NEGLIGENCE. 1. Duty 2. Breach. 3. Causation 4. (Remoteness)

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1 1. Duty 2. Breach NEGLIGENCE 3. Causation 4. (Remoteness) ISSUE Q: Did X s negligence cause Y s damage? RULE: Negligence is concerned with carelessness. To establish the tort of negligence, P must show: D must owed them a duty of care, D breached this duty, and as a result, P s damage flowed from the breach ISSUE: Does A owe a duty of care to B? DUTY OF CARE <threshold determination in negligence> RULE: A duty of care is not owed to the world, but only to one s neighbor in law, or only to those whom might be reasonably foreseeable as being adversely affected by one s failure to take care. (Donoghue) The first thing the court must do is determine whether the parties relationship falls into a category already recognized as giving rise to a duty of care. (Childs) If it does, a prima facie duty of care is established and it becomes unnecessary to undertake the Anns/Cooper analysis. If the case falls outside an established category, Anns/Cooper must be applied. SUB-ISSUE: Does the case fall within a recognized category of relationship? (Childs) A. If already established duty/normal duty, assess similarities/differences. Go to A. B. If novel duty, apply Anns/Cooper. Go to B. C. If affirmative duty, see if special relationship. Go to C. A) EXISTING DUTY Assess 1 potential analogous relationship. Describe how/why they are proximate. Identify similarities/differences Based off the assessment above, this relationship is (not) analogous to the duty of care owe. Therefore, a novel duty of care needs to be established. B) NOVEL DUTY If there is not an existing or analogous duty, the Anns/Cooper test will be applied to determine whether this is a novel duty of care: 1. Does the relationship between the plaintiff and defendant disclose a sufficient foreseeability and proximity to establish a prima facie duty of care? a. Was it reasonably foreseeable that the actions of the A could lead to harm? 1

2 b. Is there a proximate relationship between A and B? i. Was there reliance? Creates a special relationship (Imperial) Special relationships can create a duty of affirmative action. 2. If a prima facie duty of care does exist, are there any residual policy considerations which could negate this duty of care? C) AFFIRMATIVE DUTY Generally, there is no duty for an individual to take action, but only to act non-negligently, unless there is a special relationship between the parties that gives rise to an affirmative duty. (Childs) 1. Is there a nexus of proximity between the parties such that an affirmative duty is owed? Does it fall into a category of a special relationship? a. Economic benefit? (Jordan House; Crocker; Stewart) i. Positive duty to take care in relationships of economic benefit ii. Commercial v social host (Childs) b. Control and supervision? (Jordan House; Crocker) i. Positive duty to prevent injury or assist others in vulnerable position c. Creating of dangerous situations (Oke) i. An individual who creates danger, even non-negligently, can owe an affirmative duty if harm is foreseeable d. Statutory Duties (O Rourke) i. Positive duty might arise where there is a statutory duty e. Reliance relationships and undertakings (Zelenko) CONCLUSION: Based off the analysis above, a duty of care is (not) owed. OR: In this case, the connection b/w D & P is (not) a special relationship of proximity that triggers an affirmative duty of care on the part of the D. ] Now that a duty of care has been established, we look to see if A breached his duty. OR: In the event that this analysis is wrong and a duty of care does exist, we will move on to the next part of the analysis to see if said duty was breached. BREACH ISSUE: Did A breach the standard of care it owed to B by? RULE: Conduct is negligent if it creates an unreasonable risk of harm. To avoid liability, a person must exercise the standard of care that would be expected of an ordinary, reasonable, and prudent person in the same circumstances (Ryan v Victoria City). The measure of what is reasonable depends on the facts of each case: including the likelihood of foreseeable risk & the gravity of harm (Bolton v. Stone) In addition, one may look to external indicators of reasonable conduct such as custom, industry or of statutory standards. (Ryan v Victoria City). 2

