Tort enforces equilibrium of freedoms by invoking social consequences Goal: deter risky behaviour or attempt to acknowledge/vindicate individuals’ rights Considers parties’ comparative power – Assumed responsibility? Vulnerability?

Negligence Act – Joint/Several Liability, Contributory Negligence

s.4: where damage/loss caused by 2+ parties, acting jointly or independently, each is jointly+severally liable for fully compensating Plf; Court determines degree of fault for each, but Plf can recover fully from any party
If Plf contributorily negligent, s.1 treats parties as severally liable for harm ∴ Plf can only recover from each according to degree of fault

Concerted Action

To determine whether parties are engaged in common action: (Cook v Lewis)
-Lawfulness of action - Goal of common venture - Opportunity to control other
-Ability to anticipate possible negligence of other party
-Assistance/encouragement of other party to commit breach of duty owed
Concerted action (common intention towards common design) includes: knowingly assisting and encouraging/being present as conspirator (Bains v Hof)
To be absolved, must disassociate OR act to stop others (Bains v Hof BCSC)
JTs liable if so involved in commission tort: behaviour furthers commission of act OR behaviour done in pursuance of common design (Sea Shepherd UKSC)

Vicarious Liability (unless employee on a frolic of his own)

VL holds party responsible for misconduct of another due to their relationship
-Onus on Plf to establish relationship; strict liability for VL party
Provides just, practical remedy for harm AND deters future harm
-Must be balanced against foisting undue burden on employers
Employers in best position to reduce accidents/wrongs w/ efficient supervision BUT do not exercise same control over Independent Contractors∴no VL(Sagaz)
If duty is non-delegable, may be VL for tortious acts of ICs; consider Plf’s vulnerability (limited knowledge; tendency to rely), Df’s level of control (Lewis)
Salmond Test: VL for conduct w/in course/scope of employment: acts authorised by employer OR unauthorised modes of authorised acts (DanicekBCSC)
If Plf establishes that employee’s act done on work premises, during hours, and close connection to authorised work THEN onus shifts to employer(Bazley)
To distinguish btw unauthorised mode and independent act: (Bazley)
1)Precedents – Analogise to cases that unambiguously demarcate VL and no L
2)Policy rationale – VL appropriate if significant connection btw employer’s creation/enhancement of risk and wrong accrued; consider:
-Opportunity afforded to employee to abuse power
-Extent to which wrongful act furthers employer’s aims
-Extent to which act related to enterprise friction/confrontation/intimacy
-Extent of power conferred on employee in relation to victim
-Vulnerability of potential victims to exercise of employee’s power /

Intentional Infliction of Mental Suffering

Plf can recover if wrongdoer intentionally caused mental distress
Plf must establish: 1) Df’s conduct was flagrant/outrageous; 2) calculated to harm Plf (subjective); 3) caused Plf to suffer visible/provable illness (Prinzo OntCA)

Wilkinson [1897] UKHC (no defence to say more harm than anticipated)

F: Df told Plf her husband in accident as prank; Plf incurred minor travel expense/suffered violent shock to nervous system which produced serious/permanent physical injury
Only compensated physical consequences of intentional imposition of stress

Boucher [2014] OntCA

F: Wal-Mart Manager belittled Plf in front of other employees; WM failed to act; Plf suffered abdominal pain, weight loss, vomiting blood, insomnia, etc.
H: Df wanted Plf to quit and wanted to cause her mental anguish ∴ liable

Piresferreira [2010] OntCA

F: Bell Mobility Manager verbally abused Plf and shoved her; BM failed to act; Plf diagnosed w/ PTSD, major depressive disorder, anxiety – H: no liability
Reckless disregard for Plf’s wellbeing insufficient to ground intentional tort
Df must have intended to produce kind of harm suffered by Plf, or known it was substantially certain to follow (need not anticipate extent of harm)

Rahemtulla [1984] BCSC (McLachlin)

