that cycled home got very severe dermatitis. Discussion: Swung the pendulum far in the favour of plaintiffs by shifting the burden to defendants just had to prove that defendant created a risk and then it was up to defendant to disprove negligence. Cindel case 263 (1980) USA Facts: Pls were all women who had ingested a drug to alleviate morning sickness. Drug was not properly tested and many years later it was discovered that their children (female) were much more susceptible to cervical cancer than normal population. Problem was that the drug had been distributed by a number of different pharmaceutical companies. As it was many years later, couldn’t remember where they bought the drug (didn’t know who to sue). Discussion: Courts recognized this as an important case for compensation and so invented a system of liability based on market share of each pharmaceutical system. Therefore, courts can invent tools to solve difficult problems. Class: IMPORTANT CASE - This case was the SCC’s opportunity to rethink McGee and make it less dramatic in consequences – they pulled back and decided not to apply McGee This case did not shift the burden - if a defendant remains silent then the judges can draw an inference of causation Court said: 1) It will not be blinded by traditional view of causation – will be flexible. Not going to demand scientific precision of causation from plaintiff. 2) Allocation of burden in not immutable – can make the Pl respond if it wants to. When? One area will be in medical malpractice cases 3) Court will weigh evidence and decide how much defendant and plaintiff have to say (tactical ping pong burden or proof shifting) - Noted that Cook and Lewis only applies to multiple defendants 2. Walker Estates (Resp/Appl/Pl) v. York Finch General Hospital (Appl/Resp/Def) (3 recipients of HIV-infected blood) v (hospital and Canadian Red Cross Society) (2001) SCC – CB 264 Facts: 3 Pls contracted HIV from blood and blood products supplied by Canadian Red Cross Society (CRCS). They claimed that the Society was negligent in the procedures used to screen blood donors with HIV and AIDS. Pl’s infected donor gave blood in September 1983. O and M’s donor gave blood in December 1984 and March 1985 respectively. Both donors were high-risk donors (multiple partner homosexuals). Canadian screening procedures evolved as follows: April 1983 questionnaire asked questions about “general health but made no reference to AIDS symptoms. May 1984 pamphlet requested that homosexuals with multiple partners not donate blood (but did not mention signs or symptoms of AIDS). November 1985 pamphlet described a high-risk donor as “a male and has had sex with another male since 1977”. Around the same time, it began testing all blood donations for the presence of HIV antibodies using the ELISA test. May 1986 it introduced the first brochure that asked symptom-specific questions about HIV. The American Red Cross (ARC) released a pamphlet in March of 1983 with specific information and symptoms of AIDS. History: Trial – O&M successful – W’s action dismissed (failure to show causation – donor would have given blood anyway) Court of Appeal – O&M&W’s actions successful SCC – O&M successful – W’s action dismissed Issues: 1) Was the CRCS negligent in its procedures for screening blood donors with HIV and AIDS? YES 2) Is the necessary causal link in the Walker appeal presumptively established once it is shown that the CRCS failed in its duty to implement adequate donor screening measures ? NO (however causal link still established) Page 36 of 50

LAW 406 TORTS - appeal dismissed Reasoning: (Major J.) - 1) DUTY OF CARE – the CRCS owes a duty of care to users and recipients of blood and blood products to take reasonable measures to protect the safety of the blood and blood products it provided 2) STANDARD OF CARE – The conduct of the CRCS will be measured against the professional standards of other voluntary blood banks (ie practices of the US - ARC). O&M – May 1984 “good health” pamphlet was inadequate because a potential donor can’t know if he is in good health unless told what would constitute “bad health” (as the ARC specifically did in its questionnaire) – Trial judge was not asked to assess complex scientific or highly technical matters and so could reject the experts’ testimony. – The issue was whether the general health question was enough to deter the infected donor from donating blood. Therefore, it was not a question of how an expert would respond to the screening question but how a lay person would respond W - In cases of negligent donor screening, the proper test for causation is not whether the CRCS’ conduct was a necessary condition for the Pl’s injuries using the “but-for” test, but whether the Def’s negligence “materially contributed” to the occurrence of the injury. In this case, it is clear that it did. - Pl accordingly retains the burden of proving that the failure of the CRCS to screen donors with tainted blood materially contributed to her contracting HIV from the tainted blood - Must show that the donor would have self-deferred or been excluded from donating blood if the CRCS had followed the appropriate standard of care for a professional voluntary blood bank in North America at the time, as represented in the ARC March 1983 pamphlet (not as respect to the Canadian May 1984 pamphlet) - If the donor had seen the ARC 1983 pamphlet, he would not have donated blood, and so the causal link is established. - The donor screening measures implemented by the CRCS in May 1984 were not adequate to prevent homosexual males with multiple partners who did not have AIDS-specific symptom from donating blood. Ratio: Cannot use hindsight in determining negligence of this type – must assess the claims on the basis of what was or reasonably ought to have been known at the time. This standard of care is determined by what other similar organizations do. Plaintiff still has the burden of proving causation Class: -“but for” is clearly problematic -the standard of care was not achieved with the pamphlet -in the US the precaution was taken with their pamphlet that cautioned all homosexual males -testimony from donor was that if he had known that even a physically fit person could have aids then he wouldn’t have donated blood -Major J essentially ignores the test and decides the case on standard of care -this plaintiffs burden is to show that the harm suffered is linked to the causation of the defendant, which in this case was a missing sentence in a pamphlet 3. Resurfice Corp v. Hanke, 2007 SCC 7 Facts -Hanke filled the zamboni gas tank with hot water -gas tank and water tank were similar looking and side by each -vaporised gas filled the air, ignited in an overhead heater and burned Hanke History -Hanke sued the manufacturer alleging design defects -alleging that gas and water tanks were similar in appearance -two issues divided the AB courts: 1. Foreseeability Page 37 of 50

