TORTS CAN WINTER 2015

Transcription

1 TORTS CAN WINTER 2015 Sabrina Avery T Thompson Rivers University Faculty of Law

2 II. NEGLIGENCE 6 PROXIMATE CAUSE: REMOTENESS 6 GENERAL PRINCIPLES 6 Remoteness of Damage 6 Re Polemis (1921) 6 The Wagon Mound (No. 1), PC (1961) 6 The Controversy after Wagon Mound (No 1) 7 CLARIFICATION OF THE FORESEEABILITY PRINCIPLE 7 Type of Damage 7 The Interpretation of Reasonable Foreseeability 7 Hughes v. Lord Advocate, HL (1963) 7 Possibility of Damage 8 The Wagon Mound (No. 2), PC (1966) 8 Palsgraf v Long Island Railroad, NY CA (1928) 8 RECURRING SITUATIONS 9 The Thin-Skull Problem 9 Smith v. Leech Brain Co., QB (1961) 9 Suicide 9 Psychiatric Damage without Physical Injury 10 Mustapha v. Culligan of Canada Ltd., SCC (2008) 10 Intervening Acts (Novus Actus Interveniens) 10 (i) Second Accident 11 Wieland v Cyril Lord Carpets, QB (1969) 11 McKew v Holland, HL (1969) 11 (ii) Medical Error in Treatment 11 (iii) Negligent, Intentional, and Criminal Acts 12 Harris v TTC and Miller, SCC (1967) 12 (iv) Intermediate Examination 12 Intermediate Inspection (Product Liability) 12 Ives v Clare Brothers Ltd., HC Ont (1971) 12 (v) Warnings and the Learned Intermediary 13 Duty to Warn 13 Hollis v Dow Corning, SCC (1995) 13 DEFENSES 14 CONTRIBUTORY NEGLIGENCE 14 Negligence Act, R.S.B.C. 1996, c Butterfield v Forrester (1809) 15 Davies v Mann (1842) 15 Bow Valley Husky (Bermuda) Ltd. v Saint John Ship Building Ltd. (1997) 16 The Seatbelt Defense 16 Galaske v. O Donnell, SCC (1994) 16 VOLUNTARY ASSUMPTION OF RISK (Volenti non fit injuria) 16 Hambley v. Shepley, Ont CA (1967) 17 Crocker v. Sundance, SCC (1988) 17 ILLEGALITY 17 Hall v. Hebert, SCC (1993) 18 British Columbia v. Zastowny, SCC (2008) 18 EXCLUSION CLAUSES 18 Crocker v. Sundance, SCC (1988) 18 III. TORT LIABILITY OF PUBLIC AUTHORITIES 20 PROCEEDINGS AGAINST THE CROWN 20 Crown Proceeding Act, RSBC 1996, c NEGLIGENCE LIABILITY OF STATUTORY PUBLIC AUTHORITIES 20 PROXIMITY: THE DUTY OF CARE 21 General 21 Taylor v [Health] Canada, Ont CA (2012) 21 Fullowka v Pinkerton s of Canada, SCC 21 Page! 2 of! 62

3 NEGLIGENCE IMMUNITY: THE POLICY OPERATIONAL DISTINCTION 22 The Policy/Operational Distinction 22 R v Imperial Tobacco, SCC (2011) 22 MISFEASANCE IN PUBLIC OFFICE 23 General 23 Roncarelli v Duplessis, SCC (1959) 23 Odhavji Estate v Woodhouse, SCC (2003) 23 After Odhavji 24 DAMAGES FOR BREACH OF THE CHARTER 24 Vancouver City v Ward, SCC (2010) 24 IV. TRESPASS AND INTENTIONAL TORTS 25 THE HISTORICAL CONTEXT 25 Origins of Trespass: The Writ System 25 Elements of Trespass 25 Directness/Direct Interference 25 Wrongfulness 26 Cook v Lewis (1952) 26 Dahlberg v Naydiuk (1970 Man CA) 26 Goshen v Larin, (NSCA 1974) 26 Ellison v Rogers (1968) 27 Carnes v Thompson (SCC 1932) 27 Basley v Clarkson (1681) 27 Note on Parental Liability 28 Parental Liability Act 28 Garret v Daily (1955) 28 ASSAULT 29 Stephens v Myers, (1830) 29 Tuberville v. Savage, K.B. (1699) 30 Bruce v Dyer, Ont. C.A. (1970) 30 Mainland Sawmills v USW, Local , (BCSC 2007) 30 Warman v Grosvenor, OSCJ (2008) 31 BATTERY 31 General 31 Collins v Wilcock (1984) 31 Cole v Turner (1705) 32 Bettel v Yim (1978) 32 Mayfair v Pears (NZLD 1987) 32 SEXUAL WRONGDOING 32 General 32 Norberg v Wynrib (1992) 33 M(K) v M(H) (1992) 33 INTENTIONAL INFLICTION OF MENTAL SUFFERING 33 General 33 Elements of the Tort 33 Wilkinson v Downtown (1897) 34 FALSE IMPRISONMENT 34 Generally 34 Elements of the Tort 34 Part (iii); Restraint 34 False Imprisonment/False Arrest 35 Bird v Jones, Q.B. (1845) 35 Chaytor v London, New York and Paris Ass n, of Fashion Ltd and Price, (Newf. S.C. 1961) 35 TRESPASS TO LAND 36 General 36 Section 4: Trespass Act 36 Epstein v Cressey Development Corp. (1992) 37 Atlantic Aviation v Nova Scotia Light & Power Co Ltd (NSSC 1965) 37 Page! 3 of! 62