3 SUB-ISSUES/ANALYSIS: 1. What standard of care D is held to? In this case, the D is held to the standard of a reasonable (doctor, party host, limo driver, etc.) 2. What would a reasonable person in D s position do considering the situation? a) Likelihood of Risk High: Haley (blind person using a sidewalk) Low: Chicken Palace (blind person should take precaution), Bolton b) Gravity of Harm The greater or more serious the potential harm, the greater care is required High: Paris v Stepney (1-eye man), Haley Low: Bolton (cricket ball, not a javelin) c) Difficulty of Affording Protection Haley: could have used a higher fence d) Customs Custom is not determinative but can help determine a reasonable standard of care in accordance with the established practices/custom of the group the D belongs (Waldick) e) Statutory Standards To use a breach of statute as evidence of negligence, the incident in question must be of the type that the statute was meant to prevent and connected to the reasons the statute was enacted (R v. Sask Wheat Pool) Breach of statute is not automatically negligence (R. v. Sask Wheat Pool) Substance of statute must relate to breach (Gorris) Compliance with statute does not mean one is not negligent (Ryan v. Victoria) f) Emergency or Social Utility Is risk balanced against the end objective? Commercial end to make a profit is very different from the human end to save life & limb (Watt) 3. Do any exceptions to the RP standard apply here? (young, mental illness, etc.) 4. Did D act reasonably given the circumstances? CONCLUSION: If they did act reasonably, they did not breach their duty of care and thus are not liable for the damage. If they did not act reasonably, there was a breach of their duty of care. It must be determined next then whether the plaintiff s damage flowed from the breach. 3

4 DAMAGE ISSUE: Did the P suffer damage? RULE: Even where a duty of care exists and the standard of care required has been breached, there can be no liability in negligence unless some damage has been suffered by the P. CONCLUSION: Yes, the P has suffered damage. ISSUE: Does the P s damage flow from D s breach? CAUSATION RULE: Causation refers to the expression of the relationship that must be found to exist between the D s breach and the P s damage to justify the D compensating the P. (Snell) Negligent action needs to be established on a balance of probabilities that injury would have not occurred but for the defendant s negligence. (Kauffman) In some cases, BF test may be factually unworkable, so causation may also be recognised in cases where the breach materially contributed to the damage (a contributing factor is material if it falls out of the de minimis range) (Athey) Causation (but for or material contribution) need not be determined with scientific precision. The test should not be applied rigidly but rather in a robust, common sense approach. (Snell) ANALYSIS: <establish what kind of causation test to apply> But for X (D s negligent action), P s damage would (not) have occurred. OR Material Contribution Test: 1. It must be impossible for P to prove causation using but for test - Either because of multiple actors (who did it? Cook) OR it s impossible to tell what the person would have done if D was not negligent (Walker Estate) 2. Must be clear that D breached the duty of care, exposing P to risk of injury and that risk materialized (P suffered risk that was created) Therefore, D s actions did (not) materially contribute to P s damage. CONCLUSION: Based on the analysis above, D s breach of his duty of care to P (did not) cause (NAME SPECIFIC DAMAGE). Thus, D is (not) liable. REMOTENESS ISSUE: Was P s damage caused by the D s breach or is the damage too remote from the breach to warrant recovery? RULE: Even if there is an obligation to take reasonable care, and it was breached, if the damage is too remote from the breach, D will not be held liable. To determine remoteness, the damage needs to be reasonably 4

