Torts - Priel - 2012-13 (5)

Torts

SHORT SUMMARY .......................................... 6 DUTY OF CARE ...........................................................................................................................................................6 BREACH OF DUTY.....................................................................................................................................................8 CAUSATION .................................................................................................................................................................9 REMOTENESS/PROXIMATE CAUSE .............................................................................................................. 10 DEFENCES................................................................................................................................................................. 11 QUANTIFICATION OF DAMAGES .................................................................................................................... 12 JOINT AND SEVERAL/SEVERAL LIABILITY ............................................................................................... 12 INTENTIONAL INFLICTION OF HARM ......................................................................................................... 12 NUISANCE ................................................................................................................................................................. 12

TORT LAW SUMMARY .................................. 13 THEORETICAL PERSPECTIVES ON TORT LIABILITY ............................................................................. 13 (1) RIGHTS BASED VS. SOCIAL WELFARE .....................................................................................................13 (2) ECONOMIC ANALYSIS OF TORT LAW .......................................................................................................14 (3) CORRECTIVE JUSTICE ......................................................................................................................................15 (4) FEMINIST PERSPECTIVE ................................................................................................................................15

NUISANCE .................................................... 15 ELEMENTS OF THE TORT .................................................................................................................................. 16 Appleby v. Erie Tobacco Co (1910) ON Div Ct ..............................................................................................16 Rogers v. Elliott (1888) Massachusetts Sup Ct .............................................................................................16 NATURE OF THE NUISANCE ............................................................................................................................. 16 Fontainebleau Hotel v. Forty-Five Twenty-Five (1959) Florida CA ...................................................16 LAND USE AND MOTIVE .........................................................................................................................................16 Shuttleworth v Vancouver General Hospital [1927] BCSC (QUIA TIMET ACTIONS) .................17 Laws v Florinplace Ltd. [1981] (UK) (OBJECTIVE SUSCEPTIBILITIES) ...........................................17 Sturges v Bridgman (1879) (COMING INTO NUISANCE) ........................................................................17 Motherwell v. Motherwell (1976) Alberta CA ...............................................................................................17 STATUTORY DEFENCES ..................................................................................................................................... 18 Tock v St. John’s Metropolitan Area Board [1989] .....................................................................................18 Ryan v Victoria (City) [1999] SCC (NO ALTERNATIVE)...........................................................................18 DEFENCES (COMING INTO NUISANCE) ..........................................................................................................19 Miller v Jackson [1977] English CA (OVERRULED STURGES) ...............................................................19 REMEDIES................................................................................................................................................................. 19 Shelfer v City of London Electrical Lighting Co. [1895] English CA....................................................19 Boomer v Atlantic Cement Co. (1970) New York CA (LIMITS SHELFER) ........................................19 Kennaway v. Thompson [1980] English CA (LIMITED INJUNCTIONS).............................................20 Spur Industries v Del E. Webb Development Co. (1972) Arizona SC ..................................................20

THE INTENTIONAL TORTS ............................. 20 (1) VOLITION........................................................................................................................................................... 20 Smith and Stone (1647) KB (TRESPASS CANNOT BE INVOLUNTARY) ............................................20 Lawson v. Wellesley Hospital, (1975) ONCA .................................................................................................20 (2) ASSAULT ............................................................................................................................................................ 20 I. DE S. & Wife v. W. DE S (1348).........................................................................................................................20 Stephens v. Myers, (1830) English CA (ABILITY TO CARRY OUT THREAT)....................................21 Tuberville v. Savage, (1699) KB (THREAT MUST BE REAL)..................................................................21 Mainland Sawmills v. USW, Local 1-3567 [2007] BCSC (THREAT MUST BE IMMINENT) ......21 (3) BATTERY ........................................................................................................................................................... 21 Cole v. Turner, (1705) English CA (ANGER) ..................................................................................................21 Bettel et al. v. Yim (1978) Ontario County Court (CURRENT TEST) ..................................................21 (4) INTENTIONAL INFLICTION OF PSYCHIATRIC INJURY .................................................................. 22

NEGLIGENCE ................................................ 22 THE REQUIREMENT OF VOLITION/CONTROL ......................................................................................... 22 Vaughan v. Menlove (1837), 132 ER 490 (CP) .............................................................................................22 Buckley v Smith Transport Ltd. [1946] ONCA (MENTAL ILLNESS) ...................................................22 Tillander v. Gosselin [1967] ONCA (INFANTS: CAPACITY).....................................................................23 THE DUTY OF CARE .............................................................................................................................................. 23 Two views on Duty of Care: ............................................................................................................................... 23 THE NEIGHBOUR PRINCIPLE ........................................................................................................................... 24 Donoghue v. Stevenson [1932] HL .....................................................................................................................24 Palsgraf v Long Island Railroad Co (1928) New York CA .......................................................................24 TWO-STAGE TEST ................................................................................................................................................. 25 ANNS/KAMLOOPS/COOPER TEST .....................................................................................................................25

Dobson v. Dobson (1999) SCC OVERRIDING POLICY CONCERNS .......................................................25 Childs v. Desormeaux, [2006] SCC ......................................................................................................................26 DUTY TO RESCUE, DUTY TO ACT.................................................................................................................... 26 Depue v. Flatau et al. (1907) Minnesota SC HOSTS/GUESTS ............................................................26 Stovin v. Wise, [1996] HL (POLICY CONCERNS) ..........................................................................................26 LIABILITY TO RESCUERS ................................................................................................................................... 27 Haynes v Harwood [1935] KB ..............................................................................................................................27 Horsley v. MacLaren (1971) SCC (CANADIAN ADOPTION)....................................................................27 PURE ECONOMIC LOSS: NEGLIGENT MISREPRESENTATION ............................................................ 27 Candler v. Crane Christmas & Co. [1951] King’s Bench DENNING DISSENT .................................27 CARDOZO’S CONFLICTING DECISIONS ............................................................................................................27 Hedley Byrne & Co. Ltd. v. Heller [1964] HL ADOPTS DENNINGS CANDLER DISSENT ............28 DIFFICULTIES WITH LIABILITY FOR NEGLIGENT MISREPRESENTATION...................................28 Grand Restaurants of Canada v. City of Toronto (1981) ONCA (CONTRIBUTORY)....................29 Caparo Industries v. Dickman [1990] HL (SHAREHOLDERS) ...............................................................29 Hercules Managements Ltd. v. Ernst & Young [1997] SCC (POLICY CONSIDERATIONS) ........30 NEGLIGENT MISREPRESENTATION AND CONTRACT .......................................................................... 30 BG Checo International Ltd. v. BC Hydro and Power Authority (1993) SCC ..................................30 Nunes Diamond Ltd. v. Dominion Electric Protection (1972) SCC ......................................................30 PURE ECONOMIC LOSS: FAULTY CONTRUCTIONS ................................................................................. 31 ECONOMIC LOSS: PROFESSIONAL RESPONSIBILITY ...............................................................................31 POLICY CONCERNS: ..................................................................................................................................................31 RELATIONAL PURE ECONOMIC LOSS........................................................................................................... 31 Barber Lines A/S v. M/V Donau Maru (1985) Massachusetts CA (POLICY CONCERNS).........31 Weller v. Foot and Mouth Disease Research Institute [1966] QB (FORESEEABILITY) .............32 Canadian National Railway v. Norsk (1992) SCC CANADIAN APPROACH .....................................32 CURRENT APPROACH ..............................................................................................................................................32 PSYCHIATRIC INJURY .......................................................................................................................................... 33 McLoughin v. O’Brian [1982] English CA (RULE: SECONDARY VICTIMS): .....................................33 Mustapha v. Culligan of Canada Ltd. (2008) SCC (SERIOUS INJURY) ...............................................33 White v. Chief Constable of South Yorkshire Police [1992] HL (RESCUERS) .................................33 Tame v. New South Wales (2002) AUSTRALIAN APPROACH ................................................................34 THE RELEVANCE OF STATUTES ..................................................................................................................... 34 Jordan House v. Menow (1973) SCC ..................................................................................................................34 THE STANDARD OF CARE/CARELESSNESS/BREACH OF DUTY ....................................................... 34 Vaughan v Menlove (1837) Court of Common Pleas (OBJECTIVE STANDARD) ...........................34 Fleming, The Law of Torts (1992) (VARIETIES OF REASONABLE PERSON) .................................34 McHale v Watson (1966), Aust. HC (CHILDREN) ........................................................................................35 McErlean v Sarel (1987) ONCA (CHILDREN: EXCEPTION) ....................................................................35 UNREASONABLE BEHAVIOUR ......................................................................................................................... 35 United States v Carroll Towing Co (1947) 2nd Cir (HAND FORMULA) ..............................................35 [Posner] McCarty v. Pheasant Run, Inc. (1987) 7th Cir PROBLEMS WITH FORMULA ...............36 Bolton v. Stone [1951] HL REJECTION OF HAND FORMULA .................................................................36 The Wagon Mound No. 2 [1966] Privy Council (VALID REASONS) ....................................................36 Latimer v AEC [1953] HL REASONABLE STEPS ..........................................................................................36 Paris v Stepney Borough Council [1951] English CA ACCEPTANCE OF HAND FORMULA ......36 CUSTOM/TRADE/PROFESSIONAL STANDARDS ..................................................................................... 37 Trimarco v. Klein (1982) New York CA TRADE CUSTOMS .....................................................................37 The T.J. Hooper (1932) 2d Cir. (EXCEPTION) ...............................................................................................37 ter Neuzen v Korn (1995) SCC PROFESSIONAL STANDARDS ...............................................................37