4 Smith v Stone (1647) 37 Tree Trespass 37 Trespass to Chattels 37 Everitt v Martin (SCNZ 1953) 38 Detinue 38 Conversion 38 INVASION OF PRIVACY 38 General 38 Historically 39 Privacy as a Conceptual Matter 39 Bare Intrusions 39 Jones v Tsige (ONCA 2012) 39 Disclosures 40 Aubry v Éditions Vice-Versa inc. (SCC 1998) 40 Murray v Big Pictures (UK) Ltd. (UKCA 2008) 40 Campbell (UKHL 2004) 41 DEFENCES TO TRESPASS AND INTENTIONAL TORTS 41 CONSENT 41 General 41 Implied Consent 42 O'Brien v. Cunard SS. Co., (Mass. SC 1891) 42 Non-Marine Underwriters Lloyd s of London v Scalera, (SCC 2000) 42 Norberg v. Wynrib, (SCC 1992) 43 M(M) v K(K) (1989) 43 CONSENT IN THE SPORTING CONTEXT 43 General 43 Agar v Canning (1965) 44 Wright v McLean (1956) 44 Charland v Cloverdale Minor Baseball Assn and Wheeler, (BCSC 2013) 44 CONSENT IN THE MEDICAL CONTEXT 45 General 45 Malette v Shulman (ONCA 1990) 45 Marshall v Curry (NSSC 1933) 45 SELF DEFENCE 46 General 46 Defence of Third Parties 46 Killing in Self-Defence and Provocation 46 Cockcroft v. Smith, (QB 1705) 46 DEFENCE OF PROPERTY 47 General 47 Green v Goddard (QB 1704) 47 Bird v. Holbrook, (Common Pleas 1828) 47 LEGAL AUTHORITY 47 General 47 NECESSITY 47 General 47 R v Dudley and Stevens (1884) 48 Dwyer v Staunton, Alta. DC (1947) 48 Vincent v Lake Erie Transportation Co., (Minn SC 1910) 48 V. STRICT LIABILITY 49 VICARIOUS LIABILITY 49 The Employer/Employee Relationship Ontario Ltd. v. Sagaz Industries, SCC (2001) Test for Employer Relationship 49 Course and Scope of Employment: Salmond Test 50 Functional Test for Control: Employer/Employee Relationship (Sagaz) 50 Vicarious Liability and Intentional Torts 50 Bazley v. Curry, SCC (1999) Salmond Test for Vicarious Liability 50 Page! 4 of! 62

5 THE RULE FROM RYLANDS v FLETCHER 52 Rylands v. Fletcher, HL (1868) 52 What is Non-Natural Use? 52 Defences to the Rule in Rylands v Fletcher 53 LIABILITY FOR FIRES 53 NOTES ON LIABILITY FOR ANIMALS 54 General 54 BC Livestock Act 54 Ontario Dog Owners Liability Act 54 General 56 Hickey v Electric Reduction Co. of Canada, (SC Newf. 1970) 56 Mint v Good, KB (1951) 56 General 57 Striking the Balance 57 Pugliese v National Capital Comm., Ont. CA (1977) 58 Tock v St John's Metropolitan Area Board (1989 SCC) 58 Antrim Truck Centre Ltd. v Ontario, SCC (2013) 58 Appleby v Erie Tobacco, Ont. SC (1910) 59 VIII. MASS TORTS AND CLASS ACTIONS 60 General 60 Economic Theory of Deterrence 60 Settlement 60 How Class Actions Work 61 Advantages/Disadvantages 61 Class Action as Public Law 61 Implications of the Public Law Model 62 Page! 5 of! 62

6 II. NEGLIGENCE PROXIMATE CAUSE: REMOTENESS GENERAL PRINCIPLES Remoteness of Damage - A defendant is not liable for every consequence of a breach of duty of care (there are situations where the loss is so different from what is expected) - In such cases the Courts may hold that the loss is too remote form the negligent act to warrant liability - Modern test for remoteness: foreseeability of type of injury (Wagon Mound No. 1): favoured on the grounds of fairness and justice and its simplicity in application - Rejected Polemis test all damages traceable to negligent act; directness rule was perceived to be too difficult to interpret and apply - Later limited by Wagon Mound No. 2 - Foreseeability of type of injury, not of extent of injury or manner of occurrence (Hughes v. Lord Advocate) - Generally, if some injury is foreseeable, Court will rule that all injuries are foreseeable - "It is enough to fix liability if one could foresee in a general way the sort of thing that happened" - Loss will be recoverable if extent of possible harm is so great that a reasonable man would guard against it, even if the chance of loss occurring was very small (Wagon Mound No. 2) - "Possible" damage, not just "probable" damage; The recent case of Mustafa however, has changed the tune a bit to include real risk and not far fetched but it is unclear whether this means there will be a deviation from the possibility criteria. - Compare to Bolton v. Stone possible to run small risk and not be liable - Difference here is the magnitude of potential damage if it did occur and that there was no reason to run risk (i.e. let oil into water instead of turning off) Re Polemis (1921) F: Defendants carelessly dropped a plank into the hold of a ship; hold contained benzene; ship was destroyed by ensuing explosion I/C: Defendants liable? YES! A: Injury was unforeseeable but defendants liable b/c of a direct connection between the breach and loss. Once you demonstrate the negligence, anything that directly flows from it or is directly caused by it, you are liable for. Developed a scientific view of when one thing is caused by another. Forced all of the restraint into the question of duty; once duty was established and the negligent act, then the defendant was responsible for everything that flows from it. You establish the duty not by the type of harm but by the possibility of harm (anyone in the neighbourhood). Stood for the proposition that foreseeability is irrelevant if the damage is direct R: A negligent actor is liable for all direct results of the negligent act, even if they were not foreseeable before the accident. The Wagon Mound (No. 1), PC (1961) F: The appellant was a charterer of a ship who negligently discharged furnace oil into the Sydney Harbour. They made no attempt to disperse the oil. Respondents work manager made an inquiry whether it was safe to Page! 6 of! 62

