15.Negligence
I.Elements of Negligence
A. Duty of Care
Donoghue v. Stevenson (H.L. 1932) – neighbour principle
Palsgraf v. Long Island Ry. (N.Y. Ct. Apps. 1928) – must be foreseeable harm to individual
Stewart v. Pettie (S.C.C. 1995) – commercial hosts have duty of care to third parties
Childs v. Desormeaux (S.C.C. 2006) – social hosts do not have a duty of care to third parties
Hill v. Hamilton-Wentworth Regional Police Services Board (S.C.C. 2007)
B. Foreseeability and Standard of Care
1. Generally
Bolton v. Stone (H.L. 1950) – foreseeable risk must be somewhat likely
2. Proof of Negligence by Inference
Leaman v. Rea (N.B.C.A. 1954) – negligence can be inferred; if degree uncertain, both sides equally liable
3. The Doctrine Formerly Known as Res Ipsa Loquitur
Fontaine v. British Columbia (Official Administrator) (S.C.C. 1998) – res ipsa loquitor no longer in use
4. Statutes and the Standard of Care
Gorris v. Scott (Ex. 1874) – no recovery for non-compliance with statute resulting in harm
Canada v. Saskatchewan Wheat Pool (S.C.C. 1983) – breach of statutory duty is not a tort
5. Young Children and Persons with a Mental Illness or Disability
Heisler v. Moke (Ont. H.C. 1971) – children may be found negligent on a modified objective standard
Fiala v. MacDonald (Alta. C.A. 2001) – suddently insane are not liable if can prove unable to understand duty
6. Professionals
ter Neuzen v. Korn (S.C.C. 1995) – medical negligence is based on doctor's work and professional standards
C. Causation
Athey v. Leonati (S.C.C. 1996) – "but for" test is primary test even if multiple causes of injury
Fairchild v. Glenhaven Funeral Services Ltd. (H.L. 2002) – "material contribution" test is also available
Snell v. Farrell (S.C.C. 1990) – reverse onus on D to disprove causation (McGhee) or inference (Wilsher)
Hanke v. Resurfice Corp. (S.C.C. 2007) – "but for" is still primary test; "material contribution" test is restricted
Cook v. Lewis (S.C.C. 1951) – reverse onus: D must disprove causal link
D. Remoteness of Damage
The Wagon Mound (No. 1) (P.C. (N.S.W.) 1961) – foreseeability of type of injury
Hughes v. Lord Advocate (H.L. (Sc.) 1963) – need not foresee extent or manner of injury
The Wagon Mound (No. 2) (P.C. (N.S.W.) 1967) – unlikely losses recoverable if potentially huge magnitude
Sch. Div. Assiniboine South, No. 3. v. Greater Winnipeg Gas Co. Ltd. (Man. C.A. 1971) – "foresee in a general way the sort of thing that happened"
Corr v. IBC Vehicles (H.L. 2008) – psychiatric injuries are foreseeable and recoverable
II. Defences
Contributory Negligence
Negligence Act (B.C.), s. 1-2 – apportioning liability, joint and several liability
A. Consent (volenti non fit injuria)
Lehnert v. Stein (S.C.C. 1962) – volenti requires proof that P agreed to physical and legal risks
B.Ex Turpi Causa
Hall v. Hebert (S.C.C. 1993) – ex turpi causa narrowed significantly; doesn't apply to personal injuries
C. Limitation Periods
Limitation Act (B.C.), s. 3(2) and (5) – 2 years for most torts
Local Government Act (B.C.), s. 285
D. Injury Covered by Workers Compensation
Workers Compensation Act (B.C.), ss. 2, 5-6, 10 – no concurrent claims against WCB and employer
III. Particular Contexts of Negligence
A. Duty of Care to Rescuers
Jones v. Wabigwan (Ont. C.A. 1969) – neighbour principle extends to rescuers
B. Products Liability
Hollis v. Dow Corning Corp. (S.C.C. 1995) – duty to warn; learned intermediary rule; subjective test
C. Occupier’s Liability
Occupiers Liability Act (B.C.)