Walker Estate v York Finch General Hospital (2001) SCC (EXCEPTION) .......................................37 STATUTES SETTING STANDARDS.................................................................................................................. 38 Posner, Economics, Politics, and the Reading of Statutes and the Constitution (1982) ...........38 The Queen v. Saskatchewan Wheat Pool (1983), Supreme Court of Canada ................................39 Board of Governors of Seneca College v. Bhadauria (1981) SCC .........................................................39 Retail Wholesale & Department Store Union v. Dolphin Delivery (1987) SCC (CHARTER) ....39 PROOF OF NEGLIGENCE ..................................................................................................................................... 39 Byrne v Boadle (1863) Court of Exchequer (RES IPSA LOQUITUR) ...................................................40 Fontaine v British Columbia (Official Administrator) [1998] SCC CANADIAN EDITION .........40 CAUSATION: THE “BUT FOR” RULE ............................................................................................................... 40 (1) THE MEANING OF THE “BUT FOR” RULE AND ITS IMPLICATIONS...........................................41 Corey v Havener (1902) Massachusetts SC (OVERLIABILITY) .............................................................41 Sunrise Co Ltd et al v. Ship “Lake Winnipeg” (1991) SCC SEQUENTIAL EVENTS .......................42 Jobling v Associated Dairy [1982] (IMPLICATIONS FOR LIABILITY) ................................................43 Reynolds v. Texas & Pacific Railway Co (1885) Louisiana SC (CAUSATION AND POLICY) .....43 FACTUAL UNCERTAINTY ................................................................................................................................... 43 Cook v Lewis [1951] ..................................................................................................................................................44 Sindell v. Abbott Laboratories et al. (1980) California SC (MARKET SHARE LIABILITY) .......44 Holtby v Brigham & Cowan (Hull) [2000] English CA (TIME SHARE LIABILITY) .......................44 McGhee v National Coal Board [1972] HL (INDUSTRIAL DISEASE) .................................................45 Fairchild v Glenhaven Funeral Service [2002] HL (FAIRCHILD RULE) ............................................45 CANADIAN JURISPRUDENCE: FACTUAL UNCERTAINTY (MORE PLAINTIFF-FRIENDLY) .....45 Resurfice v Hanke [2007] 1 SCR 333 (SUMMARY OF CASUATION) ....................................................46 Clements v. Clements (2012) SCC (MATERIAL CONTRIBUTION TEST)............................................46 REMOTENESS (LEGAL CAUSE/PROXIMATE CAUSE) ............................................................................. 47 RELATIONSHIP BETWEEN REMOTENESS AND DUTY OF CARE ........................................................47 JOINT AND SEVERAL LIABILITY .........................................................................................................................47 Athey v Leonati (1996) SCC (APPORTIONMENT OF TORTIOUS/NON-TORTIOUS)....................48 The Wagon Mound, No.1 [1961] Privy Council (FORESEEABILITY)..................................................48 Dulieu v. White & Sons [1901] KB (THE THINK SKULL) .........................................................................49 Smith v. Leech Brain & Co., Ltd [1962] QB (TYPE OF HARM) ...............................................................49 Athey v. Leonati (1996) SCC (CRUMBLING SKULL RULE) ......................................................................49 Cotic v. Gray (1981) ONCA (THINK SKULL + MENTAL ILLNESS) .......................................................49 REMOTENESS IN ACTION .................................................................................................................................. 49 Jolley v. Sutton London Borough Council, [2000] 3 All ER 409 (HL) (SCOPE OF RISK) ............50 Home Office v. Dorset Yacht Co. Ltd. [1970] HL...........................................................................................50 Lamb v. London Borough of Camden [1981] QB (POLICY ARGUMENT) ..........................................51 NOVUS ACTUS INTERVENIES ..............................................................................................................................51 Bradford v. Kanellos (1973) SCC Type 1: NO ................................................................................................52 Home Office v. Dorset Yacht Co. Ltd. [1970] HL Type 1: YES .................................................................52 Lamb v. London Borough of Camden [1981] QB Type 2: NO .................................................................52 Clay v. A.J. Crump & Sons Ltd. [1964] QB Type 2: YES...............................................................................52 DEFENCES................................................................................................................................................................. 53 CONTRIBUTORY NEGLIGENCE............................................................................................................................53 Froom v. Butcher [1975] English CA .................................................................................................................53 Ingles v. Tutkaluk Construction Ltd (2000) SCC (MULTIPLE DEFENDANTS) ..............................53 VOLUNTARY ASSUMPTION OF RISK (VOLENTI NON FIT INJURIA) ..................................................54 Lambert v. Lastoplex (1971) SCC (SAFETY NOTICES) .............................................................................54 Birch v. Thomas [1972] English CA (STATEMENT OF CAUTION) .......................................................54 Priestley v. Gilbert (1973) Ontario Court of Appeal (INFERRED CONSENT) .................................54

ILLEGALITY (EX TURPI CAUSA NON ORITUR ACTION) ..........................................................................55 Hall v. Hebert (1993) SCC.......................................................................................................................................55 VICARIOUS LIABILITY ......................................................................................................................................... 56 THE EMPLOYMENT RELATIONSHIP ................................................................................................................56 671122 Ontario Ltd v. Sagaz Industries Canada Inc [2000] SCC (ELEMENTS) ...........................56 Ira S. Bushey v. United States (1968) 2d Cir ATTEMPT TO CLARIFY SALMOND (2) ..................57 “IN THE COURSE OF EMPLOYMENT” (RESPONDEAT SUPERIOR) .....................................................57 E.B. v. Order of the Oblates of Mary Immaculate in the Province of B.C. [2005] SCC .................58 INDEMNIFICATION OF EMPLOYER BY EMPLOYEE ..................................................................................58 ECONOMIC/BUSINESS TORTS ......................................................................................................................... 59 GENERAL .......................................................................................................................................................................59 DECEIT ............................................................................................................................................................................59 PASSING OFF ................................................................................................................................................................59 INTIMIDATION............................................................................................................................................................60 CONSPIRACY.................................................................................................................................................................60 INTERFERENCE WITH CONTRACTUAL RELATIONS ................................................................................61 INTENTIONAL INTERFERENCE WITH ECONOMIC RELATIONS BY UNLAWFUL MEANS ......61

SHORT SUMMARY DUTY OF CARE To determine if _________________ owes a duty to ________________, we first see if the relationship fits into an established category that is already recognized as owing a duty… If not, we must apply the two-stage Anns test (as revised in Cooper v. Hobart), which is the governing test for determining whether or not the defendant owes a duty to the P 1) STAGE 1 is designed to determine if there is a sufficient relationship of general proximity between the parties: a. Was the harm the reasonably foreseeable consequence of the D’s act? b. Are there reasons, notwithstanding their proximity that tort liability should not be imposed? Notes: (a) In considering foreseeability, Donoghue v. Stevenson emphasized one must consider if the plaintiff belongs to a class of persons so closely and directly affected by D’s acts that he ought to reasonably have him in contemplation… (b) Cooper v. Hobart introduced policy considerations concerning the relationship in question into stage 1.

If the alleged negligence is a question of D’s duty to a third party Because the alleged negligence is a question of _______________’s duty for damage caused by a third party, _______________, one must show that _______________ [D] was in a position of supervision and control over the third party, as in Dorset Yacht. If the alleged negligence is an omission Because the alleged negligence is an omission, policy concerns, outlined in Stovin v. Wise limit the creation of duties in respect to omissions. Therefore, a duty must fall into one of the three situations identified in Childs v. Desormeaux where there is a positive duty to act: (a) A defendant intentionally attracts and invites third parties to an inherent and obvious risk that he or she controls (Depue v. Flatau et al.) (b) The case concerns paternalistic relationships of supervision (c) The case concerns defendants who either exercise a public function or engage in a commercial enterprise that includes implied responsibilities to the public at large (Stewart v. Pettie; Clay v. A.J. Crump & Sons Ltd.) If the alleged negligence is to a rescuer Because the alleged negligence is a question of ______________’s duty to _______________ who deliberately faced risk caused by [D’s] misconduct, the doctrine of assumption of risk does not apply (Haynes v. Harwood). Legal protection is afforded to rescuers unless (a) the risk was “so foolhardy” as to be outside any accountable risk, or (b) liability to the rescuer stems from an independent duty (Horsley v. MacLaren) If the alleged negligence is Negligent Misrepresentation Because the alleged negligence is misrepresentation, the general rule, outlined in Hedley Byrne is (a) if someone of special skill; (b) undertakes to apply that skill for the assistance of another person; and (c) that person relies on that skill, a duty of care arises. This reliance must be reasonable (Hercules Management) If the alleged negligence is relational pure economic loss Because the alleged negligence is ______________’s relational pure economic loss there is a presumption against recovery subject to some exceptions (Valley Husky (Bermuda) Ltd). These exceptions include (a) where P has a possessory or propriety interest in the damaged property (b) general average cases (in maritime law) and (c) joint ventures between the property owner and P (Norsk) If the alleged negligence is a psychiatric injury Because the alleged negligence is a psychiatric injury, actionable injuries are limited to two categories: (1) serious injury (Mustapha); and (2) “shock” (McLoughlin v. O’Brian). In the latter category claims are limited to spouses/children who experienced the event or its immediate aftermath. Rescuers (police) are ineligible for compensation (White v. Chief Constable of South Yorkshire Police) If the alleged negligence is a vicarious liability CONSULT LONG SUMMARY Because the alleged negligence is vicarious liability, there are several restrictions. First, the action must complete three general requirements (a) A commits a tort; (b) A is employed by the D, B; and (c) A commits the tort in the course of employment.

2) STAGE 2 of Anns deals with residual policy concerns as to why the prima facie duty of care (Childs v. Desormeaux) ought to be negatived or limited in scope. Consider: a. Administrative factors (floodgates) b. Constitutional considerations (Dobson) c. Increased insurance premiums (Hercules Management) d. Other…

