NEGLIGENCE
Step 1) Has There Been Damage? You need some reason to be pissed off enough to sue.
There must be under a (quantifiable) head of loss such as econ loss, physical harm, loss of enjoyment etc linked to the victim. (Limitations act applies unless you can have an exception like MK v. MH; if municipal inspectors miss something etc; clock starts when damages are evident)
Step 2) Does D owe a Duty of Care to P?
A) Is it a Recognized Duty of Care? Relationships of…
1) Control or Supervision
Galaske v. O’Donnell: 8 y.o. kid with dad, neither buckle up as passengers in D’s truck, but D does. D didn’t say anything because he didn’t want to yell at dad in front of kid, but they get into an accident and dad is killed, kid paralyzed. Driver held to always be liable to those in car.
2) Creation of danger: always have a liability / duty if create danger.
Oak v. White Transport: D knocks down sign but cannot remove it; tries to report it but talked out of it by gas station attendant. Sign impales another driver. D not held to be liable because the sign was off the road = no immediate risk, even if he created an ambit of risk.
2) Economic Benefit
Jordan House Ltd. v. Mennow and Honsberger: economic benefit relationship. Mennow a well-known drunk at the bar, not allowed to drink unless with responsible people. Comes in with people, they leave, he gets drunk and rowdy and is kicked out on to highway. Gets picked up, put home, staggers out into highway and gets hit by car. Unlike in Childs, hotel is liable because professional establishment, economic relationship.
Dunn v. Dominion Railway: D sends P off train when drunk, P left in dark station where he gets hit by train. D was negligent.
Heimler v. Calvert Caterers Ltd. (1975 ONCA) D liable for contaminated food; high duty of care.
4) Statutory Duties: see Bonnie Mooney; Jane Doe (cops have duty to protect etc); issues are in reading in duties expansively.
5) Reliance:Kamloops, “lighthouse cases” etc; Mercer: normally lock a gate where the train goes past, people know this. P knows this, goes out, gets hit. D liable because he assumed a liability by his goodwill.
B) Is it a new Duty of Care?
The major case:
Cooper v. Hobart [2001 SCR]: Registrar of Mortgage Brokers suspended a broker’s licence and froze specific assets supposedly fraudulently used by the broker. P, one of 3000 investors who advanced money to the broker, alleged that D breached duty of care to investors – “D was long since aware of serious violations by broker and should have acted earlier and I wouldn’t have lost money.” SCC: No duty of care owed. Anns test suggests they weren’t close enough, P did not prove need for duty of care. Foreseeability not enough to establish duty of care. No statutory basis for duty of care from registrar except to public = insufficient proximity. Plus, policy considerations give all kinds of reasons to suspend duty of care – all kinds of liability issues, would basically mean unconditional insurance scheme to investors. Canadian version of Caparo, overturning Anns.
Cooper Test: 1)a) Was the harm a foreseeable consequence of the negligence?
b) Was D sufficiently proximate to P to owe a duty of care to P?
2)Is there any policy consideration for why we should not slap D?
Should also know
Anns v. Merton London Borough Council:P leased residential maisonettes with inadequate foundations as per bylaws; D inspected and found nothing wrong. D liable. D assumed liability by inspecting maisonettes and giving their OK; no good policy reason not to hold them liable.
Anns Test (PeePee test): 1) Is there Proximity between parties to create prima facie duty? 2) Any good Policy reason not to have it?
Donoghue v. Stevenson: you owe a duty of care to your neighbour. It’s just a question of who your neighbour is. Starts the whole fucking thing
Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd[1960s UK].: P phoned D asking about client’s credit. D about to close major contracts w/ client and lied but waived responsibility in giving info; P relied, client went bankrupt, P sued. Relationship between the parties was “sufficiently proximate” to create a duty of care – “there was a special relationship,” plus D knew P would rely on the information, BUT they got away with it thanks to the disclaimer. (See Derry v. Peek;Heilbut Symons v. Buckleton)
Econ relationships, negligent misstatements.
Home Office v. Dorset Yacht Co[1970s UK].: youth inmates at special island reformatory escape; some sneak out, take yacht and collide it with another yacht (property of D, NOT P). P owed duty of care to D because youths had escaped etc; definitely foreseeable, plus P had vicarious liability because its agents were negligent.
Public authorities can be held liable.
Kamloops v. Neilsen: House in Kamloops had poor foundations; stop-work orders not enforced, D bought the house. D sued for negligent performance of inspection. P hjad discretion, but performance of inspection = duty of care. Anns test was used to say that there was no policy reason the city shouldn’t be held liable for D’s economic loss.
Difference between public and private duty is that with the former, misfeasance is actionable, but nonfeasance isn’t.
See also Just v. BC: municipal road maintenance = duty of care
Caparo Industries Plc v. Dickman: Sinking company targeted for takeover by P; P bought up shares, looked at books, bought company out, then found company was in even worse shape than the books had suggested. Sued D (accountant of company) for negligence. No duty of care b/c for indeterminate time to an indeterminate group of shareholders
Caparo test: 1) Harm must be reasonably foreseeable of D’s conduct; 2) Relationship of proximity between D and P; 3) Must be “fair, just and reasonable” to impose liability.
