Obligation to Act with Care

1-Common law: Fault-based liability and strict liability

Fault-based liability: Tort of negligence (=ONE tort; BOUNDED)

Manufacturers owe a duty of care to consumers’ life and propertywithout contractual relationship and must have them in “reasonable contemplation” or “reasonably foreseeable” so to have them in one’s contemplation [Narrow]. There is a duty of care towards anyone who is, in law, your neighbor [Broad] (Donoghue v Stevenson– snail in drink, P illness and shock)

Also: Mustapha v Culligan (SCC) proposes that no liability would be established against defendant when a man (P) develops a phobia after finding a fly in his bottled water. It is not “reasonably foreseeable” that a person would suffer from this reaction.

Strict liability

Party acting under private necessity (defence) is still liable for damages incurred to property of others (Vincent v Lake Erie– D boat P dock, storm, damage)

2-Civil law: General fault principle (=All torts, intentional and unintentional; UNBOUNDED)

Article 1457 CCQ
Every person has a duty [ this duty] to abide by the rules of conduct [how someone ought to act] which lie upon him, according to the circumstances, usage or law[professional standards, etc], so as not to cause injury to another. [ Explicitly stating anterior duty ina1382 CN]
[Test of capacity] Where he is endowed with reason and fails in this duty[anterior duty], he is responsible for any injury he causes to another person by such fault [‘fault’ refers to definition just given] and is liable to reparation for the injury, whether it be bodily, moral or material in nature [what is moral injury? Intangible?].
He is also liable, in certain cases, to reparation for injury caused to another by the act or fault of anotherperson or by the act of things in his custody. [Tricky – more later]
Other codal provisions re fault: 1382, 1383 CN; 1053 CCLC
Tracing Fault in the Civil Law (historical)
Article 1382-3 (Code Napoleon) / Art 1382: Any act whatever of man, which causes damage to another, obliges the one by whose fault it occurred, to compensate it [Tout fait [‘act’] quelconque de l’homme, qui cause a autrui un dommage, oblige celui part la faute il est arrive a le reparer]
-Best known provision of the CN
-More general article dealing with civil liability
-Parallels principle in Donoghue (CN came first)
-Drafted in ordinary language for comprehension (compare with complexity of CCQ)
-“Reparer” means to make amends, make reparations, pay damages
Art 1383: Everyone is liable for the damage he causes not only by his intentional act, but also by his negligent conduct or by his imprudence.
[Chacun est responsible du dommage qu’il a cause non seulement par son fait [‘act’], mais encore par sa negligence ou par son impudence.]
-Introduces notion of ‘capability’
-Makes clear that an ‘act’ can also be an omission
Article 1053
(CCLC) / Every person capable of discerning right from wrong is responsible for the damage caused by his fault to another, whether by positive act, imprudence, neglect or want of skill.

Establishment of negligence as a stand-alone tort (closest parallel to CVL general principles)

Donoghue v Stevenson [1932/UK – HOL]
Key terms: Duty of care; manufacturer; end-user; snail;
RULE: Manufacturers owe a duty of care to consumers’ life and propertywithout contractual relationship and must have them in “reasonable contemplation” [Narrow]
There is a duty of care towards anyone who is, in law, your neighbor [Broad]
Facts:
-Appellant (Donoghue) drank bottle of ginger beer with decomposed remains of snail
-Appellant suffered harm – illness (physical manifestation) and shock
-She could not see inside the bottle prior to drinking it
-No one else could inspect it either; she is suing manufacturer, NOT the seller or friend
Issue(s):
-When does a manufacturer owe a duty of care to the end-user, who has not bought the product directly from the manufacturer, for harms suffered by user from defects in the product?
-Broad: When does one owe a duty of care? When does a duty of care arise in the absence of a contract?
Holding(s)
Lord Atkin (Majority) / Lord Buckmaster Dissent
Damages for the appellant
1-“Love your neighbor”: We owe a duty of care to our legal neighbors
-Legal neighbors are those who are close enough to be affected by my act so I ought to have them in reasonable contemplation
-SS: Not explicitly changing law but identifying underlying principle existing in duty of care cases
2-Foreseeability defined as “so directly and closely affect by my act”
-SS: Tort law has been trying to give meaning to this phrase since / Appeal dismissed
1-No precedent. Application of general principle (Blacker v Lake & Elliot – No cause of action if not privy to K.
-Neither exception to general principle met (1-Product was NOT dangerous in itself nor 2-dangerous by defect known to manufacturer)
2-More generally, slippery slope/floodgates argument
-If one step, why not 50?
NB: This is a Scottish case, but there was no difference in the law, so English law was applied by HOL.
Distinguish in Canada? In Mustapha v Culligan, the SCC held that no liability would be established against defendant when a man (P) develops a phobia after finding a fly in his bottled water. It is not “reasonably foreseeable” that a person would suffer from this reaction.
Comparative Analysis of Fault in CML and CVL
Common Law / Civil Law
1-An immoral act in itself will not be subject to legal censure and relief
2-Principle of negligence in Donoghue is bounded, ie limited to particular groups
-Damages limited to “persons” and “property”
-Even Atkins’ broader approach draws the line at legal neighbors
-Fault is defined as failing to take care (ie unintentional)
3-Donoghue is limited to tort of negligence / 1-An immoral act in itself may be subject to censure and relief (Art 1457)
2-Art 1457 (CCQ), Art 1382 (CN) are unbounded
-Damages not limited to ‘persons’ and ‘property’
-Fault can flow from both intentional and unintentional acts
3-Civil codes encompassALL “torts”