LAW 406 TORTS 2. Causation Issues 1. did the court of appeal err is suggesting that where there is more than one potential cause of an injury, the “material contribution” test must be used? YES, Appeal allowed, Pl out of luck. Reasoning -To accept that conclusion is to do away with the “but for” test -Accepting that conclusion will make the “material contribution” test the new test. Wrong! -the “but for” is the primary test. For the “material contribution” test to apply: 1. it must be impossible for the plaintiff to prove that the defendant’s negligence caused the plaintiff’s injury using the “but for” test. 2. it must be clear that the defendant breached a duty of care owed to the plaintiff, thereby exposing the plaintiff to a risk of injury, and the plaintiff must have suffered an injury. -court of appeal also erred in failing to realise that the “but for” test remains the primary test. Ratio The primary test in determining causation is, and remains, the “but for” test. Class Multiple causes = 2 negligent defendants but only one cause of accident Principles -but for remains the primary test -just because there are multiple causes doesn’t mean that it is material contribution -but for is only satisfied if there is a substantial connection between the injury of the pl and the conduct of the def -def are not liable for injuries they do not cause(pl has to show that on the balance of probabilities) -exceptions to but for, include applying a material contribution test. This is used under strict conditions: 1. Only to be used when it is impossible for the pl to prove causation using but for This impossibility must be due to factors that are outside the pl control 2. it must be clear that the def breached a duty of care owed to the pl, and he pl must have suffered some form of injury **Where these requirements are met the MC test can be used in place of BF -regardless of more than one cause, you need more if the MC test is to be used. Special Problems of Causation There can be multiple causes of negligence: 1. The defendant can be seen as the sole cause of the plaintiff's loss. 2. There can be one defendant who does a bunch of different things ( McGhee ) some of which are culpable and some of which are not. 3. Multiple causes with different defendants ( Cook v. Lewis ). 4. A plaintiff and multiple defendants whose actions combine to create the harm ( Jordan House )--2 faults both required to lead to fault. 5. Contributory negligence ( Crocker ) -the plaintiff establishes that the defendant was, on 51%, a cause of the injury -the defendant has also established that they acted together (plaintiff and defendant) to create the harm 3. Cook (Appl/Resp/Def) v. Lewis (Resp/Appl/Pl) (1 of the 2 def accidentally shot Pl while hunting grouse) v (man who was shot) (1951) SCC – CB 267 Shifting burden of proof with multiple negligent defendants – unusual exotic case Facts: Def Cook, Def Akenhead and 1 other were in one hunting party and the Pl and two others were in a second hunting party. The two Defs fired simultaneously and one shot hit the Pl in the other group, who was injured. It was Page 38 of 50

LAW 406 TORTS not possible to tell which Def fired the shot that hit the Pl. Can't prove causation (generally Pl has to prove causation) Issue: Do both defendants escape liability when it cannot be proven which one fired the shot that injured the plaintiff? NO Reasoning: (Cartwright J.) – - General Rule: when it is certain that one of the 2 individuals committed the offence charged, but it is uncertain whether the one or the other was the guilty agent, neither of them can be convicted. BUT: - The Court proceeds on the basis that each Def owed a duty of care to the Pl. Since both breached the standard of care, both defendants are at fault. - Where you have multiple negligent Defs and the resultant injury is within that negligence, the burden of proof is shifted to those Defs. They must share the burden. It is more fair for them both to be liable until they can prove who did it. The burden of proof is put on the person who has the greater knowledge. Concurring: (Rand J.) - It is unjust that the loss should be borne by the victim, and so the Courts are prepared to shift the burden of proof to prevent injustice. Unless A can point to B or vice versa, they will have to share the burden. This is a policy-based decision Dissent: (Locke J.) – Just because they were hunting together does not mean they should share a legal burden. If it cannot be determined who shot the Pl, the action should be dismissed. Ratio: (Rand J.) Where the plaintiff is injured by one of two parties, where they were both negligent, and where the plaintiffs difficulties of proof arose because of the defendants' negligence, the onus of disproving the causal link must shift to the defendants. Class: heavy legal burden (when you destroy evidence that may proof causation) - This is a standalone, exotic case. Only case where burden can shift – not normal! - The key here is that they covered up the evidence which prevented Pl from proving which one was guilty. This covering up was negligence in itself. Court is saying that they should have not shot their guns together such that it would be impossible to tell which shot went where. This