Canadian Tort-Law-Tests 2020 PDF

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Warning: TT: undefined function: 32 ) Tort-Law-TestsNegligence, and selected IntentionalTortsContentsI. INTRODUCTION ................................................................. Error! Bookmark not defined. II. NEGLIGENCE: DUTY OF CARE ........................................ Error! Bookmark no...

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Tort-Law-Tests

Negligence, and selected Intentional Torts

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Contents I.

INTRODUCTION ................................................................. Error! Bookmark not defined.

II.

NEGLIGENCE: DUTY OF CARE ........................................ Error! Bookmark not defined.

III.

NEGLIGENCE BREACH OF DUTY .................................... Error! Bookmark not defined.

I.

Duty of care..................................................................................................................................... 3

III.

BREACH OF DUTY ...................................................................................................................... 7

IV.

FACTUAL CAUSATION ............................................................................................................ 15

V.

NEGLIGENCE: REMOTENESS AND PROXIMATE CASE.................................................... 18 Nervous Shock .......................................................................................................................22

VII.

Qualification of Damages ............................................................................................................. 28

Pecuniary losses: ...................................................................................................................30 VIII.

INTENTIONAL TORTS .............................................................................................................. 32

financial position;...................................................................................................................35

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A.

Defamation...................................................................................................................72 CASE: Rubber Improvement v. Daily Telegraph................................................................72 CASE: Murphy v. Lamarsh ................................................................................................73 CASE: Knupffer v. London Express News Paper...............................................................73 CASE: Hill v. Church of Scientology of Toronto .................................................................74 CASE: Wic Radio v Simpson .............................................................................................74 CASE: Grant v. Topstar Corp ............................................................................................75

I.

INTRODUCTION

Introduction 1. Duty of care: Ann’s Test a. General Proximity (closeness, foreseeability, proximity) b. Policy Considerations 2. Breach of Duty 3. Damage 4. Factual Causation 5. Remoteness (Proximate Cause) 6. Defence (Complete, Partial)  (Voluntary Assumption of Risk, Illegality) 7. Apportionment (Contributory Negligence, Multiple Defendants) 8. Measure of Damages

II.

NEGLIGENCE: DUTY OF CARE Neighbourhood Principle General Principle: You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor. –Donoghue v. Stephenson Neighbor: persons who are so closely and directly affected by your actions that you ought reasonably to have them in contemplation as being so affected by your acts or omissions. – Lord Atkins

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Accepted Relationships

Rejected Relationships

STEP 1: Is this a pre-established duty? 1. Optometrist to patient - Dunsmore v Deshield 2. Manufacturer to provide product promised - Dunsmore v Deshield 3. Manufacturer to final consumer - Donoghue v Stevenson 4. Ski Resort Operator to Skier – Crocker v. Sundance 5. Person to third party for pre-natal injuries – Dobson v. Dobson 6. Police to identified suspect being investigated - Hill v. Hamilton Private Security Firm to identified group using services (contractual 7. duty) –Fullowka v. Pinkertons Government Regulator + identified group using services (statutory 8. duty) – Fullowka v. Pinkertons 9. Neighbour to Neighbour – Vaughan v. Menlove Public service provider to third party – Byth v. Brimingham 10. Waterworks 11. Taxi driver to passengers – Ware’s Taxi Ltd v. Gilliham 12. Tug to other users of the Pier – US v. Carrol Towing Co. Participants in sporting event to third parties in the vicinity – Bolton v. 13. Stone Police Officers to third parties injured during a pursuit of a suspect 14. Presitman v. Colangelo 15. Medical practitioners to patients – Challend v. Bell 16. Solicitor to Client - Brenner et al v. Gregory et al 17. Property owner to occupier of the land – Waldick v. Malcolm 18. Service provider to customer – Gorris v. Scott 19. Railway to third parties who are injured by railway apparatus – Ryan v. Victoria Cite precedent case Explain why the relationship is identical or analogous Move to breach of Duty 1. Public Regulator to individual Investor – Cooper v. Hobart a. Government actors are not liable in negligence for policy decisions but may be liable for operational decision 2. Individual to someone who is endanger from a source unrelated you – Horsley v. MacLaren 3. Social Host (do not satisfy special relationships) to third parties injured as a result of guests actions – Childs v. Desormeaux 4. Mother to Child for prenatal injuries – Dobson v. Dobson 5. Police to any suspect – Hill v. Hamilton Cite precedent case Explain why the relationship is identical or analogous JUDGEMENT: no duty exists defendant not liable

