Negligence:
5 elements:
1)Duty of Care: matter of law. Nature and scope. Does D have legal oblig wrt P’s interest? (Cooper v Hobart)
2)Standard of care and its breach: reasonable person in all the circumstances of the case. Diff for different kinds of skill levels, positions, etc. Q for trier of fact (whether breach). (Arland v Taylor)
3)Causation: even if there is a breach, P must prove D ‘caused’ harm. Traditionally but-for test, but lower standard in certain circumstances. (Clements v Clements)
4)Remoteness: If caused, Q of whether damages not too remote – foreseeable consequence? *******
5)Actual Loss: unlike intentional torts, P needs actual damages (Andrews)
6)Defences: switches to D…e.g. Contrib neg, voluntary assumption of risk, illegality, limitation period, etc. (Langley)
Example case (first 3 ele): Dunsmore v Deshield–hardex
-Facts: player runs into P during football. Lens shatters.. some contact in game, but not meant to be significant. P got special hardex lenses (adv as less likely to break on impact). Really playing with non-hardex, breakage caused, and dmg. Sues: optometrist + manufacturer. If not for fault lens, it wouldn’t have smashed and no injury.
-Elements analysis: 1. Duty of care - relationship btwn manufact and ultimate consumer = clearest example. Person who sells the product has duty too. 2. Standard of care: reasonable manufacturer would’ve done testing (had equip), and reasonable optometrist would’ve checked quality as well (should have machines). 3. Causation: would hardex break anyways? Although expert evidence not produced, the fact that it is strongerand that there was limited force lead to finding of causal relationship. *Can not break, or break in a safer way – they go “not break” route (other is speculative). Another issue: may not have participated (character) if he knew it was not hardex.
Element 1: Duty of Care:
Is the relationship such that a duty between P and D is established?
Test:
First element: 1. Reasonable Forseeability: is it reasonably foreseeablethat your action/inaction could lead to the damage to the P?
2. Proximity: how close is the relationship? These two limit the scope of negligence. (not every action/inaction is within foreseeability or proximity).
Second element: Onus on D: POLICY LIMITS – reason why there shouldn’t be a duty of care: 1. Proximity (again); 2. Larger Policy considerations.
Donoghue: - duty of care – test – manufacturer liability
-Facts: woman in café drinks gingerbeer given to her by friend /w snail. Severe distress (physical & emotional). No K btwn her and manufacturer.
-Analysis: Neighbour Principle: you must take reasonable care to avoid acts or omissions wich you can reasonably foresee, which would be likely to injure your neighbor (X in the position of the P). People in RF are “so closely and directly affected by my act, that I ought to have them reasonably in my contemplation so that I should direct my mind to the act/omission.
-Onus on P: 1. Reasonable foreseeability; 2. Proximity: doesn’t require actual proximity – just direct connection, has to end somewhere though. POLICY Q (first one).
-Onus on D: POLICY LIMITS– reason why there shouldn’t be a duty of care: 1. Proximity(again); 2. Larger Policy considerations.
Cooper v Hobart – main test for duty of care–negligent investment schemes – policy – govt
-Facts: Money negligently lost in scheme, but Q of whether govt regulatorshave duty of care based on not doing their job properly.
-Analysis – duty of care: (1st step)reasonable foreseeability might well be established – they are supposed to protect/be aware of investment schemes.Fails: at proximity.
-(1st step): Proximity: TOOLS: expectations, reliance, representation (property interest): help in identifying the closeness of the relationship (e.g. basketball game -> expectation: players only on court, Reps: signs saying “players only”. Reliance: e.g. going to your optometrist (helps create prox)) – determine what is JUST & FAIR to regard there being a DOC (POLICY). -- > close & direct?
-> application: statutory duties.. and the duty is not just to those who lost money, but to the public as a whole. They also have various other duties & interests (e.g. ensuring efficiency). Proximity fails.
-GENERAL policy analysis(2nd step): also fails here. Impact of duty on tax payers, fairness + judiciary’s role, they already have a tribunal determining whether rules broken (?).
Hill v Hamilton-Wentworth Police(SCC): est of negligent investigation tort, duty + standard of care..