5 foreseeable from the standpoint of the breach to include probable consequences that are of real risk in doing an act to which the reasonable person would not have ignored. (Wagon Mound 2) ANALYSIS: Work backwards from the breach What was the breach? What is knowable about the breach? Was this type of damage a RF consequence of the breach? The surrounding circumstances do not matter o Ex. It is foreseeable that leaving oil-burning lamps unattended can cause burning. The fact that the child s burns were caused by them tripping and dropping the lamp does not matter Using BvS factors: o Was it reasonable to think this type of damage could happen? o Was it likely to happen? o How serious would the harm be if it were to happen? o What kind of steps were needed to eliminate the harm? Real Risk : would a RP having the knowledge and experience of the D known that there was a real risk in doing what they did/failed to do? THIN SKULL (USED TO ASSESS LIABILITY) RULE: If the type of injury to P was reasonably foreseeable, D is liable for all consequences. The scope of damage does not affect liability. (Smith v. Leech Brain) The D must take the P as he/she finds him. (Athey) CRUMBLING SKULL (USED TO ASSESS DAMAGES) RULE: If the P had a crumbling skull (a predisposed disease/condition), they should not be compensated to the effect of putting them in the position of a non-crumbling skull. D only liable to the extent they worsened the condition. PSYCHIATRIC DAMAGE W/O PHYSICAL INJURY RULE: Psychiatric damage must be a real risk that was reasonably foreseeable to flow from D s negligence by a reasonable robust Canadian of fortitude. (Mustapha) ANALYSIS: Was the psychiatric injury a close and direct result of the accident, such that would amount to shock & horror? CONCLUSION: The psychiatric damage was/was not reasonably foreseeable, therefore D does/does not owe a duty of care to the P. RESCUE & RESCUERS RULE: If the negligent rescue creates more danger, the negligent rescue is a breach to the rescuee and a breach of your duty to the foreseeable second rescuer 5

6 INTERVENING FORCES ISSUE: Did the intervening act break the chain of causation between the breach and the damage? RULE: Reasonable foreseeability of the intervening act will determine liability SECOND ACCIDENT RULE: If the D could reasonably foresee the intervening act then it does not break the chain and means that the D is liable for the damage. (Wieland) If P acted unreasonably and his unreasonable conduct is the cause of the second injury (novus actus interveniens), the D will not be held liable severs the chain. (McKew) MEDICAL ERROR RULE: If reasonable care is used by a competent physician, even though by an error aggravates the damages, the initial D may be responsible for the later intervening act of a medical error because medical malpractice is reasonably foreseeable (Mercer v Gray) Unless it s negligent medical error, then it would break the chain NEGLIGENT, INTENTIONAL, & CRIMINAL ACTS RULE: Even if the intervening act is of negligence, intentional/criminal act, if there was a duty to take reasonable care, the damage is not too remote. (Harris v TTC, Stansbie) If it is RF that a criminal act will be the result of a breach, it will not be too remote. ANALYSIS: But for X doing negligently, Y would (not) have sustained damage. <ask yourself: what was the cause of the P s damage?> INTERMEDIATE EXAMINATION RULE: A product may pass through many hands from manufacturer to ultimate consumer, which may be an intervening actor but ultimately, manufacturers have a duty to warn of dangers to consumers (Ives v. Clare Bros) LEARNED INTERMEDIARY RULE: Generally, the duty to warn is owed by manufacturer to ultimate consumer. The learned intermediary rule is the exception where a warning to the learned intermediary may satisfy a manufacturer s duty to warn the consumer, thereby discharging them of any breach. (Hollis) 6

7 DEFENCES TO NEGLIGENCE CONTRIBUTORY NEGLIGENCE RULE: 3 ways in which P can contribute their own injuries: i. Contributing to the event which caused the injuries ii. Exposing themselves to a risk of being involved in an injurious event iii. Failing to take reasonable precautions to minimize injuries (i.e. - seatbelt defence) LEGISLATION: Negligence Act allows the apportionment of liability. SEATBELT DEFENCE A passenger over 16 has a duty to wear a seatbelt, and a failure to do so will be an assessment of contributory negligence (Yuan v Farstad) A driver of a car owes a duty to all of his passengers to take reasonable steps to prevent foreseeable injuries (Galaske) o For passengers under 16, reasonable care means ensuring that they wear seatbelts o Presence of parent in the car may mean that responsibility is shared but does not negate the duty owed to passengers under 16 VOLUNTARY ASSUMPTION OF RISK (VOLENTI NON FIT INJURIA) RULE: Volenti non fit injuria is a voluntary assumption of risk requiring that P consents to the risk of injury & the lack of reasonable care of the D - thus, D is relieved of any DoC for that particular risk of harm. Volenti doesn t apply to police officers on the job, not consenting to risk (Hambley) ILLEGALITY (EX TURPI CAUSA) RULE: If one is engaged in illegal activity, one cannot sue another for damages that arose out of that illegal activity. (Hall v Hebert) EXCLUSION CLAUSES RULE: Contractual waiver clause can serve as a full defence to a claim in tort. (Crocker) LIABILITY OF PUBLIC AUTHORITIES *highly likely to be on exam* RULE: S. 2 of the Crown Proceeding Act creates liability for the Crown as if it were a person. If X, acting as a owed a DOC to Y, the authority will be found to have acted negligently, such that they are in breach. To determine whether a duty is owed, we apply the Anns test. ANALYSIS: (1) Are the parties in a relationship of sufficient proximity to warrant the imposition of a DOC? - Is the P part of a clear and defined group? 7

