Joint Tortfeasors
Must be able to ID who is responsible
First is damages to victim, then allocation
Cook v. Lewis Shared spoils not enough to create JT. Factors in create JT: lawful v unlawful, no reason to anticipate neg. in others, no right to control others, no opp, to control others, none assisted others to neg., none encouraged other to neg.
Bains v Hof (fires langbroek drove) 3 ways to be JT: Agent, Employment, Concerted action (furtherance of common design) presence for common unlawful cause =JT; bullied minor absolved from wrong
Criminal v Tort – punishment v compensation; in crim punished based on role – tort liable for all.
Fish and Fish v. Sea Shepherd – separates tort and criminal – didn’t further commission of tort, or act in common design to secure committal or tort.
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Vicarious Liability
Non delegable duties – poor road work, well-being of children in care, hospitals b/c of complex organization
Frolic of their own defence
Just and practical remedy for harm and deterrence
Sagaz Industries – Sagaz consultant bribed Can tire – no vicarious liab. – contractor must be in business for themselves, words of contract not enough, total relationship – sagaz said what to be done but AIM chose how.
Danicek – Outside scope of employment – no direct benefit to company from nightclub, did not directly pay for nightclub, not everyone went.
Salmond Test – 1)Were the acts authorized by the employer? – 2) unauthorized acts are so connected with authorized acts that they may be regarded as modes (albiet improper) of doing authorized act. – now rejected b/c unfair to P
Bazley – not-for-profits not exempt – policy of stretching liability - idea that enterprise has created this risk and so is responsible –factors emerging on policy grounds - wrong sufficiently related to authorized conduct – link between employer creating or enhancing or risk – opportunity for abuse of power – did act further employers aims - was it a situation of friction (bartender v customer) – power conferred in relation to victim – vulnerability of potential victims to employees wrongful exercise of power – issue is about authority over people and how that authority is used to create/reduce risk. Connection between tortfeasors employment and the tort
Parental Liability Act – parents only liable for intentional damage caused by kids up to 10,000 – presumption of parental fault unless a) exercising reasonable supervision b) made reasonable efforts to prevent or discourage activity
BC School Act – parents liable for intentional or negligent damage to school no cap (sprinklers)
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Intentional Infliction of Mental Suffering
Wilkinson v Downton (19th cent. Prank re. hurt husband)
3 original factors: Wilful act w/ no justification; Calculated to cause harm; In fact caused the harm – Wilkinson
Boucher(Walmart verbally abusive manager)
3 Elements of tort – Boucher
Conduct was flagrant and outrageous
Calculated to harm the P
Caused the P to suffer visible and provable illness
Calculated means knowing that the type of harm that did occur was substantially likely to occur, not reckless disregard; questions if omission can be flagrant and outrageous when firing was already likely–Pireserreira(Bell employee)
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Negligence
5 elements – 1) D must have owed duty of care, 2) D breached the standard of care, 3) P sustained damage, 4) damage was caused by the D’s breach, 5) legal causation (not too remote) – Mustapha
Harm is not defined– compare current to expected state
Tort is fault based redress injury and returning P to state as if harm didn’t occur
Is it about compensating the victim or holding people liable
Negligent action not always = liability
Philosophers = lawyers demanding morality discoverable by reason (1830s)
Duty of Care
Duty owed to individuals not public so who is likely to be hurt? – you owe them a duty
Palsgraf - guard pushes man with fireworks,
Duty must be found to individual complaining
Palsgraf– eye of ordinary vigilance does not see risk then OK – only owe duty to orbit of danger.
The risk reasonably to be perceived defines the duty to be obeyed and risk imports relation (misfeasance)
Donoghue – Persons who are so closely and directly affected by my act that I should reasonably have them in mind - interp is prob. you owe duty if foreseeably likely to be hurt. D&S = foreseeability and proximity.