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Novel Relationship

Stage 1: Prima Facie Duty of Care

 State Novel relationship, no preexisting category muct establish duty through the k Move to STEP 2 STEP 2: The Ann’s Test 1. Foreseeability: a reasonable person would have viewed the harm as foreseeable 2. Proximity: Does the plaintiff belong to a class of persons “so closely and directly affected” by the act of the defendant that the defendant ought to have reasonable have them in contemplation- Neighbourhood principle. –Donoghue v. Stephenson a. Focuses on factors arising from the relationship between the plaintiff and the defendant b. looking at: i. expectations, ii. representations, iii. reliance, and the iv. property or other interests involve to evaluate the closeness of the relationship between the plaintiff and defendant. v. Is it analogous to or can be extended an already established category of relationship. vi.

If the defendant is a government regulator, what does the statue delegating the regulatory power suggest: does it rule out a private law duty of create one – Cooper, Fullowka

Proximate when the defendant's act foreseeably causes physical harm to the plaintiff or the plaintiff's property. 1. Policy Relating to Relationship: are there reasons beyond the proximity between the parties, that tort liability should not be recognized here.  concerned specifically with the relationship between the parties (i.e. doctor – patient relationship). Look at: a. Is it just and fair having regard to that relationship to impose a duty of care in law upon the defendant. – Cooper v. Hobart b. Special Relationship: What kind of act is the alleged negligence? No Distinction between misfeasance and non feasance whe re there is a duty to act i.

Misfecasance: negligent conduct (active act)

state no need to consider special relationships

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Stage 2 ii. Nonfeasance: failure to take positive steps to protect someone from harm (not acting). General Rule: Tort law defendant is generally not liable for omissions failure to act. The law resists imposing a positive duty of care to act. – Horsley v. MacLaren. • philosophical reason: the thought that we should not impose on another's autonomy. • Practical consideration: it would be difficult to enforce. If many people fail to act how do we pint point one person to be the defendant. There are however specific exceptions/ special relationships for which the court will enforce a duty of care for a failure to act. Required: does it fit into one of these special categories – Childs v. Desmoreaux 1) “The defendant intentionally attract and invite third parties to an inherent and obvious risk that he or she created or controls”. 2) The case concerns “paternalistic relationships of supervision and control” or 3) 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”. OR engaged one of the themes that runs though the above three categories 1) “The defendant is involved in the creation of the risk or is in control of a risk to which others have been invited” 2) “A concern for the autonomy of the person affected by the positive action proposed” 3) “The theme of reasonable reliance” NOTE: do not need to meet all requirements, look at context and the totality of circumstances as it applies to the situations noted

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Stage 2: Residual Policy Considerations