BREACH OF DUTY PART 1 To determine if ________________ breached his/her duty to ________________, we must determine the standard of care: who is the reasonable person against whom the defendant is to be measured: IN GENERAL the D is measured against the reasonably prudent person in his/her circumstances. Below average intelligence (Menlove) or freak accidents (Birmingham Waterworks) are not considered. It is an objective standard that is contextualized to the particular fact situation in question. _____________ [D] falls under one of the exceptions to the general reasonable person standard: (a) Mental Illness (Buckley v. Smith Transportation) if D suffer from a mental illness or mental disability that renders them incapable of understanding or appreciating their duties. The exception is limited (Roberts v. Ramsbottom) if a D retains any control he/she is liable (b) Children are generally held to a lesser standard than adults (McHale v. Watson). A child is only required to exercise the degree of care that the average child of the same age ordinarily exercises under the same circumstances. The exception to this is where a child engages in what may be classified as an “adult activity” such as driving (McErlean v. Sarel). PART 2 The second part of the breach analysis is examining the unreasonable behaviour. This involves weighing the probability of harm and the gravity of harm against the burden of precautions and social utility of the impugned conduct originally put forth by Learned Hand in US v. Carroll Towing. In considering the probability of harm, the reasonable person takes into account reasonable probabilities not fantastic possibilities (Bolton v. Stone) [Insert stuff about probability of harm from fact pattern]. If the harm is foreseeable all reasonable precautions should be taken (The Wagon Mound No. 2; Latimer). Here, the burden of precautions is [insert stuff about burden of precautions]. In coming to a conclusion on the unreasonable acts, inquiries into custom, professional standards, and statutory breaches, while not determinative, can tip the balance one way or the other. (a) As established in Trimarco v. Klein, when proof of an accepted INDUSTRY CUSTOM is accompanied by evidence that D conformed to it, this may establish due care. Proof that D ignored a customary practice, and that the departure was a proximate cause of the accident may serve to establish liability. [Insert stuff about the custom]. An industry custom is however, not conclusive. Where an industry has

lagged in the adoption of a new and available device universal disregard may be no excuse (The T.J. Hooper). [Insert stuff about whether this is the case]. (b) Where a procedure involves difficult or uncertain questions of medical treatment or complex scientific or highly the technical matters beyond the understanding of the judge or jury courts will defer to PROFESSIONAL STANDARDS (ter Neuzen). The exception to this is failure to adopt obvious and reasonable precautions that are readily apparent to the fact finder as in Walker Estate v. York Finch General Hospital. [Insert stuff about professional standards]. (c) STATUTORY BREACH is persuasive, but not conclusive, evidence of breach. R v. Saskatchewan Wheat Pool showed the D must show (a) that there was a statutory breach and (b) the breach is the cause of the damage. [Insert stuff from fact pattern about statutory breach and cause of damage]. Gorris v. Scott further showed that for a statutory breach to be relevant, (a) the accident must be of the type the statute seeks to prevent, and (b) the plaintiff must belong to the class of persons that the statute seeks to protect. [Insert stuff about type of accident and P protected]. However, even where statutes are drafted by an inapplicable jurisdiction they may still be relevant (Littley v. Brooks).

CAUSATION The threshold test for causation is the “but for” test: A caused B’s injury if but for A’s (careless) act [or if there is a duty to act careless omission] B would not have suffered the injury (Barnett v. Chelsea & Kensington Hospital Management Committee). [Insert stuff from fact pattern]. Where the negligence of D greatly multiplies the chance of the an accident, and is of the character naturally leading to its occurrence, the mere possibility that it might have happened without the negligence is not sufficient to break the chain of causation (Reynolds v. Texas & Pacific Railroad) o

Thin Skull Rule: In cases of damage by physical injury to a person there the Thin Skull (Eggshell Skull) Rule dictates that there is liability for the consequences flowing from the preexisting special susceptibility of the victim (Dulieu v. White & Sons). The rule also applies to mental illnesses (Cotic v. Gray). [Insert relevant information from the fact pattern].

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The Crumbling Skull Rule: The Crumbling Skull Rule, a derivative of the Thin Skull Rule dictates that D is liable for damage, but not pre-existing damage (Athey v. Leonati). If there is a measurable risk that the pre-existing condition would have detrimentally affected the P in the future, regardless of D’s negligence, this can reduce the overall award. [Insert Crumbling Skull information from the fact pattern].

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Relaxed Burden in situations where the facts relating to causation lie particularly within the knowledge of D (medical malpractice): Farrell v. Snell asserted that an alternative test that can be used in situations where the facts relating to causation lie within the knowledge of the defendant. The situation in question falls into this category because [insert why the facts are particularly within the knowledge of the defendant]. To satisfy Farrell v. Snell very little affirmative evidence on the part

of _____________ [P] is needed, simply an inference – this imposes a tactical burden on the defendant [discuss and affirmative evidence to the contrary]. Therefore the test is/is not satisfied o

Shift in onus because of market share liability: Where problems of proof are not attributable to P or D, but to the nature of the product or industry, the market share liability test can be used, as shown in Sindell v. Abbott. [Insert stuff about problems of proof with industry/product]. To satisfy the test, ____________________ [P] must show: (a) particular product is the clear cause of the damage (b) a number of Ds manufacture the same generic product (c) P is unable to pinpoint which of the defendants is the source of the damage (d) P sues a substantial share of the market (~85%) [Discuss how a, b, c, and d relate to the fact pattern]. Because the test is viable here the onus shifts to defendants.

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Shift in onus because of time share liability: Where problems of proof are not attributable to P or Ds, but the nature of the timeframe of the negligence action, time share liability may be used as in the English case Holtby v. Brigham & Cowan (Hull). Liability will be imposed on D according to the amount of time P was exposed to careless risk at the hands of D. [Insert relevant information from the fact pattern].

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For additional industrial disease tests look up McGhee v. National Coal Board and Fairchild v. Glenhaven Funeral Service.

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Multiple causes: material contribution test: Clements v. Clements states the material contribution test can be used in situations such as the one in question when four factors are satisfied: (a) there are two or more tortfeasors; (b) all are at fault and one or more has in fact caused P’s negligence; (c) P would not have been injured “but for” their negligence, viewed globally; (d) as they can blame one another, it is impossible for P to show any one of them caused the injury.

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Res Ipsa Loquitur: The doctrine of Res Ipsa Loquitur may apply when an accident occurs in circumstances in which P cannot prove the carelessness of the other party, but which (a) D owes P a duty; (b) D was in control of the situation/object that led to the injury; and (c) the accident is one that in the ordinary course of events does not happen unless there was carelessness. [Insert information from fact pattern conforming to the steps]. The invocation of the doctrine does not shift the burden of proof to the defendant. Rather, it means that circumstantial evidence constitutes reasonable evidence of negligence (Fontaine v. British Columbia)

REMOTENESS/PROXIMATE CAUSE To determine if a breach is a proximate cause, the foreseeability test established by Wagon Mound No. 1 is used. There are two elements to consider: foreseeability of plaintiff and foreseeability of damage: (a) Foreseeability of Plaintiff For _____________ [P] to be a foreseeable plaintiff, he/she must fall within the zone the range of apprehension, as outlined in Palsgraf. [Insert stuff from fact pattern]. Therefore ___________ [is/is not] a foreseeable plaintiff.

(b) Foreseeability of Damage Wagon Mound No. 1 states that ____________ [D] will only be responsible for the probable consequences of his/her actions. He/she will be responsible for the damage if it is a TYPE that is reasonable person would foresee. ______________ [D] does not have to foresee the extent of damage (Smith v. Leech Brain & Co., Ltd.), nor does he have to foresee the precise way the damage comes about (Hughes v. Lord Advocate). [Insert stuff about foreseeability of the type of damage]. Therefore, this type of damage [was/was not] foreseeable. For mental injuries: Mustapha v. Culligan showed that it must be foreseeable that a person would of ordinary mental fortitude would suffer a mental injury in order for the injury to be compensable. [Insert stuff from fact pattern about foreseeability of mental injury]. However, Mustapha also showed that if the defendant had actual knowledge of the plaintiff’s sensibilities, the ordinary fortitude requirement can be relaxed. [Insert stuff about knowledge of sensibilities]. If a mental Injury was foreseeable the defendant need not foresee the extent of the injury. Here, mental injury [was/was not] foreseeable. Intervening Cause/Novus Actus: Even where the injury is foreseeable, recovery can be denied on remoteness grounds if a fresh, independent cause (a novus actus) interrupts the causal sequence. To constitute novus actus it must be highly improbable and outside the range of normal experience (Dorset Yacht). [Insert stuff from fact pattern saying if fits this]. Circumstances generally giving rise to novus actus is typically human conduct that is grossly negligent or intentionally harmful such as an unexpected hysterical reaction (Bradford v. Kanellos) or criminal conduct that causes damage removed in time from the original defendant’s negligence (Lamb v. London Borough of Camden). [Insert stuff from fact pattern about if constitutes novus actus].

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CONTRIBUTORY NEGLIGENCE has been a partial defence in Ontario since the passage of the Negligence Act. It does not deny recovery, but reduces the plaintiff’s award through apportionment. To establish contributory negligence, ________________ must establish all the elements of negligence except duty (breach, causation, remoteness) on a balance of probabilities. ______________ [P] is held to a reasonable person standard with respect of the discharge of duty to him/herself, with all the same expectations that are available to the defendant. [Do breach, causation and remoteness analysis].

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VOLUNTARY ASSUMPTION OF RISK (volenti) is a complete defence that denies recovery altogether. _________________ [D] must show ________________ [P] (a) knew and understood the risk, and (b) voluntarily incurred the risk (Dube v. Labar). The D must show the P “bargained away his/her right to sue.” Successful claims are rare. [Insert discussion of conduct that was express or implied assumption of risk].

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ILLEGALITY is traditionally a complete defence, but recently has been used to eliminate particular heads of damage (Hall v. Hebert). Illegally only succeeds as a defence where allowing recovery would threaten the integrity of the justice system, for example, by allowing the plaintiff to recover from his or her wrongdoing (where

the award goes beyond compensation or includes lost earnings from criminal activity). [Discuss the integrity of the justice system and if it would be threatened by allowing recovery].

QUANTIFICATION OF DAMAGES Damages for pecuniary losses are designed to compensate the plaintiff for specific, quantifiable losses he or she suffered. This is broken down into an itemized list, with specific amounts awarded for each type of loss. Damages non-pecuniary losses are designed to provide the plaintiff with reasonable solace for losses suffered. These are intangible losses, and are hard to quantify. It is awarded as a global amount.

JOINT AND SEVERAL/SEVERAL LIABILITY (a) Several Liability: Parties are only liable for their respective obligations (b) Joint and Several Liability: A claimant may pursue any one party for the entire amount and it becomes the responsibility of the defendants to sort out their respective proportions of liability and payment. This means that if the claimant pursues one defendant and receives payment, that defendant must then pursue the other obligors for a contribution to their share of the liability.

INTENTIONAL INFLICTION OF HARM Battery: Battery is to intentionally cause harmful or offensive contact with another. To prove the tort of battery __________________ [P] has to prove that ___________________ [D] intended the contact, (Cole v. Turner) but he/she did not have to intend harm (Bettel v. Yim). [Talk about intended contact]. Foreseeability does not matter in the tort of battery: so long as _________________ [D] intended the contact, he/she needs not intend, nor foresee the full consequences of the contact, [stuff about things D might not have foreseen, and say it doesn’t matter]. Assault: Assault is conduct that intentionally arouses apprehension of an imminent battery (I. DE. S & Wife v. W. DE S). To prove the tort of assault, _____________ [P] must prove that _______________ [D] intended the conduct that created the apprehension (Tuberville v. Savage), D was able to carry out the threat (Stephen v. Myers) and the threat was imminent (Mainland Sawmills v. USW, Local 1-3567). [Insert information about the threat].