F: Credit Union Df summarily dismissed teller Plf, alleging she stole $; Plf suffered severe depression – H: Df liable for wilful infliction of mental suffering
Allegation of theft made recklessly; foreseeably inflicted shock/mental suffering / Court will only impose liability for negligence if Df owed legal duty to Plf. In 1920s, Cardozo in Palsgraf posited duty is owed to those w/in orbit of danger as disclosed to eye of ordinary vigilance, since reasonably perceived risk defines duty and imports relation. Andrews, in the dissent, noted this would be inadequate where there was immense/unpredictable potential for risk. In 1930s, Donoghue introduced neighbour principle: DOC owed to those so close/direct that could be reasonably foreseeably injured by Df’s conduct. Modern framework for recognising DOC was articulated by SCC in Cooper. As noted in Paradis Honey, under Anns/Cooper test, proximity gained prominence over foreseeability and freestanding policy could be used to shield some from liability. Onus on Plf to establish prima facie DOC; onus on Df to raise policy to negate DOC (Childs)
1)Does relationship fall w/in recognised category or is it analogous?
2)Was harm suffered reasonably foreseeable consequence of Df’s conduct?
-If not reasonably foreseeable, no reason to analyse proximity BUT problematic if normative expectation of duty makes risk foreseeable
3)Was relationship sufficiently proximate, so Df should consider Plf’s interest?
-3 recognised classes of proximate (close/direct) relationships:(Childs)
-Won’t impose duty to eliminate risk; liability arises from reasonable reliance
a)Df intentionally invited Plf to inherent risk that s/he controls
b)Df has paternalistic supervision/control over vulnerable Plf
c)Df engaged in commercial enterprise/public function
-If harm from misfeasance, physical injury sufficient to establish proximity
-If nonfeasance/non-physical harm, to establish proximity, consider:(Cooper)
a) Expectations b) Representations: undertaking? (Hedley Byrne)
c) Reliance: does Df have control over risk? (Fullowka)
d) Interests: body (Fullowka)> property > economic (Imperial Tobacco)
-Positive duty & autonomy: right to 1) take risks 2) not to intervene(Fullowka)
4)Notwithstanding proximity, do policy considerations negate imposing DOC?
-Consider negative impact on legal obligations/legal system/society
-Existing remedy? (Haskett)Unlimited liability for unlimited class? (Hercules)
-Generally, overriding policy will not negate DOC (Yuen Kun Yue)

Standard of Care (what is nature of Df’s duty?)

Did Df expose Plf to unreasonable risk of harm?– assessedobjectively:

1) Degree of risk/probability of harm (Bolton – cricket)
2) Severity of potential harm (Paris – one-eyed employee)
3) Cost of preventative measures (Rentway,OntCA – explode tire/headlight)
-Rejects Learned Hand Formula (US model of economic efficiency – IF severity of harm x degree of risk > cost of preventative measures, THEN risk = unreasonable) since overemphasis on utility would justify sacrificing Plf’s social interest for Df’s social utility; instead if Df showed sufficient respect for others’ interests
4) Utility of activity (Bittner,OntCA – investigating Officer slipped on ice)
-Centre of SOC inquiry is degree of risk + severity of harm(+Plf’s sensitivity); utility may modify SOC if Df establishes there should be exception
Reasonable person entitled to draw inference from evidence/make judgments on certain beliefs even if conclusions false, BUT must exercise adequate skill to assess facts (Stewart v Pettie,SCC – intoxicated driver w/ friends)

Negligence (liability for failure to exercise reasonable care)

Purpose to assess fault w/ goal of correcting wrongs; deterring wrongful conduct/compensating harms are merely effects – be wary of results-orientated
Plf must establish: 1) Df owed Plf duty of care; 2) Df’s breached standard of care; 3) Plf sustained harm; 4) harm caused by Df’s breach (in fact+law) (Mustapha)

Duty of Care (did Df owe a duty to this Plf?)

Recognised Duties
Manufacturers/consumers– product safety, inform risks(Donoghue, Hollis)
-BUT not for economic loss caused by non-substantial risks (Hasegawa)
Security firm/clients (Fullowka) - Police officers/investigations’ subject (Hill)
Doctors owe duty to inform patients of material (probable/serious) risks (Reibl)
Boat operators/passengers (to non-foolhardy rescuers if negligent)(Horsley)
Commercial hosts owe duty to patrons/3P road users(Stewart v Pettie, Jordan House)
-Social hosts do not owe duty to inebriated guests/3P road users unless implicated in exacerbating the risk(Childs)
Drivers/Other road users (Rentway) Gov to hwy users (Just)
Bankers/Clients financial inquiries(Hedley Byrne) Auditors/Statement users (Hercules)
Credit Reports/Subjects (Haskett) Lawyers/Wills’ beneficiaries (Wilhelm)
Builders to Owners/Residents (Winnipeg Condo)
Df undertook to help Plf, but did not, removing Plf from where others might help(Zelenko)
Df failed to act to rectify non-negligently created risk which injured Plf (Oke v Weide)

Good Samaritan Act: SOC ↓ to encourage bystanders (only liable for gross negligence)

