TORTS LAW SUMMARY LAWSKOOL CANADA

Transcription

1 SUMMARY LAWSKOOL CANADA

2 CONTENTS Case list Introduction Negligence Elements of Tort of Negligence Duty of Care Step Test Breach of Duty Step Test Damage Factual Causation Remoteness (aka proximate cause) Complete Defences Apportionment Measure of Damages Vicarious Liability Duty of Care Previously Recognized Relationships Anns Test st Stage of Anns Test nd Stage of Anns Test Summary of Case Ratios Duty of Care Neighbour Principle, Pre-natal Injury, Social Host Liability Supervision and Prevention (Third Party Liability) Government Liability and Statutes, Negligent Investigation Omissions Duty of Care Cases Omissions Breach of Duty (Standard of Care) Establish Standard of Care à who is reasonable person? Exceptions: Mentally ill Child standard Physical Disability Professionals standard Superior Knowledge What is Impugned Conduct? Unreasonable Risk Formula Custom Standard professional practice Statutory Breach... 37

3 4.4 Summary of Case Ratios Breach of Duty Establish Standard of Care Mentally Incapacitated Youth Professional Negligence Pinpoint Impugned Conduct Unreasonable Risk Formula Custom Statutory Negligence Breach of Duty Cases Factual Causation But For Test Tests for Multiple Causes or Multiple Defendants Knowledge of subject matter especially with one party Two Negligent Defendants, One Cause Enterprise Liability (US ONLY, a policy argument in Canada) Multiple Causes Summary of Case Ratios Factual Causation But-for test Knowledge of subject matter especially with one party Two negligent defendants and only one cause Enterprise Liability (market-share liability test) Multiple Causes Factual Causation Cases Remoteness (proximate cause) Foreseeability Test for Remoteness Nervous Shock Cases Summary of Case Ratios Remoteness Old Directness test Foreseeability as test beginning Foreseeability as test established test Nervous Shock Remoteness Cases Defences Apportionment (Partial) Defences Contributory Negligence Complete Defences plaintiff denied recovery altogether Voluntary Assumption of Risk Illegality Summary of Case Ratios Defences Contributory Negligence... 89

4 7.3.2 Voluntary Assumption of Risk Illegality Defences Cases Intentional Torts INTENTIONAL INFLICTION OF MENTAL SUFFERING Summary of Case Ratios Intentional Infliction of Harm Cases Intentional Infliction of Harm ASSAULT AND BATTERY Assault Battery Defences to assault and battery include: Cases Intentional Infliction of Harm

5 CASE LIST Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC Arneil v. Paterson [1931] A.C. 560 (H.L.) Arnold v. Teno (Next friend of), [1978] 2 S.C.R Athey v. Leonati, [1996] 3 S.C.R Bettel et al. v. Yim, [1978] 20 O.R. (2d) Blyth v Birmingham Waterworks Company (1856) 11 Ex Ch Bolton v Stone [1951] AC 850, [1951] 1 All ER Brenner v. Gregory, [1973] 1 O.R. 252 (H.C.) Bruce v Dyer (1966) 58 DLR (2d) 211 (1966) (ON HC) Butterfield v. Forrester, 11 East. 60, 103 Eng. Rep. 926 (K.B. 1809).6.4 Challand v. Bell (1959), 18 D.L.R. (2d) 150 (Ab. SC) Childs v. Desormeaux, 2006 SCC Clark v. Canada ( T.D. ), [1994] 3 F.C Cook v. Lewis, [1951] S.C.R Cooper v. Hobart, [2001] 3 S.C.R. 537, 2001 SCC Crocker v. Sundance Northwest Resorts Ltd., [1988] 1 S.C.R Crocker v. Sundance Northwest Resorts Ltd., [1988] 1 S.C.R Crocker v. Sundance Northwest Resorts Ltd., [1988] 1 S.C.R Davies v. Mann, 152 Eng. Rep. 588 (1842) Dobson (Litigation Guardian of) v. Dobson, [1999] 2 S.C.R Dobson (Litigation Guardian of) v. Dobson, [1999] 2 S.C.R Donoghue (or M Alister) v Stevenson [1932] AC Doughty v. Turner Manufacturing Co., Limited (1 QB 518 (CA 1963) Dube v Labar (1986), 36 C.C.LT. 105 ( S.C.C.) Dunsmore v Deshield (1977), 80 DLR (3d) 386 (Sask QB) Fiala v. Cechmanek [2001] A.J. No Frame v. Smith, [1987] 2 S.C.R Galaske v. O'Donnell, [1994] 1 S.C.R Gorris v Scott (1874) 9 LR Exch Hall v. Hebert, [1993] 2 S.C.R Hambley v. Shepley (1967), 63 D.L.R. (2d) 94 (ON C.A.) Heisler v Moke [1972] 25 DLR (3dl 670 (HC) 3.5 Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129 Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R Horsley v. MacLaren, [1972] S.C.R Hughes v Lord Advocate [1963] UKHL Jane Doe v. Metropolitan Toronto (Municipality) Commissioners of Police (1998), 160 D.L.R. (4th) Jane Doe v. Metropolitan Toronto (Municipality) Commissioners of Police (1990), 72 D.L.R. (4th) Just v. British Columbia, [1989] 2 S.C.R

