call-in shows, 922 consent, See also voluntary assumption of risk careless performance of contract, 315 cattle trespass, 773 causation

Transcription

1 Index absolute privilege, abuse of process, 87-90, abuse of public office, accidental conduct, accidents, successive, accountants/auditors, negligence of, 515 act of God, , act of plaintiff, 758 act of stranger, action for damage to reversionary interest, 126 active concealment as fraudulent misrepresentation, acts of third parties, responsibility for, additional causes, failure of but for test, adult activities doctrine, age, reasonable person and, aggravated damages defamation, intentional torts, trespass to land, 139 agony of collision doctrine, 419 agony of the moment doctrine, 419 air space, owner of land and, animals ferae naturae (wild animals), animals, liability for cattle trespass, 773 scienter action, Searle v. Wallbank, rule, animals mansuetae naturae (dangerous animals), 769, 772 Anns v. Merton London Borough Council, apportionment, See also contribution between wrongdoers, contributory negligence contribution between wrongdoers, 674 contributory negligence, architects, negligence of, assault, Athey v. Leonati, but for test, 529, 531, 553 causation and, indivisible injury, 560 automobile accidents, 399, 433, bankers/financial advisors, negligence of, 515 battery intentional, medical treatment, as, 55, , 490 negligent, sexual wrongdoing, 60-64, 152 breach of contract, inducing conduct inducing breach, contract, existence of, damage, 827 indirect means, procuring breach by, 830 intention, justification, knowledge, 824 breach of peace, stopping, defence of, 169 burden of proof, See also res ipsa loquitur battery, conspiracy to injure, duty of care, general principles, 149, res ipsa loquitur, statutory authority, business torts conspiracy, contractual relations, interferences with not involving breach, deceit, , See also deceit inducing breach of contract, , See also breach of contract, inducing intimidation, , See also intimidation secondary picketing, unlawful means tort, but for test alternatives to, causal connection, failure of, unworkable,

2 972 INDEX call-in shows, 922 careless performance of contract, 315 cattle trespass, 773 causation additional causes, adverse results, increasing risk of, alternative causes, 551 Athey v. Leonati, but for test, , , , cause-in-fact, cause-in-law, 519 Cook v. Lewis, rule in, establishing causal connection, failure to inform, doctors and, generally, injury, redefined, joint tortfeasors, losses, and, material contribution test, material increase in risk of injury approach, medical negligence cases, product liability, successive accident cases, champerty, maintenance and, Charter of Rights and Freedoms generally, 8-10 police, actions of, 259 provincial statutes, and, 174 secondary picketing, and, 852 children, See also wrongful life/birth contributory negligence, and, occupiers liability, and, parental responsibility for, , 596 standard of care, teacher and pupil, unborn, legal status of, circumstantial evidence, See res ipsa loquitur commercial hosts, duty to assist, common humanity, duty of, complex structure theory, 338 concurrent liability generally, , 306 professional negligence, and, concurrent tortfeasors, consent, See also voluntary assumption of risk defamation, duress, and, 153 generally, medical treatment, and, private nuisance, 893 public policy, and, 152 sports, and, unequal power, and, volenti non fit injuria, contrasted, 150 consortium, loss of, conspiracy agreement and execution, 838 damage, 846 employees, liability of, generally, injure, conspiracy to, unlawful means, conspiracy to use, constitutional issues, 4-7, See also Charter of Rights and Freedoms contracts breach of contract, inducing, careless performance of, 315 contractual relations, interference not involving breach, contribution between wrongdoers apportionment, basis of, 674 common law, concurrent tortfeasors, Cook v. Lewis, 660 joint and several tortfeasors, joint liability, consequences of, legislation, multiplicity of proceedings, 676 no contribution between wrongdoers, obligation to pay contribution, right to seek contribution, scope of statutory provisions, settlement, effect of, , special defences, effect of, , 673 subsequent action against second tortfeasor, 675 transit in rem judicatam, 660 contributory negligence apportionment, basis of, children, and, common law, definition, finding of, effect,

