Basic Framework of a Negligence Action (All Must Be Proven on Balance of Probabilities)

Basic Framework of a Negligence Action (All must be proven on balance of probabilities)

(1) DUTY OF CARE

Purpose of establishing DOC is to limit the scope of liability.

Donohughe v Stevenson

General DOC Test (Historical):

Whether you owe a DOC depends on two preconditions:

1)  Reasonable foreseeability—of harm

2)  Proximity—persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am considering my actions/omissions. Physical and relational proximity.

Cooper v Hobart

Modern DOC Test (SCC)

Restatement/Clarification of the Anns/Kamloops Test:

First Stage (passing this establishes prima facie DOC):

1)  Was the harm that occurred the reasonably foreseeable consequence of the defendant’s act (this includes proximity)?

a.  proximity—look at expectations, representations, reliance, and property/other interests involved

2)  Are there reasons, notwithstanding the proximity between the parties established in the first part of this test, that tort liability should not be recognized here?

a.  Focus here is on factors arising out of the relationship between P and D

Second Stage:

3)  Are there residual policy concerns outside the relationship of the parties that may negative the imposition of a DOC?

a.  Is society better off with/without a duty?

b.  Will this cause indeterminate liability?

Note: Where Proximity has been established in previous cases, don’t go through 2nd stage Anns. Includes:

·  Negligent Misrepresentation (Hercules Managements Ltd v Ernst & Young)

·  Misfeasance in Public Office

·  Duty to warn of the risk of danger

·  Product Liability

·  Occupiers Liability—Statutory

·  Negligent Investigation of Particularized Suspect (Hill)

Hill v Hamilton-Wentworth (Regional Municipality) Police Services Board

Proximity:

·  there is a “close and direct” relationship between an investigating officer and a singled-out suspect

·  suspect has a critical personal interest in the conduct of the investigation

2nd Stage:

·  quasi-judicial role and discretion, potential reason to want immunity

·  this discretion is not an appropriate reason to rule out a DOC, discretion taken into account when formulating SOC

Standard of Care Analysis:

·  SOC depends on the stage of the investigation, early on, lower standard

·  you have to evaluate negligence on the standard of the day, not today’s standards

Duties to Act

Duty to Rescue

Osterland v Hill

·  Old American case that shows that the law was traditionally incredibly reluctant to require DTA

Matthews v MacLaren

·  There is no general duty to rescue someone.

·  There is a duty to act (including aid/rescue) incidental to certain relations, including employer/employee, carrier/passenger, occupier/visitors

·  Notwithstanding no of DTA, if attempting to rescue, you have a duty to rescue non-negligently

Duty to Control Others (Liability for the Intoxicated)

Crocker v Sundance Northwest Resorts Ltd

·  There is a duty not to place another person in a position where it is foreseeable that that person could suffer injury. The P’s inability to handle the situation in which he/she has been placed, through youth/intoxication/incapacity is in element in determining how foreseeable that injury is

·  Voluntary assumption of risk only applies where P has assumed both physical and legal risk involved in the activity

o  here, choosing to participate could be seen as assuming physical risk, but here intoxication negates that

o  legal risk—there is a waiver here but it is held not to be valid

Childs v Desormeaux

·  If the D creates a risky environment they must have taken reasonable steps to mitigate risks—duty to mitigate

·  Determine whether there would be a prima facie DOC (proximity and RF as per first stage of Anns test), then see whether you can relate the DOC to an analogous situation where there is a DTA. Finally, broad policy considerations.

(2) BREACH OF STANDARD OF CARE

Arland v Taylor

Reasonable Person Test:

Objective test, what would a reasonable person in the circumstances of the defendant have done.

·  Don’t incorporate the personal characteristics of the defendant.