Skopnik v. BC Rail Ltd. (B.C.C.A. 2008) – lower standard of care
Tangent: duty to unborn
D. Duty of Care Associated With Public Functions
Anns v. Merton London Borough Council (H.L. 1978) – two-step test for duty associated with public functions
Kamloops (City) v. Nielsen (S.C.C. 1984) – Anns test is adopted in Canada
Just v. British Columbia (S.C.C. 1989) - distinction between policy (cannot review) and operations (can review)
Odhavji Estate v. Woodhouse (S.C.C. 2003) – proximity must be established for police force
IV.Responsibility for the Negligence of Others
A. Vicarious Liability
B. Direct Liability and Non-Delegable Duty
B.(K.L.) v. British Columbia (S.C.C. 2003) – ministry only directly liable to abused foster kids
C. Parental Responsibility
Parental Responsibility Act (B.C.) – parents' liability and defences
V.Particular Protected Interests
A. Psychiatric Injury
Mustapha v. Culligan of Canada Ltd. (S.C.C. 2008) – psychiatric injury must be probable; susceptibility test
B. Pure Economic Loss
1. Generally
Hedley Byrne & Co. v. Heller & Partners Ltd. (H.L. 1963) – five-step test to recover for pure economic loss
Cooper v. Hobart (S.C.C. 2001) – policy introduced into step 1 of Anns test
2. Negligent Construction or Manufacture
Kamloops (City) v. Nielsen – Anns test is adopted in Canada
Winnipeg Condominium Corp. (No. 36) v. Bird Const. Co. Ltd. (S.C.C. 1995) – builder's duty and liability
3. Negligent Misstatement
Hercules Managements Ltd. v. Ernst & Young (S.C.C. 1997) – proximity relationship depends on reliance
4. Contractual Relational Economic Loss
Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd. (S.C.C. 1997) - restrictions on recovery for relational economic loss
5. Pure Economic Loss from the Negligent Performance of Public Functions
Kamloops (City) v. Nielsen (S.C.C. 1984)
6. Negligent Provision of Services
Wilhelm v. Hickson (Sask. C.A. 2000) – where duty of care exists, possible to recover
13.Nuisance
I.Public Nuisance
Stein v. Gonzales (B.C.S.C. 1984) – private individuals may bring action for public nuisance
II.Private Nuisance
Sutherland v. Canada (Attorney General) (B.C.C.A. 2002) – conduct may be both public and private nuisance
Russell Transport Ltd. v. Ontario Malleable Iron Ltd. (Ont. S.C. 1952)- nuisance cannot be reasonable
Sutherland v. Canada (Attorney General) (B.C.C.A. 2002) – cannot recover for nuisance of activity is authorized by statute
14.Strict Liability (Rylands v. Fletcher)
Rylands v. Fletcher (Ex. Ch. 1866, aff’d H.L. 1868) – strict liability and defences
Transco plc v. Stockport Metropolitan Borough Council (H.L. 2003) – strict liability has been restricted
10.Intentional interference with chattels
Trespass
Detinue
Conversion (trover)
Canlab v. Engelhard (S.C.C. 1979) – innocent third party is liable
Hollins v. Fowler (H.L. 1875) – innocent third party is liable
Armory v. Delamirie (K.B. 1721) – right to possession is relative
Kuwait Airways Corp. v. Iraqi Airways Co. (H.L. 2002) – damages measured by P's losses
12.Defamation
I.Slander distinguished from libel
Conyd v. Brekelmans (B.C.S.C. 1971) – slander requires proof of special damages
II.Elements of defamation
A.Defamatory matter
Youssoupoff v. Metro-Goldwyn-Mayer Pictures (C.A. 1934) – definition of defamation
B.Reference to the plaintiff
E. Hulton & Co. v. Jones (H.L. 1909) – motive, reasonable belief, knowledge not necessary
Gauthier v. Toronto Star Daily Newspapers Ltd. (Ont. S.C.J. 2003) – groups not protected
C.Publication
Vizetelly v. Mudie’s Select Library Ltd. (C.A. 1900) – strict liability for publishing libel
III.Defamation and freedom of speech
Hill v. Church of Scientology of Toronto (S.C.C. 1995) - defamation not inconsistent with Charter rights
IV.Defences
A.Absolute privilege
B.Qualified privilege
Cusson v. Quan (Ont. C.A. 2007) – qualified privilege is interest/duty without malice
C.Fair comment
WIC Radio Ltd. v. Simpson (S.C.C. 2008) – fair comment is opinion with good faith in public interest
15.Negligence
- Does the law impose upon the actor a duty to care so that the activity in question does not harm the claimant?