Example of liability without duty

Vincent v Lake Erie Transportation [1910/US]
Key terms: Liability, no duty; defence of private necessity; US
Proposition: Party acting under private necessity (defence) is still liable for damages incurred to property of others.
Facts:
-P had a dock and D a commercial boat
-During storm, D had to tie his boat to P’s dock (finding of fact that boat would have sunk if it stayed on lake)
-Damage done to dock by D’s boat during storm
-P sues to recover damages and wins
-D appeals, citing that it was not liable under defense of private necessity
Issue(s):
-Is party acting under private necessity liable for resulting damage to property of others?
Holding(s)
Majority
D not liable for trespass under private necessity defence BUT D is liable for damage bc D used P’s property to preserve his own.
Meaning of (Unintentional) Fault

Unintentional Fault (Civil law)

Foreseeability of harm: Where it is foreseeable that harm might occur, reasonable care must be taken to prevent such harm. Factors considered may include defendant’s knowledge of activity, whether due care was taken. (Labelle v Gatineau– 8yo, child, fire, city dump) (SS: This case does not represent a principle – just a teaching device)

Reasonable person standard: Fault is established based how a reasonable person test, ie how a ‘bon pere de famille’ would have acted. If a party falls below that standard and has no defence, s/he may be found at fault and liable for damages (if there is injury) (Terrains de jeux v Cannon– child slips playing on path to rink)

Unintentional fault (Common law)

Foreseeability and remoteness: Mere foreseeability of an event that is extremely unlikely to occur is not sufficient to find liability in the event that the injury actualizes nor is it sufficient to require that precautions to taken by a reasonable person to prevent injury (Bolton v Stone– cricket, ball on highway, injury highly unlikely)

Foreseeability and remoteness:: Mere foreseeability (versus ‘reasonable forseeability’) of a risk that is extremely unlikely to occur may be sufficient to find liability in the event that the injury actualizes, if the cost (time, expense, difficult) of resolving the risk was low [amendment to Bolton] (Wagon Mound 2– oil spill, spark-fire)

In both common and civil law, unintentional fault refers to the failure to take care. However, the parameters of fault in the civil law are ‘unbounded’ where the parameters of negligence are ‘bounded’

Foreseability of harm

Labelle v Gatineau [1959/QC-Municipal Court]
Key terms:Foreseeability; child; fire; reasonable care; carelessness
Proposition: Where it is foreseeable that harm might occur, reasonable care must be taken to prevent such harm.Factors considered may include defendant’s knowledge of activity, whether due care was taken. / SS: This case does not represent a principle – just a teaching device.
Facts:
-8-year-old child (P) falls into fire, when playing, in a fenced garbage dump run by city of Gatineau (D)
-‘No trespass’ sign posted
-Knowledge on D’s part that children had tried to go in garbage dump before
-Finding of fact that the fence was deficient in some manner (not high enough, not well maintained)
SS: Probably doesn’t matter that other children had tried to play there before bc it was not the P
Issue(s):
-Is the city at fault for this child’s injury? Was the city careless?
Yes. Yes.
Reasoning
Justice Hyde Majority / Juge Taschereau Dissent
D liable in damages for P’s injuries sustained at garbage dump.
1-Overrules tj: Location did constitute an attraction to children, which thus elevates standard of care
-Test is whether children were in a habit of going there –Yes, evidence adduced affirmative. P and brother had gone 3-4x, along with other children.
-D should have maintained a fence in good order, knowing that children were not unlikely to try to sneak in / For the D. Reasonable care was taken by putting up a fence and ‘no trespass’ sign. D cannot be expected to construct a wall around the garbage dump.

