Sharon Zheng LAW 108C Spring 2012 Donald Galloway

Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway

DUTY
Palsgraf 1928 / Negligent actors are only responsible for what can be foreseen by the ordinarily prudent eye
Donaghue 1932: / When do you have a new duty? The neighbour principle.

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 directly affected by my act that I ought reasonable to have them in contemplation
Duty of care = proximity + reasonably foreseeability

Dorset Yacht 1970: / HELD: liability
Presumptively, D+S (neighbour principle) applies, unless there’s good reason for it not to apply. Public policy reasons are relevant

There are clear cut cases where someone will be foreseeably be hurt by your actions, and yet you are not liable. What are these cases?
If someone suffers economic losses due to my actions
Not liable for providing others a positive benefit
What are reasons for NOT holding the prison officers for the harm done?
How can an autonomous person be held directly liable for the autonomous acts of another person?
Potentially we could think of vicarious liability – but not this way
Prison officers owe a duty to prisoners to protect them from other prisoners, and therefore have responsibility since they’ve taken control over the prisoners’ lives and control what they can/ cannot do (Q. How does this fit in – it seems contradictory)
The danger of risk adverse decision making - prison officers need to make decisions and have discretion to do their best at their jobs, by imposing tort liability they will become risk adverse and then have worse political decisions made
Lord Reid: in NY, this is accepted. But it’s not accepted in England – the court is not deterred from the idea of tort liability
Not willing to immunize prison officers from tort liability, just because it interferes with their jobs
NOTE: in the UK, however, immunized the police from tort liability and did not hold them liable for negligently failing to solve a crime
In Canada, have not gone that route!

Jordan House 1973 / HELD: duty
(Laskin)

Discusses factors for determining whether there’s a duty, but doesn’t create a rule (very reluctant – can’t articulate a general principle)
1. If someone’s on your land for a commercial purpose and you’re engaged in a mutually beneficial project (ex. invitor-invitee)
2. Knowledge/ awareness (ex. that the person is inebriate)
3. Contrary to statute (ex. a public duty not to supply alcohol to drunk people)
4. Familiarity with the particular person
5. Instructions within the institution (ex. that no one should give more alcohol unless there’s someone to take care)
6. Foreseeability (ex. bar is close to highway and establishment knew he would have to cross it)
7. No big burden for establishment to provide care (ex. could put him in a taxi, allow him to sleep in a room until her sobers up)
8. But supplying alcohol is not enough
Characterized the case as misfeasance, not nonfeasance
Therefore saying that alcohol serving establishments owe a duty to take care of drunk patrons, not just not throwing them out

Car key cases: where a drunk or child asks you for the keys and you give them, if the person hurts themselves you HAVE breached a duty!

Not nonfeasance – it’s misfeasance
No explanation why
There are cases where someone leaves keys in the car and someone else steals it, gets hurt and sues car owner successfully
If you control a dangerous object, you have an obligation to be cognizant of the potential harm that may occur!

Intuitively: what factors matter in considering where we have a duty to provide a benefit?

1. Where you create a legit expectation that you will provide a benefit and the person relies on you
Issue: when is an expectation legitimate?
2. Where you have undertaken to provide the benefit even though there’s no reliance
We agree that when you start something and take on a responsibility, you have to finish it. But it’s not because of the undertaking – it’s because you’ve created a negative consequence for them! No one else will help now!
3. If there’s a dangerous situation you create/ control and allow people to enter the picture
Why?!

Why are we wary of nonfeasance?

We want people to be self sufficient and take precaution
Benefits should be governed by K (less convincing - could be struck down by duress) (unconvincing)
Too onerous to be on the looking for situations in which you must provide a benefit (unconvincing)


Kamloops v. Neilson 1984: / The person building the house is a member of the city council. The building inspector issues a stop work order because the building foundation is problematic. The owner of the building goes to city council and tells them to stop interfering since he wants to be left to build the building he wants on his own property. The foundation is sagging, they sell the house to Neilson who finds the house is largely worthless and sues the city. / Adopts Anns as the proper way to adopt D+S

1. ANNS 1: is there a neighbour relationship (D+S)?
2. ANNS 2: is there a reason for limiting liability in this case (policy reasons)?

