TORTS CAN. Winter 2016 IQRA AZHAR

Transcription

1 TORTS CAN Winter 2016 IQRA AZHAR

2 T O R T S C A N W I N T E R I Q R A A Z H A R P a g e 1 Table of Contents 1. REMOTENESS (PROXIMATE CAUSE)... 5 Re Polemis(1921)... 5 The Wagon Mound 1 (1961)... 6 Foreseeability Principle Clarified... 6 Hughes v Lord Advocate (1963)... 7 Wagon Mound (No. 2) (1966)... 7 Palsgraf v Long Island Railroad (1928) THIN SKULL PROBLEM... 9 Smith v Leech Brain & Co (1961) PSYCHIATRIC DAMAGE WITHOUT PHYSICAL INJURY Mustapha v Culligan of Canada Ltd. (2008) INTERVENING ACTS (Novus Actus Interveniens) i. Second Accidents Wieland v Cyril Lord Carpets Ltd (1969) McKew v Holland (1969) ii. Medical Error in Treatment iii. Negligent, Intentional, and Criminal Acts Harris v TTC and Miller (1967) iv. Intermediate Examination (Product Liability) Ives v Clare Brothers Ltd at al v. Duty to Warn and The Learned Intermediary Hollis v Dow Corning Corp (1995) DEFENCES Contributory Negligence (of the P) Galaske v O Donnell (1994) Voluntary Assumption of risk (Volenti Non Fit Injuria) Hambley v Shepley (1967) Crocker v Sundance (1988) Illegality (Ex Turpi Causa Non Oritur Actio) Hall v Hebert (1993) British Columbia v Zastowny (2008) Inevitable Accident BC Negligence Act TORT LIABILITY OF PUBLIC AUTHORITIES... 26

3 T O R T S C A N W I N T E R I Q R A A Z H A R P a g e 2 Proceedings against the Crown (Crown Proceedings Act) Negligence Liability of Statutory Public Authorities Proximity: Duty of Care Taylor v Canada (2012) Fullowka et al. v. Pinkerton s et al., (2010 ) The Policy/Operation Distinction R v Imperial Tobacco Canada Ltd (2011) Misfeasance in Public Office (Government Liability) Roncarelli v Duplessis (1959) Odhavji Estate v Woodhouse (2003) Damages for Breach of Charter Vancouver City v Ward (2010) TRESSPASS AND INTENTIONAL TORT Actions in Trespass Goshen v Larin (1974) Assault Stephens v Myers (1830) Tuberville v Savage (1699) Bruce v Dyer (1970) Mainland Sawmills v USW, Local (2007) Warman v Grosvenor (2008) Battery Cole v Turner (1705) Bettel et al v Yim (1978) Sexual Wrongdoings Intentional Infliction of Mental Suffering Wilkinson v Downton (1897) False Imprisonment Bird v Jones (1845) Chaytor et al v London, New York and Paris Association of Fashion Ltd and Price (1961) Trespass to Land Entick v Carrington (1765) Invasion of Privacy BC Privacy Act Tort Jones v Tsige (2012)... 46

4 T O R T S C A N W I N T E R I Q R A A Z H A R P a g e 3 Defamation DEFENCES TO TRESPASS AND INTENTIONAL TORTS Consent Defence O Brien v Cunards S.S. Co, (1891) Non-Marine Underwriter, Lloyd s of London v Scalera (2000) Norberg v Wynrib (1992) Charland v Cloverdale Minor Baseball Association and Wheeler (2013) Malette v Shulman (1990) Marshall v Curry (1933) Consent and Children/Young Persons Self Defence (of Self, Others, and Property) Cockcroft v Smith (1705) Bird v Holbrook (1828) The Necessity Defence Dwyer v Staunton (1947) Vincent v Lake Erie Transportation Co (1910) STRICT LIABILITY Vicarious Liability for Employers Ontario Limited v Sagaz Industries Canada Inc (2001) Course and Scope of Employment: Salmond Test Functional Test for Control: Employer/Employee Relationship (Sagaz) Bazley v Curry (1999) Jacobi v Griffiths (1999) The Rule from Rylands and Fletcher Rylands v Fletcher (1868) Defences to the Rule in Rylands v Fletcher Liability for Fires Liability for Animals BC Livestock Act NUISANCE Public Nuisance Hickey v Electric Reduction Co of Canada (1970) Mint v Good (1951) Private Nuisance Pugliese et al v National Capital Commn. (1997)... 64

5 T O R T S C A N W I N T E R I Q R A A Z H A R P a g e 4 Antrim Truck Centre Ltd v Ontario (2013) Appleby v Erie Tobacco Co (1910) NEGLIGENCE: ECONOMIC LOSS Negligent Misrepresentation Hedley Byrne & Co. v. Heller & Partners Ltd., HL (1963) Queen v Cognos, SCC (1993) Hercules Management Ltd. v. Ernst & Young (1997) Negligent Performance of Services Economic Loss Caused by Defective Products and Structures Winnipeg Condominiums No. 26 v. Bird Construction Co.(1995) Relational Economic Losses CNR v. Norsk Pacific Steamship Co. Ltd (1992)... 69