Facts: accused eventually not guilty, dropped charges. Crimes committed had similar string. Accused is arrested as suspect. Problems: while in jail, other similar events occur. Interviewing two witnesses together: memory + influence. Tainting of identification. Photo lineup: was structurally biased (10 white men and 1 aboriginal). Failure to investigate new robberies sufficiently (disconfirming evidence). Could have delayed crown.
-Analysis: scope being limited to particularized suspect being investigated. To establish proximityyou can look to analogous cases, or use the three criteria (expec, reli, rep) + whether just and fair to establish proximity. Proximity policy (for closeness): existing remedies poor, liberties and reputation significantly at stake.
-They find prox (prima facie) -> defendant: broader policy reasons against finding duty of care: A) police = quasi-judicial function (immunity). Court: no.. mostly evidence gathering(not really judicial) – BC: no authority to lay charge. B) limiting of discretion? Court: you can deal with this by a flexible standard of care. C) Chilling effect on prosecuting criminals? Court: need evidence for this (some studies showing opposite). D) Floodgates – litigation: need evidence. Examples of other jurisdictions (Ont + Que)doing so, but no flood.
-Standard of Care: depends on the stage of investigation – reasonable officer in the circumstances – standard of the day.
-Decision: did not fail the standards of the day.. but would today.
Element 1: SpecialDuties of Care – duty to act
Not likely to be required to do positive act by law, unless special relationship. CL traditionally distinguished btwn misfeasance (positive acts) and nonfeasance (failures to act). Courts more willing to impose for positive acts, than failures to act. (Punishing action instead of inaction) – need special relationship to justify.
Osterlind v Hill: Example where no duty to act– rescue
-Defendant not liable for allowing the drunk defendant to rent canoe. No duty to prevent the man from renting it out (no positive duty to act).
Matthews v MacLaren: Attempt to rescue –e.g. of duty to act – Operator of boat
-Facts: operator of boat sued, invited guests - didn’t do anything negligent before one fell off.
-Analysis: Duty of care – special duty: relationship between operator & passenger (heavy reliance). *Use Canada Shipping Act to help establish (giving assistance at sea)/ employee/employer.
-Duty of care est, standard of care also breached (not reasonable)
-FAILS for causation (unable to prove they would’ve been killed but-for him acting – shock).
-Common law**: you may have no duty to act, but if you do, you have a duty to do it non-negligently-> many Good Samaritan Acts: only liable when you help and it’s GROSS negligence.
Croker v Sundance: Duty to act (intervene/stop involvement in dangerous event) – on COMMERCIAL party– tubing comp
-Facts: guy is visibly drunk, was warned.. was falling off, eventually last fall made him a quad in dangerous tubing competition. Can characterize as positive act (setting something up) attracting normal negligence standards, or as duty to act, which requires special relationship.
-Analysis: special duty analogous to one placed on bars, hotels, restaurants -> some positive duty to act where someone could be foreseeably hurt (element intoxication). Financialbenefit (common thread) – enticing people + setting up.
-Decision: for plainttif.
Childs v Desormeaux: No Duty to act on party host (social function – domestic)
-Facts: Hosts hold party, not providing drinks, sees party getting to car, asks if okay (had 12 beers in 2.5h), didn’t really have reason to think he wasn’t fine. Driver causes sig injury + dmg to other…now she sues hosts.
-Analysis: special duty between host and party-goer? No pre-existing duty of care est in hosted party, therefore have to go through Ann’s Test, if disanologous to existing areas. Fails analogy: others are commercial, highly regulated, special monitoring/staff, etc.
-Ann’s test: 1. Reasonable Forseeability: *even though they know he was an experienced drinker, they didn’t foresee that this guywould create such a harm (not objective test in foreseeability.. but are relevant in standard of care) – normally broader level -> if a careless host, would you forsee someone being injured? 2. Proximity+ (key – POSITIVE duty): not an invitation to a risky environment over which the have control. Not analogous to invitation to boat, paternalistic relationships, student teacher, public functions, or commercial role. Party = common occurrence, and person has autonomy and responsibility. **Left open: if you are serving – maybe enhancing risk, thus, prima facie DOC.
-Decision: neg claim failed at duty of care (proximity).
Element 2: Standard of Care RP-test
After duty exists, looking to whether conduct falls below or meets standard.