Policy considerations outside the relationship of the parties that may negate the imposition of a duty of care. • not concerned with the relationship between the parties, but with the effect of recognizing a duty of care on other legal obligations, the legal system and society more generally. Consider: Important 1. Flood Gates: Would recognition of the duty of care create the spectre of unlimited liability to an unlimited class? – Hill v. Hamilton Police 2. Effect on other legal obligations: - Cooper, Fullowka a. Conflict between duty to individual and duty to public –Cooper v. Hobart b. Imposing duty would violate some statute/ legislation (i.e. unconstitutional) –Dobson v. Dobson c. Statutory or contractual duty – Fullowka v. Pinkerton’s o if the defendant is a government actor, is there a conflict between the duty proposed and an overarching public duty that posses a real potential for negative policy consequences. 3. Concerns for autonomy 4. Deterrence a. Does the law already provide a remedy? 5. Insurance: Effect on insurance premiums, insurance industry as a whole – Dobson v. Dobson Other • Difficulties in articulating a judicial standard for imposing a standard of care – Dobson v. Dobson • Imposing duty would be discriminatory (i.e gender based tort) – Dobson v. Dobson • Other financial concerns – Dobson v. Dobson Primary purpose of Torts – make those at fault pay, compensate for losses – Fiala v. Chemanek • Nature of the harm – emotional, pure economic loss • Precedent setting

III.

NEGLIGENCE BREACH OF DUTY

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ONE: Standard of Care

Three Stage Analysis At this stage we are not assessing whether or not there has been a breach. We are simply identifying the reasonable person through whose eyes we will later assess the unreasonable risk formula General Rule (Default) The reasonable prudent person in the defendant’s circumstances (Vaughn v. Menlove). • This is an objective standard, but is subjectivized to the extent that the reasonable person is placed in the factual circumstances within which the defendant is operating o “In the defendant’s shoes” ie. Emergcency circumstnaces, climate etc.– Byth v, Birmingham W.W.Co o No reasonable man is expected to prepare for things out of the ordinary. - Byth v, Birmingham W.W.Co For Exceptions The objective reasonable person standard is 1. Set aside 2. Lowered 3. Heightened Exception: Mental Disability Standard SET ASIDE (Ontario/ Alberta) TEST: Standard set aside, no capacity to be found negligent, when: i. Afflicted suddenly and without warning with a mental disability that ii. Renders them incapable of either a. understanding and appreciating their duties if care or b. incapable of discharging their duties because had no meaningful control over his actions.-(Fiala v. Chemanek) if test met incapable of being found negligent, analysis ends if test not met, use default reasonable person standard Exception: Children Standard LOWERED Two stage TEST: 1.

Subjective test: is he/ she capable of being found negligent? Whether the child, having regard to his age, his intelligence, his experience, his general knowledge and his alertness is capable of

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being found negligent at law in the circumstances under investigation. Generally, children 7 and under are judged to lack capacity, but even children over 7 may lack capacity. If determined that child is capable of negligence.  PART 2 2. Objective Test: Consider, whether the infant exercised the standard of care to be expected from a child of like: a. age, i. Probably if under 16 will get the benefit of the child standard, but as you reach the late teen yrs unlikely that child standard will be utilized (likely to have adult like experience) b. c.

Intelligence, and experience (relevant to the particular thing that gives rise to the allegation of negligence). i. Child engaged in adult like activity does not get the benefit of the child standard. Will be held to the default reasonable care standard (Delwo V. Pearson)  Adult activity: operating motorized vehicle

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Exception: Professionals Standard HEIGHTENED Professionals are held to a higher standard which takes account of the espertise they hold themselves to have. Held to the standard of the reasonable surgeon, lawyer, police officer etc. in like circumstances(Challand v. Bell, Hill v. Hamilton) it is not required that he should use the highest degree of skill, for there may be persons who have higher education and greater advantages than he has, nor will he be held to have guaranteed a cure/ perfection/optima care – Challand v. Bell, Hill v. Hamilton professional adviser should be guilty of some misconduct, some fraudulent proceeding, or should be chargeable with gross negligence or with gross ignorance – Brenner v. Gregory Professional = someone who is specially trained and has specialized technical knowledge (i.e. doctors, lawyers, architects, engineers) TEST: The test laid down by the Supreme Court of Canada is a threefold one: 1.

The profession undertakes that he possesses the skill, knowledge and judgment of the average prudent professional of that class.

2.

In judging that average, regard must be had to the special group to which he belongs. i.e From a general practitioner at a rural point, a different standard is exacted than from a specialist at an urban point.