6 T O R T S C A N W I N T E R I Q R A A Z H A R P a g e 5 1. REMOTENESS (PROXIMATE CAUSE) D s aren t always liable for a consequence of breach of DoC. Sometimes the loss is too remote form the negligent act to warrant liability Remoteness contains liability within fair and reasonable boundaries Ex: liability could be restricted to damage that is a natural, direct, probable, possible, immediate, foreseeable or close consequence of the negligent act 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 (Likelihood of damage test) Foreseeability is the limit bc of limiting compensation (Wagon Mound 1) Harm must be foreseeable, which is opposite to the directness rule from Polemis o it s enough if you can foresee the class/category of harm occurred We have a foreseeability threshold bc we re not just concerned about compensation, we re interested in behaviour modification. o There s a tension in foreseeability cases about how ppl should behave and be regulated while also maintain and respecting personal liberty o give potential Ds leeway to pursue their profits and then deal with it when issues and harm arise there is subjectivity in type of harm cases bc it s a: Foreseeability of type of injury, not of extent of injury or manner of occurrence (Hughes v. Lord Advocate) o Generally, if some injury is foreseeable, Court will rule that all injuries are foreseeable o "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) Old Rule Facts: Defendants carelessly dropped a plank into the hold of a ship; hold contained benzene; ship was destroyed by ensuing explosion Issue: Defendants liable? YES! Rule: A negligent actor is liable for all direct results of the negligent act, even if they were not foreseeable before the accident Analysis: Injury was unforeseeable but Ds 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

7 T O R T S C A N W I N T E R I Q R A A Z H A R P a g e 6 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 The Wagon Mound 1 (1961) Facts: The D, who was the charterer of the ship The Wagon Mound, negligently discharged furnace oil into Sydney harbour. Eventually it spread under the Ps wharf where welding equipment was being used by the plaintiff s employees. Molten metal from the welding operations dropped onto and ignited cotton waste floating on the water. This in turn ignited the oil and the plaintiff s wharf was damaged by fire. At trial, the fire was found to be unforeseeable. Issue: Whether the appellant are liable for the fire damage? NO, Damage too remote/unforeseeable and thus unpreventable. Reasonable foreseeability, rather than directness, is the primary test for liability in negligence. Rule: Did away with the test in Re Polemis, which stated that all direct damage from a negligence act was actionable, replaced it with the question: was damage of the type foreseeable? Found that damage by fire was not a foreseeable probable consequence of the negligent act. Think of the available evidence on this point See also Hughes v. Lord Advocate and Oke v. Wiede Transport. You re liable for direct consequences, not indirect. Talked about the likely outcome of harm But this was confusing (thus, Wagon Mound #2) Analysis: It doesn t seem fair that someone should be liable for all consequences, no matter how unforeseeable or grave, as long as it called direct A man must be considered to be responsible for the probable consequences of his act. o To demand more than this is too harsh, and less demand is ignoring that a min standard of behaviour exists There needs to be a limit to reasonable foreseeability To ask whether the reasonable man could foresee, well after the event even a fool is wise. But it is not the hindsight of a fool; it is the foresight of the reasonable man which alone can determine responsibility *** Substituting direct for reasonably foreseeable consequences leads to a conclusion that is illogical and unjust Class notes: P kept insisting that it was gasoline, not furnace oil (greater foreseeability of harm and to that degree of harm) The other claim of damage, gunked up oil on the ship, connected causation of the oil ship to the wagon mound. Bc then they could say on the basis of the oil gunking up (causation), damage was caused The effect of this case was that is became too easy for Ps to recover and had to be limited Foreseeability Principle Clarified 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