3 INDEX 973 imputed fault, last clear chance, 618, legislation, negligent statements, occupiers liability, 718, provocation, , 622 private nuisance, 894 safety devices, failure to use, stalemate solution, 618 standard of care, statutory defence, scope of, conversion chattels, dealings, types of, definition, 115 intention, remedies, who can sue, Cooper v. Hobart, cost of avoidance, criminal law, See also private nuisance, malicious prosecution fighting, and, intentional torts, and, powers of arrest, restitution and compensation, suspension/exclusion of civil action, tort damages, 47-48, 146 use of criminal convictions/acquittals as evidence, 46 use of force, 158 Crown liability, See also public authorities duty of care, non-delegable duties of, occupiers liability, 739 crumbling skull, 526, , custom, See general practice, professional liability and damage, remoteness of, damages aggravated damages defamation, intentional torts, trespass to land, 139 exemplary damages conspiracy, 846 conversion, 124, 125 punitive damages breach of contract, inducing, 827 conspiracy, 846 criminal law sanctions and, deceit, 816 defamation, intentional torts, 47-48, 139, provocation and, dangerous animals (animals mansuetae naturae), 769, 772 dangerous instruments, control of, dangerous products, , See also product liability dangerous situations, creators of, 260 deceit active concealment, active non-disclosure, damage, assessment of, elements of tort, employees, liability of, false representation/statement, generally, half-truth, intention to deceive, knowingly false, material inducement causing damage, puffery, defamation absolute privilege, avoiding multiplicity of proceedings, 918 call-in shows, 922 concurrent actions, defamation and negligence, consent as defence, damages, 903, 959, defamatory, what qualifies as, defences, exceeding privilege, fair comment, generally, 899 group of individuals defamed, injunctive relief, 964 injurious falsehood, intention, joint publication, 921 justification, libel/slander distinguished, low threshold requirement, 905, malice, 932, , 958 media defences,

4 974 INDEX mitigation of damages, plaintiff, reference to, public interest, responsible communication of matters of, publication, punitive damages, 959, 962 qualified privilege, protection of another s interests, protection of common interests, protection of one s own interests, protection of public interest, remedies, reports of judicial proceedings, reports of legislative proceedings, republication, responsible communication of matters of public interest, secondary disseminators, slander, distinction between libel and, 900, slander of goods, sources of defamation law, spouses, communications between, 932 truth, 907, defective products/buildings, liability for economic losses, , See also product liability defence of inevitable accident, 408, defence of others, defence of property, defences to intentional interferences consent, , See also consent contributory negligence, , defence of others, defence of property, generally, 149 legal authority, necessity, provocation, right to eject trespassers, self-defence, self-help, , 184, stopping breach of peace, 169 defences to negligence, See also standard of care, contractual relations age, contribution between wrongdoers, See contribution between wrongdoers contributory negligence, See contributory negligence defamation, illegality, inevitable accident, 408, insanity, intentional interferences, See defences to intentional interferences mental disability, multiple tortfeasors, physical abilities, strict liability, See Rylands v. Fletcher voluntary assumption of risk, See voluntary assumption of risk degrees of negligence, detinue generally, remedies, sur bailment, 110 sur trover, 110 wrongful detention, directness test of remoteness, Re Polemis, director s personal liability, negligent statements, disappointed beneficiary cases, , doctors, See physicians Donoghue v. Stevenson inspiration for modern negligence law, , 267 neighbour principle, , 271 privity of contract and, 31 drunk driver/willing passenger situation, duty of care Anns v. Merton London Borough Council, burden of proof, Cooper v. Hobart, Donoghue v. Stevenson, Edwards v. L.S.U.C., elements of relationship, foreseeability, neighbour principle, occupiers liability, and, , , See also occupiers liability policy considerations, presumptive duty approach, product liability, 440 proximity,

