Table of Contents
1. Introduction 7
1.1 Responses to Harm 7
1.2 Identifying Those Responsible for Harm 7
1.2.1 Joint Tortfeasors 7
1.2.2 Vicarious Liability 7
1.2.3 Joint and Several Liability 9
1.2.4 Victim Contribution (Contributory negligence) 9
2. Negligence 11
2.1 Introduction 11
2.2 Duty of Care 11
2.2.1 Origins of Duty of Care 11
2.2.2 The Current Approach to Duty 12
2.2.3 Examples of Proximity 13
2.2.4 The Duty to Warn 15
2.2.5 Medical Malpractice 15
2.2.6 Rescuers and Good Samaritan 16
2.3 Standard of Care 16
2.3.1 Unreasonable Risk 16
2.3.2 The Learned Hand Formula 17
2.3.3 Indices of Reasonableness 17
2.3.4 Departure from Custom 17
2.3.5 Statutory Standards 18
2.3.6. Professional Standards 18
2.3.7 Determining Reasonable Behaviour 19
2.3.8 Special Standards: Children and the Mentally Ill 19
2.4 Causation 20
2.4.1 The ‘But For’ Test 20
2.4.2 The Difficulty of Proof 20
2.4.3 Multiple Wrongdoers and Contribution 21
2.4.4 Material Contribution 21
2.4.5 Failure to Warn and Causation 22
2.4.6 Lost Chances and Medical Malpractice 22
2.4.7 Causation and Industrial Torts: The English and US Experiments: 22
2.5 Remoteness 23
2.5.1 The Thin Skull Rule 24
2.5.2 Novus Actus Interveniens 24
2.5.3 Manufacturers, Distributors, Contractors and Remoteness 24
2.5.4 Multiple Medical Errors 25
2.6 Defences to Negligence Actions 25
3. Liability for Psychiatric Harm (Nervous Shock) 26
3.1 Historical Development of the Law 26
4. Liability for Pure Economic Loss 27
4.1 Recognized Categories 27
4.2 Negligent Misrepresentation 27
4.3 Negligent Provision of a Service 28
4.5 New Categories 30
5. The Tort Liability of Government 31
6. The Immunity of Mothers 33
7. Negligence and Reproduction 34
8. Torts Descended from the Action in Trespass 36
8.1 Protecting Physical Integrity 36
8.2. False Imprisonment 36
8.3. Defences to Intentional Interference with the Person 37
8.3.1. Infancy 37
8.3.2 Self Defence and Defence of Others 37
8.4. Medical Treatment and Consent 38
8.5 Sexual Wrongdoing and Intrusion 39
8.5.1 Limitation periods 39
39
Introduction
671122 v. Sagaz industries Canada Inc. () 8
Allen v. New Mount Sinai Hospital 38
Assiniboine School Division No. 3 v. Hoffer (Man. C.A. 1971) 23
Athey v. Leonati (SCC 1996) 20
Athey. v. Leonati (SCC 1996) 24
Avco Financial Services Realty Ltd. V. Norman (Ont. C.A. 2003) 28
B.D.C. Ltd. v. Hofstrand Farms Ltd (SCC 1986) 29
B.M. v. British Columbia (Attorney General) (BCCA 2004) 21
Babiuk v. Trann (2005 SKCA) 37
Barker v. Corus UK Ltd, (UKHL 2006) 22
Bazley v. Curry (SCC 1999) 8
Bevilacqua v. Altenkirk (BCSC 2004) 34
BG Checo International Ltd. v. British Columbia Hydro and Power Authority (SCC 1993) 27
BG Checo International Ltd. v. British Columbian Hydro and Power Authority (SCC 1993) 11
Bird v. Jones 36
Bishop v. Art & Letters Club of Toronto et al. (Ont. H.C. 1978) 24
Bolton & Others v. Stone (England 1951) 16
Bradford v. Kanellos (c.o.b. Astor Delicatessen & Steak House)(SCC 1974) 24
Brenner et. al. v. Gregory et. al.(O.R. 1973) 18
Brito (Guardian ad litem of) v. Woolley (BCCA 2003) 15
Brown v. Rolls Royce (? 1960) 17
Canada v. Saskatchewan Wheat Pool (SCC 1983) 18