Arland v Taylor: Setting the standard– RP TEST
-Rule: objective standard -> that of the reasonably prudent driver in the circumstances. Judge/jury think of what they would have done. Not perfection either, normal intelligence, adopted in a community of ordinary prudence. Context: 1. You don’t impute the persons characteristics, but the circumstancesthey were in. 2. Relevant community – e.g. reasonably prudent knee-surgeon. Nature of the risk: pushes standard higher or lower: 1. Potential SEVERITY of injury; 2. Likelihood of inury.
-> case: even when the risk is slight, the severity of the damage may be significant.
Matharu v Nam: Occupier’s liability, Standard of Care, Voluntary Assumption.
-Facts: people’s shots from the 18thare passing nearby the 10th tee-off (if it slices). The course sets up hedges & trees, shows awareness of risk. Likely to stop the ball. P in the 10thgets injured by D’s ball, whose shot cut (didn’t think it would). Suit against: a) golf-course: designed something dangerous b) golfer: didn’t call FORE, when saw it slice.
-{GOLFER} - Duty of care: easily est.. two players – basic duty to take normal precautions not to HARM.
-Standard of care: informed by custom (e.g. yelling “FORE”) when slicing. “Exercising reasonable prudence to the safety of other golfers” - sometimes fore is required, sometimes not. D: not negligent -> RP may not have perceived it following its path + testimony of practice (wife).
-{GOLF COURSE}: Duty of care est by Occupier’s Liability Act: to make sure the property is reasonably safe -> BROAD duty of care (anything happening on the premises, even third parties). 3(1) EXCEPTION: DOES NOT APPLY TO VOLUNTARILY ASSUMED RISKS, unless things are intentional done to you, or grossly negligent.
- Interpretation of exception: very narrow–leg intention = broad liability. The consent aspect in negligence should be so as to acquire almost explicit consent e.g. “I will not sue if you break my leg”. RARE circumstance.
-Finding: Standard of CareGolf course sufficiently mitigated risky exposure, so not UNUSUALLY risky exposure. SOME risk -> encourage ppl to take risky shot but they acted reasonably (took advice). Perfection unnecessary.
Element 3: Causation
Still have to establish that chain of events would be different, if the negligent conduct had not occurred. Factual Causation = But-For (if not for) the non-negligent conduct of the defendant, would the injury have occurred anyways? (Contrasted /w crim – factual + legal… beyond de minimus). However, due to unfairness in certain circumstances, material contribution test might be used.
Kauffmann v TTC: But-for Failed
-Could not establish ‘but-for’ the defendant’s installment of certain rails, the P would not have fallen (no evidence – up to the P to prove)
Barnett v Chelsea & Kensington Hospital Management Committee: but-for failed
-F: deceased P had arsenic poisoning, but Dr. not negligent in getting him treatment because he would not have been able to provide antidote in time anyways.
Walker Estate v York Finch General Hospital: Attempts to modify causality test – MATERIAL CONTRIB – flexibility in causation where difficult
-Facts: HIV contracted from tainted blood supplied by RC. Linked to actual donor -> P:“if you engaged proper procedures, I would not have HIV”. Pamphlet used was ’84.
-Three pamphlets used – standard of the time. ’82 (ARC – US) pamphlet best (warned of particular symptoms, high-risk groups, and told to refrain/ask. 83’ -> least warning, very general, no identification of risk groups, etc. “good health”.. 84’ medium -> some high risk categories, but doesn’t inform them that they may feel healthy.
-Q: would the P have refrained if given the proper pamphlet?
-Analysis (SCC): material contributioncan supplant the but-for test, because particularly difficult here, since trying to answer, “what individual would’ve done if provided more info in pamphlet” – speculative. MC -> contrib outside de minimus range? (not insignificant). Scientific precision not necessary -> common sense & logic suffice.
-Decision for P: the ARC pamphlet would have clearly made a material contrib to refrain.
Clementsv Clements: Clarification on use of material + but-for
-F: P on motor bike /w D. Several factors causing danger on behalf of D (e.g. too much weight, speeing, etc.) and some outside (nail in the tire), causing damage to P.
-Q: but-for neg of D, would accident happened anyways (nail)?
-Analysis: material contrib should be limited to multiple cause scenario, where it is impossible to use BUT-for and extreme unfairness would result (policy); you have global causation on but-for (e.g. two factories responsible together), but not local. But-for is the MAIN test.. don’t require scientific precision -> common sense & logic.. but for doesn’t have to be the only cause, just a cause (you can apportion if more than one).