5 INDEX 975 public authorities, See also public authorities purpose of duty concept, solicitors, two-stage test, , test refined, unborn children, duty of common humanity, duty to assist commercial hosts, dangerous instruments, control of, dangerous situation, creators of, , 260 economic benefit rationale, employee-employer relationships, generally, Good Samaritan dilemma, , 231 inmates, 256 occupier s responsibilities, parent and child, passenger-carrier relationships, police officers, pros/cons of imposing duty, reliance relationships, social host, statutory duties, 259, 264 strict rule, teacher and pupil, theories of tort, and, where one begins to assist, duty to protect inmates, 256 duty to warn, See product liability economic benefit rationale, economic loss, recovery of careless performance of contract, 315 defective products/buildings, , 453, See also product liability direct undertakings to perform gratuitous service, generally, indirect undertakings to perform service, negligent performance of services, negligent statements, , See also negligent statements, liability for relational losses, Rivtow Marine Ltd. v. Washington Iron Works, , 337 special relationship between parties, economic torts, See business torts emergencies, , employer-employee relationship duty to assist, economic loss, employee or independent contractor, , employees, liability of for deceit or conspiracy, loss of services, vicarious liability, , See also vicarious liability engineers, negligence of, enterprise theory of liability, 745 environmental issues private nuisance and riparian rights, public nuisance, and, 864 trespass to land, evidence, See also res ipsa loquitur admissibility of criminal convictions/acquittals, 46 exemplary damages, See also punitive damages conspiracy, 846 conversion, 124, 125 ex turpi causa non oritur action, fair comment, defence to defamation, comment and fact, fairness, generally, malice, 958 public interest, 954 false arrest, 68, 71, 72, 178 false imprisonment generally, intentional, directness, imprisonment by agreement, imprisonment defined, knowledge of confinement, negligent, 75 felonious tort rule, feotuses, fights, fires, ,

6 976 INDEX Fires Prevention (Metropolis) Act, 1774, , foreseeability, See also remoteness duty relationship, elements of, proximity and, , 216 public authorities, duty of care and, 354, 364, 375 reasonable foreseeability test, 141, , 573 scope of, social hosts, unborn child, absence of legal status and, 223 fraudulent misrepresentation, See deceit general practice, professional liability and, Good Samaritan dilemma, , 231, See also duty to assist goods, slander of, , See also defamation gross negligence, Hall v. Hebert, defence of illegality and, Hedley Byrne & Co. v. Heller & Partners Ltd. concurrent liability, contributory negligence, employee s duty, 308 engineers and architects, 513 negligent statements, 271, 272, opinions or statements about future events, pre- and post-contractual misrepresentation, , 305 public authorities, reliance, skill of advisor/advisee, special relationship, , 284 Hunter v. Canary Wharf Ltd., private nuisance and, illegality, defence of generally, , Hall v. Hebert, immunity from suit, lawyers, implied agreements, voluntary assumption of risk, imprisonment, See also false imprisonment agreement, by, definition, directness, knowledge of confinement, negligent false imprisonment, 75 imputed fault, contributory negligence and, incomplete privilege, defence of necessity and, indirect evidence, See res ipsa loquitur indirect undertakings to perform services, inducing breach of contract, , See also breach of contract, inducing inevitable accident, 408, informed consent to medical procedures, injury additional causes of, alternative causes of, 551 exacerbation of, gravity of injury, 416 likelihood of injury, material increase in risk of injury approach, redefined, successive accidents, thin skull, third party causing, inmates, 256, 597 instruments of danger, control of, insurers, negligence of, 515 intellect/knowledge/experience, reasonable person and, intentional battery, intentional conduct, intentional false imprisonment, intentional infliction of mental suffering, Wilkinson v. Downton and act or statement, calculated to produce harm, generally, 93 harm, intentional torts abuse of process, action for damage to reversionary interest, 126 assault, 49-52