proof-destroying negligent act is required to be able to use this case and shift the burden to the defendants. - This precedent will apply to very few cases - Plaintiff cannot prove his case because the knowledge of who fired in what direction was not divulged - Court sends the case back with instructions on two aspects - The first negligent act was shooting when they were sure of their target - The destruction of the plaintiffs opportunity to get a remedy -burden of causation was shifted, and this is an exception because both defendants omitted two wrongs -this case has survived to date because of its unique double wrong to a plaintiff -the legal consequence is to shift the burden to the defendant to disprove liability FAIRCHILD v. GLENHAVEN FUNERAL SERVICES Ltd 268 FACTS -3 estates of former employees were suing two former employers -each employee had worked for each employer at different times -employers had failed in their duty of care to prevent employees from inhaling asbestos dust – and each got mesothelioma -any cause of mesothelioma other than asbestos inhalation could be discounted -because of limits of science at the time the plaintiffs could not prove from one, the other or both defendants the inhalation that caused the mesothelioma. ISSUE Are the plaintiffs entitled to claim damages against employer A, B, or both? Both. Appeal Allowed REASONING -there is a strong policy argument in favour of compensating those who have suffered grave harm at the expense of their employers whose duty it was to protect them against the very harm and failed to do so when the harm can only Page 39 of 50

LAW 406 TORTS have been caused by a breach of that duty and when science does not permit the victim accurately to attribute, as between several employers, the precise responsibility for the harm he has suffered. -Cites McGee, “employers should be liable for an injury, squarely within the risk which they created” -not finding for the plaintiffs would allow asbestos companies to hire all their workers from other plants and to deny responsibility when they developed mesothelioma. RATIO -where an employee has suffered grave harm through something that the employer had duty to protect them from, the employer may be found liable. CLASS -problem is that plaintiff’s cannot pin-point which employer’s asbestos dust actually caused the death -causation can’t be specifically identified -def says you can’t prove that it was us so you are not entitled to anything -“but for” is difficult to prove on a balance of probabilities -House of Lords does a survey and says all courts recognize this problem and that all have developed a solution -HL says “there is some virtue in international conformity” this is unusual to see in a decision. The US would find that concept distasteful and against sovereignty of the US -HL accepts that causation is not known, but it is clear that each employer has failed in their duty of care -other side of the policy argument is that employers are going to be subjected to tort liability -court says that if the 6 conditions are satisfied, then the pl can recover from the employer because the causation test will be satisfied by lowering the burden of proof -a less stringent causation test is applied 1. employed at different times by A and B 2. duty of care to C 3. A and B breach that duty 4. C is suffering from the harm 5. 6. cannot prove that he harm was caused by A or B or both. -by expressly saying that this is not a legal inference test, then this is not a material contribution test -in a conflicting policy situation where one policy will out weigh the other, the standard of proof may be lowered E. Proximate Cause / Remoteness (of damage) / Chain of causation 1. General Principles How do we limit liability? Do you have this person in mind when contemplating your actions? 1. Is there a duty? 2. What is the standard? 3. Standard breached? 4. Did the breach cause the injury? 5. *What damage was caused? Minor? Unjust to pin all damages on one person for one small negligent act? Before Wagon Mound the defendant would likely be responsible for all damages. 1. Proximate cause focuses on what limits should be places on the legal liability of the defendant, even though the defendant may have, in fact, caused that loss.  Plaintiff has established the defendant owes the plaintiff a reasonable amount of care and has breached the standard (defendant is negligent – although perhaps not liable). How far – given the sequence of events – will we allow recovery? 2. Operates as a way of restricting compensation for certain forms of loss.  Do we want to protect this kind of claim by compensation? Policy issues.  Are these the proper subjects of recovery under the law of torts? Emotional harm, nervous shock, economic loss. There are 2 schools of thought: Page 40 of 50

LAW 406 TORTS 1. Before Wagon Mound : (Polemis) All other things being proven you are liable for all direct damages as a result of your actions. Liability based solely on directness of remoteness of damage. As long as there is no direct supervening event, there is liability. 2. As a result of Wagon Mound : Remoteness should be far more concerned with foreseeability than with remoteness. P. 324 1. The Wagon Mound (No. 1) (1961, PC) CB: 321 Reasonable Foreseeability / Overrules Polemis (responsible for all direct damages) Facts: Due to carelessness of the Appellant's servants, the Appellant's ship spilled furnace oil in the water in the wharf area. The Respondent owned the adjacent wharf. Appellant assured the Respondent that it was ok to continue welding, saying that oil would not burn on water. They continued to work, their ship and wharf caught on fire. Oil and a cotton rag caught fire from a spark of the Respondent's welding. The wharf was severely damaged. Issue: Was the harm foreseeable enough to impose a duty? NO, Appeal Allowed Holding: Court overruled Polemis and replaced it with a standard tied to foreseeability – reasonable foreseeability of consequences – what the Defendant ought to have known. Defendant not liable, in this case the damages were too remote. Ratio: Test : Would the reasonable person have foreseen the event that occurred as a consequence of their action? The defendant is liable for all direct consequences of actions which are reasonably foreseeable.  