Dorset Yacht – negligent exercise statutory duty that creates harm maybe liability(Prisoners boat)
Cooper (registrar suspend mortgage co. after a delay) – obligation to public re. notification but duty to individual? – sometime overlap between foreseeability and proxie where you create risk of physical harm, but more often foresee and prox must be tested separately
Existing categories of duty:
Commercial hosts/patrons to 3rd parties on road-Childsbut pubs meet duty if sober people in group and reasonable that they would drive -Stewart
Driver to other road uses –Childs
PO to suspect under investigation – Hill
Manufacturer to consumer – DvS
Solicitor to client
Employer-employee –Paris
Manufacturers –Hollis
Liable for marketing dangerous product (D&S) – continuing duty so if discover danger after marketing= duty to warn ie recall
Safe product = manufacturer duty to inform consumer how to use product safely – nature and level of this duty varies w/ danger. Higher SOC for medical products b/c go in body – informed consent
Strict b/c manufacturers are self-interested, vulnerability of P
Learned Intermediary rule: can inform trained professional about risks to pass along = discharge of duty: Cannot escape liability by claiming LI would not have warned.
Causation w/ Hollis only needs to prove she would not have consented - subjective
Cooper/AnnsTest for determining duty of care:
1) precedents for this situation or analogous one?
2) Was harm RF from Ds act?
3a) Misfeasance involving personal/propertysuffer physical harm then Proximity established (Pals); or
3b) Non-feaseance-Special relationship (close and direct) that gives D reason to consider interest in question?proximity factors: representations by D to P- expectations of P- reasonable reliance- consider interests at stake- normative bonds-statutory duty(policy against prox?)
4) Policy reasons against recognizing duty? – DOC conflict with other legal obligations, legal system or society (gov’t policy decision v execution Yacht) – law already provide a remedy? – would recognition create unlimited liability to unlimited class? Note policy rarely negates DOC, yuenkunyue
P burden 1-3, D burden for 4.
Non-feasance pre-est. proximity categories - Childs
1) invite people to dangerous situation (boat)
2) control of vulnerable people (teacher)
3) Commercial/Public enterprise w/ duty to public
Catch all – D creates or controls the risk Pinkertons
Reflects values of creation/control of risk(feeding booze to guest), if someone forfeits autonomy, reasonable reliance – autonomy of harmer vs duty to interfere
Categories not closed – Physical security = more proximate, scale and control of potential harm may go to reasonable reliance & prox -Pinkertons
Horsley (person overboard H jumped in to rescue) – D (owner) owed duty to passenger overboard, but not to rescuer unless negligent in own rescue efforts (not liable) – Laksin wants liability for nonfeasance re rescuer. So does G. Why a proximate relationship? Question; if didn’t create risk but take no action to mitigate, owe duty to 3P rescuer? G says yes. Laskin probably also says yes.
Childs- drunk partygoer kills someone. Party host liable? no undertaking to care for guest
Undertaking - If you start to help must continue – security guard (zelenko), blameless creation of risk may still impose duty to put it right (Oke – impales pole)
Imperial Tobacco – issue of fed-smoker prox
– no proximity b/c pure econ loss and gov’t no obligation re smokers econ decisions. Indiv. Autonomy.
Standard of Care (Breach)
Important to distinguish DOC from SOC analysis – Ryan, Stewart
Did D create an objectively unreasonable risk of harm?
SOC is objective: Did D act same as reasonably careful or ordinarily prudent person in same circumstances? – Ryan (bike-train tracks) Question of fact not law.
Demand extravagant measures = bad policy Bolton (cricket) SOC is objective and fixed –Vaughn (too stupid)
Can fulfill duty –Stewart(drunk w/ sober friends who could drive)
Unreasonable Risk Factors
1) probability of harm – Bolton low risk = more reasonable didn’t mitigate risk
2) severity of potential harm/consequence –Paris (1 eye)G take is not about sensitivity (usual interp), more about fact that taken charge of employee – contrast Bolton
3) Cost of preventative measures –Rentway(headlights 1 circuit)Learned Hand Formula – could smaller cost have avoided larger cost? – efficient for D to be liable? seriousness of risk x probability of occurrence vs. cost of mitigation – economic model
4) Purpose/utility of activity important activity may reduce necessary standard of care Bittner (PO falls ice investigating burglary).Hill(PO focus on 1 detained suspect- soc met) reasonable officer in like circumstances
SOC for person who stopped to help lower unless gross negligence – Good Samaritan Act
Customs and Industry Standards
Custom not recognized if unreasonable-Waldick (icy drive)
Common practice doesn’t prove actions reasonable –Brown
Onus on party relying on custom/practice-Waldick
Consensus and universal practice are not definitive but are strong evidence Warren (pool dive)
In assessing courts will consider: Universality - Status of the profession or trade - Degree of difficulty of the activity - Availability of additional precautions – where’s this from??