7 INDEX 977 battery, 52-67, See also battery champerty, conduct of defendant, conversion, , See also conversion criminal law, relationship with, 44-49, See criminal law damage, remoteness of, defences, , See defences to intentional interferences defendant s conduct, detinue, , See also detinue directness requirement, false imprisonment, 67-75, See also false imprisonment generally, intentional infliction of mental suffering, 93-99, See also intentional infliction of mental suffering invasion of privacy, maintenance, malicious prosecution, punitive damages, remoteness of damage, replevin, trespass to chattels, , See also trespass to chattels trespass to land, , See also trespass to land volition and capacity, interests, protection of, See defamation, qualified privilege interference with possession of land, See trespass to land intermediate examination, product liability and, intimidation intention, submission to threat, 835 threat, 832 unlawful act, invasion of privacy, invitees, See occupiers liability joint tortfeasors, judges, land, See trespass to land, Rylands v. Fletcher landlords, , 739 last clear chance, 618, lawyers, See solicitors, professional negligence Learned Hand formula, See also standard of care cost of avoidance, formula, gravity of injury, 416 likelihood of injury, learned intermediary rule, legal authority, legislative acts, immunity for, liability, See strict liability, vicarious liability libel, See defamation licensees, See occupiers liability likelihood of injury, limitation periods, 61, 63-64, 197, , 487, 668, 672 locality rule, loss of a chance, 479, loss of consortium, , 625 loss of profit, , , 556 loss of services, maintenance and champerty, malice, See defamation malicious prosecution, malpractice, See professional negligence, solicitors, physicians master-servant relationship, See employer-employee relationship material contribution test, but for test unworkable, defendant s negligence, English mesothelioma judgments, Resurfice Corp. v. Hanke, elaboration on test, risk of injury, materially increasing, robust and pragmatic approach, Walker Estate v. York Finch General Hospital, material increase in risk of injury approach, media, See defamation

8 978 INDEX medical treatment, , , See also consent mental suffering, intentional infliction of, mesothelioma judgments, English, material contribution test and, misfeasance in public office intentional wrongdoing, public official, 384 wrongful conduct, multiple causation, , mutual fights, necessity, negligence law, See also contributory negligence analysis of negligence action, concurrent actions, defamation and negligence, degrees of negligence, duty concept, purpose of, duty of care, See duty of care history, immunities from suit, importance, , 741 limits on action, 197 professional negligence, See professional negligence standard of care, See standard of care negligent battery, negligent conduct, negligent false imprisonment, 75 negligent performance of services, liability for direct undertakings to perform gratuitous service, indirect undertakings to perform service, negligent statement cases, public authorities, negligent statements, liability for advice, nature of, advisee, skill of, advisor, skill of, contributory negligence, director s personal liability, employee s duty, general rule, 271 Hedley Byrne, inaccurate/misleading statement, limited class, reliance by, nature of problem, negligence, occasion, nature of, 287 policy reason for negating duty, 283 pre- and post-contractual misrepresentation, public authorities, reliance, request for advice, requirements for successful claim, 277 special relationship, standard of care, 296 negligent trespass, 38-39, 58, , 140 negligent trespass to chattels, negligent trespass to land, 140 neighbour principle in Donoghue v. Stevenson, nervous shock claims based on pure nervous shock, foreseeability, 211, 213 negligent statements, 272 recovery, non-natural use of land, 744, novus actus interveniens generally, 594 original injuries exacerbated, medical treatment, subsequent, second accident, suicide cases, third parties, responsibility for acts of, injuries caused by strangers, injuries caused by those under one s control and supervision, nuisance generally, 853, 864 public nuisance, , See also public nuisance private nuisance, , See also private nuisance occupiers liability affirmative steps to prevent damage, 264 child trespassers, 713, 724, 735 common duty of care, common law, contractual entrants, , contractual restrictions,

9 INDEX 979 control requirement, Crown liability, 739 duties of occupiers contractual entrants, invitees, owed to, licensees, owed to, trespassers, owed to, duty of common humanity, entrants, types of, contractual, invitees, licensees, trespassers, generally, invitees, , landlords, , 739 legislation, licensees, , negligence of independent contractors, 738 occupier (common law), defined, occupier (legislation), defined, railway accident cases, restrictive duties, risks, acceptance of, trespassers (common law), , , , 735 trespassers (legislation), parent and child, , 596, , passenger-carrier relationship, physical abilities, reasonable person and, physical abuse, vicarious liability for, physicians causation, duty to assist, 255 duty to disclose alternative treatments, duty to disclose results of treatment, duty to disclose risks, extensions of duty, errors of judgment, 474 failure to inform, generalists and specialists, malpractice, res ipsa loquitur, subsequent medical treatment, therapeutic privilege, 493 wrongful life/birth, police officers, duty to assist, policy/operational dichotomy, policy reasons to limit prima facie duty, powers of arrest, 71-73, presumptive duty, 202, 203, 241, 280, 313, 314 privacy, invasion of, private nuisance accident compensation and loss distribution, acquiescence/consent, 893 acts of normal husbandry, bona fides of parties, character of neighbourhood, 872 continuing or adopting nuisance, contributory negligence, 894 damages, 896 defences, , deliberate and continuing nuisances, environmental pollution, riparian rights and, excessive noise/odours, generally, Hunter v. Canary Wharf Ltd., injunctive relief, landlord/tenant situation, 878 loss distribution, natural use of land, normal husbandry, acts of, occupier inheriting nuisance, physical injury to property, what constitutes, prescription, remedies, riparian rights, self-help, statutory authority, defence of, statutory immunity, 895 unreasonable interference with personal sensibilities, who can sue, product liability, See also economic loss, recovery of causation, 445 design defects, duty of care, 440 duty to warn of risks, economic losses, , 453 generally, generic drugs, 440 intermediate examination, learned intermediary rule,

