Law 108C | Torts
Final Outline – SHort | 2014 | McDorman

Sandra Town

Rules

DOC

Duty of care is deals with the relationship between the parties. The first step in finding a duty between parties is to determine if the relationship falls into one of the court recognized relationships that give rise to a prima facie duty of care. If not, one must apply the Ann’s Test (Cooper).

  • First, is there a sufficiently close relationship between the parties (ie. proximity) that the harm was a reasonably foreseeable consequence of the ’s act? Here, the burden of proof lies on the plaintiff
  • Then, are there broader policy considerations, which ought to negate the imposition of a duty of care on a class of persons despite adequate proximity? Here, the burden of proof lies on the defendant.

If there is a sufficiently close relationship that is not negated by policy concerns, a duty of care will be owed by one party to the other.

SOC

Once a duty has been found between parties, the next question in determining liability is whether or not the standard of care was met. This is found through an objective test. The court must determine what a reasonable and prudent person would have done in the same circumstance. If the defendant’s acts fall below this standard there will be a breach of the standard and liability. The standard can be influenced by the negligent action’s foreseeability, the probability of harm occurring, the gravity of the harm, the burden of providing precautionary measures, and what common and reasonable practice dictates (Bolton; Paris; Rentway; Warren).
This standard is modified in some situations, depending on the person owning a duty.

  • A child is subject to a modified subjective objective test in which the court asks what a reasonable and prudent child of similar age, intelligence and experience would have done. However, if they’re involved in an adult activity, they’re subject to the adult standard (Heisler).
  • A person will special skill or knowledge is held to a higher standard. A court will determine what a reasonably prudent Doctor (or other professional) would do in the same circumstance (terNeuzen).
  • Breach of statutory standards of care is considered non-determinative evidence of breach of the standard of care (Saskatchewan)

Causation

The damages suffered must be causally linked to the defendant’s negligent actions in order for the defendant to be liable. As such, the court asks if the damage wouldn’t have occurred BUT FOR the negligent actions of the defendant (Atheney). The burden rests on the plaintiff to prove this. However, in situations where it would be difficult for the plaintiff to assert causation, it can be inferred from presumptive evidence. There is then a burden shift, and the defendant must rebut the presumptive evidence (Snell).

There can be more than one party involved in causing the damages, so long as the damage wouldn’t have occurred but for the defendant’s negligent action (Snell) and if other non-negligent actions were involved in causing the damages, the negligent actor will be held liable for all of them (Atheney)

remoteness

A defendant is responsible for all the reasonably foreseeable consequences of their negligent actions (Cameron). It does not matter how the damage arose, so long as the harm that did ensue was foreseeable (Hughes). The causal connection will be broken and a consequence seen as too remote if interrupted by an intervening act (Bradford). However, for manufacturers, this is offset by the duty to accommodate for common practice and liability in selling a product they know will be used inappropriately (Smith; Good-wear)

  • Remoteness is also influenced by the “thin skull rule” dictating that a defendant must take a plaintiff as he’s found, compensating for the full extent damage (including all pre-existing conditions) in an attempt to put the plaintiff back in the position they were in originally (Bishop)

duty to Warn

A manufacturer has a duty to inform the ultimate consumer of all dangers inherent in using the product, including those found after a sale has occurred in order to correct the knowledge imbalance that exists between the two parties (Hollis). Some situations may warrant the use of a learned intermediary who will convey the risk to the ultimate consumer, however a manufacturer will only have discharged their duty when the knowledge of the intermediary approximates their knowledge (Hollis)

A medical professional has a duty to effectively disclose all material risks to a patient before obtaining consent (Reibl; Martin). Material risks include those of small likelihood but catastrophic result, and those of particular importance to the patient (Brita; Videto). They must also disclose any alternative procedures (VanMol).

  • If harm ensues from a lack of full disclosure, a modified causation test is applied. The court looks to if a reasonable patient, in those circumstances, wouldn’t have consented to the surgery BUT FOR the negligent disclosure from the doctor (Martin).

Pure Economic Loss

In situations where the plaintiff suffer pure economic loss, with no personal injury or property damage, the courts apply a modified Ann’s Test (Hercules).

  • Should the defendant have reasonably foreseen that the plaintiff would rely on their representation?
  • Was it reasonable, in the circumstances, for the plaintiff to have relied on the representation? Factors to consider include, but are not limited to, whether the representation was made in the course of business dealings, given deliberately, in response to a specific request, and within the defendants area of expertise (Hercules).
  • Are there policy reasons to negate finding a duty of care?

Negligence Analysis

Determine whether or not there’s a DOC

  1. Does the proposed duty fall into one of the recognized categories OR is it analogous to a recognized category?
  • Rescue  If YOU caused the negligence (Horsley – 29)
  • Commercial host
  • To protect non-stranger patron from injury (Crocker – 41)
  • To 3P wrt patrons who get drunk at their establishment (Stewart – 51)
  • Doctors  to patient, NOT un-conceived child (Paxton – 73)
  • Security Co.  to the people they’re guarding (Pinkertons – 95)
  • Police  to conduct non-negligent investigation (Hill – 101)
  • Gov’t  for implementing operational policy ONLY (Just – 112)
/ YES / Prima Facie DOC / Cooper – 17
  1. Was the harm that occurred the reasonably foreseeable consequence of the ’s act?
  • Need foreseeability AND proximity
  • Proximity considers expectations, representations & reliance  is it JUST& FAIR to impose a duty?
  • BOP on 
/ YES / DOC / Ann’s Test:
Cooper – 19
Childs - 24
NO / No liability
  1. Are there policy considerations, which ought to negate the imposition of a DOC on a class of persons despite adequate proximity?
  • Floodgate concern (once recognized category, always recognized)
  • BOP on 
/ YES / No liability / Ann’s Test:
Childs - 62
NO / DOC

Was the SOC met?