7 continue operations; based on this inquiry he resumed operations but took safety precautions to prevent inflammable material falling off the wharf into the oil. Metal from the welding operations dropped onto the ignited cotton waste floating on the water. This in turn ignited the oil and the respondents wharf was damaged by fire. I/C: Defendant liable? NO! Damage too remote/unforeseeable and thus unpreventable. Reasonable foreseeability, rather than directness, is the primary test for liability in negligence. A: The defendant did not know and could not reasonably be expected to have known that it was capable of being set afire when spread on water. Test from Polemis (all damages directly traceable to negligent act) rejected in favour of test of foreseeability (but would have been decided another way if Polemis was applied). Must use reasonable person test: whether the damage is something a reasonable person should have foreseen. If they could say that the plaintiff was contributorily negligent then this would be a complete defense (as this was how it was at the time in Australia). Very much a characterization game; had they characterized the damage differently, and not said that the fire was foreseeable, but damage to ones property because of an oil spillage was foreseeable R: Test from Polemis (all damages directly traceable to negligent act) rejected in favour of test of foreseeability The Controversy after Wagon Mound (No 1) - Wagon Mound was seen as a market correction of a relatively harsh nature - It was becoming too easy for plaintiffs to recover and this was an attempt to reign it in - Mustafa will give us more certainty in light of these decisions CLARIFICATION OF THE FORESEEABILITY PRINCIPLE Type of Damage The Interpretation of Reasonable Foreseeability - Questions about what in particular had to be reasonably foreseeable; this was resolved in the case of Hughes v Lord Advocate; it is not necessary to foresee the manner in which the accident occurred, the mechanics of the accident, or the process concatenation of events that led to the accident - Foreseeability that the damage was a possibility (not probability) is sufficient (Wagon Mound #2) - The recent case of Mustafa however, has changed the tune a bit to include real risk and not far fetched but it is unclear whether this means there will be a deviation from the possibility criteria - Linkage; it may be possible to break an event down into a series of foreseeable linkages in order to determine that the end result was foreseeable itself - The characterization of the damage may influence the outcome of the case (ex foreseeability of heart attack may be less likely than foreseeability of illness) Hughes v. Lord Advocate, HL (1963) F: Post Office employees opened a manhole for work. Four red warning lamps had been placed around the site. Workers went on break. Appellant decided to explore the shelter. The boys picked up a lamp, raised the tarp, and entered the shelter. Appellant tripped over a lamp which fell into the whole. An explosion from the hole followed of which caused the appellant to fall into the hole a sustained severe injuries including burns. Page! 7 of! 62

8 I/C: Foreseeability? YES! A: Cannot be said that the injuries caused from the burns were unforeseeable. Defendant liable even though the damage was a good deal greater in extent than was foreseeable; he can only escape liability if the damage can be regarded as differing in kind from what was foreseeable.the boy was injured as a result of the type or kind of accident or occurrence that could reasonably have been foreseen. Defendants are not absolved from liability because they did not see the precise concatenation of circumstances which led up to the accident R: Foreseeability of type of injury, not extent of injury or manner of occurrence. Generally, if some injury is foreseeable, court will usually rule that all injuries are foreseeable Possibility of Damage The Wagon Mound (No. 2), PC (1966) F: The plaintiffs are now the other ship owners at the dock when it caught on fire. Still going after the defendants, the Wagon Mound. I/C: Foreseeability? YES! A: One would assume that the outcome should be the same; if you cannot foresee the burning of the dock, then you could not foresee the burning of the ships. There was a new finding of fact: the officers of the Wagon Mound would find it difficult for bunker oil to catch on fire, but not that it would not happen; they also would have regarded it as a possibility that this would happen in rare circumstances. Goes back to Bolton v Stone; they were not responsible for the drastic measures to avoid the slim chance of the cricket ball hitting someone. However in this case, not only would it not have cost them anything to institute precautions to dump the bunker oil, but it would have been beneficial. It is not explicitly said, but it seems that there was some sort of advantage for the defendants to be discharging the oil (and possibly intentionally doing it) R: Limits Wagon Mound No. 1. Loss will be recoverable where the extent of possible harm is so great that a reasonable man would guard against it, even if the chance of the loss occurring was very small ("possible" not probable ). Compare to Bolton v. Stone difference is magnitude of potential damage, no reason to run risk Palsgraf v Long Island Railroad, NY CA (1928) F: Palsgraf was standing on a Long Island Railroad train platform when two men ran to catch a train. The second man was carrying a small package containing fireworks. He was helped aboard the train by one guard on the platform and another on the train. The man dropped the package which exploded. Shock of the explosion caused scales at the other end of the platform many feet away to fall, striking and injuring P I/C: Liability? NO! A: The difficulty you are faced with in Palsgraf (as to succeed with the rule in Wagon Mound) then you would have to characterize the harm so broadly. Have to remember that the gentleman that was carrying the explosives is not the defendant. If you go into the Pinto risk analysis, the precaution would have been possibly a policy that would prevent employees from helping people onto trains or precautions to prevent people from carrying explosives on trains. The cost of precautions are fairly low, and chances are, if we got to this analysis then there would be liability. Page! 8 of! 62