Evidence of Unreasonableness

To assess proper SOC, Court may consider empirical evidence of how people interact in certain contexts, including: Custom, Professional standards, Statute
Either Plf or Df can introduce evidence to assist Trier of Fact assess SOC
-Plf can introduce to argue Df failed to meet recognised standard ∴ breach
-Df can introduce to argue it met recognised standard∴ no breach
To be admitted, party must establish solid evidence of practice(Waldick)
Evidence of medical conduct generally inadmissible unless ordinary person can understand it and pass judgment (ter Neuzen)
Professionals w/ special skills act accordance w/ reasonably competent prudent member of profession in circumstances (emergency, resources) (ter Neuzen)
How much weight should evidence be given? Merely factor to consider? vs Strong evidence of proper SOC? vs Rebuttal proof of proper SOC?
-Open to Trier of Fact to reject any evidence (Warren)
-If custom exists, not decisive; Court will only take custom as proper SOC for practices that adequately consider others’ safety (Waldick)
-No amount of compliance w/ custom will render negligent conduct reasonable – Court will not abdicate responsibility by deferring to social norms (Waldick)
-Expert consensus on SOC is strong, but not binding (Warren)
-Court won’t override expert opinion unless it offends common sense (Warren)
-Evidence of alt practice not strong unless Df’s omission unreasonable (Warren)
-Evidence of usual business practice has no compelling force (Brown)
Specific/illustrative statute may be relevant to assess SOC (SK Wheat Pool)
-Its purpose must be to protect against type of loss suffered in claim (Gorris)
-Weight of statutory compliance depends on nature of statute (specific/general, discretion in performance – balance: legislative deference, Df’s security, protecting Plfs), circumstances of case (w/in intended scope of statute) (Ryan)

Modifying SOC for Special Defendants

Modify SOC for children/sudden incapacitation enables Courts to assess fault by inquiring into voluntariness, ability to anticipate risk, potential precautions
To assess proper SOC for children ask:
1)Is particular child capable of being found negligent? (Heisler)
2)What SOC would reasonable child of similar age/intelligence/experience be expected to discharge in same circumstances? (Heisler)
3)Was child engaged in adult activity? (consider: inherent danger, bystander assumption, rite of passage) (Pope)
-Activity may be construed narrowly to determine whether “adult” (Nespolon)
To be relieved of liability for mental illness, Plf must establish on BOP: (Fiala)
1)Df was afflicted w/ mental illness suddenly + w/o warning (antedating critical!)
2)As a result of mental illness: Df had no capacity to appreciate DOC owed OR Df unable to meet SOC since had no meaningful control over actions at time
-Imposing objective SOC on mentally ill would make faultirrelevant
Must impose objective SOC capable adults to govern societal relations(Menlove) /

Causation (did Df’s breach of duty cause Plf’s harm?)

Causation is expression of relationship that must exist btw Df’s tortious conduct/ Plf’s injury to justify liability. Approach is not settled. As noted in Athey, general, but not conclusive, test for causation requires Plf to show his harm would not have occurred “but for” Df’s negligence. Must 1) identify harm, 2) isolate negligent act, 3) consider whether harm would have occurred w/o negligence. Sopinka in Snell affirms robust/ pragmatic use of B4, rejecting concerns that it cannot accommodate complexities of proof which could deny probable victims of negligence relief. B4 does not require Df’s conduct to be sole cause of harm, nor scientific certainty, only inference that Df’s act was necessary precondition of Plf’s harm. SCC in Clements echoes pragmatic approach, noting B4 is factual inquiry as to what likely happened, and approved alt test that would impose liability on Df for materially contributing to risk in rare circumstances where Plf was clearly victim of tortious behaviour, but B4 inadequate, since multiple Dfs actions globally increased risk, but impossible to determine which caused Plf’s injury, like in Cook v Lewis. If Plf establishes B4 causation by inference only, open to Df to rebut by arguing injury was inevitable (Clements).
Failure to Warn: Manufacturers: would Plf have used product if properly informed on risks? (Hollis) vs Doctors: would reasonable person in Plf’s position had treatment? (Reibl) If relying on learned intermediary to meet duty cannot raise causation argument to claim intermediary’s incompetence would have rendered same consequence (Hollis) / If 2+ necessary preconditions produce indivisible harm, each may be liable for whole BUT if harm divisible, then each only liable for particular consequence (Bradley)

Remoteness (should Df be held liable for this harm?)