- Is there a foreseeable risk of harm to the P?
- Did the D breach the standard of care by not acting responsibly?
- Was this breach a sufficient cause of the P's injury?
- Are the injuries sufficiently proximate to justify the imposition of liability?
- Are there any factors in the P's conduct which would justify a reduction or eliminate of the damages which otherwise would have been awarded?
I.Elements of Negligence
A.Duty of Care
- Duty of care is question of law for judge to determine
- P establishes prima facie duty of care, then evidentiary burden shifts to D to show countervailing policy considerations
- "Neighbour principle" establishes that "you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour … persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation" (Donoghue v. Stevenson)
- Manufacturers have a duty to the ultimate consumers (Donoghue v. Stevenson)
- Privity is abolished; third parties can sue (Donoghue v. Stevenson)
- A duty of care exists if there is foreseeable harm to specific individual(Palsgraf v. Long Island Ry.)
- A duty of care may be owed to third party(Stewart v. Pettie)
- Commercial hosts have duty of care (Stewart v. Pettie); social hosts do not(Childs v. Desormeaux)
- Hosts do not owe a duty of care unless: intentionally attract third party to inherent/obvious risk, paternalistic relationship, public function/commercial enterprise (Childs v. Desormeaux)
- Police's duty of care is measured against modified objective standard (Hill v. Hamilton-Wentworth)
Donoghue v. Stevenson (H.L. 1932) – neighbour principle
FSnail inside ginger beer, P sues manufacturer
I/HDoes manufacturer owe a duty of care? YES, can foresee carelessness might injure ultimate consumer
REstablishes "neighbour principle": duty to anybody, where you can foresee that your carelessness might injure them
Palsgraf v. Long Island Ry. (N.Y. Ct. Apps. 1928) – must be foreseeable harm to individual
FFireworks exploded at train station, ultimately injuring bystander
I/HWas the train station negligent? NO, no duty because unforeseeable
RA duty of care exists if there is foreseeable harm
Stewart v. Pettie (S.C.C. 1995) – commercial hosts have duty of care to third parties
FQuadriplegic sued establishment where he/driver had been drinking before accident
I/HDoes a bar owe a duty to a third party? YES, but not breached here because not foreseeable that sober would allow drunk to drive
RA duty of care is owed to third parties where the risk of injury is real and foreseeable given the circumstances
- Justifying duty of care for bars: advantage in monitoring alcohol consumption, regulatory environment, legitimate expectations of public, disincentive for profit-motivated behaviour
Childs v. Desormeaux (S.C.C. 2006) – social hosts do not have a duty of care to third parties
FWilling passenger accepted ride from drunk driver, sued party hosts
I/HDoes a social host owe a duty of care to third parties injured by an intoxicated host? NO, guests responsible for own conduct, no evidence knowledge or foreseeability on part of host
RSocial hosts do not owe duty of care unless:
- Intentionally attract/invite third parties to inherent/obvious risk that they have created or control
- Paternalistic relationship of supervision and control
- Host exercises public function or engages in commercial enterprise
- Ct will look at level of involvement, level of reliance
Hill v. Hamilton-Wentworth Regional Police Services Board (S.C.C. 2007)
FSuspect ultimately acquitted, sued police
I/HDo police owe a duty of care during investigations? YES, but did not breach the standard here
RPolice's duty of care is measured against standard of how a reasonable officer in like circumstances would've acted
B.Foreseeability and Standard of Care
1. Generally
- Foreseeability is a question of fact for the jury to determine
- Foreseeability of risk of injury = duty question; foreseeability of type of injury = remoteness question
- Objective test – foreseeable risk of injury to person in P's general class at the time of the activity in question
- Risk of injury must be foreseeable and somewhat likely risk (Bolton v. Stone)
Bolton v. Stone (H.L. 1950) – foreseeable risk must be somewhat likely
FCricket ball hit bystander