8 - Did the D have close and direct relationship with the P? (Hill) - Was there actual knowledge of a risk or vulnerability? (Jordan House) - Did the D s act fall within their statutory duties (distinguish policy and operational)? o Examine the legislative scheme! o Did the statute intend to create a private duty of care? Is there a conflicting duty owed by the PA to the general public v the private duty owed to just you? (2) Are there any residual policy considerations outside relationship between parties that justifies negating the DOC? - Consider both policy & quasi-judicial elements (registrar acting as agent of executive branch, not carrying out pre-established policy, etc.) TRESPASS TORTS W/ the exception of assault, intent is not a required element of trespass torts. Remedies in trespass torts depends on what the P wants if damages were caused by the trespass, P may seek monetary compensation; if the trespass is continuing, P might seek an injunction. ASSAULT RULE: Assault is the intentional creation of reasonable apprehension of imminent harm. (Tuberville) No proof of physical damage is required but the P s fear or apprehension of imminent harm must be reasonable (Bruce v Dyer) ANALYSIS: 1. Was the assault intentional by D? 2. Was the P apprehended of imminent harm by the actions of D? A threat to do harm at a future time is not assault; not imminent harm (Mainland Sawmills) Apprehension of imminent harm needs to be reasonable (Warman, Bruce v Dyer) CONCLUSION: In consideration of the facts, it would be a strong argument to conclude that D has (not) committed an assault against P. BATTERY (TRESPASS TO PERSON) RULE: Battery is direct interference of the person without consent. P only needs show elements of laconic plea that the interference was direct (Scalera). The consequences of battery do not have to be foreseeable nor does there have to be damage (Bettel v Yim). ANALYSIS: 1. Was there a direct interference without consent to the plaintiff? Physical contact accepted in ordinary conduct is not battery because there is implied consent. (Collins v. Wilcock) 8

9 2. Can the D defend by showing that the interference was w/o negligence or intent? If there is damage, so long as it direct and within the ambit of the interference, it will be recoverable. CONCLUSION: In consideration of the facts, it would be a strong argument to conclude that D has (not) committed a battery against P. FALSE IMPRISONMENT RULE: False imprisonment occurs when a D deprives a P of liberty absolutely. ANALYSIS: To establish false imprisonment P must show: 1. That he or she was totally deprived of liberty or reasonably believed such 2. The deprivation was against his will (no consent) 3. That the D intentionally caused the P s total bodily restraint. Restraint can be psychological/moral (Chaytor) Restraint is not total if there is a reasonable means of escape (Bird v Jones) Once the elements are established, onus shifts to the D to justify the detention either by common law/statute OR that they had a legitimate reason for doing what they did. *it is possible to have negligent false imprisonment, in which case there needs to be damage. CONCLUSION: In consideration of the facts, it would be a strong argument to conclude that D has (not) falsely imprisoned P. NB: FALSE ARREST False arrest & false imprisonment are not to be used interchangeably. False imprisonment follows a false arrest who s not been lawfully arrested is detained (Nicely). Canadian law does not recognize any right in the police to arrest/detain against his will who is not charged for mere investigation (Smith) TRESPASS TO LAND RULE: Trespass is a direct interference on someone s property without owner s permission (consent) but like other trespass torts, no proof of actual damage is necessary (Entick). Trespass to land interferes with the owner s right to exclusive possession or a right to possession (Crabtree). No intention or negligence is needed. Trespass Act adds to the common law of trespass by making trespass an offence under s.4. TREE TRESPASS: If branches/roots protrude into the air or subsurface of one s property it is trespass (Anderson) 9