WM #1: injects foreseeability as the cornerstone of remoteness.  But do you have to foresee the extent of the damage? Do you have to see the specific cause?  WM # 1 doesn't help here. It says that you have to foresee the kind of damage – but how is this defined? CLASS -this cause of action was taken by the plaintiff dock owner. The fire was started by the plaintiffs own workers. -tfor the plaintiff to succeed there cannot be anyone that says that it was foreseeable that this event would happen. To that end they called experts to testify that bunker oil was completely unforeseeable to burn on water. POLEMIS TEST- Question was whether the defendants should be liable for all harm under the Polemis test. - the question with proximate cause is how far is the net cast? How close does the harm have to be to the person who caused the harm for them to be liable? -page 345/46 the polemis test is problematic. The house of lords clearly wishes to do something with the test. It can longer be regarded as good law -A principle of wagon mound is that polemis is thrown out, and foreseeability is key. -this is a scope question. Once duty, standard of care, and causation are settled, then attention turns to proximity. -the court will ask if it is fair to saddle a defendant with all the responsibility for a harm. The test is one of direct harm -if it can be shown that the harm was caused by direct action, then the defendant may be liable -in this case the court asks what was foreseeable when you spill oil on water. It was found that it would clog things up, damage the slipway, but is not foreseeable that it would cause a fire. - Test is that a man must be responsible for the reasonably foreseeability of his actions -stops short of saying what kind of harm the defendant was liable for -as a result of this case, the liability stops where the harm becomes unforeseeable. -highlights the problem of contributory negligence. Apportionment legislation would have ensured a good result. -on its facts this is an unsatisfactory result due to the state of the law -the court refers to Bourhill and Young (pregnant fish wife) to allow it to use foreseeability of harm as the test for proximate cause. Analysis of a Tort Action: 1. Duty: Foreseeability Relationship Policy 1 Policy 2 2. Standard of Care Page 41 of 50

LAW 406 TORTS Objective/subjective Foreseeability, reasonable person 3. Causation -but for -substantial 4. Proximate cause Scope foreseeability 2. Retreat from Wagon Mound (No. 1) a. The Thin Skull Plaintiff As long as you foresee the type of harm, you will be liable for its full extent regardless of whether it causes new loss or exacerbates a pre-existing injury or condition. You take your victim as you find her. 1. Smith (Pl) v. Leech Brain Co. (Def) (her husband worked for Def, was burned by molten metal & got cancer) v (company) (1962) UK QB – CB 327 THIN SKULL Reasonable foreseeability of damage does not apply in cases of thin-skulled plaintiffs – type not extent of damage is what’s important Retreat from the Wagon Mound No. 1 Facts: Mr. Smith, employed by Def , lowered articles by means of an overhead crane into a tank containing molten metal. He was provided with a sheet of corrugated metal for protection, but one day while lowering an article into the tank he looked to see what he was doing, so that his head was outside the metal shield, and a piece of molten metal struck him on the lower lip, causing a burn. The burn was found to be the promoting agent of cancer, which developed at the site of the burn and from which he died three years later. The tissues were found to have already had a pre-malignant condition; but for the burn, however, cancer might not have developed, though there was a strong likelihood that it would have developed at some point in his life. Pl’s wife brought an action against LB. Issue: Is there sufficient proximate cause? YES – judgement for the plaintiff Reasoning: (Lord Parker C.J.) - The Privy Council in Wagon Mound (No. 1) did not have "thin skull" cases in mind - The question is not whether Def could reasonably have foreseen that a burn could cause cancer and that Mr. Smith would die. Rather, the question was whether the Def could reasonably have foreseen the type of injury that was suffered, namely, the burn. - The amount of damage suffered as a result of a burn depends on the characteristics and constitution of the particular victim. - The risk of a worker getting burned by molten metal while operating an overhead crane, unless adequately protected, was one which any reasonable employer should have foreseen, and thus Def was negligent for failing to provide adequate protection. - Since the cancer was merely an extension of that burn, the judge concluded, Def was fully liable in damages to Pl Ratio: 1. The tortfeasor takes his victim as he finds him. 2. The test is not whether the extent of injury was foreseeable, only whether the type of injury suffered was reasonably foreseeable. Class: Page 42 of 50