8 T O R T S C A N W I N T E R I Q R A A Z H A R P a g e 7 Hughes v Lord Advocate (1963) Type of Damages Facts: Some Royal Mail employees had removed a manhole to work under the road. They had marked it clearly as dangerous. They took a tea break, and when this happened Hughes, a young boy, went into the manhole to explore. After getting back out, a lamp was either dropped or knocked into the hole and an explosion resulted, causing Hughes to fall back in where he was badly burned. The lower court dismissed the case stating that the actual event that led to the injuries was the explosion, and that it was not foreseeable as it resulted from numerous unlikely events, and Hughes appealed. Issue: Whether the damage (explosion, injuries etc) were foreseeable? - YES Rule: The fact that the features/developments of an accident may not have been reasonably foreseeable does not mean that the accident itself was not foreseeable The way the harm happened doesn t matter as long as the harm occurring was foreseeable Analysis: This was not an unforeseeable event (means it was foreseeable). It s likely that if someone were to enter the tent they would take a lamp with them and its likely foreseeable that if a lamp broke there would be injuries from burns. Though it wasn t expected that the injuries would be so severe as in this case. 1. So there is a duty owed by the workmen 2. if they had done as they ought to have done (standard of care) there would have been no accident (causation) 3. the injuries suffered did not differ in kind form injuries which would have resulted from an accident of foreseeable nature, though unforeseeable in degree The cause of this accident was a known source of danger (lamp) which behaved in an unpredictable way accident was caused by a known source of danger, but caused in an unforeseen way The accident itself was so unlikely as to be unforeseeable Wagon Mound (No. 2) (1966) Possibility of damage; Reversed Wagon Mound #1; See: Bolton v Stone Facts: P in this case were the owners of the other ships damaged in the Wagon Mound #1. Suing for nuisance and negligence. They say TJ was wrong in saying that the damage from the fire wasn t reasonably foreseeable Issue: What is the precise meaning to be attached in this context to the word foreseeable and reasonably foreseeable Rule: Replaced PROBABILITY with possibility, at least in cases where the negligent act had no social utility or was unlawful. This never really took in Canada, and appears to have been finally rejected in Mustapha, where McLachlin CJ noted that the harm must be of a likelihood that would not be brushed aside by a reasonable person as far-fetched. Was the type of damage caused foreseeable, if so then liable Focus on evidence available and how it affected the outcome Analysis: In WM1, they weren t concerned abt the degree of foreseeability bc they had just deemed the fire wasn t foreseeable at all Held: says even though you knew it was possible, even if not probable, you had a duty to guard against it Looking at the cost of precautions weighed against the potential outcome even if the risk of harm is miniscule, the extent of the harm is severe. So the precaution that should be taken is higher, regardless the remoteness of risk

9 T O R T S C A N W I N T E R I Q R A A Z H A R P a g e 8 The cost of precautions in this case: distinguishes from Bolton v Stone o It wasn t about the extra cost of precautions, bc in this case it was about just making sure the leak wouldn t have happened Risk of the degree of harm weighed against the consequences of harm Distinguishes Bolton in order to allow recovery by saying that in Bolton the cricket club wasn t doing anything unlawful (cricket is of inestimable social value) Before Bolton v Stone it was : a mere possibility which would never occur to the mind of reasonable man OR those where there was a real and substantial risk or chance that something like the vent which happens might occur and then the reasonable man would have taken the steps necessary to eliminate the risk Rule from Bolton v Stone: no matter what the circumstance may be, it is justifiable to neglect a risk of such a small magnitude o The reasonable person would weigh the risk and cost of neglecting the risk o The court s decision gave effect to the qualification that it is justifiable not to take steps to eliminate a real risk if it is small and if the circumstances are such that a reasonable man, careful of the safety of his neighbour, would think it right to neglect it In this case, discharging the oil was an offense and involved considerable financial loss It was the ship manager s duty and interest to stop the discharge of oil immediately. A reasonable ship engineer would have foreseen and assessed the damage Possibility of Damage Palsgraf v Long Island Railroad (1928) Facts: 2 men were running to catch a train, one jumped on safely, the other almost did but couldn t keep his balance. He managed to get on but dropped a package under the rails which was wrapped in newspaper (not visible). This package turned out to be fireworks which exploded, dislodging some scales at the end of the platform. Those scales hit the Plaintiff. Issue: Whether the Ds are liable for the damage - YES Rule: There is no duty to forsee bizarre chain of events leading up to physical injury Analysis: Hard to establish negligence bc nothing in the situation gives notice that the package had the potential to harm her (she was standing faaaaar away) negligence bc its not the violation of a right P only expected to be protected against intentional invasion of her bodily security Since this case doesn t have to do with negligence, we shouldn t even consider the question of causation

10 T O R T S C A N W I N T E R I Q R A A Z H A R P a g e 9 2. THIN SKULL PROBLEM Special Remoteness Issues: The thin skull rule, intervening acts, and suicide ALSO FALL CANS Thin skull means the D must take their victim as they find them Once the chain of causation has reached the think skull P, then you re liable for everything This carries through into the principles of Wagon Mound No 1 (Smith v Leech Brain) As long as the injury was foreseeable, the D is liable for all of the consequences arising from the Ps unique physical or psychological makeup whether or not those consequences were foreseeable 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 D is required to put the P in the same position they would have been if the accident did not happen, but not in a better position o The wrongdoer is liable only for the damages that they have caused If the Ps 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 D is NOT liable for the full extent of the damage (damages are calculated to compensate the P to the extent that the D has worsened the P underlying condition) Thin skull; damages; Burns leading to cancer Smith v Leech Brain & Co (1961) Facts: plaintiff s husband was hit with a hot metal rod on the lip which caused an ulcer and developed into a cancer that killed him. The previous trial determined that the injury was the cause of the cancer. Issue: Whether or not a tortfeasor is liable for the injuries that he could reasonably foresee, or the extent of those anticipated injuries that he could reasonably foresee. Liable for the extend of anticipated injuries he could reasonably foresee (Polemis) plus this encompasses the thin skull rule Whether the thin skull rule still applies after Wagon Mound? - YES Rule: Ds 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. Analysis: There s a distinction bw the Q whether a man could reasonably anticipate a type of injury and the Q whether a man could reasonably anticipate the extent of injury of the type which could be foreseen o This wasn t unforeseeable damage, but it was more extensive than what was foreseen The main thing is abt whether the employers could have reasonably foreseen the burn injury YES according to Think Skull, the P can claim for the damages that was result of the harm bc there s not argument of unforeseeability Conclusion: The widow was able to recover damages