Chester v. Afshar (UKHR 2004) 22
Child, Family, and Community Service Act (BC) 38
Childs v. Desormeaux (SCC 2006) 14
Cook v. Lewis (SCC 1951) 7
Cook v. Lewis (SCC 1951) 21
Cooper v. Hobart (SCC 2001) 12
Cooper v. Hobart (SCC 2001) 31
Crocker v. Sundance Northwest Resorts (SCC 1988) 13
Design Services Ltd. v. Canada (SCC 2008) 30
Devji v. Burnaby (District) (BCCA 1999) 26
Dobson (Litigation Guardian of ) v. Dobson (SCC 1999) 33
Dooghue v. Stevenson (HL 1932) 12
E.B. v. Order of the Oblates of Mary Immaculate in the Province of British Columbia (SCC 2005) 8
Ediger (Guardian ad litem of) v. Johnston (BCSC 2009) 34
Fiala v. Cechmanek (AB C.A. 2001) 19
Freeman v. Sutter (M.J. 1996) 35
Good-Wear Treaders Ltd. v. D & B Holdings Ltd. et al. (N.S. C.A. 1979) 25
Gorris v. Scott (Exchequer 1874) 18
Haskett v. Equifax Canada Inc. et al. (Ont. C.A. 2003) 28
Health Care and Care Facility Act (BC) 38
Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. (HL 1964) 27
Heisler et al. v. Moke et al. (Ont. H.C. 1971) 19
Hercules Managements Ltd. v. Ernst & Young (SCC 1997) 28
Hill. V. Hamilton-Wentworht Regional Police Services Board (SCC 2007) 32
Hollis v. Dow Corning Corporation (SCC 1995) 15
Home Office v. Dorset Yacht Company (HL 1970) 12
Horsley (Next friend of) v. MacLaren (SCC 1971) 16
Hughes v. Lord Advocate (HL 1963) 23
Infants Act (BC) 38
Jaman Estate v. Hussain (2002) 9
Jeeves (Guardian ad litem) v. Swanson (BC 1995) 37
Jordan House Ltd. v. Menow (SCC 1973) 13
Just v. British Columbia (SCC 1989) 31
Kamloops (City) v. Nielson (SCC 1984) 12
Kamloops (City) v. Nielson (SCC 1984) 31
Katzman v. Taeck (Ont. C.A. 1982) 25
Laferrier v. Lawson (SCC 1991) 22
Lauritzen v. Barstead (Alta S.C. 1965) 23
M. Hasegawa & Co. v. Pepsi Bottling Group (Canada), Co. (BCCA 2002) 29
Malette v. Shulman (Ont. C.A. 1990) 38
Martin v. Capital Health Authority (ABQB 2007) 22
McGhee v. National Coal Board (? 1972) 20
Mercer v. Gray (Ont. C.A. 1941) 25
Mulloy v. Hop Sang 38
Mustapha v. Culligan of Canada Ltd. (SCC 2008) 26
Nancy B. v. Hotel-Dieu de Quebec (Hospital) 38
Negligence Act (BC) 9
Negligence Act, R.S.B.C. 1996, c. 333 10
Nespolon v. Alford et al. (Ont C.A. 1998) 19
Nolan v. Toronto (Metropolitan) Police Force (Ont. 1996) 37
Non-Marine Underwriters v. Scalera (SCC 2000) 36
Norberg v. Wynrib (SCC 1992) 39
Odhavji Estate v. Woodhouse (SCC 2003) 13
Overseas Tankship Ltd. v. Morts Dock & Engineering (The Wagon Mound No. 1)(JCPC 1961) 23
Palsgraf v. The Long Island Railroad Co. (NY CA 1928) 11
Paris v. Stepney Borough Council (England 1951) 16
Paxton v. Ramji (Ont. C.A. 2008) 34
Pope v. RGC Management (AB QB 2002) 19
Preston v. Chow (2002 Man. C.A.) 33
Reibl v. Hughes (SCC 1980) 15
Reibl v. Hughes (SCC 1980) 38
Rentway Canada Ltd. v. Laidlaw Transport Ltd. (Ont. C.A. 1989) 17
Resurfice Corp. v. Hanke (SCC 2007) 21
Ryan v. Victoria (City) (SCC 1991) 18
Sindell v. Abbott Laboratories (US) 23
Smith v. Inglis Lts. (? 1978) 24
Snell v. Farrell (SCC 1990) 20
Stansbie v. Troman (? 1948) 25
Stewart v. Pettie (SCC 1995) 14
T.O v. J.H.O (BCSC 2006) 37
ter Neuzen v. Korn (SCC 1995) 18
Van Mol (Guardian ad Litem of) v. Ashmore (BCCA 1999) 16