9 RECURRING SITUATIONS Special Remoteness Issues: The thin skull rule, intervening acts, and suicide The Thin-Skull Problem - Can be said to have survived the principles of Wagon Mound No 1 - As long as the injury was foreseeable, the defendant is liable for all of the consequences arising from the plaintiffs unique physical or psychological makeup whether or not those consequences were foreseeable - Despite its potentially harsh consequences, it is a well entrenched principle of Canadian negligence - Some of the harshness of the thin skull rule is mitigated by the crumbling skull rule; the thin skull rule relates to liability whereas the crumbling skull rule relates to damages - Crumbling skull; the defendant is required to put the plaintiff in the same position they would have been if the accident did not happen, but not in a better position - The wrongdoer is liable only for the damages that they have caused - If the plaintiffs existing condition is one that has caused no debilitating effects before the accident and was not likely to cause adverse consequences in the future, full damages for the complete loss are awarded - If it has produced some side effects before the accident, and is likely to cause more in the future, the defendant is not liable for the full extent of the damage (damages are calculated to compensate the plaintiff to the extent that the defendant has worsened the plaintiffs underlying condition) Smith v. Leech Brain Co., QB (1961) F: Defendants negligence resulted in a piece of molten metal striking and burning the lip of the plaintiffs husband. At the time, the burn was treated as a normal burn. Ultimately, the place where the burn was treated as cancer was diagnosed. After radium treatments and several operations the plaintiffs husband died. The burn was proven to be the cause of cancer and death. I/C: Does the thin skull rule still apply after Wagon Mound? YES! A: Court was not strictly bound by the Wagon Mound because it was a decision of the Privy Council. Believed that the Court in the Wagon Mound did not have the thin skull cases in mind; it has always been a law of this country that the tortfeasor takes his victim as he finds him. This is plainly a case which comes within the old principles. The test is not whether these employers could reasonably have foreseen that a burn would case cancer and that he would die; the question is whether these employers could reasonably foresee the type of injury he suffered, namely the burn. R: Defendants are liable for damages when it is reasonably foreseeable that an injury would occur, regardless of what results from the injury. It is the injury, not the damage that must be reasonably foreseeable. Suicide - Arises most commonly where a person who is permanently disabled by the negligence of a defendant, is unable to adjust to and accept his post-accident situation, becomes depressed, and commits suicide - Policy reasons for and against imposing liability - The death would not have occurred but for the defendants negligence - Finding of liability furthers the compensatory and deterrent goals of negligence law - Suicide is a rare consequence - There is a general societal discomfort with suicide Page! 9 of! 62

10 - Liability may be imposed because of the thin skull rule however - Some support for the view that liability should only be imposed if the defendants negligent act direct impaired the deceased s rationality and that impairment led to the suicide - Overall, the weight of authority is against liability for the suicide of an accident victim Psychiatric Damage without Physical Injury - The law concerning liability for negligent infliction of nervous shock as it was once called began to change after Bourhill v Young with damages for psychiatric losses being covered in specific situations - Concerns about the floodgates and possible fake claims impeded development - In Canada, the main test for establishing a duty is foreseeability of nervous shock (or psychiatric damage) (Marshall v Lionel v Lionel Enterprises) - There must be a recognizable psychiatric illness suffered, not merely an emotional upset - This severe psychological damage is treated like physical injury - Rescuers are entitled to recover if they witness a horrible accident; mere bystanders are less likely to be able to recover Mustapha v. Culligan of Canada Ltd., SCC (2008) F: Mustapha saw a dead fly and part of another dead fly in the unopened replacement bottle. Obsessed with the event and its implications for the health of his family. Developed a major depressive disorder, phobia and anxiety. I/C: Reasonable foreseeability of shock? NO! Damage suffered is too remote to be viewed as legally caused by Culligan s negligence A: Generally, a plaintiff who suffers personal injury will be found to have suffered damage. Damage for the purposes of this inquiry includes psychological injury. Psychological disturbance must be distinguished from psychological upset. The law does not recognize upset, disgust, anxiety, agitation, or other mental states that fall short of injury. This psychiatric illness was debilitating and had a significant impact on his life: it qualifies as a personal injury at law. The degree of probability that would satisfy the reasonable foreseeability requirement set out in Wagon Mound is a real risk. Once a plaintiff establishes the foreseeability that a mental injury would occur in a person of ordinary fortitude, the defendant must take the plaintiff as it finds him for the purposes of damage. There was no evidence to support the finding that Culligan knew of Mustafa s particular sensibilities. Cost analysis; the severity mixed with the probability and the costs, the costs of precautions outweighed the benefit of avoiding the harm R: In order to make a successful claim of recover for psychiatric harm you must prove all the necessary elements of any negligence claim, however, the damage will be seen as too remote if the breach would not have resulted in the psychiatric harm of a reasonable person. If the defendant knew that the plaintiff had a particular vulnerability to psychiatric harm before the breach, then psychiatric harm is reasonably foreseeable. Intervening Acts (Novus Actus Interveniens) - An intervening act is one that arises after the defendants negligent act and either precipitates or worsens the damage - A legally operative intervening act relieves the defendant of responsibility for the damage precipitated or aggravated by it Page! 10 of! 62