·  Have to take the relevant community, i.e. reasonable driver, reasonable knee surgeon

Bolton v Stone

Factors Considered in Determining Breach of SOC:

Have to take into consideration the probability and severity of the harm, the higher the probability or severity of harm, the higher the SOC expected

Matharu v Nam

Mr. Nam (other golfer):

·  consider the “reasonable and prudent golfer”

·  here, failure to call “fore” did not breach SOC because the shot did not veer off course

· 

Golf Course:

The Occupiers Liability Act, R.S.B.C. 1996, c. 337, codifies the duty of care owed by an occupier to

persons who enter on the occupier's premises:

3(1) An occupier of premises owes a duty to take that care that in all the circumstances of the case is reasonable to see that a person, and the person's property, on the premises, and property on the premises of a person, whether or not that person personally enters on the premises, will be reasonably safe in using the premises.

(2) The duty of care referred to in subsection (1) applies in relation to the (a) condition of the premises,

(b) activities on the premises, or (c) conduct of third parties on the premises.

The Act exempts an occupier from the duty defined in s. 3(1) where the person who enters the premises

assumes the risks:

(3) Despite subsection (1), an occupier has no duty of care to a person in respect of risks willingly assumed by that person other than a duty not to

(a) create a danger with intent to do harm to the person or damage to the person's property, or (b) act with reckless disregard to the safety of the person or the integrity of the person's property

Statutory interpretation of 3(1):

·  “willingly assumed” will be interpreted narrowly, high standard of evidence required

(3) CAUSATION

Kauffman v Toronto Transit Commission

But For Test:

If the P’s injury would not have occurred but for the D’s negligent act, then the act is a cause of the injury.

·  have to set up a hypothetical situation that does not include the negligent act, and see if the injury would still have occurred

·  in this case, nobody tried to grab handrails, so accident would have occurred regardless of handrail design

Barnett v Chelsea & Kensington Hospital Management Committee

·  Guy went to hospital complaining about vomiting, doctor told him to go home, guy died of arsenic poisoning

·  Judge held that even though the doctor had breached the SOC, it was more likely than not that the guy would have died even if the doctor had treated him, claim failed for causation

Walker Estate v York Finch General Hospital

Material Contribution Test:

The proper test in cases of negligent donor screening is whether the defendant’s negligence “materially contributed” to the occurrence of the injury. A contributing factor is material if it falls outside the de minimus range.

·  introduces the material contribution test but doesn’t say when to use it

Clements v Clements

When to Use Material Contribution:

Use material contribution when the impossibility of proving but-for is due to multiple negligent parties where it is equally likely that any one of them could have been the cause.

·  here the nail in the tire and the negligent driving

·  case where two hunters simultaneously shot at a guy

·  case of the asbestos factories

(4) REMOTENESS OF DAMAGES

The Wagon Mound (No 1)

The foreseeability Test

“A man must be considered to be responsible for the probable consequences of his act. To demand more of him is too harsh a rule, to demand less is to ignore that civilized order requires the observance of a minimum standard of behaviour.”

Modifications to the Foreseeability Test:

Hughes v Lord Advocate

So long as the type of injury is reasonably foreseeable, it doesn’t matter whether the specific sequence of events that caused the injury were foreseeable. (Case where lamp fell down open manhole & exploded)

Smith v Leech Brain & Co (Physical Damage as a result of Physical Injury)

Thin-Skulled Plaintiff Rule

·  “A tortfeasor takes his victim as he finds him.”

Remoteness is still subject to the thin-skull plaintiff rule:

The question is whether these defendants could reasonably foresee the type of injury he suffered. What, in the particular case, is the amount of damage he suffers as the result of the injury depends on the characteristics and constitution of the victim. The defendant is still liable for the damages.

Marconato v Franklin (Psychiatric Damage as a result of Physical Injury)

The rule in Smith v Leech Brain & Co also applies where a physical injury causes psychological damage.

The Wagon Mound (No 2)

The Possibility of Injury

“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.

“The court is more comfortable speaking in terms of “real possibilities” rather than “reasonable probabilities”

·  If it is reasonably foreseeable that damage is possible (i.e. a real risk), and if it would be easy and inexpensive to avoid those damages, then they are not too remote.