NUISANCE Nuisance is interference with the use and enjoyment of land. To succeed in his/her claim ______________’s claim against ________________ is judged in reference to what the reasonable person (Rogers v. Elliott) would consider an actionable irritation given the circumstances of the locality (Appleby v. Erie Tobacco Co). [Add information from the fact pattern]. Not every action that creates loss to another will give rise to liability. One needs to show a violation of a right (Fontainebleau Hotel). If the alleged nuisance was a lawful act serving a useful and beneficial purpose, however unfriendly the motive might be, D will generally have the right to do it (The Mayor; etc. of Bradford v. Pickles). o

Quia Timet actions:

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To sustain an injunction in a Quia Timet action the law requires: (a) proof by P of a well-founded apprehension of injury (proof of actual and real danger) [insert information about danger] and (b) a strong probability that this action will occur [insert information about likelihood of occurrence]. Coming into nuisance: When P “comes into” a situation where an alleged nuisance has already been taking place, Miller v. Jackson proscribes a two-part test (a) is the action a reasonable given the circumstances of its location; and (b) does it suddenly become a nuisance because the claimant chooses to enter the location [insert information about whether the facts satisfy the test]. The test turns on the social utility of the alleged nuisance. [insert policy considerations].

Shelfer v. City of London Electric Lighting Co sets out the general rule for remedies in nuisance cases: (a) if the injury is small; (b) it is capable of being estimated in money; (c) it can be adequately compensated by a small money payment; and (d) it would be oppressive on D to grant an injunction, damages will be provided. [Insert whether the fact pattern fits these requirements]. Courts have hesitate to grant injunctions on Ds where large economic consequences may result (Boomer v. Atlantic Cement Co). [Insert whether this is the case]. For information on Statutory defences: Tock v. St. John’s Metropolitan Area Board

TORT LAW SUMMARY THEORETICAL PERSPECTIVES ON TORT LIABILITY (1) RIGHTS BASED VS. SOCIAL WELFARE Holmes, Privilege, Malice and Intent (1894) JUDGES TRADITIONALLY RIGHTS-BASED Judges have traditionally disliked reasoning on the grounds of policy and prefer rightsbased legal deductions. Policy questions require critical evaluation of the circumstances of each case and as a result judges lose the illusion of certainty that makes legal reasoning look like mathematics. Coase, The Problem of Social Cost (1960) SOCIAL WELFARE APPROACH When A inflicts harm on B the traditional approach asks: how should we restrain A? This is wrong. We are dealing with a problem of reciprocal nature. To avoid the harm to B would inflict harm on A. The real question that has to be decided is: should A be allowed to harm B or should B be allowed to harm A? The problem is to avoid the most serious harm COASE THEOREM: Under assumptions of perfect rationality, perfect (or at least, substantial) knowledge and zero transaction costs, legal entitlements do not matter for the attainment of efficient allocation as people will bargain with their entitlements until resources reach those who value them most. It is possible to modify the arrangements of a judicial ruling to create a bargain between the parties. In Sturges v. Bridgman to avoid the doctor inflicting harm on the confectioner he would waive his right and allow the machinery to continue for a sum of money.

Epstein, A Theory of Strict Liability (1973) CRITIQUE OF COASE It would have been a grave mistake to say that Sturges v. Bridgman disclosed a reciprocal harm. The confectioner did not seek to enjoin the doctor enjoin the doctor from the practice of medicine, because that practice did not and could not harm the confectioner. The notion of causal reciprocity should not be confused with the notion of redress from harm. RIGHTS-BASED CASE Canada Paper Company v. Brown (1922) SCC Facts: P owned property that had been in his family for several generations. Nearby, the D’s factory was an important industry and employer in Windsor. Its use of sulphates produced noxious fumes. Decision: P was successful. The Court held that the defendant’s arguments on the harmful impact of an injunction of the community’s prosperity were irrelevant. The decision turned on the need to protect property rights. SOCIAL WELFARE CASE Black v. Canadian Copper Co. (1917) ONCA Facts: Ps operated farms near the defendant’s copper mine. The vapours produced by the mine contained large quantities of sulphur dioxide. Decision: The case produced the opposite result as Brown. The Court held there are circumstances in which it is impossible for the individuals to assert their rights, as it would inflict an unreasonable injury on their community. Stephens v. Village of Richmond Hill [1955] ONCA Notes: After P obtained an injunction against a sewage plaint on the Don River, the Ontario legislature passed the Public Health Amendment Act dissolving the injunction and retroactively deemed the sewage plant to have been constructed, maintained and operated by statutory authority.

(2) ECONOMIC ANALYSIS OF TORT LAW Calabresi, The Costs of Accidents (1970) and The Decision for Accidents (1965) PRIMARY COSTS (the costs of accidents themselves): Reduction of primary costs is achieved by reducing the level of activity (driving slower or driving less) and investing in safety measures. The optimal mix of the two will depend on the activity. (1) SPECIFIC DETERRENCE: State measures for cost reduction. Takes the form of regulation that can ban certain activities and impose restrictions on the activity (speed limits) and can require safety measures (seat belt laws) (2) MARKET DETERRENCE: Imposes liability for accidents on those believed to be in a position to eliminate the costs of a particular type of accident most cheaply. (a) CHEAPEST COST AVOIDERS: are those best able to assess the best way to reduce costs of accidents, implement safety measures, and minimize secondary costs through their deep pockets or loss spreading (b) The cheapest cost avoider is encouraged to look in the market for new was of reducing the primary costs (c) Assuming the assumption of the Coase Theorem hold the market will always be able to find the cheapest cost avoider (even if the state gets it wrong).

SECONDARY COSTS (the costs resulting from the social and economic dislocation caused by accidents): The reduction of secondary costs is achieved through a social insurance system in which activities are made to bear their full costs. o The methodology: The cost of an activity, A, includes the sum of the costs of accidents in which A alone is involved, and some part of the accidents in which A is involved with other activities. o Apportionment of accident costs among subcategories of drivers on the basis of accident proneness will create movement to the safer ones because the greater real cost of the more dangerous one would be reflected in its price.

(3) CORRECTIVE JUSTICE Weinrib, Does Tort Law Have a Future? (2000) CRITIQUE OF ANNS TEST: The Anns Test has radically altered negligence law by focusing on policy concerns instead of conceptual analysis of the parties’ relationship. This is problematic: (1) Policy concerns, the decisive factor for liability, are uncontrolled by the relationship of the parties and may be beyond the court’s institutional competence to judge (2) These policy concerns refer only to considerations that negative liability, not those that might confirm liability. (3) The test transfigures the notion of foreseeability from an intrinsically bipolar notion that links the plaintiff’s injury to the defendant’s action to a “relatively low threshold” for recognizing a prima facie duty.

(4) FEMINIST PERSPECTIVE Bender, A Lawyer’s Primer on Feminist Theory and Tort (1988) In tort law the masculine voice of rights, autonomy, and separation, and abstraction has led to a standard that protects efficiency and profit. The cost-benefit analysis abstracts and dehumanizes suffering. CARING NEIGHBOUR: To correct this we could convert the standard of “care of a reasonable person under the same or similar circumstances” to a standard of “conscious care of a responsible neighbour or social acquaintance for another under the same or similar circumstances. This standard requires conscious concern for the consequences of our actions or inactions on another’s safety and health. Posner, Conservative Feminism (1989) Bender’s article misunderstands the significance of the “reasonable person” in tort law, which lies in preventing tortfeasors that while the average person could have avoided the accident they could not because they had a below-average capacity to take care. While the Caring Neighbour approach (which shifts negligence liability toward strict liability) would provide more compensation to victims it would also result in higher prices and a burden may be borne by consumers.

NUISANCE Interference with the use and enjoyment of land; the law of nuisance is the way the common law elaborates the rights and duties that govern relations between neighbours.

ELEMENTS OF THE TORT Appleby v. Erie Tobacco Co (1910) ON Div Ct Facts: An odour occurs from the manufacture of tobacco on the Ds’ premises. The odour cannot be prevented in the current production process. Decision: The appeal is successful; the court orders an injunction restraining the Ds stayed for six months to allow the defendants to abate the nuisance or to make arrangements for the removal of that part of the business causing the odour. NO GENERAL STANDARD OF NUISANCE: There is no general standard for nuisance applicable to all localities; the standard varies based on the circumstances of the locality.

Rogers v. Elliott (1888) Massachusetts Sup Ct Facts: D, who was in charge of a church in a small town, regularly rang the bell several times a day. P, recovering from sunstroke suffered convulsions his doctor attributed to the noise of the bell. The defendant refused to not ring the bells and the plaintiff sued. OBJECTIVE STANDARD: The right to make a noise for a proper purpose must be measured in reference to the degree of irritation which others may reasonably be required to submit to. Notes: If one’s right to use his property were to depend upon the effect of the use upon a person of peculiar temperament or uncommon disease, the standard for measuring it would be so uncertain and fluctuating as to paralyze industrial enterprises: economic impact.

NATURE OF THE NUISANCE Fontainebleau Hotel v. Forty-Five Twenty-Five (1959) Florida CA Facts: The proposed addition to the D’s hotel creates a shadow over the cabana, swimming pool and sunbathing area of the Ps’ hotel. The plaintiff alleges this will reduce the enjoyment of its guests and was done in malice. NOT ALL LOSS GIVE RISE TO LIABILITY: Not every action that causes loss (injury) to another gives rise to liability. One needs to show a violation of a right. Where a structure serves a useful and beneficial purpose, it does not give rise to a cause of action, even though it causes injury to another by cutting off the light and air.

LAND USE AND MOTIVE (1) The Mayor, etc. of Bradford v. Pickles [1895] HL Facts: The D decided to sink a well on his property cutting off the water supply to the P’s land and requiring them to buy their water from him. Ratio: If it was a lawful act, however ill the motive might be, he had a right to do it. If it were an unlawful act, however good his motive might be, he would have no right to do it. The defendant is in his rights to sink a well on his property for financial gain (2) Hollywood Silver Fox Farm Ltd. v. Emmett [1936] KB

Facts: P bred foxes. During the breeding season the vixens will kill their young or miscarry if they are disturbed. D was in a dispute with P and made his sons discharge his guns near the P’s land for the purpose of unsettling the foxes. Ratio: The motive of the noisemaker must be considered in determining whether or not he was using his property in a legitimate and reasonable manner.