Vaughan v. Menlove (England 1837) 19
Videto et al. v. Kennedy (Ont. C.A. 1981) 15
Waldick v. Malcolm (SCC 1991) 17
Walker Estate v. York Finch General Hospital (SCC 2001) 21
Warren v. Camrose (City) (AB C.A. 1989) 17
Watt v. Hertfordshire (England 1954) 17
Wilhelm v. Hickson (? 2000) 28
Wilshire v. Essex Area Health Authority (HL 1988) 20
Winnipeg Condominium Corporation No. 36 v. Bird Construction Co. (SCC 1995) 29
Yepremian v. Scarborough General Hospital (OCA 1980) 9
1. Introduction
1.1 Responses to Harm
Who can be found liable in tort law?
- Natural or 'juristic' persons (e.g. corporations, occasionally government)
1.2 Identifying Those Responsible for Harm
1.2.1 Joint Tortfeasors
Joint tortfeasors are people involved in common tortious action, though only one of them need have committed the actual tort.
Requires a special relationship between tortfeasors:
1. One instigates/encourages another to commit tort;
2. Employer/Employee in scope of employment;
3. Principal/Agent;
4. Guilt by Participation (specific to fact pattern).
If the relationship holds, proof of tortious action against one establishes liability to all (joint and several liability—each DF is liable for full damages, though courts now apportion blame for ease of future lawsuits)
Cook v. Lewis (SCC 1951)
No damages where the tortfeasor indeterminable;
Issues:
In the case that fault cannot be assigned, can damages be awarded?
Facts:
Cook and others were hunting and had agreed to share their kills; Cook and other fired at roughly the same time, and Lewis was shot in the eye.
Jury could not determine who fired the shot that hurt Lewis, and trial judge dismissed the action
Appeal judge rejected the notion that they were joint tortfeasors
Ratio:
- When one of two parties is certain to have committed the tort, but it cannot be decided which one, then neither can be responsible.
- People joined in lawful pursuits with no reason to expect negligence and no opportunity to control others are not jointly responsible.
1.2.2 Vicarious Liability
Vicarious liability is policy based, giving the pf an alternative, potentially more solvent df.
It is a strict liability (requires no proof of wrongdoing by vicarious party, only requisite relationship)
Key to a tortfeasor is establishing the proper relationship between tortfeasor and vicarious party.
1. Employee/Employer relationship
- Policy concerns:
o Practical remedies to pf
· Employers take benefit, thus should absorb losses created
· Employers are in a better position to pay judgments.
· Employers can better spread the loss.
o Deterrence of future harm
· employer can select, train, and control employees to minimize risks.
Test for vicarious liability:
1. Is there a requisite relationship? (Sagaz)
If no, there is no vicarious liability.
If yes, go to b.
2. Was the tort committed in the course of employment? (E.B.)
Requisite Relationship:
- Employees are different from independent contractors (Sagaz). Independent contractors do not give rise to vicarious liability.
Control test to differentiate: (inadequate)
Does the employer exercise sufficient control over the employee/contractor?