ISSUE: can a plaintiff hold a government official (building inspector) liable for not ensuring that housing foundation was dug to municipal/ provincial standards?

DIGRESSION: building inspector issues are tricky.
Two possible issues:

1)Statutory duty: Statute/ by law gives an officer (building inspector) the duty to ensure that a building is done according to code = a public duty to do their job

If a badly built building causes personal industry, do we hold the building inspector liable to a PRIVATE duty in tort law when they owe a public duty to do their job
YES – there’s a foreseeability and NO REASON not to recognize a private duty
Prima facie we hold people to statutory duties

2)Statutory power: There’s a discretion given in the statute, the building inspector CAN inspect the foundation. They have a statutory choice to examine foundations

In Kamloops: building gets built, building falls down, personal injury. Is the inspector liable?
The inspector may legitimately inspecting only some cases, but not every case
Ex. too expensive, taking too long
Since no statutory duty, likely no private law duty

Why do we separate these?

There’s GOOD FAITH and BAD FAITH use of discretion
Therefore prima facie, we hold someone with a statutory duty AND power to a private duty under part 1) of the Anns test
BUT under part 2) we may excuse people form the private duty if there are good policy reasons (ex. cost efficiency) that can trump duty if discretion is exercised in bad faith

HELD: Kamloops did not act in good faith, since they just let it happened. No one was personally injured, but there was an economic loss.

Recognized that bad faith act of political power means they should be privately liable.

UK rejects the Anns test

It’s about economic losses, and there are too many good policy reasons to keep out economic losses (often rebutted)
The purpose of government officials (building inspectors) is to protect people from harm and injury, NOT TO PROTECT AGAINST ECONOMIC LOSSES!
Capitalism requires people to take risks, and (re: Dorset Yacht) will not hold other people accountable for your economic losses! Not even government officials!
There are so many cases that fall into stage 2 (the economic losses etc.) that we have to throw out the two part test – not a good prima facie test because it’s often rebutted! Ends up just being a balance
In Canada – Cooper v. Hobart

Crocker v. Sundance 1988 / The defendant is in charge of the danger, the activity is inherently dangerous, the D feeds alcohol to the injured person (although not a vital element). Race is for profit reasons (seems if no money passed, it’d be harder to find liability but doesn’t explain why). Knowledge here is a necessary factor! / (Wilson)

Commercial hosts have a positive duty to prevent an injury where there is a relationship of economic benefit
Creating a risk a failing to guard against it
In this case, could have discharged duty by disqualifying him, physically preventing him from participating, cancelling the race – this is the standard of care (separate from a duty)
Duty = questions of law: is your relationship close enough that we find a duty
Standard = questions of fact: whether you acted reasonably to discharge the duty
Moving away from the recognized categories of duty, towards whether it’s “just and fair” to hold someone to a duty
Differentiates between misfeasance and nonfeasance
Wilson: we are becoming more collectivist, recognizing we’re not just coexisting islands! We have social bonds – recognizing nonfeasance?

Note: you can K out of tort liability, but must be done in CLEAR terms
JUDGEMENT

Court finds a duty
Causation: lawyers of Sundance argue the intoxication didn’t cause the accident
This is a terrible argument! We’re not saying it did – we’re saying they created a risk and failed to guard against it
ONE ISSUE: Wilson discusses “placing” another in a position, but Galloway says there’s a difference between placing someone vs. admitting someone to a dangerous situation (in which there’s personal autonomy)

Stewart v. Pettie 1995 / Commercial establishments serving alcohol have a duty of care to their patrons
Nothing more than the invitor-invitee relationships / (Major)
HELD: no duty – the establishment showed they met their responsibilities

There were sober people at the table – therefore have no reason to believe the drunk would be driving (subjective knowledge)
It’s not foreseeable that the drunk would drive
Galloway: it’s bizarre that the establishment can be left off the hook by assuming the world would operate in a certain way (wife would drive)
Major: accepts this as the standard of care

Galloway:

Not good authority! Go to Childs
Just because you recognize a duty between a commercial establishment and a patron doesn’t mean you can extend it to 3rd parties out in the world
Erroneously recognizes a reliance from 3rd party users of roads
Pays much more attention to reasonable foreseeability and less to proximity (problematic)

Re: voluntary assumption of risks – did Stewart waive her right by getting into the car with someone she knew had consumed a lot?