Medical
SOC is reasonable prudent competent member of same profession/specialty-terNeuzen (AI-HIV)
Complex procedure, standard practice probably enough –tN
If practice has obvious risks(ie count sponges) then lay person can understand then can find neg.
Statutory Standards
Breach of statutory SOC leads to damages may be negligence –Sask Wheat Pool
Purpose of statute must be to protect for type of harm actually caused – Gorris (sheep shipping)
Compliance as defence can fail when statutory compliance does not meet reasonable person test. Factors to consider:
Specific v general standards - is behavior required or only authorized? – event w/i scope of statute or unusual circumstances? – Ryan
Children– often about contributory neg if child hurt.
Usually lower standards b/c kids either leeches or moral reasons(G likes moral)
3 inquiries for subjective-objective standard
1) Is this child capable of being held liable in negligence? (rough age of 7)–Heisler
2) reasonable child of that age/intelligence/experience be reasonably expected to do in same circumstances. Heisler
3) Was child involved in adult activity? (Babysitting, adult activity but everyone knows it’s a child, right of passage?)
If yes then adult SOC Pope (golf – met standard)
Examine specific activity Nespolon (drop-off drunk isn’t adult)
G asks Do those involved know it is a child involved?
Mental Illness
Not liable if can prove on BoP either: Fiala(crazy w/ car)
1) no meaningful control of actions, or
2) no capacity to understand/appreciate DOC
Causation – was damage caused by Ds negligence?
“but for”. P must show loss wouldn’t have occurred but for Ds neg.-Clements BOP.
Substantial factor but not sole cause–Athey
Test is pragmatic – can be inferred, don’t need 100% certainty –Snell (bleeding eye) Snell liable
Once test is met on BOP onus to D to disprove
Re. Dr.s having more evidence their silence can be construed against them. -Snell
If issue is be between med. or natural cause Cook v. Lewis not applicable b/c only one neg. potential cause – Snell
Material Contribution Test–argue in alternative to “but for”
Looks for material contribution to risk - Clements (nail mortobike)Compensates injury, fairness, deterrence
Only if ‘but for’ doesn’t work as in CvL w/ two neg. people one of whom caused harm.
To apply MCT need: P prove that loss would not have occurred but for actions of 2+ neg. Ds; uncertainty about which factually caused harm; can’t use ‘but for’; indivisible harm – Clements
Divisible or Indivisible Harms–
Bradley v Groves (2 car accidents years apart, neck pain)
Indivisible: can’t know which D is responsible for what elements of injury = joint several liability (contribution not apportionment)Injured party still compensated
Divisible – Injury can be separated and assessed independently from each other
Manufacturer
Hollis Does not apply ‘but for’ b/c anomalous result of nobody to blame
La Forest says causation test should meet our intuition and tort law should not contemplate anomalous results. Broad attack on bf test? Or limited to learned intermediary? Hollis
Remoteness – D Liable for THIS Result?
G said focus on distinguish analogise to cases read; no clear test – make an argument
Harms is a probable (not possible) consequence of negligence – Mustapha
Damage must beRF– Wagon Mound 1
No liability for super bizarre, unforeseeable consequences– Cameron (cow)
Culminating incident was especially unusual/unexpected –Wagon M 1 (bunker oil burned) not liable
But don’t have to forsee exact consequences - Hughes (manhole lamps, burns expected – explosion not) liable b/c type of injury (burns) was foreseeable.