I/HWas cricket club negligent? NO
RForeseeable risk must also be likely risk and not fantastic possibility
2. Proof of Negligence by Inference
- Can infer negligence from facts (Leaman v. Rea)
- If cannot determine degree of negligence, both sides are equally liable (Leaman v. Rea)
Leaman v. Rea (N.B.C.A. 1954) – negligence can be inferred; if degree uncertain, both sides equally liable
F Cars too close to centre line, unclear who caused accident
I/HWho is liable? BOTH, proof of negligence is accident itself
RNegligence can be inferred; if cannot determine degree of negligence, both sides equally liable
3. The Doctrine Formerly Known as Res Ipsa Loquitur
- Res ipsa loquitor allows P to discharge evidentiary burden with circumstantial evidence
- Doctrine no longer in use in Canada(Fontaine v. BC)
Fontaine v. British Columbia (Official Administrator) (S.C.C. 1998) – res ipsa loquitor no longer in use
FTruck found with bodies, widow attempted to sue
I/HCan widow recover? NO, no proof of negligence
RDismissed doctrine of res ipsa loquitor
4. Statutes and the Standard of Care
- Cannot recover for breach of statute with another purpose that results in harm (Gorris v. Scott)
- Breach of statutory duty is not a tort; statutory duty in themselves do not give rise to duty of care (Canada v. Saskatchewan Wheat Pool)
Gorris v. Scott (Ex. 1874) – no recovery for non-compliance with statute resulting in harm
FSheep washed overboard when ship owner didn't comply with Contagious Diseases Act which required dens
I/HCan sheep owner recover? NO, Act not intended to protect against such damage
RCannot recover for non-compliance with statute for another purpose that results in harm
Canada v. SaskatchewanWheat Pool (S.C.C. 1983) – breach of statutory duty is not a tort
FInfested wheat delivery
I/HCan Wheat Board recover? NO
RBreach of statutory duty is not a tort; statutory duties in themselves do not give rise to duty of care
5. Young Children and Persons with a Mental Illness or Disability
- Children may be found negligent on objective standard ("reasonable child") with subjective input such as age, education, experience (Heisler v. Moke)
- Individual with sudden mental illness will not be liable if he can prove on BOP that he could not understand, appreciate, or discharge duty of care (Fiala v. MacDonald)
Heisler v. Moke (Ont. H.C. 1971) – children may be found negligent on a modified objective standard
F9 year old told not to put stress on injured leg, did so and caused further injury
I/HIs child contributorily negligent? NO
RChildren may be found negligent. Use objective standard ("reasonable child") with subjective input (e.g. age, education, experience)
Fiala v. MacDonald (Alta. C.A. 2001) – suddently insane are not liable if can prove unable to understand duty
FM suffered manic episode from undiagnosed bipolar disorder, assaulted driver (C) who lost control of car and injured F
I/HIs M liable? NO
RIf a person is suddenly, without warning, afflicted with mental illness and can prove on BOP that he could not understand or appreciate duty of care or was unable to discharge duty, he has no tort liability
6. Professionals
- Medical negligence based on doctor's work and professional standards or judge's "common sense" standard (ter Neuzen v. Korn)
ter Neuzen v. Korn (S.C.C. 1995) – medical negligence is based on doctor's work and professional standards
FWoman contracted HIV during artificial insemination procedure
I/HWas doctor negligent? NO, not in procedure or according to professional standards (i.e. medical community unaware it was possible to transmit HIV this way)
RMedical negligence based on doctor's work and professional standards
Jury should not be instructed about cap on recovery for non-pecuniary losses
C. Causation
- "But for" test is primary test for causation: can it be proved on a BOP that the P's injuries would not have occurred but for the D's negligence? If so, the causal connection is established
- "But for" test does not require that the D's negligence was the sole causal factor, only a "materially contributing" (beyond the de minimus range) (Athey v. Leonati)
- If other cases were non-tortious, D will bear the entire burden ("think skull" rule – take victim as you find him)