10 INTENTIONAL TORTS Intentional torts occur when Intent is a requirement for the tort to be proven. (assault is the exception) INTENTIONAL INFLICTION OF MENTAL SUFFERING RULE: (Wilkinson) Intentional infliction of mental suffering requires the P to show that: 1. D s specific acts were extreme, flagrant (Wilkinson, Bielitski) 2. The specific acts were calculated to produce harm to the ordinary person (Bielitski) 3. The specific acts caused the harm. The harm must be a recognizable physical or psychopathological harm and not mere upset. (Wilkinson, Janvier, Bielitski) CONCLUSION: In consideration of the facts, it would be a strong argument to conclude that D has (not) intentionally inflicted mental suffering on P. SEXUAL WRONGDOING *Speaks to sexual torts: sexual battery, breach of fiduciary duty and consent in torts; it is NOT its own category, rather they are branches of other torts to treat sexual law* Norberg power imbalance + exploitation = vitiates consent to sexual activity. Sexual battery. Scalera sexual activity is not ordinary conduct in which consent is implied MK - breach of fiduciary duty for exploiting child for sexual purposes. Limitation period for claims. DEFENCES TO TRESPASS & INTENTIONAL TORTS In all trespass and intentional torts, the D has to prove on a BOP that they did not act negligently or intentionally. CONSENT RULE: If an individual consents to the intentional invasion of their interests, there is no tortious invasion. Consent can be expressed or implied from P s acts or from past behavior (O Brien) Consent is a defence and the onus is on the D to prove valid consent of the P. Factors vitiating consent Age, duress, alcohol consumption Power imbalance + exploitation (Norberg) Sexual activity cannot be implied consent (Scalera) CONSENT IN THE SPORTING CONTEXT RULE: Consenting to sport means that you are consenting to the ordinary risks of a sport. No tort action if there is mutual consent in a course of a fight (Charland) 10

11 CONSENT IN THE MEDICAL CONTEXT RULE: A doctor must not treat or even touch patient w/o patient s informed consent (Malette) Unless it is an emergency situation and consent cannot be obtained, the defence of necessity can apply. (Marshall) NB: This area has been heavily legislated in BC now so it is not so much of a problem anymore. SELF-DEFENCE RULE: To claim self-defence, the D must show there was a real threat warranting defensive action and the response was proportionate to the threat and not excessive (Cockcroft). DEFENCE OF PROPERTY RULE: A trespasser on property cannot be forcibly removed until has been requested to leave the premises and a reasonable opportunity of doing so has been afforded (Hees). To raise a defence to property, the action taken must be proportionate to the threat. (Bird) LEGAL AUTHORITY RULE: Legislative authority entitles D to engage in conduct which would otherwise be tortious. (ex. police) NECESSITY RULE: Trespass to land or consent in the medical context may be justified by necessity. To establish necessity, there needs to be an immediate urgency of the occasion and a due regard to public safety and convenience (Dwyer). However, if P caused damage at the expense of D, even in the case of necessity, they are liable. (Lake Erie) NB: always keep in mind the balance of benefits: trespass benefit v public benefit if the trespass is needed to benefit the public (a public road has been snowed in and the only way around is through trespassing on someone s land, it will be allowed) STRICT LIABILITY VICARIOUS LIABILITY RULE: Vicarious liability applies only to employment-like relationships and is a tort in which the employer, who is not at fault, is held responsible for their employee s tort. To bring an action in vicarious liability, the plaintiff must demonstrate: 1. A tort has been committed by a tortfeasor. 2. The tortfeasor is in an employer-employee (like) relationship with D (who is the employer being held liable for the TF s actions). 11