LAW 406 TORTS -notwithstanding that the type of harm could not have been foreseen the def has to pay because you take your victim as you find him. -the foreseeability of the type of harm does not matter. Note 4-Plaintiff and husband suffer serious psychological damage because of a car accident. Court holds that you can have an “eggshell personality” same as thin skull. Note 11- affirmed in a 1997 case that a person with a thin wallet can claim damages if their poorness is aggravated by the harm they suffered. 2. Athey (Appl/Appl/Pl ) v. Leonati (Resp/Resp/Def) (1996) SCC – SM 185 Crumbling skull Facts: Pl Athey had a history of back problems and suffered back injuries in two separate car accidents. Pursuant to his doctor's advice, he resumed his regular exercise routine after the second accident and suffered a herniated disk while warming up. The trial judge found the accidents played some causative role in the disc herniation and assessed liability at 25 per cent for his injury. Athey appealed from this assessment. -car accidents were caused by the negligence of the drivers in the accidents Issue: Causation - Should non-tortious activity be accounted for in apportionment? NO Reasoning: Causation was established where the Pl proved that the Defs caused or contributed to the injury. A Def was liable for any injuries caused or contributed to by his or her negligence. - Pl need not show that the Def’s negligence was the sole cause of the injury. - The disc herniation was not an injury that could be apportioned between tortious and non-tortious causes. It was a single non-divisible injury. - As the trial judge found that the accident caused or contributed to the disc herniation, it was not an independent intervening event and did not reduce the net loss experienced by the Pl. Once it was proven that the accidents caused the disc herniation, Def was fully liable for this injury. Ratio: General Principle: Def is liable for any injuries that he caused or contributed to. If the Def's conduct is found to be a cause of the injury, the presence of other non-tortious contributing causes does not reduce the extent of the defendant's liability. - The plaintiff must prove the Def’s conduct caused or contributed - but causation need not be determined with scientific precision Note: Multiple Tortious Causes: Apportionment between tortious causes is expressly permitted by provincial negligence statutes and is consistent with the general principles of tort law. BUT Divisible Injuries: apportionment is permitted when there are different injuries. Apportionment when some injuries are from tortious causes and others from non-tortious. Class: Here we have an indivisible injury that can't be divided up -There can be no splitting of liability between tortious and non-tortious act. If there is an injury that occurs as a result of the first tortious event then the def will be liable due to the but for test. -de minimus "of minimum importance" or "trifling." Essentially it refers to something or a difference that is so little, small, minuscule, or tiny that the law does not refer to it and will not consider it. In a million dollar deal, a $10 mistake is de minimis -“BUT FOR” test will not work in this case because of the pre-existing back injury, two crashes, and the stretching -instead there has to be an examination of the “ material contribution ” of the injury -court cites Snell and Farrell -Apportionment is designed to get 100% of the damages to the pl and be fair to those who have to pay -Divisible injuries argument- defines for the defendants what their responsibilities are Page 43 of 50

LAW 406 TORTS -Contingencies are argued to project what the plaintiff’s earning potential would be over their working life Defendant tries to argue that the injury was a contingency outside of their control. Court says no, contingencies are future, what the def was arguing is past -independent intervening events – the def can win on this one either -Thin skull a pre-existing infirmity– the defendant must take his victim as he finds him. If the defendant’s action -crumbling skull is not opposite, but the pl would have experienced the herniated disc anyway as a result of the pre- existing bad back. Court again says pound salt, you can’t prove that the disc would have eventually herniated -Principles of damages are to restore the plaintiff back to their original position, which in this case was a sore back, not the herniated disc. The def were liable to pay for all damages stemming from the accidents -def won’t be liable to place the pl in a better condition . If there is a measurable risk that the injury would have affected the pl in the future then the award could be lowered. -crumbling skull can be used y the defendant to lower the liability so the award is less, plaintiff will argue for thin skull. B. TYPE OF DAMAGE 3. Hughes (Appl/Appl/Pl) v. Lord Advocate (Resp/Resp/Def) (8-yr old boy burned by paraffin lamps in the street) v (representative of the group that opened manhole) (1963) UK HL – CB 331 Exact manner and extent of harm does not need to be foreseeable, only the kind of harm Further retreat from Wagon Mound #1 Facts: A maintenance hole in a street was opened for repair purposes. It was covered with a tent and left unguarded while the employees went for a tea break, but was surrounded by paraffin lamps. An 8-year-old boy entered the tent and knocked one of the lamps into the hole. An explosion occurred causing the boy to fall into the hole and to be severely injured. Def argued that Pl could not recover because the damage he suffered was of a kind that was not foreseeable. The lower courts held that the Def owed a duty of care since it could be foreseen that children could be attracted to the site and burned by the paraffin lamps, but denied liability on the ground that the explosion itself was so unlikely it could not have been foreseen. Issue: Is there proximate cause? YES – appeal allowed Reasoning: (Lord Reid) - In creating such an alluring, yet dangerous, situation for children, Def owed a duty of care to guard the hole. - Because the features or developments of an accident may not reasonably have been foreseen does not mean that the accident itself was unforeseeable. - It was foreseeable that if a lamp fell and broke it could cause serious burns. No doubt it was not to be expected that the injuries would be as serious as those sustained by the Pl. However, that is irrelevant. - Def cannot avoid liability because they could not have foretold the exact way in which a person would get hurt; therefore, Def cannot escape liability because the particular way in which the harm occurred was unforeseeable. - This type of occurrence arising from the lamp was reasonably foreseeable, though the source of danger acted in an unpredictable way, so that the degree of injuries sustained was unforeseeable. Ratio: The test is that the occurrence of harm must be foreseeable. However, the manner and extent of the harm does not necessarily matter. He can only escape liability if the damage can be regarded as differing in kind from what was foreseeable. Class: - an explosion was hardly foreseeable -extent and manner of harm need not be foreseeable as long as the type of harm is foreseeable. -There was fire pots, they could cause burning. Page 44 of 50