Extent or method of harm don’t need to be foreseeable so long as type of damage is -Assiniboine (snowmobile – gas explosion) liable
Thin Skull Rule
Once harm is foreseeable, D may be liable for all consequences regardless of pre-existing weakness –Bishop
Crumbling Skull Rule-Athey
Don’t compensate for effects of pre-existing condition
If harm would have occurred w/o accident then not liable
Intervening Acts – Novus Actus Interveniens
If intervening act was reasonably foreseeable in context of neg. actions, then causation chain intact – Stansbie (thief)
If intervening act not reasonably foreseeable and directly causes harm, then causal chain broken– Bradford (grill fire)
If intervening act is industry standard or standard practice then it’s reasonably foreseeable – Smith (fridge plug)
Subsequent Injuries
D will be liable if subsequent injury is w/i scope of risk created by neg. act ie part of treatment, and the D was not reckless/neg. - Larsen (physio knee)
Defences to Negligence
Contributory neg– partial defence if D shares resp. for harm
Voluntary Assumption of Risk – Fully informed P must agree to waive both physical (danger) and legal (compensation) and risk must be necessary part of activity. Express (K) or implied (ride from drunk), complete – Crocker
Illegality – Denied compensation if involved in illegal activity, complete, restricted in Hall
Government Liability
Check for legislation imposing duty or excluding liability - Just
For DOC run Cooper/Anns
At proximity look to Hill and Fullowkare. direct contact and creation/control of riskCooper no duty owed to individual investors.
Gov’t is immune for policy,econ, social, political, budget (unless bad faith) but not operational – Imperial
Decisions about implementing a policy are operational, can’t be downloaded onto contractors– Just (rock fall)
Policy sets SOC and failure to meet policy standards is an operational failure – Just
Floodgates concerns, conflicting duties-Pinkertonsjudicial competence to second guess leg-Imperial Lower SOC b/c scale of duty-Just
Paradis Honey- looks to public law to explain previous findings and claims that it is a better framework b/c allows weighing of all factors – note that this criticism of current framework exists.
2 components in pub. Law assessment 1) unacceptability or indefensibility and 2) remedial discretion
Medical Liability - Reibl
Duty – to treat w/ due care and warn of risks.
Dr. must warn of special and unusualmaterial risk in treatment, answer questions, discuss alternatives. But therapeutic privilege
For what consequences is Dr liable w/o informed consent?
SOC – P must prove not warned of material risks
Causation – P must have suffered harm
Not ‘but for’ – would reasonable person in the Ps position have had the treatment? – concern about P hindsight being tainted by bitterness
Court should consider obj. do risks of surgery v. no surgery favour operation? Also special circumstances ie pension or wedding
G thinks w/o subjective test no test at all, just should Dr. be liable of damage in this case. What are we holding D liable for in cases where operation would probably be had later? Court says everything, but think about it
Pure Economic Loss – DOC established categories
Negligent Misrepresentation
RF reasonable reliance – Hedley Bryne (ad credit), Hercules
Special relationship social/professional setting, disclaimer?, info to 3P?, specific/general inquiry, undertaking?
Only liable to those whose identity is knownfor statements used as intended– Hercules (neg. audit)
Haskett (Equifax neg report) Problem w/ Hercules reasonable reliance = proximity b/c applicant not relying – questions of power and pure victim
Negligent Provision of a Service
Lawyers owe duty to beneficiary of will – Wilhelm
No other remedy, no floodgates, reliance on skill
Negligent Supply of Shoddy or Dangerous Goods
3P can sue for cost to mitigate shoddy work that turns dangerous before someone is hurt – Winnipeg Condo (falling concrete)
You buy something that’s dangerous you pay to fix. Why change this? Is this about vulnerable position of home buyer?
Shouldn’t find against vulnerable – contractor has control of risk at start
Must be real and substantial danger –Hassagawa
Relational Economic Loss – basically dead category
Suffer loss b/c of injury to someone else. Employer loses profits b/c employee hurt.