11 - If the intervening act is broadly within the scope of the foreseeability of risk then the defendant remains liable (Wieland) - Unreasonable actions break the chain of causation therefore interfering with the scope of foreseeability of risk as well (McKew) - Courts today are much more likely to treat intervening negligence as an opportunity to impose joint and several liability on both wrongdoers than as a reason to protect the initial wrongdoer (i) Second Accident Wieland v Cyril Lord Carpets, QB (1969) F: P who had been negligently injured on a bus (due to D s negligence), had to wear a collar around her neck; because of this collar, she could NOT see properly through her bifocal glasses; she also felt a bit muzzy. As a consequence of this inability to see properly, she fell down some stairs and aggravated her injury. I/C: Second accident within the foreseeable scope of the consequences of the first event? YES A: It has long been recognized that injury sustained in one accident may be the cause of a subsequent injury. The precise mechanics of the was in which the negligent act results in the original injury does not have to be foreseen (Hughes v Lord Advocate); it was 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... foreseeability of general nature will suffice. In this case the fall occurred very soon after P was fitted with the collar; situation may be different if more time had elapsed, and if P had persisted in wearing bifocals and navigating stairs despite the interference. R: The second accident must be within the foreseeable scope of the first event however the precise mechanics of the was in which the negligent act results in the original injury does not have to be foreseen (Hughes v Lord Advocate). When assessing a second accident, analyze it from a remoteness and causation perspective. Even if we can say second injury was caused by first injury it may still be too remote to be recoverable or not too remote but not caused by the breach. McKew v Holland, HL (1969) F: M s leg had been weakened in an accident for which H was liable. As a result, his leg would give way beneath him occasionally. One day, as he descended some steep stairs, unassisted, and without holding on, his leg collapsed and he fell. He decided to try to jump so as to land in a standing position, however upon landing he broke his ankle. I/C: Second accident within the foreseeable scope of the consequences of the first event? NO! A: If the injured man acts unreasonably he cannot hold the defender liable for injury caused by his own unreasonable conduct. His unreasonable conduct is novus actus interveniens. The chain of causation has been broken, and what follows must be regarded as caused by his own conduct and not by the defender s fault or the disability caused by it. R: It is NOT unforeseeable that a disabled man will act unreasonably but this is an INTERVENING ACT; unreasonable actions break the chain of causation and the D NOT liable for second injury caused. (ii) Medical Error in Treatment - Mercer v Gray was the leading Canadian case for years: A child s broken leg became worse when her doctor mistakenly failed to cut her cast soon enough after a condition became evident - If treatment is so negligent as to be actionable, it would be novus actus interveniens and the plaintiff would Page 11! of 62!

12 have his remedy against the physician (it will not be too remote) - Such a principle distinguishes between innocent errors of judgement and actionable mistakes - Papp v Leclerc: The onus rests on the defendants to prove that the intervening medical error was a negligent one if they are to escape liability - Kolesar v Jefferies: An original defendant may be responsible for the later negligence of a doctor or hospital which aggravates a plaintiff s injuries unless it is completely outside the range of normal experience (variation of the rule in Mercer) - Test implies certain acts of medical malpractice might well be within the realm of reasonable foresight and therefore compensable, whereas other, presumably gross and shocking acts of malpractice, would be beyond the scope of foresight and NOT compensable. (iii) Negligent, Intentional, and Criminal Acts - It used to be that an intervening, unlawful, and especially criminal act was fatal to a claim of negligence - As a matter of policy, the law was not going to require you to guard against criminal acts of another person Harris v TTC and Miller, SCC (1967) F: Plaintiff bus driver brushed against a steel pole when he pulled away from the bus stop. Result: a child s arm, which had been sticking out from the window, was crushed and broken (the child had been pointing out the window) I/C: Liability? YES A: The driver did pull out in a negligent manner; that negligence was the cause of the injury. It was reasonably foreseeable that children may stick their arms out the window even if told with signage not to do so (here, driver said he was aware of this; putting the damage within the reasonably foreseeable scope of drivers breach). There may be circumstances where standard met by notice of danger, but this not one of them. R: Where a defendant has a duty to take reasonable care to protect the plaintiff from injury caused either by plaintiff s own act or act of a third person, these actions CANNOT be considered intervening forces which shield the defendant from liability (even if the plaintiffs injury was caused or contributed to by his own negligent act) (iv) Intermediate Examination Intermediate Inspection (Product Liability) - Original law: forgiveness of sin by inspection (ex. in Donoghue v Stevenson it was important that it was in a dark bottle because it precluded intermediate examination; no one could have been in the position to avoid the harm; this was seen to have been relevant) - Modern law: Doctrine of forgiveness of sin by inspection rejected in favour of contributory negligence. Manufacturers will be liable regardless of inspection made by another party (Ives v Clare Borthers) - Item cannot be manufactured negligently, and manufacturer has a duty to warn of dangers/risk Ives v Clare Brothers Ltd., HC Ont (1971) F: I bought a stove from CB. Installed and serviced three times by Twin City Gas (CB s gas provider). Three Page! 12 of! 62

13 service calls on furnace before incident. P found on back in living room suffering from carbon monoxide poisoning; brought action against manufacturer & gas provider. Both defendants negligent but CB claimed that the fact the stove been inspected broke chain of causation and exonerated the negligent manufacturer. I/C: Inspection an intervening action? NO. A: Inspection did not break the chain of causation. They were negligent in making the furnace. Find that defendants had duties and were negligent. Their acts of negligence led to the damages. Customer and ultimate user protection basically this problem was caused or contributed to by the negligent acts of both the manufacturer and installer/gas company the court should not pick a fine line as to whether it was the company or manufacturer. Should apportion responsibility accordingly. R: Doctrine of forgiveness of sin by inspection rejected in favour of contributory negligence. Manufacturers will be liable regardless of inspection made by another party (v) Warnings and the Learned Intermediary - Where products are sold directly to doctors or other experts who then provide them to the consumer - Manufacturers may use "learned intermediary" rule to discharge duty if they communicate adequate warning to intermediary, who communicates to consumer (Hollis v. Dow) - Consumer must prove (subjective test) that if info conveyed, injury would've been avoided (Hollis v. Dow) Duty to Warn - The manufacturer owes a duty of care to the ultimate consumer (Donoghue v Stevenson), includes duty to warn of risks (based on knowledge imbalance and reliance) - Information must be reasonable communicated, describe specific dangers from ordinary use (Hollis v. Dow) - Superfluous warnings are not required - Duty continues after product has been sold if new dangers are discovered - You only have to warn for things that people would not be expected to know - Duty to warn cases: - Some of the duty to warn cases seem inconsistent with the but for test in causation - Once an absence of warning has been shown, on the cases there seems to be very little escape for the manufacturer from liability however they decided to analyze it Hollis v Dow Corning, SCC (1995) F: Plaintiff underwent breast implant surgery. Not warned by surgeon of potential complications relating to the implants themselves (rupturing). Surgeon had received little warning information from the manufacturer about rupture possibility (known to M). I/C: Dow breached duty to warn doctor regarding risks of post-surgical rupture and because of this is liable to H for injuries A: In exceptional circumstances, a warning to a learned intermediary may replace the manufacturer s duty to supply warning directly to consumer; generally the rule is applicable either where a product is highly technical in nature and is intended to be used only under the supervision of experts, or where the nature of the product is such that the consumer will not realistically receive a direct warning from the manufacturer before using the product. Manufacturers in this situation must provide adequate warning to such a learned intermediary. Here, inserting breast implants requires surgical (LI) intervention (unlike pills). The standard of care is to give the intermediary the same amount of knowledge as the manufacturer and to erase the Page! 13 of! 62