6 Kauffman v. Toronto Transit Commission [1959] O.R Lambton v. Mellish [1894 L ]..4.4 Lauritzen v. Barstead (1965) 53 DLR 2d 267 (Atla. S.C.) Marshall v Lionel Enterprises Inc [1972] 2 OR McErlean v. Sarel (1987), 61 O.R. (2d) Mustapha v. Culligan of Canada Ltd., 2008 SCC Negligence Act R.S.O. 1990, CHAPTER N Norberg v. Wynrib, [1992] 2 S.C.R Oke v. Weide Tpt. Ltd. [1963] Man CA 2.4 Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd or The Wagon Mound (No 1) [1961] UKPC Overseas Tankship (UK) Ltd v The Miller Steamship Co or The Wagon Mound (No 2) [1967] 1 AC Palsgraf v. Long Island Railroad Co., 162 N.E. 99 (N.Y. 1928)..5.4 Paris v Stepney Borough Council (1950) BC [1951] HL 3.5 Priestman v. Colangelo [1959] S.C.R. 615, 19 DLR (2d) R. v. Côté, [1996] 3 S.C.R Rahemtulla v. Vanfed Credit Union [1984] B.C.J. No Re Polemis & Furniss, Withy & Co Ltd [, [1921] 3 K.B Resurfice Corp. v. Hanke, [2007] 1 S.C.R Rhodes v CNR(1990)75 D.L.R. (4th) 248 B.C.C.A.).5.4 Ryan v. Victoria (City), [1999] 1 S.C.R School Division of Assiniboine South No. 3 v. Hoffer et al. [1971] 1 WWR Sindell v. Abbott Laboratories, 26 Cal. 3d 588 (1980)..4.4 Smith v Leech Brain & Co [1962] 2 QB Snell v. Farrell, [1990] 2 S.C.R ter Neuzen v. Korn, [1995] 3 S.C.R The Home Office v. The Dorset Yacht Company Limited [1970] 2 All ER The Queen in right of Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R United States v. Carroll Towing Co. 159 F.2d 169 (2d. Cir. 1947). 3.5 Vaughan v. Menlove (1837) 3 Bing. N.C. 467, 132 E.R. 490 (C.P.) Waldick v. Malcolm, [1991] 2 S.C.R Ware's Taxi Ltd. v. Gilliham, [1949] S.C.R Wickberg v Patterson [1997] 4 W.W.R. 591;(1997) 145 D.L.R. (4th) 263 (Alta.C.A.)..6.4 Wilkinson v Downton [1897] 2 Q.B Zelenko vs. Gimbel Brothers (1935) 287 N.Y.S

7 1. Introduction A tort is a civil wrong, other than a breach of contract, which the law will address with an award of damages Procedural Onus of Proof Nature of conduct Purpose Remedies Codification Source Comparison of Tort Law with Criminal and Contract Tort Law Criminal Law Contract Law plaintiff (injured party) state vs. defendant plaintiff (injured party) and defendant and defendant (accused) both are (accused) both are private parties private parties On Balance of beyond a reasonable On Balance of probabilities = more doubt probabilities = more likely than not likely than not mostly unintentional intent is central harm (negligence) Mainly about mainly punishment concerned with security compensation criminal has other of person, freedom of tort has other purpose purposes too (rehab) action (deter future harm) concerned with security concerned with security of person, freedom of of person, freedom of action action monetary damages, Accused sent to jail guilty party pays possible injunctions damages ($), specific (trespassing) performance most tort law arises codified from case law concerned with state concerned with state concerned with imposed obligations imposed obligations voluntary obligations Case law on negligence states basic levels of actions for all