Shuttleworth v Vancouver General Hospital [1927] BCSC (QUIA TIMET ACTIONS) Facts: The Ds just finished contraction of an isolation hospital for infectious disease. The P’s house is directly across the street from the hospital. He alleges it is a nuisance asks for an injunction or damages. The action is quia timet, to protect from damage that he has reason to fear will be the result of the hospital. FOR QUIA TIMET ACTIONS PLAINTIFFS MUST PROVIDE STRONG PROBABILITY OF NUISANCE: To sustain the injunction the law requires proof by P of a well-founded apprehension of injury – proof of actual and real danger – a strong probability, almost amounting to moral certainty that if the hospital is established, it will be an actionable nuisance.

Laws v Florinplace Ltd. [1981] (UK) (OBJECTIVE SUSCEPTIBILITIES) Facts: Ps, residents of Longmore Street brought a motion to restrain the operation of a hard-core pornography store that recently opened. They claimed the nature of the business would be apparent to the residents and offend their sensibilities as well as attract undesirable clients. The court granted the injunction. OBJECTIVE SUSCEPTIBILITIES: There can be nuisance where the use made by the Ds of their property is an affront to the reasonable susceptibilities of ordinary people and where the use is apparent to residents and visitors.

Sturges v Bridgman (1879) (COMING INTO NUISANCE) Facts: D owns a business using two large mortars that has gone uninterrupted for 20 years. The mortars cause significant noise. P has recently built a medical consulting office on the site of a former garden. P claims nuisance as the noise/vibrations make it difficult to work. Decision: The right of the plaintiff is affirmed; the appeal is dismissed DEPENDANT ON LOCALITY: If a person moves into an industrial neighbourhood they should not expect to get an injunction that will shut down the factories for nuisance. However, in this case doctors’ offices occupied the area, the D’s confectionary business is out of the ordinary.

Motherwell v. Motherwell (1976) Alberta CA Facts: D, the sister and daughter of the Ps phoned the Ps constantly making unfounded statements and accusations. She persisted despite demands that she cease. D says she preformed no actionable wrong. The brother required use of the phone for his business. Ratio: The protracted and persistent harassment of the Ps is within the principle of nuisance. The Court approached the invasion of privacy by abuse of the telephone system as a new category as it is so much the part of daily life that many look on it as a necessity.

Hunter v. Canary Wharf [1997] HL Facts: the Ds erected a tall building between the television transmitter and the P’s homes, interfering with television reception. Ratio: The mere presence of a neighbouring building will not generally give rise to an actionable private nuisance. It requires something emanating from the Ds land (noise, fumes, smell, vibration, etc.)

STATUTORY DEFENCES Tock v St. John’s Metropolitan Area Board [1989] Facts: Ps suffered extensive damage when their basement flooded after a heavy rain as the result of a blocked storm sewer operated by the D municipality. They alleged that the flooding constituted a nuisance. The D’s defence was that operation of the sewer was authorized by statute. Issue: Does acting on statutory authority provide a defence to a claim of nuisance? SPLIT DECISION: There is no doubt that the statutory provisions authorize the D to operate and maintain the sewage system. They are however, permissive as opposed to mandatory. They confer power; they do not impose a duty.

WILSON +2: a) If legislation imposes a duty and the nuisance is the inevitable consequence of discharging that duty, then the nuisance is itself authorized and there is no recovery in the absence of negligence b) If the legislation is specific as to the manner or location of doing the thing and the nuisance is the inevitable consequence then the nuisance is itself authorized and there is no recovery absent negligence c) BUT, if the legislation confers an authority and gives the public body a discretion on how to do it and in what location and if it decides to do the thing, it must do so in a manner and at the location which will avoid the creation of a nuisance, otherwise it will be liable therefor, whether there is negligence or not LA FOREST +1: A useful distinction exists between isolated and infrequent occurrences that inflict heavy material damage on a single victim, and ordinary disturbances diffuse in their effect and have a broad and general impact on the comfort, convenience and material well being of the public at large. SOPINKA: Public authorities must show that there are no practical ways of avoiding the nuisance: “The courts strain against a conclusion that private rights are intended to be sacrificed for the common good.”

Ryan v Victoria (City) [1999] SCC (NO ALTERNATIVE) NO ALTERNATIVE: D must show that there are not alternative ways of carrying out the work. The mere fact that one is considerably less expensive will not avail. If only one method is practically feasible it must be established that it was practically impossible to avoid nuisance.

Sutherland v Canada (Attorney General) [2002] Facts: New runway in Vancouver International Airport results in noise nuisance. The Court says a tort of nuisance was committed, but a statute implicitly authorized its commission.

DEFENCES (COMING INTO NUISANCE) Sturges v Bridgman (1879) English CA RIGHTS-BASED NO PRESUMPTION OF CONSENT: Until the noise became an actionable nuisance, which it did not at any time before the consulting-room was built, the basis of the presumption of the consent, viz., the power of prevention physically or by action, was never present.

Miller v Jackson [1977] English CA (OVERRULED STURGES) Facts: After 70 years of practicing cricket in a community a new resident bought a house at the edge of the cricket field and won a suit for an injunction. The cricket club added a fence and offered to compensate homeowners for any damage as a result of balls, but the new resident refused. COMING INTO NUISANCE TEST 1. Is the use of the cricket club of this ground for playing cricket a reasonable use of it? To answer this question one should look a the circumstances surrounding the property 2. Does it suddenly become a nuisance because one of the neighbours chooses to build a house on the edge of the ground? SOCIAL WELFARE: There is a contest here between the interest of the public at large and the interest of a private individual

REMEDIES Shelfer v City of London Electrical Lighting Co. [1895] English CA GENERAL RULE: (1) If the injury to the P’s legal right is small; (2) it is capable of being estimated in money; (3) it can be adequately compensated by a small money payment; and (4) it would be oppressive to the D to grant an injunction: Damages in substitution for an injunction may be given. EXCEPTION: There may also be cases in which, though the four above-mentioned requirements exist, the defendant by his conduct – acting with a reckless disregard to the plaintiff’s rights, has disentitled himself from asking that damages be assessed in substitution for an injunction.

Boomer v Atlantic Cement Co. (1970) New York CA (LIMITS SHELFER) Ratio: Reversed the New York equivalent of the Shelfer rule. The court, impressed by the large economic consequences of the injunction held that although a nuisance existed the plaintiff could recover damages, but not receive an injunction.

Kennaway v. Thompson [1980] English CA (LIMITED INJUNCTIONS) Facts: P built a house on land next to a lake where motorized boat races took place. Over the following years the activities became more frequent and noisier, as a result she brought a nuisance suit against the club. INJUNCTIONS MAY BE “LIMITED”: The court held that the boat club’s activities were a nuisance and granted an injunction. The injunction did not prohibit races, but set out detailed provisions limiting when and for how long boat races were permitted

Spur Industries v Del E. Webb Development Co. (1972) Arizona SC Facts: Doperated a feedlot outside Phoenix, P purchased land nearby and built a housing development. The citizens of the development sued for an injunction. SOCIAL WELFARE: The feedlot is required to move not because of any wrongdoing on its part, but because of proper and legitimate regard of the courts for the rights and interests of the public COMPENSATION FOR INJUNCTION: It does not seem harsh to require a developer, who has taken advantage of the lesser land values in a rural area as well as the availability of large tracts of land on which to build and develop a new town to compensate those who are required to move as a result.

THE INTENTIONAL TORTS (1) VOLITION Smith and Stone (1647) KB (TRESPASS CANNOT BE INVOLUNTARY) D was violently pursued onto the land of the P who sought damages in an action for trespass to land. It was held that a trespass cannot be committed involuntarily, and the action failed.

Lawson v. Wellesley Hospital, (1975) ONCA Facts: P, a non-psychiatric patient of the D hospital, sought damages for injuries sustained as a result of an attack by a psychiatric patient with a history of violent conduct. VOLUNTARY ACTION: An essential element in the tort of assault is that there be a voluntary act, and the mind prompting and directing the act. A mentally ill person is by reason of his illness incapable of the intent to assault a person and not liable in an action founded upon that assault.

(2) ASSAULT I. DE S. & Wife v. W. DE S (1348) THE TORT OF ASSAULT DOES NOT REQUIRE PHYSICAL CONTACT: D struck the P’s tavern door with a hatchet. He was told it was closed. When the P’s wife stuck her head out of the window the D attempted to hit her, but missed.

Stephens v. Myers, (1830) English CA (ABILITY TO CARRY OUT THREAT) Facts: The P and D had an angry exchange in a parish meeting. The D advanced with clenched fists toward the P, but was stopped by the churchwarden. He was not close enough to plaintiff to strike a blow. ABILITY TO CARRY OUT THE THREAT: In order for a threat of personal violence to constitute an assault there must be the means of carrying the threat into effect.

Tuberville v. Savage, (1699) KB (THREAT MUST BE REAL) THREAT MUST BE REAL: If a person strikes a person in discourse it is not an assault as there is no intention to assault. However, if a person intends an assault, strikes at someone and misses this is assault. In addition, if a person holds up there hand in a threating manner and says nothing it is also assault.

Mainland Sawmills v. USW, Local 1-3567 [2007] BCSC (THREAT MUST BE IMMINENT) Facts: A labour dispute at the mainland mill was terminated by back-to-work legislation. While one local went back to work after the legislation was tabled, another waited until it passed. The latter union picket the first at their workplace. THREAT MUST BE IMMINENT: The underlying policy of the tort of assault is the reduction of violence. A threat to do harm at some future time does not constitute assault because such a threat is not as likely to spur retaliation. CONTEXT IMPORTANT: While words alone, without some accompanying action, are not normally sufficient to constitute an assault, it is important to note that the context in which words are spoken may add substance to a verbal threat.

(3) BATTERY Cole v. Turner, (1705) English CA (ANGER) (1) The lightest touch of another in anger is a battery; (2) If two or more meet in a narrow passage, and without any violence or design to harm, the one touches the other gently, it will be no battery; However, (3) If either one of them use violence against the other, to force his way in a rude inordinate manner, it will be battery

Bettel et al. v. Yim (1978) Ontario County Court (CURRENT TEST) Facts: P and his friends threw lighted matches into the D’s store, one of which, thrown by the P caused a bag of charcoal to ignite. D grabbed him and unintentionally injured P. NO “FORESEEABILITY” IN INTENTIONAL TORTS: While strong policy reasons favour determining limits to liability where conduct falls below an acceptable standard, the same reasons do not apply to deliberate conduct. TEST: The logical test in intentional tort is whether the defendant was guilty of deliberate, intentional and unlawful violence or threats of violence. If he was, and a more serious harm befalls the P than was intended by the D, the D, and not the innocent P, must bear the responsibility for the unintended result.