LAW 406 TORTS -the extent and the manner of the injury is irrelevant. The burning was foreseeable. That is enough to make them liable. -this is a retreat from the wagon mound C. POSSIBILITY OF DAMAGE 1. Wagon Mound No. 2 Overseas Tankship (U.K.) Ltd. (Appl/Def) v. Miller S.S. Co. Pty. Ltd. (Resp/Pl) (spilled furnace oil in a bay) v (ship was damaged) (1966) UK PC – CB 337 Damage doesn’t have to be a probability, just a possibility (more broad again) Retreat from reasonable foreseeability (from Wagon Mound #1) Facts : The circumstances that gave rise to this action were the same as those in Wagon Mound (No. 1) above (but with different plaintiffs). Pl were the owners of a ship which was damaged by the oil fire. Pl sued in both negligence and nuisance. The trial judge found the Def not liable in negligence but liable in nuisance. The Privy Council found the trial judge wrong with respect to both negligence and nuisance, so the defendant was still held liable. The plaintiff in this case was another ship owner who had nothing to do with the welding, their hip was legally mored at the dock. Issue: Is there proximate cause? YES Was the damage too remote from the cause? NO – appeal dismissed Reasoning: (Lord Reid) - The evidence in this case was substantially different from the evidence led in Wagon Mound (No. 1), and the trial judge's findings thus significantly different. - In Wagon Mound (No. 1), it was explained, the Court was not concerned with degrees of foreseeability because the finding was that the fire was not foreseeable at all. Here, though, it was found that some risk of fire would have been present to the mind of a reasonable person in the shoes of the defendant's chief engineer. - Bolton v. Stone recognized the situation that where an event is foreseeable but the chances of it occurring are very small, that it is justifiable not to take steps to eliminate the risk. However, the fact that the danger may only occur in very exceptional circumstances does not mean a reasonable person would necessarily dismiss such risk and do nothing when it was so easy to prevent and required no expense. - There was no justification for discharging the oil into the bay (and it was an offence to do so), and it was in the ship engineer's duty and interest to stop the discharge immediately, which he failed to do. - The question is whether a reasonable person having the knowledge and experience to be expected of a ship's chief engineer would have known of the real risk that the oil on the water would catch fire in some way and that, if it did, serious damage to ships or other property was foreseeable. - A qualified and alert engineer would have realized this risk existed. - Def wantonly dumped their oil into the water and then took off. It would have been easy to avoid the risk. Ratio: 4. The defendant will be liable as long as the harm was seen as a possibility and there is no justification for the absence of care. 5. Low risk + easy avoidance = liability. 6. Low risk + difficult avoidance = no liability. If it is clear that a reasonable person would have realized or foreseen and prevented the risk, then it must follow that the appellants are liable in damages. Reasonable foreseeability doesn't have to be a probability, only a possibility. The Defendant can be liable even if the damage is very improbable. -If risk is foreseeable and there is no justification for creating the risk and the risk could have been avoided – test is possibility and not probability. There is still a real risk, even if not a probable risk. -contrast with Boulton v Stone for the redeeming social aspect/policy implications This case opens the door wider for liability – moving back towards Polemis. Page 45 of 50

LAW 406 TORTS Reasonable foreseeable means: 1. objective 2. on a balance of probabilities Class: It appears from case law that law supports mainly wagon mound 1. However, Wagon Mound 2 has never been thrown out. To use #2 – need wanton disregard and cavalier behaviour (need similar facts – large loss, small risk, but easy avoidance of risk) Page 360 findings of fact- the officers of the def would regard that furnace oil was unlikely but not impossible to burn on water -could have heard of it happening before -improbable but may become an actuality in exceptional circumstances. Note 3 page 363-test becomes what is possible, not probable. Note 2 wagon mound 2 lies dormant, and wagon mound 2 has taken over. Some say that WM2 is for illegal behaviour, but has been used in a variety of cases. Note 11 (smith) underlying principle. One test will not suffice, it will boil down to a value judgement. Smith argues for more flexibility on a case by case basis. Note 9 (green) chief criticism is the overloading of foreseeability. Left with several approaches to fit a case into. 3. INTERVENING FORCES Intervening event = event subsequent to the act of negligence that is so significant it snaps the chain of causation (defendant did not cause the loss that the plaintiff suffered and should not be economically liable). This is different from a pre-existing condition of the plaintiff (thin-skull rule) because that is there before the negligent act. Issue: what is the extent of the defendant’s liability? Act done between what the defendant did and what happened to the plaintiff. Two situations: a) Initial injury is exacerbated by the second injury. Is it within the ambit of risk created by the defendant’s negligence? b) Another person intervenes and creates the damage. When can the defendant be held liable for the negligent acts of others? 