8 Risk allocation members of society can be seen to represent a collective allocation of risk based on community values promotes voluntary allocation of risk

9 2. Negligence 2.1 ELEMENTS OF TORT OF NEGLIGENCE Plaintiff has to establish the following first five elements on a balance of probabilities; then, burden on defendant to get off the hook by proving next two elements Duty of Care Whether situation is covered by tort of negligenceà does defendant owe plaintiff duty of care o Whether the class of person to which the plaintiff belongs owes a duty of care to the class of person to which the defendant belongs o No negligence in the air Have to owe duty to person for negligence to apply Limited idea of who owed to duty à very set categories à Donoghue v. Stevenson opened this up to expand categories Step Test a) General proximity What general degree of proximity is necessary to establish a duty of care (by defendant toward plaintiff, generally) for the purpose of claiming damages à foreseeability of harm b) Social policy Given acceptable proximity, are there any good reasons why the damages remedy is not appropriate and just in the general type of situation involved Breach of Duty Whether, based on facts, defendant was negligent/breached duty of care - whether defendant fell below standard of care a reasonable person would have observed in the circumstances Step Test I. Determine what a reasonable person would have done in the situation (to compare defendant)

10 II. III. - Reasonable person is not average person (i.e. not industry practise, but reasonable) Specify the precise action/inaction/pattern of conduct which is being impugned Unreasonable Risk Formula: Balance foreseeability of harm to plaintiff and its extent versus burden of precautions that would have prevented the harm and the social utility of the defendants impugned conduct [which sides weighs more heavily = breach or not breach] - Ruling as to whether a reasonable person would have acted as the defendant did - Consider from POV of defendant before situation (i.e. risk of harming plaintiff vs. burden of minimizing risk/social utility of action) Social utility = e.g. ambulance speeding, health care worker Damage whether plaintiff suffered a type of damage legally recognized by tort of negligence o e.g. physical injury/property = legally recognized; psychological = questionable and harder to prove; pure economic loss = only loss is loss of profits due to negligence whether it was suffered at a time which makes that damage now actionable o i.e. statutory limitation periods o varies by provinceà ON à Limitation Act; general limitation of 2 years for every suit à period starts sometimes when damage occurs, limitation period generally starts when the damage is held to be discoverable (not require discovery) Factual Causation Whether as a matter of scientific fact the defendant s breach can be said to have caused plaintiffs infringement (and infringement resulted in damage) o Use but-for test onus of proof is contentious; heart of tort law o Asks But for the defendants conduct, would the plaintiff s harm have occurred? o Did breach cause damage in fact?

11 2.1.5 Remoteness (aka proximate cause) Whether (strictly on fact) the plaintiff or damage/loss was sufficiently closely linked to defendant s conduct to be recoverable o Legal policy à limit liability Plaintiff proximity à reasonably foreseeable that plaintiff might suffer recognized loss Proximity of damage à type of damage and general way it occurred reasonably foreseeable from defendant s conduct Intervening cause à anything extremely unusual in sequence of events (independent cause breaks chain of legal responsibility) Post-injury events à an occurrence post-accident that might limit defendant s responsibility for consequential loss o Difference in this test and duty of care proximity test à duty of care looks at general parties (type of persons); in remoteness à look at this specific case (this plaintiff and this defendant) o Did breach cause damage in law? (or is it too remote?) Complete Defences Despite satisfying all other elements, there existed circumstances allowing a defence that excuses payment of damages to plaintiff o Exist, but very difficult to establish, b/c courts reluctant to exonerate defendant for all damages if all the other elements are proven Examples: o voluntary assumption of risk (volenti non fit injuria) à e.g. sign a waiver, sporting o illegality (ex trupi causa non oritur action) à if plaintiff was doing something illegal courts generally reluctant to enforce this b/c not benefiting, just recovering statutory defences (e.g. immunity to public officials diplomats) Apportionment Whether award of damages should be reduced because of plaintiff s contributory negligence and how damages proportioned between joint defendants o Comparison of fault