(4) INTENTIONAL INFLICTION OF PSYCHIATRIC INJURY Wilkinson v. Downton (1897) QB Facts: As a practical joke, D told P her husband had been seriously injured in an accident. As a result the P suffered a violent psychiatric shock and suffered weeks of incapacity. DAMAGES FOR MENTAL DISTRESS: D wilfully performed the act that harmed the P. As it was obvious the actions would harm the P the Court held that this was done intentionally.

NEGLIGENCE THE REQUIREMENT OF VOLITION/CONTROL Vaughan v. Menlove (1837), 132 ER 490 (CP) Facts: The defendant stacked his hay in a state that gave rise to a high probability of fire. Over a period of five weeks he was warned of this, but stated he would “chance it.” However, as a precaution he put a chimney through the sack. Nevertheless, the hay caught fire and burned the plaintiff’s cottages. Ratio: The liability for negligence should be a regard for caution such as a man or ordinary prudence would observe. (REASONABLE PERSON STANDARD) Blyth v Birmingham Waterworks Co [1856] Ratio: Negligence is the omission to do something that a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent man would not do.

Buckley v Smith Transport Ltd. [1946] ONCA (MENTAL ILLNESS) Facts: A truck driven by an employee of D rammed a streetcar operated by P at high speed. The employee was suffering from syphilis of the brain and died from the disease soon after. MENTAL ILLNESS EXCEPTION: The court found that, at the time of the collision, the employee’s mind was so affected by the disease that he neither understood nor was able to discharge the duty to take care. Roberts v Ramsbottom, [1980] QB Facts: P was emerging from her parked car when D, who at the time of the accident was suffering from a stroke, struck P’s car injuring her and her daughter and causing irreparable damage to her car. RATIO: A driver will be able to escape liability if his actions at the relevant time were wholly beyond his control. The most obvious case is sudden unconsciousness. But if he retained some control, albeit imperfect control, and his driving, judged objectively was below the required standard, he remains liable. Mansfield v. Weetabix [1998] English CA

Facts: D’s employee, a trucker, did not know he had a condition that caused his brain to malfunction when his blood sugar was low. He caused a series of accidents by driving after he had little to eat. DECISION: The standard of care the driver was obliged to show in these circumstances was that which is to be expected of a reasonably competent driver unaware that he is or may be suffering from a condition that impairs his ability to drive. To apply the objective standard in a way that did not take account of his condition would be to impose strict liability. But that is not the law.

Tillander v. Gosselin [1967] ONCA (INFANTS: CAPACITY) Facts: Infant D, nearly 3 years old, removed a baby from her carriage and dragged her over 100 feet, fracturing her skull and causing brain damage. The action was framed in trespass. It is not negligence, as the D had no right to touch or remove the infant. INFANTS LACK CAPACITY: It cannot be negligence, such an infant is considered to be lacking in sufficient judgment to exercise that reasonable case that is expected of one. In recent years the weight of authority is to the effect that no action will lie in trespass if the act is not wrongful, wither through willfulness or as the result of negligence.

THE DUTY OF CARE Two views on Duty of Care: (1) The duty of care is required to establish the basis for liability between the parties: a. “A man is entitled to be as negligent as he pleases toward the whole world if he owes no duty to them” Le Lievre v Gould [1893] b. “It is not enough to prove the respondent to be careless… The question [also]: Does he owe a duty to take care, and to whom does he owe that duty.” Donoghue v Stevenson (Macmillan) (2) Duty of care is a “control device” to keep liability limited: a. “An actor is subject to liability for negligent [careless] conduct that is a legal cause of physical harm” b. “Even if the defendant’s negligent conduct is the legal cause of the plaintiff’s physical harm, the [defendant] is not liable for that harm if the court determines that the he owes no duty. Findings of no duty are unusual, and are based on judicial recognition of special problems of principles or policy that justify the withholding of liability Winterbottom v Wright (1842) Court of Exchequer OVERRULED Facts: D was a contractor for the supply of mail coaches employed under contract by the Postmaster-General for Hartford to Holyhead. P, a mail-coachman hired to drive one of the D’s mail coaches was seriously injured after the defective coach broke down and threw him from his seat. Judgment for D.

PRIVITY OF CONTRACT: It is a general rule, that whenever a wrong arises merely out of the breach of a contract, the party who made the contract alone can sue. If the rule were otherwise there would be no limit to such actions.

THE NEIGHBOUR PRINCIPLE Donoghue v. Stevenson [1932] HL Facts: P drank a bottle of ginger beer manufactured by D that a friend had bought from a retailer and given her. The bottle contained the decomposed remains of a snail that were not, and could not be detected until the majority of the bottle was consumed. ATKIN: THE NEIGHBOUR PRINCIPLE: The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, “who is my neighbour?” receives a restricted reply. Who then, in law is my neighbour? Creates a test for duty: is anyone so closely and directly affected by your acts that you ought reasonably have them in your contemplation. MACMILLAN: The cardinal principle of liability is that the party complained of should owe to the party complaining a duty to take care, and the party complaining should be able to prove that he has suffered damage in consequence of a breach of that duty. MacPherson v Buick Motor Co (1916) New York CA Facts: D was an automobile manufacturer who obtained wheels for its automobiles from a separate manufacturer. D sold its vehicles to retailers. P purchased one of the vehicles from a dealer. When P was riding in the vehicle it collapsed he was injured. There was evidence that the defective wheel could have been discovered by reasonable inspection. DUTY OF MANUFACTURERS: If a product is reasonably expected to be dangerous if negligently made and the product used by those other than the original purchaser in the normal course of business, a duty of care exists.

Palsgraf v Long Island Railroad Co (1928) New York CA Facts: P was standing on a platform of the D’s railroad after buying a ticket. When a train stopped at the station a man ran forward to catch it. When he jumped aboard (with help from railway guards) he dropped a package containing fireworks on the tracks that exploded the P was injured as a result. ACTIONABLE NEGLIGENCE REQUIRES A DUTY: Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. “Proof of negligence in the air, so to speak, will not do.” Negligence is the absence of care, according to the circumstances.  What the plaintiff must show is “a wrong” to herself; i.e., a violation of her own right, and not merely a wrong to someone else, nor conduct “wrongful” because it is unsocial, but not “a wrong” to any one.  The victim does not sue derivatively, or by right of subrogation, to vindicate an interest invaded in the person of another… He sues for a breach of duty to himself.

TWO-STAGE TEST The two-stage test to decide whether or not a private duty of care existed was created in a novel situation. The House of Lords in developed the test in Anns v. Merton London Borough and the SCC adopted it in City of Kamloops v. Nielson. Cooper v Hobart (2001) Facts: P represented a group of investors who brought a class action seeking damages for losses suffered after advancing money to a mortgage broker. The money was allegedly used for unauthorized purposes. According to P, if the Registrar had acted more promptly, the losses suffered by the class would have been avoided or diminished. Appeal dismissed. RATIO: Cooper modifies the Anns test and makes it somewhat harder for the plaintiff, introducing policy into Stage 1 (regarding relationship between classes of people); Stage 2 regards residual policy concerns.

ANNS/KAMLOOPS/COOPER TEST (1) (a) Was the harm that occurred the reasonably foreseeable consequence of the D’s act? and (b) are the reasons, notwithstanding there proximity between the parties established in the first part of the this test, that tort liability should not be recognized? (2) The question still remains whether there are residual policy considerations outside the relationship of the parties that may negative the imposition of a duty of care (e.g., indeterminate liability) Decision: Stage 1 was not satisfied. Even if there was foreseeable harm if the D was careless, there is no sufficient proximity between the parties based on the statute that establishes the defendant.

Dobson v. Dobson (1999) SCC OVERRIDING POLICY CONCERNS Facts: In her 27th week of pregnancy D was in a car accident caused by her negligent driving. As a result of the accident P, now an infant boy, suffers from permanent mental and physical impairment. DECISION: Part Two of the Anns Test is not satisfied; significant policy concerns weigh against the imposition of maternal tort liability for parental negligence. These related to (1) the privacy and autonomy rights of women and (2) the difficulties inherent in articulating a judicial standard of conduct for pregnant women. The relationship between a pregnant woman and her fetus is unique: everything the pregnant woman does or fails to do may have a potentially detrimental impact on her fetus. If a mother were to be held liable for prenatal negligence, this could render the most mundane lifestyle decisions subject to the scrutiny of the courts. McLACHLIN: Liability for fetal injury by pregnant women would run contrary to two of the most fundamental values – liberty and equality. Such legal action carries the potential to bring the whole of the pregnant woman’s conduct under the scrutiny of the law. This has the potential to jeopardize the pregnant women’s right to control her body and make decisions in her own interest laid out in R v Morgentaler [1988].

Childs v. Desormeaux, [2006] SCC Facts: A guest left the Ds’ BYOB party after consuming a large quantity of alcohol. The guest drove his vehicle into oncoming traffic and collided with another vehicle causing serious bodily harm to P. The Ds say they did not know the guest was intoxicated when he left. SHIFT IN BURDEN OF PROOF: If foreseeability and proximity are established at the first stage of the Anns test a prima facie duty arises and the burden of proof shifts to the defendant in the second stage.

DUTY TO RESCUE, DUTY TO ACT Depue v. Flatau et al. (1907) Minnesota SC HOSTS/GUESTS Facts: Cattle buyer requested to stay overnight at a farmer’s house. His request was not granted. The buyer begins to feel ill and again requested to stay overnight (this is disputed by the farm). The buyer collapses on the way home and nearly freezes to death overnight, losing several fingers. DUTY: If you let someone into your premises, whether for a business transaction or otherwise, you are under an obligation to keep them in reasonably safe condition. Union Pacific v Cappier (1903) Kansas SC Facts: The P’s son was run over by a railway car in error and injuries received. Immediately after the accident a railroad employee phoned the police and an ambulance was sent. The action is based on the failure of railroad employees to call a surgeon or render him any assistance after the accident. The action fails. TRADITIONAL RULE: No liability for failure to rescue. A duty must be owed from D to P in an individual capacity, and not merely to the general public. This excludes from actionable negligence all failures to observe the obligations imposed by charity, gratitude and generosity. Childs v. Desormeaux, [2006] SCC SOCIAL HOSTS/MOTORING PUBLIC NO DUTY: Hosting a party in which alcohol is served does not, without more; establish the degree of proximity required to give rise to a duty of care on the hosts to third-party highway users who may be injured by an intoxicated guest Jordan House v. Menow (1973) SCC TAVERN OWNERS/INTOXICATED PATRONS DUTY: Liability of bar towards patrons who get drunk and injure themselves Stewart v. Pettie [1995] SCC TAVERN OWNERS/MOTORING PUBLIC DUTY: Although the action was dismissed on the facts, Stewart affirmed that a special relationship exists between taverns and the motoring public that could require the former to take positive steps to protect the latter.