This case overturns Anns (Sutherland v. Shire Council: develop negl. Law by analogy)
Odhavji Estate v, Woodhouse: Odhavji shot by cops, investigation went nowhere b/c cops stonewalled. Re negligence: Must prove harm was foreseeable, duty was present b/c of proximate relationship, and there was no policy reason to consider otherwise.
Cops are liable: It was foreseeable that cops’ stonewalling would hurt P; easily a causal link between cops’ stonewalling and harm to P; statutory obligations exist which also create duty; no policy reasons for restraining it. BUT the police board / A.G. etc. were NOT liable – no duty to ensure cooperation, no causal link between them and the alleged harm; no statutory obligation, etc. Odjavi makes it possible to recover psych damages and sue public officials.
Childs v, Desormeaux: D (notorious drunk) left party at private home, drove car into traffic, collided with another car and killed and injured others. P brought an action against the hosts. SCC: Dismissed appeal:
*Social hosts do not owe a duty of care to highway users – no proximity
*Injury to P not reasonably foreseeable; history of impaired diving does not make an MVA foreseeable (!)
*Even with foreseeability, there is no duty b/c the alleged problem was a failure to act when there was no duty to do so; only way there would be a duty is if social host directly created the risk.
*Alcohol consumption is an individual choice – why force others to pay for your individual stupidity?
*No evidence anyone relied on hosts to monitor guests’ consumption; not reasonable to rely on social hosts to do so.
(Contra Winnell: US case influencing this one; but there, D knew guy was drunk and going to drive and did nothing)
Commercial context heavily regulated, not like personal servings etc.
Step 3) What is the Standard of Care?The extent to which you owe a duty of care (which is the obligation you owe.) Generally based on an objective standard, but sometimes adds subjective elements.
Conduct is negligent when it creates unreasonable risks of harm, usually found by F-PLOC:
Foreseeability Probability X Loss = Object X Cost
Foreseeability (see REMOTENESS, below): Is the kind of harm foreseeable? Is the class of plaintiff foreseeable? (Use your imagination)
(Regardless of the outcomes of the following cases, these are really just here to show you some of the ways you might “foresee” harm. Hay v. Young, below: could you really foresee that your accident would cause P to miscarry? If not, you don’t need to get into probability)
Hay v. Young: Woman getting off the bus, motorcyclist illegally passes, hits her and kills them both; P sees this and blood afterwards and flips out and has a stillbirth. Deceased motorcyclist (D’s spouse) owed no duty of care to P because P not foreseeable. (Diss: “you owe a duty of care to the world at large!”)
Farrugia v. Great Western Rwy: D overloads truck, P chasing truck to try and stow away, gets hit by box when it falls off after passing overpass, hits and kills P. Irrelevant that P was doing something illegal etc; this could’ve hurt anyone.
Dobson (litigation guardian of) v. Dobson: Unborn children not capable of being litigants until they are born with injuries sustained in the womb, but in Dobson it was a friendly case where grandfather was suing mother to access insurance money. Court says we can’t sue mothers for policy reasons (thanks, intervenors!). Dissent: “If she knows she’s pregnant, she should take care. The plaintiff is still hurt by mother’s negligence.”)
Mustapha v. Culligan: P total OCD, saw dead fly in D water after buying for 15 years for health concerns; freaks out, got depressive etc. Trial judge said P’s higher standards linked to his Lebanese and Muslim heritage, but that’s exactly the point: this is an objective test, and P was only hurt psychologically because he was subjectively less robust and therefore not foreseeable. (Also, contract liability based on probable result of breach, so nothing there either.)
Vanek v. Great Atlantic and Pacific Co. [2000]: “Reasonably foreseeable” to a person of “reasonable fortitude”; (Kid drinks out of wrong bottle and gets sick, but parents freak out – they’re not being reasonable).
Dulieu v White and Sons [1901]: first case allowing damages for psych fear; reasonable foreseeability + policy, locational, relational and temporal proximity
Alcock v. Yorkshire Police: primary vs. secondary bystander
Paige v. Smith: primary victim: need only establish foreseeability of physical harm and experience ~; Secondary bystander: must show reasonably foreseeable psych illness.
Probability: Is the harm (the “loss”) likely enough that the reasonable person would act to prevent it?
Bolton v. Stone: D hits cricket ball, which hits P. Only 6 instances in 30 years did a ball go out into the highway, which was not frequented by many people, and potential harm to people was very small. Obviously too remote, and costs of prevention would clearly outweigh harm. (Like NY golf case when golfer hits another’s car: everyone has a shitty drive sometime or another.)
Loss: If potential loss is great, slightest risks create liability.
Paris v. Stepney Borough Council: one-eyed man blinded by chip of metal. Employer is liable for not having provided goggles. Just because it was not standard practice doesn’t mean it wasn’t negligent.
Majority said the magnitude of the loss was greater; dissent said it was based on risk, which was equal between two-eyed employees and P.