Assiniboine South School Division v Greater Winnipeg Gas Co

Possibility of Injury Test

“The test of foreseeability of damage becomes a question of what is possible rather than what is probable”

“The duty to take protective measures increases in direct proportion to the risk” (SOC)

Mustapha v Culligan of Canada Ltd (Psychiatric Damage as a result of a Mental State)

Remoteness:

·  “Any harm which has actually occurred is “possible”; it is therefore clear that possibility alone does not provide a meaningful standard for the application of reasonable foreseeability.” Instead look at whether it is a real risk that would occur to the mind of a man in the position of the defendant as not being far-fetched”—Goes back to Wagon Mound No 2

Mental Injury:

·  “The law does not recognize upset, disgust, anxiety, agitation or other mental states that fall short of injury. [Compensable injury] must be serious and prolonged and rise above the ordinary annoyances, anxieties and fears that people living in society routinely, if sometimes reluctantly, accept.”

·  To apply the test of real risk in circumstances of psychological injury, if the injury would not occur in a person of ordinary fortitude, then it is not foreseeable either in DOC or in remoteness.

·  if D knows P is susceptible to mental injury, then the “ordinary fortitude” requirement not strict

(5) DEFENSES (Onus on D)

Complete Defense—There is no negligence at all, i.e. negligence has not been proven.

Conduct Constituting Contributory Negligence

Walls v Mussens Ltd

Agony of the Moment Rule

The SOC required by the P is not high when they are confronted with a completely unexpected circumstance.

“The test to be applied is not whether the P exercised a careful and prudent judgment in doing what he did, but whether what he did was something an ordinarily prudent man might reasonably have done under the stress.”

Gagnon v Beaulieu

Test for Contributory Negligence

Basically a mini-negligence analysis on the P:

1.  Duty of Care is automatic—you obviously have a DOC not to be negligent toward yourself

2.  What is the standard of care? Did you fall below the standard?

a.  did you take reasonable precautions for your own safety, factoring in “agony of the moment”

3.  Causation—(i.e. this is where you ask whether you would suffer same injuries w/ seatbelt)

4.  Remoteness

Apportionment of Liability

Cempel v Harrison Hot Springs Hotel

Criteria for Apportioning Liability:

“The Negligence Act requires that the apportionment must be made on the basis of "the degree to which each person was at fault". It does not say that the apportionment should be on the basis of the degree to which each person's fault caused the damage. So we are not assessing degrees of causation, we are assessing degrees of fault. In this context, "fault" means blameworthiness. So it is a gauge of the amount by which each proximate and effective causative agent fell short of the SOC that was required of that person in all the circumstances.”

Aberdeen v Langley (Township)—Trial Decision

Apportionment of Loss Under the BC Negligence Act:

·  If P is found to be contributorily negligent, he will be able to recover from each defendant only to the extent that particular defendant was at fault. If P is not contributorily negligent, then D’s are jointly and severably liable, so that P can recover entire amount from one D, leaving that D to claim their money back from other D

Factors to Consider when Apportioning Liability:

(1) The number of negligent acts, (2) the timing of the negligent acts, (3) whether there was a deliberate or reckless disregard, (4) the opportunities to prevent and avoid

Mortimer v Cameron

Here the judge finds the P and the other youth not contributorily negligent due to remoteness.

Determining Degree of Fault

Find a greater percentage of liability should be apportioned to a party who has a current and ongoing duty rather than a party that had a single moment of duty. (Apportionment b/t landlord and city inspector.)

Voluntary Assumption of Risk

Dube v Labar

Test For Volenti Non Fit Injuria (“to one who is willing no harm is done”)

Defense of volenti requires an awareness of the circumstances and the consequences of an action, which is rarely present in cases of [youth/intoxication/incapacity].

“The burden lies upon the defendant of proving that the plaintiff, expressly or by necessary implication, agreed to exempt the defendant from liability for any damage suffered by the plaintiff occasioned by that negligence”

Loychuk v Cougar Mountain Adventures Ltd

Waiver of Liability

Unconscionability—requires (1) proof of inequality of position of the parties arising out of the ignorance, need or distress of the weaker, which left him in the power of the stronger and (2) proof of substantial unfairness of the bargain obtained by the stronger

·  Long line of authority that says with risky activities, waivers are not unconscionable because they are optional activities