Stovin v. Wise, [1996] HL (POLICY CONCERNS) POLICY CONCERNS: There are sound policy reasons why omissions require different treatments from positive conduct: (1) POLITICAL: Indeterminate liability (a duty to prevent harm and render assistance to a person in may apply to a large and indeterminate group).

(2) ECONOMIC: The efficient allocation of resources usually requires an activity should bear its own costs

LIABILITY TO RESCUERS Haynes v Harwood [1935] KB Facts: Ds are owners of a two-horse van that was driven by their servant when the incident took place. After being struck by a stone the horses started galloping and had the potential to cause serious harm to bystanders. P stopped the horses, but suffered serious personal injuries when one of the horses fell on him. DUTY TOWARDS RESCUERS: The doctrine of assumption of risk does not apply where P has, under an emergency caused by D’s misconduct, deliberately faced a risk to rescue another from immediate danger of person injury or death.

Horsley v. MacLaren (1971) SCC (CANADIAN ADOPTION) CANADIAN ADOPTION: Legal protection is now afforded to one who risks injury to himself in going to the rescue of another hos has been foreseeably exposed to danger by the unreasonable conduct of a third party: o The risk by the rescuer must not be “so foolhardy as to be outside of any accountable risk and thus beyond even contributory negligence o Liability to the rescuer is stemming from an independent and not derivative duty to the negligent person

PURE ECONOMIC LOSS: NEGLIGENT MISREPRESENTATION Candler v. Crane Christmas & Co. [1951] King’s Bench DENNING DISSENT Facts: D accounting firm provided a negligently prepared balance sheet to P, a potential investor. The company folded and P lost his investment. He sued claiming he would not have invested had he known the company’s true position. Denning (dissent): The circumstances where a duty to use care in statement exists apart from a contract to that effect: (1) Those under the duty are persons such as accountants whose profession and occupation is to make reports on which other people rely in the ordinary course of business (2) They owe a duty to their employer or client, and to any third party to whom they themselves show the accounts, or to whom they know their employer will show the accounts (3) The duty extends only to those transactions which the accountants knew their accounts were required

CARDOZO’S CONFLICTING DECISIONS (1) Glanzer v. Shepard, (1921), New York CA DUTY

Facts: Ds public weighers hired by a vendor to certify the weight of bags of beans sold to the P. P paid for the beans, but upon discovering the weight was less than certified, sued Ds for the amount overpaid. DECISION: The claim is successful. Ds weighed and certified at the order of one with the very end and aim of shaping the conduct of another. Diligence was owed, not only to him who ordered (contractual), but him also who relied. (2) Ultramares v. Touche (1931) New York CA NO DUTY Facts: Ds were a firm of public accountants who negligently prepared an audit that was relied upon by the Ps in lending money to the audited firm. INDETERMINATE LIABILITY: If liability for negligence exists, a thoughtless slip or blunder, the failure to detect a theft or forgery beneath the cover of deceptive entries, may expose accountants to a liability in an indeterminate amount for an indeterminate time to an indeterminate class. SPECIAL RELATIONSHIP: The categories of special relationships that give rise to a duty of care are not limited to contractual relationships or fiduciary duties, but include relationships ‘equivalent to contract’ where there is an assumption of responsibility in circumstances in which, but for the absence of consideration, there would be a contract.

Hedley Byrne & Co. Ltd. v. Heller [1964] HL ADOPTS DENNINGS CANDLER DISSENT Facts: P (advertising firm) entered into a K with a customer. The customer’s bankers, “in confidence and without responsibility” stated that the company’s financial situation was sound. The appeal is dismissed.

RULE: (a) If someone of special skill (b) undertakes (irrespective of contract) to apply that skills for the assistance of another person, and (c) that person relies upon that skill (d) a duty of care arises

DIFFICULTIES WITH LIABILITY FOR NEGLIGENT MISREPRESENTATION (1) Lack of relationship between the degree of carelessness and loss (Cardozo in Ultramares) (2) Difficulty of identifying loss (Pearce in Hedley Byrne: “Damage by negligent acts to persons or property… is more visible and obvious”) (3) Potential dissemination: “words can be broadcast with or without consent… of the speaker…” (Reid). This can result in liability “in an indeterminate amount for an indeterminate time to an indeterminate class” (Cardozo). (4) Disincentive to beneficial activity: people will not make maps anymore (Asquith in Candler) Haig v. Bamford (1976) SCC

Facts: D accounting firm, was asked to prepare audit for a furniture company for expansion through new investment. Report showed the business as profitable. In reliance of this report P’s invested. The report was negligently prepared and P lost his investment. CONCERN FOR INDETERMINATE LIABILITY RELAXED: The claim is accepted; the accountants knew that the financial statements were being prepared for the purpose of influencing investment from a limited class of investors (including the plaintiff).

Grand Restaurants of Canada v. City of Toronto (1981) ONCA (CONTRIBUTORY) Facts: P, an experienced restaurateur, concluded a contract to buy a restaurant in reliance of the D city’s assurance that it did not have any building violations. However, because P was aware of prior work orders, the Court held a reasonable person with the Ps experience should have been made further investigations and was held to contributorily negligent. CONTRIBUTORY NEGLIGENCE: There is a distinction between reasonable reliance as a necessary prerequisite to ground liability, to constitute the cause of action under Hedley Byrne, and reliance in the context of contributory negligence as simply a factor determining the extent of the damages suffered. Reliance that is “unreasonable” simply goes to reducing damages otherwise recoverable by the plaintiff; it does not go to cancelling the prima facie liability of the defendant. Queen v. Cognos (1993), SCC Facts: D hired the P telling him his new position would be a lifelong career. Relying on these representations the P quit his existing job. Shortly afterward D scaled down the project and P’s position was eliminated. NOT CONFINED TO ‘PROESSIONALS’: D should have exercised reasonable care during the pre-employment interview in making representations as to the employer and the employment being offered. Confining this duty of care to “professionals” who are in the business of providing information and advice (doctors, lawyers, bankers, architects) reflects an overtly simplistic.

Caparo Industries v. Dickman [1990] HL (SHAREHOLDERS) Facts: D are chartered accountants who audited a public company. The audit revealed the company’s profits lower than expected and the company’s share price dropped. P began buying shares, eventually holding 91.8%. P eventually found out the company’s position was worse than the audit showed, and sued the accounting company. Issue: What is the extent of the shareholder’s interest that the auditor has a duty to protect? SHAREHOLDERS: The scope of duty of care should not extent beyond the protection of any individual shareholder from losses in the value of the shares that he holds. As a purchaser of additional shares in reliance on the auditor’s report, he stands no different than any other investing member of the public.

Hercules Managements Ltd. v. Ernst & Young [1997] SCC (POLICY CONSIDERATIONS) Facts: P shareholders, they relied on the D’s audit of the corporations’ financial statements to make investment decisions and as a result incurred investment losses. Brought an action of negligence against the D. The SCC dismissed it: Issue: What constitutes a “relationship of proximity” in the context of negligent misrepresentation? RULE: In cases of negligent misrepresentation, the relationship between P and D arises through reliance by P on D’s words. Proximity exists when: (a) The D ought reasonably to foresee that P will rely on his or her representation; and (b) Reliance by the P would, in the particular circumstances of the case, be reasonable POLICY CONSIDERATIONS: Deterrence of negligent conduct is an important policy consideration with respect to auditors’ liability. Nevertheless, this is outweighed by the socially undesirable consequences to which the imposition of indeterminate liability of auditors (STAGE 2 OF ANNS)

NEGLIGENT MISREPRESENTATION AND CONTRACT BG Checo International Ltd. v. BC Hydro and Power Authority (1993) SCC EXPECTATION VS. RELIANCE DAMAGED o EXPECTATION (Contract): If a contract is breached a P seeks damages, P will be put in a position she would have been had the contract been performed. These damages protect P’s expectation for profit from the contract (forward looking). o RELIANCE (Contract): A contract is signed and P, in reliance on the contract has some expenses. It then turns out that D misled P on a material fact, and P cancels the contract. P can sue for compensation for those expenses. These put P in the position she would have been in had there been on contract (backward looking). o RELIANCE (Tort): Like reliance damages in contract: they put P in the same position she would have been in, had there been no tort.

Nunes Diamond Ltd. v. Dominion Electric Protection (1972) SCC Facts: P’s safe was protected by the D’s alarm system. After a burglary of another store merchant the P requested D confirm the system’s integrity. This was done. The original K stated D was “not an insurer” and liability was limited to $50. A burglary later took place. PRIVITY OF CONTRACT: The parties mutually established their rights and obligations by contract. There is nothing from which it can be inferred that a much greater obligation was established by the company’s misrepresentations. DISSENT: The K is important insofar as it established a relationship between the parties, and provided the basis for future misrepresentations. The mere existence of a K cannot foreclose tort liability under the Hedley Bryne principle.

PURE ECONOMIC LOSS: FAULTY CONTRUCTIONS Result from poor business decisions. You buy a house for $1M, but because of faulty construction the house is only worth $0.8M. The reason to restrict liability in this area is a concern for indeterminate liability. Different approaches: a) No negligence liability (English law) b) Negligence liability for dangerous constructions (Canada) c) Negligence liability for pure economic losses resulting from the purchase of faulty constructions (Australia)

ECONOMIC LOSS: PROFESSIONAL RESPONSIBILITY White v. Jones [1995] HL Facts: The father of Ps instructed D, his lawyer, to prepare a new will incorporating Ps. Before the new will was prepared the father died. The Ps sued, claiming the negligent delay deprived them on their inheritance. DECISION: By accepting instructions to draw a will, the lawyer comes into a special relationship with those intended to benefit under it.

POLICY CONCERNS: o o o

The Ps are not receiving the money from the recipient under the old will, but the lawyer. Therefore a third party (the recipient) receives a windfall. The Ps had no contractual agreement with the lawyer. Courts are generally unsympathetic to other claims associated with pure economic loss and professional responsibility, such as a suit against a doctor for the costs of raising a child after a failed sterilization.