671122 v. Sagaz industries Canada Inc. ()
Requisite Relationship Factors—No Universal Test
Facts:
- A consultant for an automotive supplier bribed a Canadian Tire employee to win the contract for the supplier.
Held:
- Consultant was in business for himself, thus Canadian Tire was not vicariously liable.
Ratio:
Functional Test to differentiate employees from independent contractors
Is the "person in business on his own account"? Consider these factors (not exhaustive)
· Control test
· Who provides equipment?
· Who hires helpers?
· Financial risk?
· Degree of responsibility over investment/management
· Opportunity for profit?
Bazley v. Curry (SCC 1999)
Scope of Employment Test
Ratio:
Vicarious liability holds when:
a. An employee performs an act authorized by the employer
b. The act is connected to an authorized act such that it is a mode (even if improper mode) of doing the act.
General Approach to Vicarious Liability
To justify vicarious liability, a court should see:
(1) if precedent unambiguously determines if vicarious liability holds. If not,
(2) strict liability policy rationale will determine if vicarious liability is appropriate.
E.B. v. Order of the Oblates of Mary Immaculate in the Province of British Columbia (SCC 2005)
5 Factors in Vicarious Liability (retreat from Bazley)
Facts:
Man who is a general handyman for a residential school abuses boys. Recovery sought from school.
Ratio:
5 Factors in Determining Vicarious Liability:
1. opportunity to abuse power
2. extent act may further aims of employer
3. relation to friction, confrontation, or intimacy inherent to enterprise
4. power conferred over victim
5. vulnerability of potential victims
Yepremian v. Scarborough General Hospital (OCA 1980)
Liability of Doctors:
- 3:2 decision: Hospitals do not have a non-delegable duty towards patients in relation to doctors with hospital privileges. In other words, hospitals are not vicariously liable for doctors with hospital privileges.
Jaman Estate v. Hussain (2002)
Vicarious Liability of Hospitals: Policy Considerarations
- Vicarious Liability Might be appropriate for Hospitals when the patient has no choice of doctor (e.g. emergency care).
Policy considerations:
1. Public relies on hospitals and and typically cannot question competence of staff.
2. Patients cannot discern employees from those with privileges. It is unfair to ask patients to sort this out when bringing an action. Presentation at hospital=should be able to sue hospital.
Note:
Parents are not vicariously liable in common law, but sometimes by statute for intentional property damages.
1.2.3 Joint and Several Liability
Several liability (separately [individually] liable)
Multiple tortfeasors causing indivisible damage are joint tortfeasors or several concurrent tortfeasors. If there is contributory negligence, the pf must collect from each individually (only severally liable).
Negligence Act (BC)
Where more than one df is liable, they are made jointly and severally liable.
4.2(a) More than one defendant joint and severally liable can be individually responsible for the global damages awarded.
4.2(b) Where one party pays the global damages, that party can collect or bring an action to collect against the other liable party or parties.
s. 4 does not apply where there is contributory negligence (remedy must be sought from one party at a time)
1.2.4 Victim Contribution (Contributory negligence)
Contributory negligence is a partial defence against a negligence claim.
Contributory negligence is the failure of a plaintiff to take reasonable care for his own safety, which contributes to the harm.
Rule of Last clear chance: if the defendant had the last clear chance to avoid the incident, he is wholly responsible for it. Now, legislation apportions losses in the case of contributory negligence (see Negligence Act, below).
3 Sorts of Contributory Negligence:
1. Plaintiff negligence causes accident
2. Plaintiff negligence does not cause accident, but places the plaintiff in the position of foreseeable harm from Df’s negligence.
3. Plaintiff fails to take protective measures in the face of foreseeable dangers.
- Determined by the objective standard of the reasonably prudent person.
Considered factors for Contributory Negligence:
- Foreseeability of harm
- Likelihood of damage
- Seriousness of threatened damage
- Cost of precautionary measures
- Exigent circumstances
- Utility of pf conduct. (i.e. police officers)
Courts tend to give small reductions (up to 30%) in most cases.