Object:Weigh the probability of the loss with the reason you might incur the risk
Even if probability and loss are high, D may be excused if the object is highly socially important and have to reconcile the probability of something going wrong and the probability of a specific consequence.
Test Case (example)
Watt v. HertfordshireCounty Council: Fire department doesn’t have a proper truck to carry a particular jack, so they take it on another truck. The jack it slips off and hurts P. The courts rule it was alright to assume this high risk because the object of executing a public duty and saving numerous lives far outweighed the probability and loss analysis.
Law Estate v. Simice: doctors’ duty to patients outweighs almost any duty to contain health care costs. No cutting corners!
Often seen with Cops
Bittner v. Tait Gibson Optometrists: P is a cop who slips and falls on ice on D’s steps while pursuing a suspect. P not contributorily negligent because of duty.
Priestman v. Colangelo and Smythson [1959](p. 173) – kid steals car; cops chase, fire warning shot at tires, but hit a bump, shot the kid, who was killed and whose car careened into two women waiting for the bus. Reasonable risks are necessary for police duty to stop this stuff.
Poupart v. Lafortune [1973]: D a cop, not liable for having opened fire on bank robbers firing at him and accidentally hitting a bystander. Legislative duty as a cop imposed this dangerous activity on him.
BUT Woodward v. Begbie [1962]: cops liable for shooting prowler instead of ground near his feet because force was excessive.
Cost: What is the cost of removing the risk? If it is small (e.g. seatbelts ), it should be assumed. Should be weighed against other factors, particularly foreseeability: Ice cream vendors have a high probability of accident with children, so you need a second attendant.
Test case (example)
Shilson v. Ontario Light and Power: 12 year old boy injured by electrical wire as he walks across a ravine on a 12-inch pipe after passing and ignoring warning signs.
Courts: “this is one big-ass ravine: with all these barriers and warnings. Not only is it hard to foresee the harm, but the cost of definitely preventing any adventurous boy from ever getting hurt is pretty difficult.”
Hogan et al v. McEwan et al: passenger P hurt when D swerves to right to avoid dog. D not liable because it was this or hit the dog or hit a lamppost (was the best option); generally, though, people worth more than animals.
Hoster v. Toronto Electric Light Co.: P touches uninsulated wire by foot passenger bridge about 14-20 inches from the bridge. Court: “everyone walks across this. Someone would touch this wire, duh.”
Step 4) Reasonable Person:To whose standards do we hold D?
Rule: Objective standard regardless of individual capability or idiosyncrasy; assumes we’re all intelligent, knowledgeable, in control of kids; allowances made for individual circumstances of physical disability, superior knowledge etc.
Test Cases:
Blyth v. Birmingham Water Works (1856): original case for establishing this standard. D had fire plug installed, but severe frost of 1855 cracked it, leading to a flood. No negligence because reasonable care was taken given the circumstances.
Vaughan v. Menlowe (1837): D left up a big stack of dry hay (fire hazard) and said he “would chance it”; burns down D and P buildings. D conduct below reasonable person standard.
Exceptions:
Children
Rule: Evaluate the “reasonable child” based on individual age, intelligence, experience etc
Test Case:
McEllistrum v. Etches (?): 6 y.o. lives by hwy, taught about its dangers by parents, going to cross with siblings; one brother runs across to median. A car comes, sees kids, slows down, daughter runs out and is hit by this car. Daughter understood because of experience and was therefore contributorily negligent.
AND
Heisler v. Moke: kid warned against jumping but jumps and causes injury to P; age of 7 is general age of responsibility but depends on circumstances; D is 9 and bright, is liable.
Dellwo v. Pearson: Adult activity by kids = hold kids to that standard they assumed. (Unfair for victims; cars etc equally deadly)
Pope v. RGC Management: Golf is an adult activity (bow chicka wow-wow)
Teno v. Arnold: ice cream vendor should know kids run out after ice cream truck
Custom:
Rule: Depends on custom, issue, community; less likely to overrule technical/professional customs, but common sense can prevail (like doctors who don’t normally count sponges)
Test Case (example):
Waldick v. Malcom: even if D proved it customary that icy steps not usually salted, that doesn’t mean everyone wasn’t negligent.
Brown v. Rolls Royce: D didn’t supply barrier cream to employees and P gets dermatitis. Courts know D consulted physicians who know this wouldn’t have changed causation, so custom not conclusive.
Warren v. Camrose (City): what was current custom? Courts can still disagree with custom.
Disabled:
Rule:If aware of disability, must keep out of situations which would pose problems (No blind people driving busses!). If unaware of disability, don’t worry about it!
Test Case:
Fiala v. Checkmanek (2001): MacDonald goes for run, gets very first bipolar incident, jumps on D’s car roof, hits D, who hits pedal; accelerates and hits P. Symptoms unforeseen = no liability for M. Brings into questions about purpose of tort (compensation vs. punishment), questions about apportioning fault with mental illness.
AG Canada v. Connolly: no liability w/o foreseeable harm and NCRMD = can’t foresee, can’t appreciate duty of care
Robertson v. Aye (?): Mental patient attacks shopkeep; patient’s hospital not liable because this is not foreseeable. Stricter standard than “anything you can foresee”).