NO! although likely contributorily negligent

Cooper v. Hobart 2001 / Like Scalera – a clean up!
ISSUE: whether investors can sue a public official (registrar of mortgage brokers) for not investigating a fraudulent broker quickly enough
The registrar of mortgage brokers had a duty to inform the public when they suspect fraud and an investigation is underway
Involves 1) economic loss AND 2) government liability / (MacLachlin and Major) – economic harm

(1) For a neighbour relationship, there must be (taking over ANNS 1):
1. Proximity (a limiting factor) AND
Certain established categories that put you in the realm of duty/ can you analogize to one?
Unlikely Anns 2 will be applicable if yes
If not, determine if the relationship gives rise to a duty based on (non-exhaustive factors):
1) Expectations
2) Representations
3) Reliance (ex. if P vulnerable)
4) Property or other interests involved (ex. personal injury vs. emotional/economic harms)
= essentially asking, is it fair to impose a duty of care on the defendant (policy reasons relating to the relationship in question)
When will proximity be recognized? Is it related to reasonable foreseeability or are the two separate? It depends:
Personal injury damages, creation of risk (misfeasance)  collapsed into one(ex. the language of injury!)
Pure economic/ psychiatric harms, allowing risks to exist (non feasance)  separate
2. Foreseeability
(2) Policy factors relating to matters beyond the relationship (ANNS 2)
Indeterminate liability
Constraining government policy
Interfering with judicial decision making

SCC: CJ Mac completely reinterprets D + S, to be completely different than Dorset Yacht! She says that according to p. 162 in the notes (of D + S), there must be foreseeability AND proximity!
HELD: no liability - nothing in the statute under which the Registrar is appointed to state that he would provide investors certain information or had their interests in mind – his duty it to the public

Galloway: govt should be held liable for their mistakes in tort

Odhavji v. Woodhouse 2003 / The Defendant is chief of police. Plaintiff are family of boy shot by policy. Police officers involved did not cooperate with the investigation into the death. Under s. 451(1) of the statute the Chief is required to ensure that police officers carry out their duties. Plaintiffs allege they suffered psychiatric consequences following on the investigation and sued the Chief
Case brought against a chief of police as owing a duty to the family of a victim of an accidental shooting by police. Police have a duty to the public (for many reasons) to follow their responsibilities – the question is whether they owe a much more specific duty to the Odhavji family / (Iacobucci) psychiatric harm

Treats reasonable foreseeability and proximity as independent
Identified 3 factors when it’s “just and fair” to recognize a proximate relationship, retrospectively
1. Immediacy
2. Reasonable expectation and reliance by the public
3. Whether the expectation is constituted with the statutory duty of police

HELD:Chief of police is held liable for the psychiatric harm suffered due to a failure of police to investigate in the accidental shooting of the Odhavji’s son
Judgement:

Treats the overlap proximity and reasonable foreseeability as independent since this is a case of psychiatric harm
Is there a cause of action?

ANNS PART 1

Flips the test and goes foreseeability  proximity, because foreseeability is harder to show in this case
Articulates 3 factors that suggest it’s “just and fair” to recognize a proximate relationship:
1. Immediacy(close causal connection between negligent supervision and injury)
2. Reasonable reliance (since vulnerable people are reliant)
Issue: why wouldn’t the registrar of mortgage brokers in Cooper fall here?
3. Expectation (since statutory duty)
McLachlin’s was about justness and fairness like Cardozo
Iaco’s is more like Andrews: looking back, can we discern a close enough relationship?

ANNS PART 2

Two reasons to not recognize duty suggest, both rejected:
a) it would interfere with independence of investigation (Iaco: no direct connection between chief doing hob and independence of investigation)
b) there are other avenues of remedy available

Childs v. Desormeaux
2006 / (McLachlin) Leading case and social hosts and alcohol

Public establishments owe a duty to 3rd party drivers on the road because they expect it
Galloway: this is not true - just an application of Stewart, which is bad law and ex post factos reasoning and legal fiction!