12 3. Tort was committed within in the course and scope of employment [As this is an intentional tort, the Salmond test rearticulated by McLachlin J in Bazley v Curry will be applied. It sets out 2 elements: a sufficient connection between the creation or enhancement of risk by the modes of employment and the wrong that flows from that.] ANALYSIS: Step 2: EE Relationship: <if relationship unclear> To establish a relationship where it is unclear, we look for indicia of control (Sagaz) - Worker provides their own equipment - Hire their own helpers - Worker s personal level of financial risk - Worker s responsibility for investment and management - Worker s opportunity for profit Step 3: Course & Scope: Apply Salmond test: a) Acts authorized by the employer OR b) Unauthorized acts so connected with authorized acts that they may be regarded as modes of an authorized act * If it is in an intentional tort, Bazley RULE: 2 requirements: RYLANDS V FLETCHER RULE 1. 2 options: i. D brings onto his land and collects and keeps there anything likely to do mischief if it escapes OR ii. D modifies their land in a way which would be considered non-natural, unusual or inappropriate 2. Escape Non-natural use is context specific; and depends on ordinary uses of society over time Non-natural use must be some special use brining it w/ increased danger to others, and must not merely be the ordinary use of the land or such use as is proper for the general benefit of the community DEFENCES TO THE RULE IN RYLANDS 1. Consent of the P 4. Deliberate Act of 3 rd Person 2. Default of P 5. Legislative Authority 3. Act of God FIRES RULE: Ordinary uses of fire are not subject to Rylands. They are strict liability torts but are controlled by negligence. If a non-ordinary use of fire caused damage, strict liability applies. 12

13 ANIMALS RULE: Common law classifies 2 categories of animals for strict liability: 1. Ferae Naturae dangerous as a group; ex. lions, zebras (Cowles) The doctrine of strict liability with respect to dangerous animals does not apply where there is no escape AND the person in charge of the animal has sufficiently restrained the animal so that injury would not ordinarily happen. The ordinary principles of negligence apply, keeping in mind that the duty imposed is commensurate to the very high risk inherent in the keeping of wild animals. 2. Mansuete Naturae not dangerous as a group BUT if you have knowledge (scienter) that that this particular member of the group is dangerous, SL will apply; ex. aggressive dog It must escape control for there to be strict liability NUISANCE RULE: Nuisance exists when one person s use of their property causes an unreasonable interference with someone else s use and enjoyment of their own property. Actual damage does not need to be proved. What is reasonable is based on whether it would be tolerated by the ordinary user in the P s position. The individual claiming nuisance must have property interest to bring the claim. (Hunter v Canary Wharf) PUBLIC NUISANCE *not on exam* RULE: A public nuisance is an unreasonable interference with the use and enjoyment of property committed against the public but that affects the P in a particular way (Hickey). For a private action to succeed in a case of public nuisance, the P must demonstrate that they suffer from a different type of injury, NOT extent, than the general public. PRIVATE NUISANCE RULE: Interferences are actionable in private nuisance where excessive use of property causes inconvenience beyond which occupiers in the vicinity could reasonably be expected to bear. ANALYSIS: Interference with owners use of land must be both: Substantial (non-trivial), and Unreasonable in all the circumstances o Ask is the conduct reasonable given that they have a neighbour? Criteria to look for: Severity of the harm Utility of the D s conduct 13

14 Character of the neighbourhood Whether P displayed abnormal sensitivity Focus is on the reasonableness of the interference suffered by P, NOT the reasonableness of D s conduct. BUT the utility of D s conduct will be a factor in determining the reasonableness of P s interference in all the circumstances Where there is material damage (actual, physical damage,) courts are quick to conclude interference is a nuisance (Russel Transport), but it is not a determinative always. (Antrim Truck) DEFENCE OF STATUTORY AUTHORITY RULE: If the legislation confers an authority on a public body and gives it a discretion, on how to do the authorized thing and how to do it, where, etc., the PB must do it in a manner and at a location that will avoid the creation of nuisance. If they implement the authorized thing in a way or location that gives rise to nuisance, it will be liable, regardless of whether there is negligence or not. If there is no other practical way to do something, the PB will be protected by the legislation. 14