11 T O R T S C A N W I N T E R I Q R A A Z H A R P a g e 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) o There must be a recognizable psychiatric illness suffered, not merely an emotional upset This severe psychological damage is treated like physical injury Mere bystanders are less likely to recover, family and friends have a higher chance (Bechard v Haliburton) Lew v Mount Saint Joseph Hospital Society left the idea open of recovering for negligent miscommunication of bad news (to family members) Main test for establishing a duty of care to avoid negligently causing psychiatric damage is: i) Foreseeability of shock (Marshall v Lionel) ii) Recognizable psychiatric illness not just emotional upset (Mustapha) iii) Serious and prolonged disturbance (Mustapha) iv) Plaintiff must have been endangered or have witnessed an accident (Marshall) Causation Issues; Remoteness affecting analysis of duty Mustapha v Culligan of Canada Ltd. (2008) Facts: Mustapha is seeking damages for finding a fly in his water bottle which led to his psychological trauma. Issue: Is there an established cause of action? Ratio: NEGLIGENCE TEST 1. The defendant owed a duty of care to the plaintiff 2. The defendant s behaviour breached the standard of care 3. The plaintiff sustained damage 4. The damage was caused, in fact and in law, by the defendant s breach (i.e. were they acting negligently) a) It is the foresight of the reasonable man which alone can determine responsibility Wagon Mound#1 b) Degree of probability (not possibility) is required to determine the foresight Wagon Mound#2 c) Can t be far-fetched Wagon Mound#2 New Ratio: The defendant, in determining remoteness, must prove that it was foreseeable that a person of ordinary fortitude would suffer serious injury from [their actions] (seeing the flies in the bottle of water he was about to install). Application: 1. Yes - Manufacturer owes a duty of care to the ultimate consumer of the good (Donoghue v Stevenson) 2. Yes they should have taken steps to ensure the water was not contaminated as it was intended for personal consumption 3. Yes he sustained psychological damage, which in tort, is arguably indistinguishable from physical damages (Page v Smith) 4. No his unusual frailty and unusual/extreme reaction from Mustapha was not reasonably foreseeable Conclusion: Action is dismissed, no causation due to remoteness.

12 T O R T S C A N W I N T E R I Q R A A Z H A R P a g e 11 General Notes: Mustapha s legal problem was that he couldn t prove that a person of ordinary fortitude would have the same reactions o So we have a threshold of foreseeability that only considers persons of ordinary fortitude and cater to them How is this diff from the thin skull problem: Distinctive from Thin Skull cases because in those cases the extent of the harm was unforeseeable, but some damage was not. A defendant has no duty to safeguard persons who are not of ordinary fortitude. Practically speaking, this probably only assists if the Plaintiff is unusually fragile. Perhaps because psychiatric damage is easier to manufacture, it appears to have a higher causal threshold than in cases where physical injuries can be more easily identified. Thin Skull doctrine says that if you foresee a recognizable injury in tort, once that injury has occurred, the severity of it is irrelevant Whereas w/ this case, the notion is that the injury itself was not foreseeable, and the only duty you have to see an injury occurring is whether it would occur to a person of reasonable fortitude This is where the psychiatric injury makes a diff bc any sort of physically injury or harm is actionable Here, the injury itself wasn t foreseeable, so they adopted the standard of a person of ordinary fortitude 4. 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 D of responsibility for the damage precipitated or aggravated by it 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 Novus actus interveniers an intervening act that breaks the chain of causation The Causal Chain and Novus Actus Intervenus It is no longer necessary to separately analyse the Plaintiff s own negligence as breaking the causal chain, as this is now looked at as apportionment under the Negligence Act. Does the manufacturer of a product have a right to rely on an expectation of intermediate inspection? - NO o Not if he is himself in breach of duty to the Plaintiff. This is now Negligence Act analysis Factors to consider in analysis: What should you reasonably foresee is a consequence of your negligence Whether the person is the victim or another negligent party Should intervening negligence break your causal resp for an injury? Criminal intervening acts o If the crim act is foreseeable, then (as in the 1 st stage of Anns) there s a duty established o A D does have a an obligation to foresee criminality o Foreseeability govern the question of enabling crim act, which is tied to causation etc