14 informational deficit/to close the information gap. DEFENSES General (1) Contributory negligence (including the seatbelt defense which is the failure to wear seatbelt as contribution) (2) Voluntary assumption of risk (volenti non fit injuria) (3) Participation in a criminal or immoral act (ex turpi causa) (4) Inevitable accident: Arises most often in cases of automobile accidents caused by mechanical failures. This defence is a legal curiosity; neither helpful nor particularly harmful, it merely emphasizes the centrality of fault and indicates that a defendant may try to rebut the plaintiffs case by adducing evidence of his own showing that reasonable care was taken and the accident was unavoidable ***All defences (other than contributory negligence) are complete defences to the plaintiffs action CONTRIBUTORY NEGLIGENCE General - Partial defence that leads to a reduction in damages payable by the defendant - Under the old common law rule, the plaintiff was denied recovery if his negligent conduct contributed to his injury (there was no apportionment of loss, even if the plaintiffs contribution was relatively insignificant) (Butterfield v Forrester) - In order to avoid the harshness of the common law rule, there developed a theory called the doctrine of last clear chance, which held that although the plaintiff was negligent, the defendant was liable if they had the last clear chance to avoid the injury (Davies v Mann) - Bow Valley established the current test for contributory negligence and got rid of the absolute bar to recovery; so long as there is no problem of indeterminate liability, the Court may apportion damages for contributory negligence although a person cannot claim for relational economic loss based solely on reasonable foreseeability - Broadly speaking there are three ways in which plaintiffs can contribute to their own injuries: (1) contributing to the event in which caused the injuries; (2) exposing themselves to a risk of being involved in an injurious event (ex getting into a car where the driver is intoxicated), or (3) failing to take reasonable precautions to minimize injuries (should the injurious event occur)( seatbelt defense ) - If a Court is unable to determine the respective degrees of fault of the parties, they are deemed to be equally at fault and the defendant is liable for 50 percent of the damages - A modest reduction of damages are likely to be made when the protective measures are common practice, common sense, affordable, and effective Negligence Act, R.S.B.C. 1996, c. 333 Section 1 (5) If by the fault of 2 or more persons damage or loss is caused to one or more of them, the liability to make good the damage or loss is in proportion to the degree to which each person was at fault. Page! 14 of! 62

15 (6) Despite subsection (1), if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability must be apportioned equally. (7) Nothing in this section operates to make a person liable for damage or loss to which the person's fault has not contributed Section 4 (1) If damage or loss has been caused by the fault of 2 or more persons, the court must determine the degree to which each person was at fault (2) Except as provided in section 5 if 2 or more persons are found at fault a. They are jointly and severally liable to the person suffering the damage or loss, and b. As between themselves, in the absence of a contract express or implied, they are liable to contribute to and indemnify each other in the degree to which they are respectively found to have been at fault. * S. 1 deals with contributory negligence whereas s.4 it deals with the liability of multiple defendants * Deals with the apportionment of damages between the plaintiff and the defendant and between other reliable third parties that are brought in * Joint liability means you are both liable together, but several liability means that you can collect all of the money from one of the people who is jointly or severally liable (and then they have the option to bring in other parties who they believe are also liable: bringing everyone to the party ). Butterfield v Forrester (1809) F: F was doing construction on his house and created an obstruction on the road. B left a pub and was riding his horse when he collided with the obstacle and was seriously injured. However, he was riding extremely fast in a residential neighbourhood and the defendant had left an opening so that people could still safely pass. I/C: Contributory negligence? YES A: If you are contributorily negligent and fail to act like a reasonable person, then you cannot recover. The court is clear that that the fault is solely the plaintiff s. If he had been riding reasonably then he would have seen the obstacle and not been injured. The defendant cannot be liable for an injury that was partially caused by the negligence of the plaintiff. R: Old common law principle: A defendant cannot be held liable for damages resulting partially from the negligence of the plaintiff Davies v Mann (1842) F: Mann negligently ran over and killed the Davies donkey when he was driving "at a smart-ish pace" down the road in his carriage. The plaintiff mistakenly tied the donkey in such a way that it could wander on to the road. I/C: The defendant is liable for the consequence of his negligence A: The court limits the scope of the contributory negligence defence. Although the plaintiff was negligent, it does not prohibit him from having a cause of action. The defendant had the last chance to prevent the injury, and his negligence was more blameworthy because he was negligently driving. The complete bar to recovery was unfair if you could fine one small error on behalf of the plaintiff. Therefore they relax the rule. R: Last clear chance principle: If the defendant had an opportunity to avoid the accident after the plaintiff no longer had such an opportunity, and the defendant improperly did not avoid the accident, he is liable. Page! 15 of! 62