  1. What would a reasonable and prudent person have done in the same circumstances?
  • Children  reasonable & prudent child of similar age, intelligence & experience (Heisler – 151)
  • Unless involved in adult activity (Pope – 153)
  • Physical disability  adjust standard accordingly
  • Mentally ill reasonable & prudent person of same capability
  • No volition
  • No capacity to understand/appreciate DOC
  • Special skill/knowledge  reasonably prudent & competent Dr/Chiro/Builder… (terNeuzen – 183; Kern – 190)
/ Foreseeability / Bolton – 135
Probability of harm
Gravity of harm/loss / Paris – 142
Burden of precaution / Rentway – 145
Social utility
Common Reasonable Practice/Custom / Paris – 142
Warren – 180
Waldick – 174
terNeuzen – 183
Medical/Clinical guidelines / Kern – 190
  1. Were there statutory standards in place?
  • Provides non-determinative EVIDENCE of breach of SOC  concern of strict liability (Saskatchewan – 195)
  • Was the breach related to the objective of the statute (Gorris – 200)
  • Compliance doesn’t equate meeting the SOC (Ryan – 202)

Causation

  1. The damage wouldn’t have occurred BUT FOR the negligent actions of the 
  • Damages can be apportioned
  • J&S liability
  • Contributory negligence
/ BOP on  - balance of probabilities / Atheney – 208
Can infer causation from presumptive evidence  BOP shift to  to rebut / Snell – 201
Can involve more than one party so long as damage wouldn’t have occurred BUT FOR ’s negligent action
 liable for 100% of damages even if other non-negligent causes exist / Atheney - 208
  1. Material Contribution
  • Used in circumstances of GLOBAL BUT FOR  where the test fails b/c multiple people involved in negligent action (Cook v. Lewis)
/ Has never been applied by the crt / Clements – 222

Remoteness

  1.  is responsible for all the reasonably foreseeable consequences of negligent action
  • Thin skull  compensate for full extent of damage, including pre-existing conditions (Bishop – 270)
  • Crumbling Skull  compensate to the extent’s action worsened the position
  • Intervening acts break the causal link & aren’t reasonably foreseeable (Bradford – 275)
/ Must be proximate/foreseeable – if unforeseeable then unpreventable / Cameron – 252
Wagon Mound – 257
Assiniboine – 266
Stansbie - 274
Consequence driven / Hughes – 262
Manufacturers liable to ultimate consumer for common practice they OUGHT to have know / Smith - 279
Manufacturers liable for selling a product they KNOW will be used inappropriately / Good-wear - 281

 Additional Aspects of Negligence

Duty to Warn

Liability possible for failure to provide information
Manufacturer / Duty to ultimate consumer for dangers KNOWN/OUGHT TO HAVE KNOWN
  • Includes those found at later dates
  • Serves to correct knowledge imbalance
  • Duty varies c/ level of danger inherent in normal use
/ Hollis – 287
Manufacturer of medical products / Duty to ultimate consumer often through LEARNED INTERMEDIARY
  • Discharge duty when middle man’s knowledge approximates that of manufacturer
  • Exception to general rule
  • Includes:
  • Highly technical product
  • Use only under supervision
  • When consumer not likely to receive warning from manufacturer directly
/ Hollis - 287
Medical professionals / Duty to EFFECTIVELY disclose all material risks wrt the proposed treatment before obtaining consent
  • POLICY – value of bodily integrity; understanding of informed consent
/ Includes risk c/ small likelihood but catastrophic results / Reibl – 297
Brito – 303
Includes informing of alternative procedures / Van Mol – 307
Must be understood by layman / Martin - 330
Impacted by patient concerns / Videto – 300
Medical causation / Patient wouldn’t have consented to the procedure BUT FOR the incomplete risk disclosure by the Dr.
  • Would a reasonable patient in those circumstances have consented to the procedure
  • Would ELECTIVE surgery have been postponed
/ Martin 0 330

Liability for Pure Economic Loss

Claims by individuals Suffering Economic loss c/out personal injury/property damage
Negligent misrepresentation /
  1. Should the  have reasonably foreseen that the  would rely on the representation?
  2. Was it reasonable, in the circumstances, for the  to have relied on the representation?
  3.  had direct/indirect financial interest in the transaction
  4.  was a professional OR had special skill/judgment/knowledge
  5. Representation made in the course of the ’s business
  6. Representation was given deliberately (vs. social occasion)
  7. Representation given in response to specific request
  8. Are there policy reasons to negate a prima facie DOC (ie. indeterminate liability)
/ Hedley Byrne – 351
Hercules - 357
NOTE: Distinguish from consequential economic loss - $ loss as a result of personal injury

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TOWN | Torts