13 Foreseeability of Second Accident T O R T S C A N W I N T E R I Q R A A Z H A R P a g e 12 i. Second Accidents A Defendant ought to foresee further accidents caused by the initial injury (Wieland v. Cyril Lord Carpets) However, a Defendant might not be under a duty to foresee that a second accident might occur as a consequence of the negligence of the Plaintiff (McKew v. Holland et al) Second Accident; Unbroken chain of causation Wieland v Cyril Lord Carpets Ltd (1969) Facts: Plaintiff got hit by defendant s bus. Had to wear a brace on her neck which didn t allow her to wear her glasses (bifocals) properly which caused unsteadiness. As she descended the doctor s office s stairs (with the help of her son), she fell, and is now suing for damages Issues: Was the resulting injury (that was established to being caused by the first accident [bus accident]) actionable? Whether the injury should be attributed to the first accident as well as the second - YES Law/Ratio: In determining liability for those possible consequences it is not necessary to show that each was within the foreseeable scope of the original injury in the same way that the possibility of injury must be foreseen when determining whether or not the defendant s conduct gives a claim in negligence. The second accident must be within the foreseeable scope of the first event however the precise mechanics of the ways 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. Application: It has been long recognized that the injury sustained in one accident may be the cause of a subsequent injury. The injury and damage suffered because of the second all are attributable to the original negligence of the defendants so as to attract compensation. o Foreseeability of this nature will suffice The precise mechanics of the ways in which the negligent act results in the original injury does not have to be foreseen (Hughes v Lord Advocate); It caused impairment to her ability to cope with the vicissitudes of life and thereby be a cause of another injury and if foreseeability is required Foreseeability of this general nature will suffice Is the first accident a contributing cause beyond de minimus? o In this case they look at it from the POV of foreseeability and established a chain of causation McKew v Holland (1969) Second accident not within foreseeable scope; held to ORP standard Facts: P and D were in a car accident, P suffers leg injury that makes his leg give in sometimes was going down the stairs without holding onto any support, leg gives in, starts to fall, throws his daughter out of the way, and ends up with a broken ankle (much more serious than the original injury). P sued for these damages suffered by the fall, but was unsuccessful, now appealing. P P claims the 2 nd accident caused by the weakness of his leg which in turn had been caused by the 1 st accident. D argues, the 2 nd accident wasn t the direct or natural and probable or foreseeable result of their fault in causing the 1 st accident Issues: Whether the 2 nd accident was within the foreseeable scope of the consequences of the first even? - NO

14 T O R T S C A N W I N T E R I Q R A A Z H A R P a g e 13 Law/Ratio: 1. If the injured man acts unreasonably he cannot hold the defender liable for injury caused by his own unreasonable conduct Novus Actus Interveniens 2. A D is not liable for a consequence of a kind which is not foreseeable, but it does not follow that he is liable for every consequence which a reasonable man could foresee, because Novus Actus Interveniens are quite likely, but it doesn t mean the defender should be liable for them. Application: If a man is injured in such a way that his leg might give away at any moment, he must act reasonably and carefully Novus Actus Interveniens (ratio): the chain of causation has been broken and what follows must be regarded as caused by his own conduct and not by the Ds fault or of the disability caused by it Unreasonable conduct of the pursuer and what follows from it isn t the natural and probable result of the original fault of the D or of ensuing disability o A D isn t liable for a consequence of a that isn t foreseeable (ratio) He should have taken reasonable care when going down the stairs in an attempt to prevent any further injury The reasonable man would have waited for assistance or gone down the stairs carefully, and this man didn t The fact that he jumped when he started falling doesn t bear much weight because it was a reaction to an emergency, and even though it was a bad decision, the judge only called it bad judgment. This is diff from Wieland, bc this man had been living with his weak knee injury for a while and should have taken more reasonable care. Whereas in Weiland her accident had just happened and she didn t know how to act or foresee without her bifocal ii. Medical Error in Treatment The problem with medical negligence is that there can be cumulative liability/problems The emerging rule seems to be that Defendants will be liable for even negligent medical treatment as a foreseeable consequence of the accident. How does this analysis mesh with the cumulative contributing cause cases? Mercer v Gray: A contributing cause of harm beyond de minimus is enough to be liable and them apportionment kicks in The question is whether they are cumulative causes or alternative causes Facts: A kid developed a serious condition when the doctor failed to take her broken leg s cast off in time after seeing the condition develop If reasonable care is used to employ a competent physician or surgeon to treat personal injuries wrongfully inflicted, the results of the treatment, even though by an error of treatment the treatment is unsuccessful, will be a proper head of damages. But if the treatment is so negligent as to be actionable it would be novus actus interveniens and the plaintiff would have his remedy against the physician or surgeon which distinguishes between bad judgment and actionable mistakes on the medical caregiver s part. o This principle distinguishes between innocent errors of judgement and actionable mistakes Onus rests on the initial defendant to prove that the intervening medical error was a negligent one, to remove themselves from liability Papp v Leclerc and justified in Thompson v Toorenburgh o every tortfeasor causing injury to a person placing him in the position of seeking med attention, must assume the inherent risk of complications, bona fide medical error or misadventure, and they are reasonable and not too remote (Papp v Leclerc)