RELATIONAL PURE ECONOMIC LOSS Pure economic loss suffered by B that is relational to physical harm suffered by C, as a result of A’s negligence. Example: a car hits a building on the same block as a restaurant. The building needs to be torn down and the restaurant loses patrons because of a road closure. Benson, The Basis for Excluding Liability for Economic Loss in Tort Law (1995) RIGHTS ISSUES: At common law, a proprietary or possessory right in something entitles a person to exclude anyone else from using it without his consent. If a P lacks this right, he has no legal standing to constrain a D from intentionally using it as he sees fit. In contrast, contractual rights are personal rights against a definite individual. In circumstances of relational economic loss, P’s sole exclusive right is, by hypothesis, a contractual right against someone other than the D. It seems then, P lacks a right on which to rest the interest that forms the very basis of his claim, and this is deemed to be fatal from the standpoint of justice.

Barber Lines A/S v. M/V Donau Maru (1985) Massachusetts CA (POLICY CONCERNS) Facts: The D’s ship spilled oil into Boston Harbour. The P’s ship was prevented from docking and suffered additional costs.

POLICY CONCERNS: Even though the financial loss was foreseeable the claim failed. Allowing Ps to recover pure economic loss would make litigation an extremely expensive process and would hurt society generally through insurance premiums.

Weller v. Foot and Mouth Disease Research Institute [1966] QB (FORESEEABILITY) Facts: Ds owned land where they conducted hoof and mouth disease tests. When neighbouring cattle became infected the government order the closing of two markets in the area. The Ps, cattle auctioneers, brought a suit. FORESEEABILITY: P’s claim fails. D’s duty to take care to avoid the escape of the virus was due to the foreseeable fact that the virus might infect cattle in the neighbourhood. The duty of care is accordingly owed to the owners of cattle in the neighbourhood, P do not own cattle. The Court’s decision in Weller contains both policy and right-based arguments. Spartan Steel & Alloys Ltd. v. Martin [1972] English CA Facts: D a company doing roadwork. Damaged electricity cable that required the electricity board to shut down the power. P a 24/7 steel factory; as a result of the power outage the company suffered losses: £368 lost melt £400 lost profit on melt; £1,767 lost revenues from unmade melt during power cut. DENNING (POLICY): It seems to me better to consider the particular relationship at hand, and see whether or not, as a matter of policy, economic loss should be recoverable. The £368 lost melt and £400 lost profit on melt are recoverable, but not the £1,767 in lost revenues DISSENT (FORESEEABILITY): economic loss is recoverable if it is the foreseeable and direct consequence of negligence.

Canadian National Railway v. Norsk (1992) SCC CANADIAN APPROACH Facts: A tug owned by D negligently struck a railway bridge owned by a third party. A number of companies, including P held contracts to use the bridge. P was the primary user (86% of total use). Repairs on the bridge caused them to reroute shipping at significant cost. MAJORITY (McLachlin +2): Anns test is satisfied – pure economic loss is prima facie recoverable where, in addition to negligence and foreseeable loss, there is sufficient proximity between the negligent act and the loss. Proximity is the controlling device which avoids the specter of unlimited liability. When property limited (as in this case), there is no danger of floodgates of unlimited liability and it is fair. La Forest +2: No sufficient reason to depart from the general exclusionary rule disallowing liability for contractual relational pure economic loss. Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd, (1997), SCC REVERSAL OF APPROACH: Court somewhat reversed the Norsk decision, adopting a position must closer to the dissent in the earlier decision.

CURRENT APPROACH RULE: Presumption against recovery subject to some expectations: a) Where P has a possessory or propriety interest in the damaged property b) General average cases (in maritime law)

c) Joint venture between property owner and P (Norsk)

PSYCHIATRIC INJURY McLoughin v. O’Brian [1982] English CA (RULE: SECONDARY VICTIMS): (1) A claim for damages for psychiatric illness resulting from shock caused by negligence van be made without the necessity of the plaintiff establishing that he was himself injured or was in fear of personal injury (2) A claim for damages for such illness can be made when shock results from: o SPOUSE/CHILD: From death or injury to the plaintiff’s spouse or child or the fear of such death or injury, and o IMMEDIATE AFTERMATH: The shock has come about through the sight or hearing of the event or its immediate aftermath

Mustapha v. Culligan of Canada Ltd. (2008) SCC (SERIOUS INJURY) Facts: P sues for psychiatric injury sustained by seeing dead flies in a bottle of water supplied by D company. The plaintiff developed a major depressive disorder. SERIOUS INJURY: o The law does not recognize upset, disgust, anxiety, agitation or other mental states that fall short of injury. o Actionable mental injury must be serious and prolonged and rise above the ordinary annoyances, anxieties and fears that people living in society routinely, if sometimes reluctantly, accept. REASONABLE FORTITUDE: The requirement that a mental injury would occur in a person of ordinary fortitude is inherent in the notion of foreseeability.  This is not to be confused with the ‘eggshell skull’ situation where as a result of a breach of duty the damage inflicted proves to be more serious than expected.  Exception: In cases where the defendant is aware of the plaintiff’s particular sensibilities, the ordinary fortitude requirement need not be applied. Alcock v. Chief Constable of the South Yorkshire Police [1991] HL Facts: Litigation arose out of the Hillsborough disaster, a football riot with 95 dead and 400 injured. Ps are related to those at the stadium and they claim to suffer from psychiatric injuries as a result of the live broadcast of the disaster. RATIO: Simultaneous television broadcasts of what occurred cannot be equated with the “sight or hearing: of the event or its immediate aftermath and as a result, shocks sustained by reason of the broadcasts cannot found a claim.

White v. Chief Constable of South Yorkshire Police [1992] HL (RESCUERS) Facts: The Ps were police officers who had suffered psychiatric injury as a result of tending to victims at the Hillsborough football disaster. RESCUERS: The court rules no liability unless the rescue workers fall within the category of recognized Ps.

POLICY CONCERNS: Such an extension of liability would be unacceptable to the ordinary person because it would offend his notions of distributive justice. He would think it wrong that policemen should have the right to compensation for psychiatric injury out of public funds while the bereaved relatives are sent away with nothing.

Tame v. New South Wales (2002) AUSTRALIAN APPROACH Facts: Ps are parents of 16-year-old who worked on the D’s cattle station. D sent the boy to work on a remote property where he went missing. A search ended when his body was found. The parents sue for the psychiatric harm suffered during the lengthy search. RATIO: The Ps were successful even though the psychiatric harm was not a “sudden shock” or a direct perception of a disastrous event. A rigid distinction between the psychiatric injury suffered by parents in this case, and a similar injury suffered by parents who see their son being run down by a vehicle is indefensible.

THE RELEVANCE OF STATUTES Jordan House v. Menow (1973) SCC Facts: D hotel served P past the point of intoxication then ejected him. Soon afterward an automobile struck him. Notes: It was a violation of s. 53(3) of the Liquor Licence Act and s. 81 of the Liquor Control Act for the hotel to serve anyone apparently in an intoxicated condition. DUTY OF CARE: Statutory provisions are relevant for the question of proximity in the context of duty of care. They become an authoritative source in considering, on common law principles, whether or duty of care should arise.

THE STANDARD OF CARE/CARELESSNESS/BREACH OF DUTY Vaughan v Menlove (1837) Court of Common Pleas (OBJECTIVE STANDARD) Facts: D stacked his hay in a state that gave rise to a high probability of fire. Over a period of five weeks he was warned of this, but stated he would “chance it.” As a precaution he put a chimney through the sack. Nevertheless, the hay caught fire and burned the P’s cottages. THE OBJECTIVE STANDARD: The liability for negligence should be a regard for caution such as a man or ordinary prudence would observe.

Fleming, The Law of Torts (1992) (VARIETIES OF REASONABLE PERSON) THE REASONABLE PERSON: The objective standard means that individuals are often held guilty of legal fault for failing to live up to a standard that as a matter of fact they cannot meet. Therefore, moral blameworthiness and legal default do not invariably coincide. VARIETIES: A. Physicians: A physician will be judged by the standard of the average practitioner of the class to which he belongs. A higher level of skill will be demanded from a specialist than a generalist. B. Beginners: The paramount social need for compensating accident victims outweighs all competing considerations, and the beginner is, therefore, held to the

standard of those who are reasonably skilled and proficient in that particular calling or activity. C. Need for Experts: For tasks requiring expert skill, especially those impinging immanently of public safety, even a layman will be judged by the standard of an expert. D. Physical, Intellectual and Emotional Characteristics: The physically disabled are judged by the standard of what can be expected from a reasonably prudent person suffering from his disability. Though allowance is due for his lessened faculty, he may have to take correspondingly greater precautions in other respects to compensate for it.

McHale v Watson (1966), Aust. HC (CHILDREN) Facts: P suffered a serious injury to her right eye with two other girls of about her age and D, a few years older, aged 12½. They were playing tag and D threw an object into P’s eye causing loss of sight. D was not found negligent. RULE: A child is required to exercise only that degree of care that the average child of the same age ordinarily exercises under the same circumstances. The Queen v Hill [1986] SCC Ratio: If the legal system is to reflect accurately the view of children as being in the developmental stages en route to full functioning capacity as adults, the standard against which children’s actions are measured must be such as can logically culminate in the objective standard of the ordinary person upon their arrival at full adulthood. Notes: In negligence law, whereas the extremely young infant assumes almost no legal liability for his or her actions, older children are expected to conform to the standard appropriate for ordinary children of the same age.

McErlean v Sarel (1987) ONCA (CHILDREN: EXCEPTION) EXCEPTION: Where a child engages in what may be classified as an “adult activity,” he or she will not be accorded special treatment, and no allowance will be made for his or her immaturity. POLICY CONCERNS: While teenagers may at times be judged by standards commensurate with their age, intelligence and experience, it would be unfair and dangerous to the public to permit them in the operation of power-driven vehicles to observe any lesser standard than that required if all drivers of such vehicles.

UNREASONABLE BEHAVIOUR United States v Carroll Towing Co (1947) 2nd Cir (HAND FORMULA) Facts: An unattended barge broke from its moorings and collided with another ship. Was it negligent for a barge to be left unattended in the harbour for several hours? Judge Learned Hand developed a formula to judge liability. THE HAND FORMULA: An owner’s duty, as in other similar situations to provide against resulting injuries is a function of three variables:

B= Burden: costs of prevention P= probability of harm L= Loss

B