Tort of Negligent Misrepresentation
Premise underlying = relying on written or oral communications which were negligently made, causing you to lose, particularly in financial sphere.Proximity easily created (someone in position of expertise). Don’t want to regulate too heavily, since speech involved. Potential indeterminate liability: too great of scope (massive proportions).
Hercules Case: Est of Tort of Neg Misrep (accountant + statements)
-F: Accountants preparingaudited financial statements for companies. Required BY STATUTE. Shareholders look at them. Audit -> argued negligent. Shareholders increase or decrease on the basis of statements. They may have tried to sell, if done properly.
-Analysis: DUTY OF CARE: shareholder to accountant. Part of Ann’s test for this area = Q if reasonable reliance (establishes 1st part of Ann’s test)
(1) whether defendant had direct/indirect interest in transaction; (2) whether advice was given in the course of defendant’s business; (3) Advice given in response to particular inquiry/request; (4) Not on social occasion; (5) defendant was a professional.
-(2nd part of Ann’s test) Policy: whether the relationship established would give too broad of a scope of liability (indeterminate).
-(3rd part of Ann’s)Narrowing liability: If you have significant policy concerns, you can further limit liability b/c of circumstances.
(1) Whether defendants knew the identityof class of plaintiffs (2) P used statements in question for the SPECIFIC purposes that were mentioned.
->Application: 1. Meets the factors (despite not 1-on-1). (Reasonable reliance) 2. Some policy reasons to deter negligent auditing, but overwhelmed by the possible indeterminate liability involved (driving costs up – litigation). 3. Were not being used for the right purposes -> personal investment decisions.
Liability of Public Authorities
Crown Liability Act -> allows govt to be sued (acc & transparency). Exceptions: 1. Cooper: you cannot sue the government pursuant to its adjudicativerole (immunity to judges for proper decision making). 2. Suing for purelygovernment or political decisions(generally, for operational you can -> when implementing policy: “if you do something, you have to do it non-negligently). You look to statutes first: if no bar from suing, you follow the above.
Just v BC: Policy decisions vsoperational – when is govt liabile?
F: Boulder killed daughter, injured D.Govt carried out inspectionswith settled plan (of highways and dangers to the road).
Q: Is the manner of inspection suable? Policy or operational?
Analysis: potholes case helped est that once you have made political decision(can’t sue for how good policy is), the process/implementation would have to be reasonable. True policyusually made on higher level,and people on ground likely to be in operationalarea – implementing. Just b/c you decided policy of inspecting, but allocated funds elsewhere, does not allow suit. Government can also make a POLICY decision to limit inspections in a certain way (e.g. every 2 yrs). However, you can challenge a non-bona fide policy decision by the govt (not easy). *Consider budget.
Application: commitment tosafetyon broad level = policy, but particular system of safety inspections characterized as operational “exercise of discretion”, thus, had to be done reasonably (manner and quality), but wasn’t. Can be liable for operational decisions.
*Can sue for something that is NOT a Bona fide policy decision? (hard to prove)
KLB v BC:Vicarious liability, negligence & foster care, difficulty in VL suit against govt
-F: children placed in few foster homes, reports on parents not read adequately, suffered abuse. Various warnings ignored (relied mostly on interview), and made infrequent visits. Argued either negligent, or vicariously liable (more powerful).
-Analysis:VL = frequently employee-employer relationship, sufficiently close that one is responsible for acts of another. Don’t need direct neg. Duty of Care – direct neg: (govt – children) -> statutory duty (high duty of care -> must best meet needs of child – careful parent test). Would govt’s action reasonably foreseeably (as careful parent) expose kids to danger?
-> Application: Direct neg found: infrequent vists + ignored info.
-VL: Policy basis = closeness & control(e.g. emp has control over training prog, equip, the policies). You can take steps to avoid emp’s conduct. Factors: 1. Sufficient closeness btwn the bodies (like emp-emplyr relation or like hiring independent contractor) – labels not everything. *Examples: More detailed instructions from other body; whether own equipment provided; whether hired own help; whether worker had managerial responsibilities. 2. Emp’s act inside course of employment – relatedto job/task (can’t cover yourself by handing kids off and “making clear that sexual abuse impressible” -> too detailed, has to be broader.