15 T O R T S C A N W I N T E R I Q R A A Z H A R P a g e 14 Kolesar v Jeffries now shows that 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 o 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 (1967) Facts: P was a child/passenger on TTC s bus. Miller was the operator of the bus. P sustained injuries when his arm was out the window and the bus brushed against a metal pole that was 5 ½ inches away from the curb. TJ said M s negligence was a proximate cause of collision but infant s negligence of putting arm out of window (which was against the bylaw and there was a warning in the bus that said to keep arm in ) was also a contribution, especially because the child knew not to put his arm out. TJ divided fault equally bw H and M, D appeals. Issues: Should the driver of the bus be partially liable for the injuries sustained after he negligently hit a pole and, at the same time, a child s arm was out the window and got caught? - YES i.e. Should the bus driver have reasonably foreseen that a child s arm, regardless of the warnings, could be out of the window? - YES Law/Ratio: Merely because a Ps injury was foreseeably caused or contributed to by the plaintiff s own negligent act, or the wrongful act of a third person, this does not necessarily mean that the defendant is freed from liability. Where a D has a duty to take reasonable care to protect the P from injury foreseeably caused either by the plaintiff s own act or the act of a 3P, whether these acts are negligent or not, the acts may not be considered to be intervening forces that shield the defendant completely from liability. There may be joint liability, which might hold the defendant at least partially liable. Application: We know that children stick their arms and hands out of the windows The posting of the warning did not relieve the bus driver to not take people s arms out of the window into consideration 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.

16 T O R T S C A N W I N T E R I Q R A A Z H A R P a g e 15 iv. Intermediate Examination (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. o Manufacturers will be liable regardless of inspection made by another party (Ives v Clare Borthers) o Item cannot be manufactured negligently, and manufacturer has a duty to warn of dangers/risk Ives v Clare Brothers Ltd at al Doctrine of Proximate Cause Facts: P bought a gas unit made by D. It was manufactured and shipped by D and came assembled, but it was installed by the supplier (Twin City Gas). Twin City, after installing, inspected it. No warnings were given to P. P called Twin City 3 times in respect to the installed furnace. P proceeded to call in sick to work was feeling ill. The newspaper delivery boy found him on the ground, moaning and on the floor Issues: Whether the inspection was an intervening act? NO Law/Ratio: Where there are duties on two or more parties and negligence by each causing or contributing to the cause of damage, it is the Negligence Act and not the Doctrine of Proximate Cause which is applied. Doctrine of forgiveness of sin by inspection rejected in favour of contributory negligence. Manufacturers will be liable regardless of inspection made by another party Application: Twin cities had their own duties to P, and they could be negligent for not spotting the negligence of the manufacturer, and the M was trying to rely on this as a break in the chain of causation Ds were negligent bc they manufactured and supplied a defective furnace that leaked carbon monoxide, and they failed to warn customers, suppliers, and service men of the potential danger (that the screws wouldn t keep the gaps closed?) o These were duties owned to the consumer who might ve even saved from injury by their performance Their defence was that their chain of causation was broken because an inspection by twin city, but the judge said that this does not relieve them of their Negligent Act Court says NO chain of causation NOT broken o The Negligence Act adds nothing to the duty, it merely eliminates contributory negligence as a complete defence Conclusion: Both Ds were found equally negligent. They each caused or contributed to the damage v. Duty to Warn and The Learned Intermediary There s a clear duty owed by manufacturers not only to make and design their products reasonably, but to warn about any dangerous aspects of their products warnings must be explicit and reasonably communicated Where products are not sold directly to consumers but to drs or other experts who prescribe them or supply them to consumers, the problem arises as to the effect of a warning not to the consumer but to the 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) Learned Intermediary the exception to duty to warn, where duty is satisfied by warning a learned intermediary The Learned Intermediary is more like a specific application of the long established CL principles of intermediate examination and intervening cause developed in Donoghue v Stevenson