10 980 INDEX manufacturing defects, 342, proof, problems of, 453 res ipsa loquitur, 453, risk utility approach, standard of care, design, manufacture, marketing, warranties, professional advice-givers, professional negligence accountants/auditors, 515 architects, bankers, 515 beginners, concurrent liability, doctors, See physicians engineers, errors of judgment, 474 general practice, , generalists/specialists, insurers, 515 invariable practice, 474 lawyers, See also solicitors collectibility of judgment, 480 duty to third parties, immunity from suit, lost cause, 479 malpractice, retainer, effect of, trial within a trial, locality rule, realtors, 515 standard of care, proof, See burden of proof, res ipsa loquitur property, defence of, property damage adjoining landowners, See private nuisance, Rylands v. Fletcher suffered by third party, provocation, , 622 proximate cause, , See also remoteness proximity, duty of care, and, public authorities, See also Crown liability Crown liability, duty of care, English approach, express statutory liability, generally, , legislative/judicial immunity, misfeasance in public office, , See also misfeasance in public office negligent statement cases, policy reasons to limit duty, prima facie duty of care establishing, reasons to limit, proximity, , public nuisance activities, types of, criminal offence comparison, 856 environmental harm, statutory intervention, 864 generally, negligence requirement, nuisance, definition, public, definition, special damages requirement, Wagon Mound (No. 2), 859 public office, misfeasance, See misfeasance in public office puffery, punitive damages breach of contract, inducing, 827 conspiracy, 846 criminal law sanctions and, deceit, 816 defamation, intentional torts, 47-48, 139, provocation and, purely economic loss, See economic loss, recovery of pur negligent garder son few, 763 qualified privilege, See also defamation protection of another s interests, protection of common interests, protection of one s own interests, protection of public interest, question of law/fact, negligence as, railway accident cases, reasonable foreseeability test, 141, , , 574, See also remoteness reasonable person age, generally,

11 INDEX 981 general practice of those engaged in similar activity, 422 intellect/knowledge/experience, professionals, physical abilities, relational economic loss personal injuries suffered by third party, consortium, loss of, services, loss of, property damage suffered by third party, reliance relationships, , , remoteness directness test, duty of care, , economic losses, foreseeability, scope of, generally, intentional torts, nervous shock, novus actus interveniens, , See also novus actus interveniens policy considerations, proximate cause, tests for, reasonable foreseeability test, 141, , 573 rescuers, duty to, Rylands v. Fletcher, standard of care, suicide cases, thin skull rule, replevin, Re Polemis and Furness, Withy & Co. directness test, Wagon Mound No. 1, test rejected, 569 rescuers, duty to, remoteness and, res ipsa loquitur automobile accidents, cause of occurrence not known, circumstantial evidence, 681, 684, 692, 693, 696, 698, 699, 701 control requirement, elements, generally, event not happening without negligence, expiration of maxim, 681, 698 fires, generally, indirect evidence, 680, 681, 698, 701 medical malpractice, negligence requirement, procedural effect, product liability, restitution orders, Resurfice Corp. v. Hanke, elaboration on material contribution test, reversionary interest, permanent damage to, 126 riparian rights, risks, acceptance of, occupiers liability and, risk-utility approach, Rivtow Marine Ltd. v. Washington Iron Works, , 337 road rage, 51 robust and pragmatic approach, causal connection and, Rylands v. Fletcher act of God, act of plaintiff, 757, act of stranger, compensable damage, 754 consent, defences, discharge of dangerous substances, intentional, escape requirement, , fires, general benefit of community, 761 generally, intentional discharge of dangerous mischief, likelihood of, 754 non-natural use requirement, , 765 personal injuries, and, 754 remoteness, special action on the case, statutory authority, scienter action, Searle v. Wallbank, rule in, seat belt cases failure to use safety device, contributory negligence, parent and child, duty to assist, 245, 246, 396 second accident case, remoteness and,