1. Harris (Appl/Appl/Pl) v. T.C.C. & Miller (Resp/Resp/Def) (young passenger who’s arm was broken when he had it out the bus window) v (bus company & driver) (1967) SCC – CB 372 Facts : As a bus pulled away from a bus stop, it brushed against a steel pole set in the sidewalk about five and a half inches from the curb. Pl, a young boy, riding in the bus had his arm extended through a window and, as a result, his arm was crushed and broken. An action for damages was brought against both the owner, T.T.C., and the driver of the bus. History: Trial – negligence of bus driver was a proximate cause but Appl was also guilty of putting his arm out the window (equal fault). CA – no negligence from bus driver so no recovery. Issue: Was there proximate cause? NO – appeal dismissed (restored division of liability of trial judge) Reasoning: (Ritchie J.) - By his own evidence the bus driver had indicated his awareness of the propensity of children to put their arms and heads out of the windows, notwithstanding the warnings posted. It was thus held that the driver could reasonably have been expected to foresee that such a thing would happen in the case of the young boy. Page 46 of 50

LAW 406 TORTS - There may be circumstances in which a public carrier could discharge its duty to its passengers in relation to a specific danger by passing such a by-law and giving such notice. - However, when a Def’s negligence is an effective cause of the accident and the Def should have foreseen the likelihood of the danger occurring, notwithstanding the warning, different considerations apply. Specifically, the damages in such a case should be apportioned in proportion to the degree of fault found against the parties respectively. Ratio: 1. Merely because the Pl’s injury is caused or contributed to by his own negligent act, or the wrongful act of a third person, does not mean that the Def is freed from liability. 1st wrongdoer isn't going to be immune just because there's another wrongful act. 2. If the scope of the Def’s duty is to protect the Pl from the very injury that occurred, it is not a defence for Def to say that Pl’s action was an intervening cause which should shield him from liability. Class: - Easy case on the facts – can’t say not reasonably foreseeable when you’ve seen kids do it before. - Courts don’t like blunt instruments like volens defence and so prefer to apportion liability - Must not only post the signing, but take care to ensure children aren't sticking their arms out - a very high standard of care. - If the act of negligence itself consisted in the failure to take reasonable care to guard against the very thing that happened, then it is no defense that a third party caused that thing to happen. - Court decided that liability would be split because there was a duty to do more - Bradford v. Kanellos (1971) Def let a quantity of grease accumulate on grill. Caused a fire, used fire extinguisher that caused patron to yell there was a gas leak. Stampede to door and Pl was injured. - Per Martland: negligent act was to accumulate gas on the grill. Was it reasonably foreseeable that a customer would yell hysterically when they used the fire extinguisher to put it out? NO. - Per Spence: the actions of the hysterical person were foreseeable, a natural consequence. 4. RECURRING SITUATIONS a. Rescue 1. Horsley (Appl/Resp/Pl) v. MacLaren (Resp/Appl/Def ) ("The Ogopogo") (died after jumping into water to rescue someone) v (boat owner) (1972) SCC – CB 376 Facts : M, an invited guest on a cabin cruiser owned and being operated by the Def, accidentally fell overboard. In attempting to rescue M, Def did not follow the recommended method of rescuing, which is to circle and bring the boat bow on towards the body, but instead he backed up the boat to within four or five feet of M and shut off the engines. Because M appeared to have lost consciousness and the boat kept drifting away, the rescue attempt with a pike pole and life preserver failed. Another invited guest, Pl, then dived into the water, but died of shock due to the sudden immersion in the extremely cold temperature. Issue: Is the Def boat owner liable for the death of the Pl (the 2 nd rescuer)? NO – appeal dismissed Reasoning: (Ritchie J.) - A duty rested upon Def in his capacity as host and as the owner and operator of the boat to do the best he could to rescue one who had accidentally fallen overboard by taking all reasonable steps which would have been likely to effect the rescue. The duty was a pre-existing one, arising out of M's position as a guest and passenger. The Court found that Def did not breach this duty of care. - The duty owed to Pl was on an entirely different footing. Any duty owing to Pl must have stemmed from the fact that a new situation of peril was created by Def’s negligence, which induced Pl to act as he did. The Court Page 47 of 50

LAW 406 TORTS concluded that although the procedure followed by Def was not the most highly recommended one, evidence did not justify a finding that any negligence of his induced Pl to risk his life by diving in. If Def erred in backing up the boat instead of turning it around, the error was one of judgment, not negligence, which in the circumstances was excused. Dissent: (Laskin J.) - Def adopted the wrong procedure in attempting to rescue M – breach of duty based on a “reasonable boat operator” - This breach of duty prompted the Pl to effect his own rescue, thereby making Def liable to the Pl - Difference between majority and dissent is their definition of Def’s position. Majority said a rescuer (  needed gross negligence), dissent said had regular duty (  regular negligence). Ratio: - A host has a duty to rescue a passenger who has fallen overboard (positive duty of care) - A host has a duty to rescue a rescuer if the host’s first rescue was performed negligently. (Negligent defendant had a duty to a rescuer coming to aid of person.) If a person by his fault creates a situation of peril, he must answer for it to any person who attempts to rescue the person in danger. - A rescuer can owe a duty of care to another subsequent rescuer if: a) His attempt to rescue increases (creates new) the peril, and b) Induces the second rescuer to move in and make a rescue. ** must find negligence in first attempt, will be very high standard