16 Bow Valley Husky (Bermuda) Ltd. v Saint John Ship Building Ltd. (1997) - The Court decided that the time had come to do away with the absolute bar on contributory negligence R: So long as there is no problem of indeterminate liability, the Court may apportion damages for contributory negligence. A person cannot claim for relational economic loss based solely on test of reasonable foreseeability; recover permitted only when concerns for indeterminate liability have been allayed. The Seatbelt Defense [Courts routinely make a moderate reduction (5 to 25 percent) in damages for the failure to wear an available seatbelt so long as there is proof that the plaintiffs injuries would have been less severe if the seatbelt had been used] Galaske v. O Donnell, SCC (1994) F: The plaintiff, aged 8, and his father, were passengers in the defendants truck. The plaintiff was not wearing a seat-belt. An accident occurred, through no fault of the defendant, and the plaintiff was injured, due to the fact that he was not wearing a seat belt. The plaintiff sued the defendant driver alleging negligence in not ensuring that the plaintiff was wearing a seat belt. I/C: Contributory negligence? YES, but only of father and driver (not of child) A: The statute can be taken as indicating that the failure of a driver to ensure that children in the vehicle are wearing a seatbelt constitutes unreasonable conduct. Further it may indicate that conduct that falls below this standard is negligent. Breach of the statute (Motor Vehicle Act) is not conclusive of liability but it provides further support for the duty. Drivers duty is not negated by the presence of a parent. This Court therefore recognizes a positive duty, which is not novel (Jordan House v Menow, Crocker v Sundance). R: A driver of a car owes a duty to all of his passengers to take reasonable steps to prevent foreseeable injuries. For passengers under the age of 16 reasonable care means ensuring that they wear seatbelts. The presence of a parent in the car may mean that responsibility is shared but does not negate the duty owed to passengers under 16. Each passengers over 16 has a duty him or herself to wear a set belt and the failure to do so will result in an assessment of contributory negligence (Yuan v Farstad) VOLUNTARY ASSUMPTION OF RISK (VOLENTI NON FIT INJURIA) General principles - A complete defence to negligence where successful - The doctrine of volenti means that the plaintiff is agreeable to bearing the injurious consequences of the defendants negligent conduct and that the defendant is relieved of any duty of care to the plaintiff in respect of the particular risk of harm - Courts previously interpreted the principle very broadly and merely exposing oneself to a known and wrongful risk was often sufficient to establish a willing assumption of risk; now, it is limited in scope and difficult to establish - Modern test was developed by the SCC in a single genre of cases; where the plaintiff knowingly accepted a ride with someone who was intoxicated - Knowledge of the risk of injury is not enough, nor is a willingness to take the risk of injury. Nothing will suffice short of an agreement to waive any claim for negligence. The plaintiff must agree, expressly or impliedly, to Page! 16 of! 62

17 waive any claim for that injury that may befall him due to lack of reasonable care of the defendant (Nettleship v Weston) - In light of the difficulty in ever finding such a waiver of liability, volenti is usually limited to special types of cases such as those involving participation in sport. - Plaintiff has to accept both the physical and the legal risk of injury from the defendants negligence - Legal risk of injury requires an agreement to abandon their right to sue the defendant in negligence and is very difficult to prove - Most common form of express agreement is written in a waiver or release of liability (controlled primarily by contract principles) - Rule applying here is that conduct of the participant that present obvious or necessary risks normal to the sport in question is not negligence (Dolby v McWhirter) Hambley v. Shepley, Ont CA (1967) F: On radio instructions, police officer used his police cruiser as a roadblock against the defendant who was escaping arrest. Defendants car struck the police cruiser at a high speed before the plaintiff could get out. Trial judge dismissed the action on the ground that the policeman was barred under the principle of volenti non fit injuria. I/C: Principle does not apply to persons in public duty A: The doctrine is inapplicable in this case (they decide to re-write it). The doctrine has two correlative effects: (1) it means that the plaintiff is agreeable to bearing those injurious consequences of the defendants negligent conduct, and (2) that the defendant is relieved of a duty of care owed to the plaintiff in respect of the particular risk of harm. Meerrington v Ironbridge Metal Works: the doctrine cannot succeed unless the evidence permits a genuine inference that the plaintiff consented not merely to the risk of injury, but to the lack of reasonable care which may produce the risk. Crocker v. Sundance, SCC (1988) F: Sundance was a ski resort which ran a tubing race for the enjoyment of its customers. Contestants raced down mogul ski hills in oversized tire inner tubes. C, a competitor, was inebriated but was still permitted to compete. He seriously injured himself. I/C: Can the volenti bar operate here? NO. A: Since the volenti defence is a complete bar to recovery and therefore anomalous in age of apportionment, the courts have tightly circumscribed its scope; it only applies in situations where the plaintiff has assumed both the physical and the legal risk involved in the activity. He may have assumed the physical risks, but it is impossible to conclude that he assumed the legal risks involved. In this case, as already mentioned, the trial judge found that the waiver provision in the entry form was not drawn to the plaintiffs attention, that he had not read it, and indeed did not know of its existence. He thought he was simply signing an entry form. ILLEGALITY General - If one is engaged in illegal activity, one cannot sue another for damages that arose out of that illegal activity - The purpose of this rule is to prevent plaintiffs from benefitting from their illegal conduct (Hall v Hebert) Page! 17 of! 62