Notwithstanding Df’s negligence, is it fair to hold Df liable for Plf’s harm?
Historically, Courts imposed liability for consequences directly caused by Df’s conduct (Polemis); modern limits to reasonably foreseeable (WagonMound1)
1)Chain of events leading to harm particularly unusual ∴ no liability (Cameron)
2)Actual incident causing harm particularly unusual ∴ no liability (WagonMound1)
-BUT if injury probable, exact circumstances causing irrelevant (Assiniboine)
3)Type of harm suffered particularly unusual ∴ no liability (Mustapha)
-BUT if harm simply caused by variant, then still liable (Hughes)
4)Df liable for all consequences if harm to Plf reasonably foreseeable, even if unexpectedly severe/exacerbated due to pre-existing susceptibility (Bishop)
-w/o thin skull rule would allow wrongdoers to gamble w/ Plf’s strength
-crumbling skull rule: If Df merely caused Plf’s pre-existing condition to materialise earlier, then only liable for acceleration (Athey)
-Law expects reasonable fortitude/robustness of citizens; will not impose liability for exceptional frailty of certain individuals (Mustapha)
5)3P intervention so unusual to overshadow Df’s act ∴ no liability (Bradford)
-BUT if 3P intervention reasonably foreseeable consequence of Df’s act (Bradford)OR compounds Df’s original act (Stansbie), then no defence
-If Df causes Plf to seek medical help, then assumes inherent risks (Larsen)
-BUT not if insufficient connection btw initial injury + ‘treatment’ (Timmins)
-Cannot argue novus actus for pre-existing state of affairs (Assiniboine)
Cameron F: Df’s cow crashed gate, climbed stairs, burst floor, fell into shop, turned on tap, causing shop to flood; Plf claimed damage to shop – H: Unnatural ∴ no liability
WagonMound1 F: Df carelessly allowed oil to leak from ship, welders’ sparks ignited oil causing fire – H: Not reasonably foreseeable oil could set alight while in water ∴ no liability
HughesF: Df left manhole open under tent/ladder/paraffin lamps; 8yo Plf went in, knocked lamp coming up, sending it down hole; paraffin leaked causing explosion – H: No reason to find liability for burning, but not exploding lamp; type of injury foreseeable ∴ Df liable
AssiniboineF: Df1 auto toboggan lost control, struck Df2’s negligently placed riser pipe, fractured causing gas to leak/explosion – H: Df2 should have reasonably foreseen pipe damage even if not this way; State of affairs in place when Df1 ∴ cannot say Df2 intervene
StansbieF: Df contractor left Plf’s house unlocked allowing thief in – H: Reasonably foreseeable that leaving premises insecure would enable thieves to access ∴ liable
BradfordF: Flash fire in Df’s restaurant extinguished immediately but sound caused 3P to shout of explosion inducing panic, causing guests to run, trampling Plf – H: Df negligent in cleaning grill, but properly responded; hysterical conduct not foreseeable – DIS: Df ought to have known greasy grill, causing fire, requiring loud extinguisher, would cause panic
SmithF: Plf suffered electric shock due to Df’s manufacturing defect AND 3P removing plug’s 3rd prong – H: Removing prong common; Df should have anticipated ∴ liable
LarsenF: Plf injured in Df’s car accident; Plf sustained subsequent, distinct knee injury using elliptical in physiotherapy – H: Plf’s injury in treatment foreseeable consequence of accident∴liable; BUT Timmins, insufficient connection btw walking/initial injury∴ no liability

Government Liability

DOC: When is individual in proximate relationship w/ government actor?
-If Df’s actions sufficiently close/direct effect on Plf, Df should have Plf in mind; more likely to recognise if created personal/particularised relationship (Hill)
-No representation/reliance, but freedom interest at stake/Plf vulnerable (Hill)
DOC: Are there policy reasons for not imposing liability on this government actor?
-No liability for pure bona fide policy decisions based on social/political/economic factors BUT if policy unreasonable, then not bf exercise of discretion (Just)
-♕ may be liable for operational decisions (i.e. implementing policy) (Just)
SOC: Should private law standards be applied to government?
-If DOC is owed, ♕ should not be held to individuals’ SOC; may show implementation reasonable (degree of risk, severity of potential harm, budget/resource constraints)(Just)
-Applying private law analytic framework inappropriate for assessing public authorities’ liability; 1) gov actors implement mandatory obligations, 2) decisions affect many (‘neighbours’ illogical), 3) no discernible industry practice due to wide variation in discretion, 4) other tools to address misbehaviour (Paradis Honey)

Economic Loss: reasonable foreseeability of economic loss does not give rise to DOC, unless sufficiently proximate relationship (reliance, representation, expectations)

Proximate relationship exists if 1) Df undertakes to exercise skill for Plf & Plf reasonably relies (unreasonable in social setting or adequate disclaimer) (Hedley Byrne) 2) Df ought reasonably to foresee reliance (Df’s financial interest, special skill, business vs social, response to inquiry) BUT only if Plf’s identity known (actual/limited class) AND Df’s statement used for intended purpose (Hercules)3) Df assumed responsibility over Plf’s economic well-being (Df has knowledge/control, Plf vulnerable) (Haskett)
Service provider owes duty IF assumed responsibility fr Plf’s economic interest (Wilhelm)
By building perm struc, Df assumes social responsibility ∴ duty to inhabitants (Winnipeg)
NO duty for economic loss for products w/o real/substantial risk (Hasegawa)