- If other causes were tortious, D's fault will be apportioned
- If other causes were P's own fault, contributory negligence ("crumbling skull" scenario – condition with measureable risk that may reduce damage award)
- Possible to recover for loss of chance
- Alternative test: "material contribution" test for more than one cause
- "Material contribution" to a risk is treated as materially contributing to causation of injury (Fairchild v. Glenhaven)
- Restricted use: only if impossible for P to prove causation or if D exposed P to unreasonable risk of injury (Hanke v. Resurfice)
- Other approaches:
- Putting reverse onus on D to disprove causation (McGhee) (Snell v. Farrell, Cook v. Lewis)
- Inference of causation (Wilsher)(Snell v. Farrell)
Athey v. Leonati (S.C.C. 1996) – "but for" test is primary test even if multiple causes of injury
FDisc herniated during exercise, two car accidents and underlying disposition towards injury
I/HCan causation be established? YES, use "but for" test
R"But for" test does not require that the D's negligence was sole causal factor for injury; need only establish that D's conduct "materially contributed" (beyond the de minimus range) to the injury
- If other causes were non-tortious D will bear entire burden ("thin skull" rule)
- If other causes were tortious fault will be apportioned
- If other causes were P's own fault contributory negligence ("crumbling skull" scenario – condition with measureable risk may reduce damages)
Possible to recover for loss of chance (e.g. doctor's negligence loss of chance to recover) on BOP
Fairchild v. Glenhaven Funeral Services Ltd. (H.L. 2002) – "material contribution" test is also available
FMultiple jobs where asbestos could have caused cancer
I/HCan causation be established? YES
R"Material contribution" test is alternative where injury has more than one cause
Materially contributing to risk is same as materially contributing to causation of injury
Snell v. Farrell (S.C.C. 1990) – reverse onus on D to disprove causation (McGhee) or inference (Wilsher)
FDoctor negligently continued cataract operation despite bleeding, patient lost vision
I/HCan causation be established? YES, enough evidence to infer
RTwo approaches: reverse onus on D to disprove causation (McGhee) or inference (Wilsher)
Hanke v. Resurfice Corp. (S.C.C. 2007) – "but for" is still primary test; "material contribution" test is restricted
FZamboni explosion, driver sued manufacturer for design defects
I/HCan causation be established? YES
R"But for" is primary test even if multiple causes of accident
"Material contribution" test is exception for special circumstances: if it is impossible (not merely difficult) for P to prove cause; if D exposed P to unreasonable risk of injury
Cook v. Lewis (S.C.C. 1951) – reverse onus: D must disprove causal link
FGunshot injury during hunting, could not prove which D caused injury or that they were joint tortfeasors
RNovel approach: onus of disproving causal link shifted to D
D. Remoteness of Damage
- Modern test for remoteness: foreseeability of type of injury (Wagon Mound No. 1)
- Rejected Polemis test all damages traceable to negligent act
- Later limited by Wagon Mound No. 2
- Foreseeability of type of injury, not of extent of injury or manner of occurrence (Hughes v. Lord Advocate)
- Generally, if some injury is foreseeable, ct will rule that all injuries are foreseeable
- "It is enough to fix liability if one could foresee in a general way the sort of thing that happened" (
- Loss will be recoverable if extent of possible harm is so great that a reasonable man would guard against it, even if the chance of loss occurring was very small (Wagon Mound No. 2)
- "Possible" damage, not just "probable" damage
- Compare to Bolton v. Stone – possible to run small risk and not be liable
- Difference here is the magnitude of potential damage if it did occur and that there was no reason to run risk (i.e. let oil into water instead of turning off)
- Duty not to cause injury is extended to psychiatric injury (Corr v. IBC Vehicles)
- Suicide is not volenti non fit injuria or intervening cause (Corr v. IBC Vehicles)
The Wagon Mound (No. 1) (P.C. (N.S.W.) 1961) – foreseeability of type of injury