12 o o Joint and several liability (each party is responsible for full damages if other defendant doesn t pay) à Makes life easier for plaintiff Test for contributory negligence: defendant has to all the same elements plaintiff has to prove against defendant, except duty of care (breach of duty, damages, factual causation, proximity, remoteness) Measure of Damages What sum of money should be awarded to plaintiff as compensation (injury & punitive) b. Pecuniary loss sum for full restitution for monetary losses (lost income & expenses) c. Non-pecuniary loss sum to provide solace for non-monetary damages suffered (emotional) d. Aggravated damages compensatory sum of money to soothe plaintiff for humiliation, indignation, outrage, fear of repetition created by manner and quality of defendant s actions e. Exemplary or punitive damages sum to punish or deter defendant Vicarious Liability Whether another person/institution is vicariously liable for conduct of personal defendant o e.g. employers for employees; owners for operators of vehicle, parents for children?

13 3. Duty of Care Question: Is situation covered by tort of negligence? Is there a duty of care? 1) Is the relationship one between classes of persons where duty recognized before (precedent)? 2) If YES, simple answer; if NO à Anns Test a. 1 st stage of test (foreseeability, proximity, relationship policy considerations) i. Consideration of analogies ii. Involves omission? Establish special relationship b. 2 nd stage (residual policy considerations) i. Involves government actor or public authority? Apply Just Test 3.1 PREVIOUSLY RECOGNIZED RELATIONSHIPS Is there an analogy to be made? If YES, make that argument General Relationships Business-customer Commercial hostpatron Crocker v. Sundance drunk patron hurt in tubing competition Arnold v. Teno child hit by car when leaving ice cream truck Jordan House drunk man leaves bar & is hit by car Crocker v. Sundance drunk patron hurt in tubing competition Competition hostparticipant Contractual offerorofferee Doctor-patient Driver-pedestrian Government actorcitizen Invitor-invitee Lawyer-client Crocker v. Sundance drunk patron hurt in tubing competition Dunsmore v. Deshield Hardex lenses Dunsmore v. Deshield Hardex lenses Ter Neuzen v. Korn plaintiff gets HIV from AI procedure Arnold v. Teno child hit by car when leaving ice cream truck Just v. B.C. giant boulder falls on car driving on highway Jane Doe v. Toronto balcony rapist (small identifiable group) Arnold v. Teno - child hit by car when leaving ice cream truck Just v. B.C. giant boulder falls on car driving on highway Brennen v. Gregory Lawyer fails to investigate building encroaching on next lot

14 Manufacturerconsumer Donoghue v. Stevenson snail in ginger beer Dunsmore v. Deshield Hardex lenses Parent- child Police-identifiable group Police-suspect Retailer-consumer Taxi driver-(child) patron Duty to Third Parties Police-General Public Supervision & Control Omissions Creator of Risk Gratuitous undertaking Supervision & Control Duty NOT established Pregnant woman-fetus Social Host 3 rd Users of Road Arnold v. Teno child hit by car when leaving ice cream truck Jane Doe v. Toronto balcony rapist Hill v. Hamilton-Wentworth police flawed investigation Donoghue v. Stevenson snail in ginger beer Arnold v. Teno - child hit by car when leaving ice cream truck Dunsmore v. Deshield Hardex lenses Ware s Taxi child falls out door of taxi; no safety latch Jane Doe v. Toronto balcony rapist Jane Doe v. Toronto balcony rapist Home Office v. Dorset Yacht borstal boys wreck havoc on ship Arnold v. Teno - child hit by car when leaving ice cream truck Oke v. Weide driver knocked down road sign Zelenko v. Gimbel Bros started to help, but left in infirmary Crocker v. Sundance drunk patron hurt in tubing competition Dobson v. Dobson car accident while pregnant [but 3 rd party-fetus still duty] Childs v. Desormeaux hold party, guest drunk drives and kills To order the complete version of the lawskool Torts Law Summary please visit