3.

If the decision was the result of exercising that average standard  there is no liability for an error in judgment.

Beginners There is no special standard for beginners. The standard of care hold them to the same standard of the reasonably prudent professional in their category. The courts do not account for a beginners lack of experience. Exception: Actual Superior Knowledge Standard HEIGHTENED i.e A person who is not an healthcare professional but has taken a CPR course will be held to the standard of the reasonable person with knowledge of CPR.

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Two: Impugned Conduct Three: Unreasonable Risk Formula

A determination must be made, based on the facts, of what the impugned conduct is. The impugned conduct becomes the focus of the unreasonable risk formula. Unreasonable Risk Formula: the probability of harm and the gravity of harm must be weighted against the burden of precaution of preventing the harm and the social utility of the impugned conduct NOTES 1. The reasonable person person takes into account reasonable probabilities, not fantastic possibilities – Bolton v. Stone The reasonable person does take risks they just don’t take unreasonable risks 2. The burden of precautions is not solely about economic considerations, and purely economic considerations are not met with much sympathy in the courts when the defendant is motivated by profit. 2. Social utility is only likely to come into play where the defendant is engaged in an altruistic pursuit i.e. police, firefighters etc impugned conduct has to serve some greater good, have some social utility 3. The unreasonable risk formula is viewed through the eyes of the reasonable person prior to occurrence of the damage. In arriving at a conclusion as to whether or not the defendant took an unreasonable risk, thereby breaching his or her duty to the plaintiff, we can get some assistance when custom and statutory breach come into play. Custom 2 Steps: 1. The party alleging custom must establish that such a custom exists (usually though expert evidence.) • Compliance or non compliance with a customer is not determinative, but 2. Compliance = persuasive evidence that there was no breach 3. Non compliance = persuasive evidence that there was a breach NOTE: It is better suited in a industry setting where industry experts

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(expert evidence) could testify to there being a custom. However there court is still skeptical at creating industry related customary standards, because it provides an incentive for creating and industry wide low standard. 2. If the defendant establishes compliance with a custom, the plaintiff can attempt to show that the custom in question is negligent. • The plaintiff can do so by establishing that the custom is so “freight with obvious risks that the reasonable person would go further to adhere with a higher standard of care. NEXT, use unreasonable risk formula to conclude the defendant toan unreasonable risk

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Standard Professional Practice (Subset of custom) 2 Steps: 1.

Defendant must establish unanimous adherence to the professional practice (need credible body of experts)

2.

If the defendant establishes compliance with a professional practice, it is open to the judge or jury to find that the standard professional practice is negligence.

TEST : General rule: where a procedure involves difficult or uncertain questions of medical treatment or complex, scientific or highly technical matters that are beyond the ordinary experience and understanding of a judge or jury  it will not be open to find a standard medical practice negligent. • Do not need the unreasonable risk formula for the part above. Exception: if a standard practice fails to adopt obvious and reasonable precautions which are readily apparent to the ordinary finder of fact, then it is no excuse for a practitioner to claim that he or she was merely conforming to such a negligent common practice NEXT, use unreasonable risk formula to conclude the defendant toan unreasonable risk

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Statute Breach of statute is not determinative evidence of negligence but is persuasive - Test followed from Saskatchewan K ` TEST: Requirements to make a negligence case based on statutory breach 1. Actual breach of the statute • Not need to be prosecution or fines from the statute • But plaintiff must prove the statute was breached based on the facts 2.

The breach of the statute has to be the cause of the plaintiff’s damage

3.

The accident must be of the type the statute seeks to prevent

4.

The plaintiff must belong to the class of persons the statute seeks to protect.

NEXT, use unreasonable risk formula to conclude the defendant toan unreasonable risk

IV.

FACTUAL CAUSATION

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General Principles

• • •

Factual Causation fundamental principle that the causal relation between the alleged neglige...