since it is a rescue attempt. Class: Is it foreseeable that if there is a botched rescue someone else will attempt a rescue? Yes If someone is compelled to rescue because of negligence, the tortfeasor is liable to the rescuer as well. b. Second Accident 1. Weiland (Pl) v. Cyril Lord Carpets Ltd. (Def) (Injured in bus accident and in 2 nd accident fell down stairs) v (negligent in Pl’s first injury) (1969) UK QB – CB 388 2 nd injury – Def liable if 2 nd injury close in time to first and a result of a necessary and ordinary activity of life Facts: Pl was injured in a bus accident due to negligence of the Def. Went to hospital to get a neck brace, couldn’t see properly because she could not adjust or use bifocals because of the brace , was woozy and fell down stairs and injured ankle. She claims this is part of the initial ambit of harm created by Def. Def says it is an intervening cause- she caused the ankle injury herself. Alternatively, that second injury was not foreseeable. Pl is suing for neck and ankle injuries. Issue: Are the Pl’s actions an intervening cause? NO Did Def’s actions cause the second injury (and is he therefore liable)? - YES, result of the first – action allowed Reasoning: (Eveleigh J.) - Factual causation : because of the short time in between the 1 st and 2 nd injuries it is close enough. Time aspect was essential as it was so soon after the original accident - Furthermore, she was engaged in a necessary activity (hospital told her to come back for neck brace – so not walking for pleasure). The 2nd injury was the result of the 1st injury. The first injury impaired her ability to negotiate stairs, which resulted in the fall. - Proximate Cause : Because of close proximity, it is foreseeable that one injury may affect the person’s normal functioning and thereby lead to a second injury. Page 48 of 50

LAW 406 TORTS - Don’t need to foresee precisely how this will occur. Wagon Mound 1 does not deal with extent of original injury, degree to which it has affected Pl, nor manner of harm - "But for" test works here: but for first, wouldn’t have had second. - It is foreseeable that one injury may affect a person’s ability to cope with the vicissitudes of life and thereby be a cause of another injury and if forseeability is required, foreseeability of a general nature will suffice. Ratio : 1. Extends the foreseeability of harm to a second accident. 2. It is foreseeable that one injury may affect the person’s normal functioning and lead to a second injury. 3. If a subsequent accident is: a) close in time to the first b) the result of an ordinary activity of life (i.e. walking) then it will be considered part of the initial injury, and the Def will be held liable. Class: 2. McKew (Appl/Appl/Pl) v. Holland (Resp/Resp/Def) (injured leg and then broke ankle in 2 nd injury) v (liable for Pl’s injured leg) (1969) UK HL – CB 390 2 nd injury – Def not liable if Pl acted negligently and unreasonably. Unreasonable conduct is an intervening event that snaps the chain of causation Facts: Pl sustained leg injuries for which the Defs were liable, and as a result, his leg would unexpectedly give way beneath him. While descending some stairs the Pl’s leg collapsed and he began to fall. He tried to jump and to land in a standing position, rather than falling down the stairs. He broke his ankle on landing, a more serious injury than the original one. He would have recovered within a week or two after the initial injury, but for his broken ankle. Issue: Are the Defs liable for the Pl’s second injury? NO – appeal dismissed Reasoning: (Lord Reid) - If an injured person takes reasonable care and yet sustains further injury as a result of an initial injury, the second injury can be said to have been caused by the disability that was in turn caused by the Def. - On the other hand, an injured person who acts unreasonably cannot hold the defendant liable for injury caused by the person's own unreasonable conduct; the unreasonable conduct has broken the chain of causation. - Foreseeability does not need to enter the picture in this case – Def not liable for foreseeable unreasonable conduct. - A person whose injury results in his or her leg giving way at any moment must act reasonably and carefully. Pl’s act in attempting to go down a staircase without a handrail and without adult assistance, when his leg had previously given way, was unreasonable. The causal chain was broken so the defendants were not liable for the second injury. Dicta: If the causal chain had not been broken, Pl would not have been denied damages by acting wrongly in an emergency by his decision to jump rather than to fall, unless the decision was so utterly unreasonable that, even on the spur of the moment, no ordinary person would have been so foolish as to do what the plaintiff did. Ratio: If the Pl was acting negligently and unreasonably then the chain of causation is broken and the Def is not liable for the 2 nd injury. If chain of causation isn’t broken, the fact that the Pl makes a bad decision in an emergency situation is irrelevant. P369 – “the law is clear…” Foreesability isn’t necessary. Class: Page 49 of 50

LAW 406 TORTS - This case seems to be saying that we want to prevent Pl. from acting negligently or unreasonably. There is no apportionment of liability if the chain of causation snaps. - Distinguished from Weiland: - Here time element was not brought up - There she took great care (son was helping her), here he wasn't careful, had no help and was not holding the rail Butterfield case -prior to apportionment -rule is stated that the pl must be acting with due care at the time of the accident to be entitled to damages. -any fault is enough to bar the pl from recovery Note #5 on 414 -contribute to the accident that caused the injury Note # 4 on 414 -to whom does the plaintiff owe a duty? -You owe a duty to yourself to be careful and protect yourself -concept is the same as if you were suing someone else Note #6 -last clear chance is still alive in NFLD and Sask. -Alberta has a specific exclusion of the last clear chance rule - Page 50 of 50