17 T O R T S C A N W I N T E R I Q R A A Z H A R P a g e 16 This rule is applicable where a product is highly technical in nature and is intended to be used only under the supervision of an expert OR where the nature of the product is such that the consumer wont realistically receive a direct warning from the manufacturers before using the product o Where are intermediate inspection if the products is anticipated or where a consumer is placing primary reliance on the judgement of a learned intermediary and not the manufacturer, the manufacturer may satisfy its duty to warn the ultimate customer The rule is an EXCEPTION to the general duty of a manufacturer to warn o It operates to discharge their duty not to the learned intermediary but to the ultimate consumer The rules presumed the intermediary is learned fully apprised of the risks associated with the use of the product o THUS the manufacturers duty can only said to be discharged when the intermediary s knowledge approximates that of the manufacturers 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 Failure to Warn; Strict Product Liability Hollis v Dow Corning Corp (1995) Facts: P underwent breast implant surgery, as suggested by her surgeon, Birch. Right breast developed a lump and pain. P went to a 2nd surgeon, Quayle, who found the right implant ruptured, removed both, but didn t find the right one s envelop. Ps conditioned worsened and went to a 3rd surgeon and got new implants. Birch was not informed by the implant manufacturer (Dow Coring) of the real dangers of their product, and that they could rupture or migrate. P brought action against Dow Coring and the first two surgeons, and was successful against Dow Coring (not against surgeons) for not informing her of the risks. D appealing to SCC Issues: Whether D was negligent towards P by not adequately warning Dr. Birch of the risk of a post-surgical implant rupture do manufacturers owe a duty to the eventual consumer, or only to their direct purchaser? - YES Law/Ratio: Generally, the duty to warn is owed directly by the manufacturer to the ultimate consumer, BUT in some circumstances, may satisfy this requirement by providing a warning to a Learned Intermediary. This is common for products that are highly technical or require experts or when it s unrealistic for the consumer to have a warning reach them by the manufacturer. The learned intermediary isn't held to the same standard as the manufacturer, as they don t have the same amount of knowledge as them. Application: Failure to warn case no suggestion that the implants were themselves defective, but that doesn t mean they were completely risk-free o Manufacturer should have put the product on the marker with info about the possible risk

18 T O R T S C A N W I N T E R I Q R A A Z H A R P a g e 17 There were risks attached to the silicone breast implants but weren t communicated to the customer Learned intermediary is applicable in this situation because you need an expert (surgeon) to install the manufactured goods o The ultimate consumer cant examine the implant or its packaging, it s the surgeon who obtains it and is in the best position to read any warning o Breasts are analogous to prescription drugs, where the patient places primary reliance for info on the judgement of the surgeon, who is the learned intermediary The standard for the warning is to bring the theory up to the level of knowledge the manufacture has, to correct that info deficit So to discharge the duty as M, you have to bring the learned intermediary up to your level of knowledge abt the risks of the product Put a heavy burden on medical product manufactures social policy reason The ppl who manufacture and make profit from these should have heavy burden, and strict liability Manufacturer shouldn t escape liability for failing to give warning that it was under duty to give Dow Coring didn t inform the surgeon The chain of causation proves that their product caused the damage Strict product liability: if a product is dangerously defective either by design or theres a manufacturing defect, then the M is going to be liable regardless of anything. All you have to prove as a P is that you were harmed (damages). You don t have to prove all the other stuff of duty, standard etc o In Canada we haven t adopted strict product liability o Underlying policy is that altho we ll allow a negligent manufacturer to exists, we re going to put heavy burden on them o In Canada its no strict product liability but its still weighted heavily in the favour of the Plaintiff Conclusion: Dow Coring was negligent in not warning the doctor of the risks, and therefore negligent towards their ultimate consumer, Harris. Dow Coring is liable for damages. Appeal dismissed 5. DEFENCES There are 4 defences to an actions in negligence: 1) Contributory negligence partial defence that leads to a reduction in the damages payable by the D o Ie seatbelt defence 2) Voluntary assumption of risk (volenti non fit injuria) 3) Illegality (ex turpi causa non oritur action) 4) Inevitable accident All defences (other than contributory negligence) are complete defences to the plaintiffs action These emphasize the concept of shifting losses bw indivs on the basis of clearly established moral culpability to one that is significantly influences by the loss-spreading power of liability insurance systems and compensatory concerns 1. Contributory Negligence (of the P) Failure of the P to take reasonable care for own her safety which contributes to the accident/loss Courts developed rule of last clear chance: in cases where the D had the last clear opp to avoid the accident, the D was the sole cause of the accident and fully responsible for the Ps loss