Compare and contrast with: Reasonable person standard

L’Oeuvre des Terrains de jeux de Quebec v Cannon [1940/QC]
Key terms:Bon pere de famille [reasonable person]; ice rink; reasonable care
RULE: Fault is established based how a reasonable person test [bon pere de famille], ie how a ‘bon pere de famille’ would have acted. If a party falls below that standard and has no defence, s/he may be found at fault and liable for damages (if there is injury)
Facts:
-Child slips on path that leads to ice rink while playing and injures herself
-Child’s parents sue D, manager of ice rink, for damages
Issue(s):
-Is D is at fault for P’s injuries and liable for damages?
Reasoning
Juge Rivard Majority
D not liable for P’s injuries.
1-From the perspective of a reasonable person [bon pere de famille], D took reasonable care inmaintaining the pathway. D acted as a bon pere de famille would have in maintaining the pathway[contrast with Labelle v Gatineau]
2-Path was not frivolous – necessary to create path between rink and chalet. Not steep.
3-While D’s employees did see the children play, a reasonable person would have allowed the children to play (‘because they looked so happy’) and not tell them to leave.
SS: Judge seems to be pushing towards a community standard – ‘everyone does it this way’. Did parents voluntarily assume some risk as well, knowing that their children were playing on an icy slope not meant for that purpose?
Bolton v Stone [1951/UK-HOL]
Key terms: Foreseeability; remoteness; likelihood; cricket; reasonable person test; harm extremely unlikely; Wagon Mound 2 – later case
Proposition: Mere foreseeability of an event that is extremely unlikely to occur is not sufficient to find liability in the event that the injury actualizes nor is it sufficient to require that precautions to taken by a reasonable person to prevent injury.
Facts:
-P on highway is struck by cricket ball coming from D’s pitch
-In the last 30 years, no cricket balls had gone over the fence – it was foreseeable but not very likely to occur
-P brings claim in negligence and nuisance.
Issue(s):
-Is the risk of injury so small that a reasonable person would refrain from taking steps to prevent danger? [test to be applied to see if D fell below standard of conduct]
Reasoning
Lord Reid Majority / Lord Radcliffe Majority
For the defendants.
1-Mere foreseeability of injury is not sufficient to find for liability in case injury is actualized
It is true that in extraordinary circumstances, the ball might be driven onto the road and injure someone but that is not enough to constitute liability.
2-Test failed. Risk was so small that reasonable person in D’s position would have not taken precautions to prevent the danger.
-Person must not create a substantial risk
3-Reject analogy to Rylands v Fletcher
IMP! Rejection of the Hand Formula. Lord Lord Reid says that the cost of remedial measures is not considered; where the risk is substantial, the activity should not be engaged in regardless of the cost (i.e. sale of product that might cause death to small number of people means product shouldn’t be sold). / For the defendants
1-D took reasonable care. He did not breach a legal duty bc he did not fall below standard of conduct of a reasonable person towards his neighbor
-RP in D’s situation would not have abandoned cricket or increased height of fence given the minute change of an accident happening

Compare and contrast with:

Overseas Tankship v Millersteamship (Wagon Mound 2) [1966/UK-HOL]
Key terms: Oil spillage; Hand Formula; carelessness; small risk; foreseeability; reasonable person standard; amendment to Bolton; standard of professional
Proposition: Mere foreseeability (versus ‘reasonable forseeability’) of a risk that is extremely unlikely to occur may be sufficient to find liability in the event that the injury actualizes, if the cost (time, expense, difficult) of resolving the risk was low [amendment to Bolton].
Facts:
-Oil spill on D’s wharf that crept into P’s wharf
-P’s work at the time of spill was creating sparks; sparks fell into water and ignited
-Damages to P’s ship
-D was alerted to possible danger but did not do anything about it
-Extremely low probability that the particular oil spilled onto water would actually ignite
Issue(s):
-Was D negligent in omitting to act upon knowledge of the spill? Would a reasonable person in D’s position (engineer) have taken precautions to avoid the danger?
Reasoning
Lord Reid Majority
D is negligent in not taking precautions and is liable to P for damages.
1-Reasonable ‘engineer’ in D’s position would have taken precautions to resolve the risk with serious/expensive consequences, despite the small chance of occurrence, bc the cost was very low to do so and potential damage very great [B<PxL]
2-Mere foreseeability coupled with low cost of resolution may be sufficient to find liability
-SS: Foreseeable can mean ‘likely, unlikely’ or in the legal sense, statistical likelihood, cost of prevention
3-Under the neighborly principle, reasonable person would have cared for the safety of his neighbor and would not have thought it right to ignore the serious if unlikelyrisk, given its potential for great damage.
Distinguish from Bolton: Court in Wagon Mound 2seems to be making the reasonable person standard more stringent by requiring that considerations of cost of remedy be taken into account, contrary to Lord Reid previous rejection of such considerations in his other decision, Bolton.In Bolton, the risk was foreseeable but extremely unlikely. As such, it was found that the RP would not have taken precautions. Lord Reid explicitly excluded considerations of remedy. In Wagon Mound 2, Lord Reid factored in the cost of remedy, thus aligning the reasoning with one of the principle underlying the Hand Formula: If the cost of prevention was less than the cost of the risk actualizing, then D is liable for not taking precautionary measures (B<pL). Also, in Bolton, there was a reason to continue the activity, whereas in Wagon Mound 2, there was no reason to continue the activity – it was in fact a ‘offence’ to do so, which factors into the RP’s balancing of costs and benefits a particular course of conduct.
-Why not apply strict liability as in Ryland v Fletcher? Regardless if tortfeasor is at fault, injury must be compensated.
The Standard of Care (RP) and Fault

Theories of fault – Drawing the line between fault and no fault based on RP standard

Les conditions de la responsabilite [Viney]
-Viney starts by stating that fault is established pursuant standard conduct of the reasonable person [man on the Clapham omnibus] or bon pere de famille.
-The RP standard is said to be fair because it sets a normative level of care that is desirable but not to stringent and achieves the goals of social well-being and clarity/consistency in law.
-Generally, the reasonable person standard is objective and does not take into account personal deficiencies or strengths.
-However, factors such as age (when under majority), mental-disability, mental illness, special knowledge/professional may influence the meaning of ‘reasonable’ and thus alter the RP standard on a case-by-case basis.
The Common Law [Holmes]
Strict liability - Internalizing cost of activity (Proto economic analysis)
-“What the law really forbids, and the only thing that it forbids, is the act on the wrong side of the line, be that act blameless or otherwise”
-Holmes writes that the standards of law are standards of general application that do not take into account the ‘infinite varieties of temperament, intellect and education’ or basically, the internal character.
-The reason for a general standard is this: In society, a ‘certain average conduct’ is conducive to promoting the general welfare.
-Furthermore, others can reasonably rely on and expect a standard of conduct that will not arbitrarily cause them harm.
-Specificity to the general standard is introduced to the extent that the reasonable person will be placed in the defendant’s circumstances, but not his head.
An Appraisal of the Fault Principle [Cane]
Tort law is ‘plaintiff-centric’ – Fault is not necessary
-Tort law is primarily concerned with the victim and not the tortfeasor
-Tort law is not concerned with the relationship between culpability and liability (ie strict liability) because it is aimed at compensating for harm suffered.

The Hand Formula: Quantifying the reasonable person standard

Definition: The Hand Formula quantifies what is a ‘reasonable standard of care’ (United States v Carroll Towing). The Hand Formula brings out the components that go into the analysis of carelessness; in the extremes, when variables are very high or very low, the formula brings out the relation between the components –it tells you about burden. Negligence means failing to avoid an accident where the benefits of accident avoidance exceed the costs (Posner)
B < pL
B = burden, costs of prevention (reduce level of activity OR increase safety)
P = probability of harm
L = loss
pL = expected loss
Note: Ex ante approach (before) – some accidents are efficient
B>pL = No liability
-The cost of eliminating risk is higher than cost of expected risk = no liability
-Example: If the risk of fatality should a type of wood paint enter into the blood stream of an extremely small number of people (small expected loss and there are no viable alternatives to using the paint (cost of risk avoidance to produce paint = very high) – TOUGH TEST TO MEET
B<pL =Liability
-The cost of B is less than the cost of expected risk = liability
-Example: The risk of fatality should a type of wood paint enter the blood stream is not restricted to an extremely small number of people (expected loss higher) and there is a viable alternative (cost of eliminating risk smaller)
Defendant as Expert and Fault/Standard of Care
Custom/Professional standard / Legislation
1-Kobe ter Neuzen v Dr Gerald Korn
2-Roberge v Bolduc / 1-Canada v Saskatchewan Wheat Pool
2-Waldick v Malcolm
3-Morin v Blais

Custom/Professional standard