HELD: no duty in this case
ANNS TEST PART 1
1. No established duty of care since alcohol at a private party

Different than commercial hosts:
1. Capacity to monitor consumption
Keeping a tab to charge you, employees trained to recognize
Issue: clients may drink in several places, social parties are smaller and easier to monitor
2. Government regulation shapes public’s expectations
Issue: don’t we still take care of ourselves at commercial establishments? Don’t we feel like we have social expectations that our friends wil take care of us?
3. Profit and K change the nature of the relationship
Incentive to oversell
Galloway: likely the strongest, but assumes instrumentalist view of tort law! That torts are needed to prevent K from being antisocial
Also, social host may want guests to drink and be merry

2. Should we recognize a new duty (proximity/ foreseeability)?

NOTE: addressing foreseeability first is problematic – how can you ask what’s foreseeable if you haven’t established the relationship?
1. Foreseeability
Trial judge: social host had knowledge – knew this person had driven drunk the past, therefore ought to have foreseen this
SCC: NO! Just because someone’s done something wrong in the past doesn’t mean they’ll do something wrong in the future
Also, non-feasance – no duty to act
2. Proximity
Is it just and fair? Cases in the past that gave rise to duty of care (not established categories, just relevant factors):
1. Intentionally inviting a person to an inherent risk that you create/control (like in Cooper)
2. Paternalistic relationships: parent/ child, teacher/ student, captain/ guests. One party is vulnerable – position of dependency
Must be balanced with personal autonomy
3. Public function/ commercial enterprise that includes implied responsibilities to the public at large
Due to reasonable reliance (Stewart)
ISSUE: public function doesn’t give rise to a tort just because people rely (Cooper)

There are 2 things going on in the Childs proximity analysis:

1. Asking when you owe a duty to provide a benefit to another person (Crocker, Childs)
Ex. when you owe a duty to a guest as a private host?

2. When are you implicated in the wrongdoing of another person?
It’s not really about nonfeasance/ providing benefits
It’s about how much you have to do to implicate yourself in the wrongdoing of another person: like Cook v. Lewis!
If you JUST give a party – there’s no reason to hold you liable for the wrongful consequences
BUT if you wilfully supply alcohol to a guest knowing they’re going to drive/ failing to monitor their actions, that’s different!
If you’re more involved though, you might be liable!

Proximity shouldn’t be based on reliance by the world, should be based on the involvement and complicity of the host
= complicity of wrongdoing

DUTY TO WARN
Defective Products

1. The shoddy deficient (not functional, bad) product
Should tort law be involved when the harm is purely economic?Nno
2. The dangerously defective product that causes harm
Tort is clearly involved (Donoghue)
3a. A defective product which is dangerous because people rely on it to provide some form of protection/ safety
Tort is involved
3b. The product that is discovered to be dangerously defective after sale
Getting into realm of knowledge and information
Tort law imposes a “continuing” duty to warn people about the danger (Rivtow Marine cite on page 224)
After you warn people, your product ceases to be a dangerous product, and is now just a shoddy product! Repairing/ replacing is pure economic loss which isn’t covered by tort
Product is so dangerous you have a duty not to market it
4. A product that is not dangerously defective, but may cause harm unless used properly
Duty to warn consumers about how to avoid the harm, how to use something properly so that it’s not dangerous to them
This is VERY different than 3b because it’s not dangerously defective
Although you may discover only after putting something on the market that people are using it wrongly/ that there’s a harm of improper use
At this stage, have a continuing duty to those who’ve already purchased it to warn them and a duty to warn future consumers
Some items are inherently dangerous, but not sufficiently so to justify a duty to not market it (since they’re not defective)
You just have a duty to warn about hidden (non-obvious) dangers
But not a duty to warn about every possible danger that could happen
What do we have to tell consumers? How much is enough information?
Need to tell consumer the dangers that the manufacturers know and that the consumers likely won’t know (imbalance in knowledge)
Ex. Breast implants