18 - The SCC restricted the scope of the rule in Hall v Hebert; the defence can only operate where the integrity of the legal system is threatened by allowing the claim - The Hall decision, for all practical purposes, makes the defence of illegality inapplicable to negligence actions Hall v. Hebert, SCC (1993) F: The plaintiff and the defendant who had both been drinking were in the defendants car when it stalled on a dark gravel road at night. They decided to try a rolling start with the plaintiff at the steering wheel. Plaintiff lost control and ended up in a ditch upside down. Although the parties walked away from the accident, it was later discovered that the plaintiff suffered significant head injuries I/C: Ex turpi causa? NO. A: Courts should be allowed to bar recovery in tort on plaintiffs immoral and or illegal conduct ONLY in very limited circumstances. Rule will apply where allowing the plaintiffs claim would permit him to profit from wrongdoing. To allow recovery in these cases would be to allow recovery for what is illegal = inconsistency. Allowing compensation is fair because puts plaintiff back in position he was before accident (i.e. purpose of tort law). The law refuses to give by its right hand what it takes away by its left hand. R: A person cannot recover in tort for the consequences of their own illegal or immoral acts. Rather than negating a duty of care, ex turpi causa is a narrowly defined defence that precludes recovery and is only applicable to cases where the plaintiff is attempting to profit from illegal conduct or evade criminal sanction. Therefore, the principle will NOT deny damages for personal injury since tort suits generally based on claim for compensation. British Columbia v. Zastowny, SCC (2008) F: Z was sexually assaulted by a prison official while in prison. After his release he became addicted to heroine and was a repeat offender. Sued the government for its vicarious liability, alleging that the sexual assaults had contributed to the plaintiffs subsequent difficulties I/C: Ex turpi causa? YES A: Except in exceptional circumstances, he or she is not entitled to compensation for periods of unemployment due to incarceration. To hold otherwise would create a clash between the criminal and civil law which would compromise the integrity of the justice system. Such an award would introduce an inconsistency in the fabric of law. An award for damages would constitute a rebate of the natural consequence of the penalty provided by the criminal law (though it could happen in the case of wrongful conviction) R: Except in exceptional circumstance (ex wrongful conviction) a plaintiff is not entitled to compensation for legitimate punishment under criminal law. EXCLUSION CLAUSES Crocker v. Sundance, SCC (1988) On Waivers: - Sundance correctly points out that a contractual waiver clause can serve as a full defence to a claim in tort - In Dyck v. Manitoba Snowmobile Association Inc., the plaintiff took part in a snowmobile race. The plaintiff collided with Wood, an association official, who following usual practice had signalled the end of the race by moving to the middle of the track. The collision caused the plaintiff to strike the outside wall of the track. The Page! 18 of! 62

19 plaintiff was injured and sued the Association in tort. This Court agreed with the courts below that, while the Association had been negligent, it was exonerated from liability by the waiver clause in the entry form. - Sundance argues that the situation in the present appeal is not dissimilar to that in Dyckand that the waiver signed by Crocker should relieve Sundance of liability for its negligent conduct - There is a very significant difference between Dyck and the present appeal - In Dyck the plaintiff had read the rules of the Association that purported to release the Association from liability - The plaintiff in Dyck signed the waiver in full knowledge of the Association's intention to exempt itself from liability; not so here - As already mentioned, the trial judge found that the waiver provision in the entry form was not drawn to the plaintiff's attention, that he had not read it, and, indeed, did not know of its existence Page! 19 of! 62

20 III. TORT LIABILITY OF PUBLIC AUTHORITIES PROCEEDINGS AGAINST THE CROWN - The judiciary has been reluctant to expose certain activities of public authorities to the scrutiny of negligence law - At common law, the Crown could do no wrong and therefore could never be sued - New system developed where a fiat could be granted to sue the Crown but only in relation to contracts and not torts; since they did not want to be restrained in their actions Crown Proceeding Act, RSBC 1996, c. 89 Liability of Government (2) Subject to this act a. Proceeding against the government by way of petition of rights is abolished b. A claim against the government that, if this Act has not been passed, by be enforced by petition of right, subject to the grant of a fiat by the Lieutenant Governor, may be enforced as of right by proceeding against the government in accordance with this Act, without the grant of fiat by the Lieutenant Governor c. The government is subject to all the liabilities to which would be liable if it were a person, and d. The law relating to indemnity and contribution is enforceable by and against the government for any liability to which it is subject, as if the government were a person ***No longer need to apply for a fiat. Captures provincial governments and all entities of the Crown that used to be immune prior to this act coming into force NEGLIGENCE LIABILITY OF STATUTORY PUBLIC AUTHORITIES - In the early common law, the government or Crown was immune from all tort liability - A statutory public authority is a body created by statue, empowered to perform certain function in the public interest - Generally entail both policy making ( statutory powers ) and operational/implementation ( statutory duties ) functions - A statutory duty does not necessarily equal a private negligence duty of care - They are written in terms of what the government or public authority may do, not what they must do (empowering rather than mandatory) - However, it may be argued that the government owed a private law duty of care, but fitting it into the matrix of legislation, political realities, and discretionary decision making has proved to be a difficult task - Note: an explicit statutory exemption from negligence is also possible - There is difficulty establishing the necessary proximity between the individual and the public body to find a private duty (especially after Cooper v Hobart which prevents severe obstacles for claimants) - Most extensions of statutory duties to create private duties are applicable only to private injury and not economic loss (however, jurisprudence is still generally vague on this) - May have changed due to Imperial Tobacco: the public was injured whereas the tobacco companies were not except for the potential of economic loss (at the end of the day however, this was still a personal injury case because the government was brought in as a third party) Page! 20 of! 62