12 982 INDEX secondary picketing, self-defence, self-help, , 184, services, loss of, sexual wrongdoing, vicarious liability for, 60-64, slander, distinction between libel and, 900, , See also defamation slander of goods, , See also defamation social host, , See also duty to assist solicitors collectibility of judgment, 480 disappointed beneficiary cases, , duty to third parties, generalists and specialists, immunity from suit, land transactions, lost cause, 479 malpractice, negligence in conduct of litigation, real estate transactions, 489 retainer, effect of, settlements, 488 standard of care, 460 testamentary capacity, determining, 489 trial within a trial special action on the case, special relationship, liability arising out of, , See also economic loss, recovery of sports, defence of consent and, stalemate solution, 618 standard of care bad faith, 436 degrees of negligence, emergencies, generally, general practice, good faith, gross negligence, judge and jury, role of, Learned Hand formula, , See also Learned Hand formula negligent misrepresentation by advisor, 296 product liability, , See also product liability design, manufacture, marketing, professional negligence, question of fact/question of law, reasonable person, See also reasonable person risks, reasonable/unreasonable, similar activity, 422 statutory standards, breach of, statutory authority, defence of, statutory standards, breach of, strict liability act of God, plaintiff and stranger, , animals, consent, defences, fires, generally, Rylands v Fletcher compensable damage, 754 escape, generally, mischief likely, 754 non-natural use, remoteness, statutory authority, vicarious liability, See vicarious liability strong connection test, subsequent medical treatment, successive accident cases, sudden emergency doctrine, suicide cases, , teacher and pupil, duty to assist, the things speaks for itself, See res ipsa loquitur thin skull rule, third parties, responsibility for acts of, threats, 832 tort law, generally accident compensation law, as, 11 basic rationale, 13 Charter, and, 8-10 compensation, and, constitutional issues, 4-7

13 INDEX 983 definition, 1-2 deterrence, and, education, and, expansion of, 4 fault/no-fault debate, justice, and, ombudsman, 21 purpose of fault-based compensation, religious beliefs, and, 17 sources of, 2-4 transit in rem judicatam, cause of action against joint tortfeasors, 660 trespass accidental, 39 chattels, to, See trespass to chattels innocent, 39 land, to, See trespass to land negligent, 38-39, 58, , 140 trespass to chattels damage requirement, intentional, negligent, self-help, 172 trespass to land consent, defence of property, environmental context, generally, intentional, land, definition, leave and licence, negligent, 140 remedies, removal of trespassing objects, right to eject trespassers, self-help, 172 trespassers, See occupiers liability unborn children, undertakings to perform service direct undertakings, indirect undertakings, unlawful means tort, vicarious liability control test, course of employment, employee or independent contractor, , generally, horseplay, 787 independent contractor, intentional wrongdoing, 791 intrinsically dangerous activities, 799 joint tortfeasors, 656 non-delegable duties, personal duties, 795 physical abuse, professional employee, 780 sexual abuse, statutory, 656, 800 strong connection test, unauthorized activity, volenti non fit injuria, 73, 150, 615, 641, 732, See also voluntary assumption of risk volition and capacity, voluntary assumption of risk, See also consent, defences to negligence basis of defence, consent, express agreements, implied agreements, occupiers liability, and, , volenti non fit injuria/consent, contrasted, 150 Wagon Mound No. 1 reasonable foreseeability test and, , 588, 593 second accident and, 605 Wagon Mound No. 2 possibility of injury, psychiatric injury, 584 public nuisance, negligence requirement, 859 warranties, product liability and, wild animals (animals ferae naturae), Wilkinson v. Downton, intentional infliction of mental suffering, and, willing passenger/drunk driver situation, wrongful life/birth,

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