19 T O R T S C A N W I N T E R I Q R A A Z H A R P a g e 18 Requires causation that is do both the plaintiffs and defendants actions constitute contributing causes of the harm beyond de minimis. This is NOT a complete to a negligence claim, it s now dealt with fault apportionment Now legislation deals with apportionment of the loss bw parties o If a court isn t able to determine the respective degrees of fault of the parties, they re deemed to be equally at fault and the D is liable for 50% of the damages Contributory negligence can arise in 3 ways: i. Ps negligence may be a cause of the accident ex: if you don t warn of a pre-existing medical condition (ie epilepsy) ii. Where the Ps negligence is a not a cause of the accident but he has put himself in a position of foreseeable harm from the Ds negligence iii. A P may fail to take protective measures in the face of foreseeable danger such as a failure to use an available seat belt Ps loss would have been less severe if the precautions had been taken, so damages will be reduced for contributory negligence Cont Neg is determined by applying the objective standard of the reasonably prudent person o Same considerations are given: foreseeability of harm, likelihood of damage, seriousness of the threatened damage, cost of precautionary measures, The assessment of cont neg is made on the basis of the comparative blameworthiness of the conduct of the parties o Seatbelt: proof that a P would have suffered no injuries in a car accident if she had been using a seat belt doesn t warrant a larger reduction for cont neg o A modest reduction in an award of damages for cont neg is likely to be made when the protective measures are common practice, common sense, affordable, and effective When analyzing contributory negligence by the P, we re looking at a duty to yourself, (keep yourself), but also as a duty to the world around you not to engage in risky behaviours o Its not even duty, its more like a restriction on your right to recover that other ppls duties are limited by the extent of recklessness or risk taking by their potential victims Negligence Act speaks in terms of fault, not negligence. Bc fault is broader than negligence and can include any kind of harm that can be recognised at law Galaske v O Donnell (1994) Facts: P is 8 yrs old, in a truck with his dad, which is driven by D. P doesn t put his seatbelt on, dad doesn t help him, and D didn t pay attention because he thought the dad would. Accident occurs and P is injured as a consequence of not wearing his seatbelt. Dad (for child) bringing action against D (for negligence), lost at trial and appeal, now at SCC Issues: 1. Does a driver owe a duty to passengers? YES, duty to drive carefully, ensure seatbelts worn by young passengers etc 2. Whether the failure to ensure children in the car are wearing seatbelts constituted negligent behaviour on part of the driver? - YES 3. Is the driver s duty of care negated by the presence of a parent? NO, they share responability

20 T O R T S C A N W I N T E R I Q R A A Z H A R P a g e 19 Law/Ratio: 1. General Duty to wear your own seatbelt to protect yourself there is a duty of care owed by an occupant of a cat to wear a seatbelt a. There is a duty owed by a driver to ensure that passengers under 16 wear seat belts 2. Drivers must accept reasonability of taking all reasonable steps to ensure all passengers under 16 are wearing their seatbelts 3. There becomes joint responsibility or duty between the driver and the parent a. The level of duty owed by the driver will vary depending on the circumstances (lowered level of duty owed when the parent is there, than if it was just a random other adult, because there would be a higher level of duty placed on the parent to look after their child) Application: Cnd courts have recognized that passengers and drivers have a duty to ensure their own safety in a cars by wearing seatbelts failure to do so results in an assessment of contributory negligence against the person There is a DoC resting upon the occupants of a car to wear a seatbelt its an exercise of reasonable care, regardless of where the car is being driven The duty owed by a driver to ensure that passengers under 16 wear seatbelt The DoC of an occupant to wear a seatbelt is based upon the sensible recognition of the safety provided by seatbelts and the foreseeability of harm resulting from the failure to wear them Children under 16 still require guidance and direction from parents/older ppl and this extends to ensuring they properly wear seatbelts Even if there multiple ppl responsible, the driver of the car will always be one of the ppl held responsible o A driver taking children as passengers must accept some responsibility for the safety of these children Driving is a licensed activity which entails demonstration of a min standard of skill and knowledge pertaining to driving o Obligations and responsibilities flow from the right to drive! It s foreseeable that harm can result from failure to wear seatbelt AND foreseeable that children (under 16) may fail to secure a seatbelt Care & Control relationship: Driver is in a position of control = its their reasonability to take reasonable steps to provide for the safety of passengers o Reasonable steps: duty to drive carefully, ensure seatbelts worn by young passengers etc Statutory Provisions Motor Vehicle Act Sask Wheat pool existence of statute doesn t always create stat duty BUT in this case, statute is a public indication that the failure of a driver to ensure that children in the car are wearing seatbelts constitutes unreasonable conduct AND that this failure is conduct which falls below the standard required by the community and is thus negligent! Breach of statute isn t necessarily liability BUT its proves that a DoC rests on the driver to take all reasonable steps to see that seatbelts are worn by children Statute reflects public important placed on safety measures and societal concern for promoting child safety D was breaking the law, and he failed to meet the standard of care set out by the legs (Sask Wheat pool) strict liability bc now you have a positive obligation to ensure anyone under 16 is strapped in How does this relate to the idea of apportionment? if you can establish a duty by the breach of the father then you can day theres apportionment bc they both contributed to the harm But behaviour modification