Torts (Gilmour) - 2020 - Very detailed and organized course notes, include notes from class and assigned PDF

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Very detailed and organized course notes, include notes from class and assigned readings. Important notes for exams are included....

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TORTS – GILMOUR – 2020

Psychiatric Harm......................................................................................................................... 414  Negligent infliction of psychiatric harm -- also known as "nervous shock" even though that is an anachronism.  There is not a lot of Canadian SCC decisions on duty of care as it relates to infliction of psychiatric harm. o Lawyers have to refer to lower court decisions.  "as a general rule, something more, by the way of a 'recognized psychiatric illness" is required for the purposes of liability"  Courts are less apt to award damages for psychiatric harm than for physcial harm. Physical harm is seen as easier to prove, and less easy to fake. o Sense of a "hierarchy or harms" . Psychiatric harm taken less seriously. "common law's conception of the 'reasonable person' did not include someone who would complain about emotional upset."  Often "nervous shock" is the indirect injury.  scope of duty of care will shift. Some need to impose restrictions Mustapha v. Culligan of Canada Ltd. (2006), 84 O.R. (3d) 457 (C.A.).............................................. 428 Procedural History

This is an appeal to Ont CA. Trial judge found for Mustapha

Facts

Dead fly in sealed bottle of consumer water.

Issue

Whether a defendant may be liable for damages for psychiatric harm where the harm, by any objective measurement, consists of an exaggerated reaction by an obsessive person of particular sensibilities to what in reality is a relatively minor or trivial incident--sight of a dead fly in a bottle of consumer water

Decision

No, defendant is not liable. Appeal allowed.

Ratio

Psychiatric test

Reasons

They examine P v Smith a UK case which details two categories of psychiatric injury: primary victim and bystander/secondary victim. Question arose of whether Rejection of Page v Smith dichotomy of primary and secondary victim. They say that it doesn't make sens that in the case of a primary victim with that test you would not need reasonable foreseeability as this is integral to tort liability. Anns Test should be used. [question: how are they applying the first part of the Anns test here ? P434.

Policy consideration here: how to limit liability in cases of psychiatric harm where harm suffered is (a) significantly disproportionate to the relatively inconsequential nature of the incident in question, and (b) is a function of the particular sensibilities of the plaintiff rather than a a function of the sensibilities that a person of normal fortitude would demonstrate. Vanek: "person of normal fortitude and robustness. Test for existence of duty of care in psychiatric harm: is it reasonably foreseeable that a person of normal fortitude or sensibility is likely to suffer some type of psychiatric harm as a consequence of the defendant's careless conduct. Duty of care will be found only if there is harm that is foreseeable: to be foreseeable there has to be proximity in the relationship btw parties and a probability (not possibility) of the harm occurring.

Mustapha v. Culligan of Canada Ltd. [2008] 2 S.C.R. 114................................................................ 657 Focus here on remoteness, not on duty of care. Significant change from Court of Appeal Procedural See above History Facts

See above

Issue

Duty of care in a case of psychiatric harm. And remoteness: Mustapha's harm was caused by the defendant, but is it too remote? Is it caused in law?

Decision

Culligan not liable

Ratio

Test is would a person of "ordinary fortitude" suffer serious injuries as a result of defendant's negligence. Injuries have to be caused in fact AND in law.

Reasons

Culligan falls within a well established duty of care: manufacturer of consumer good to consumer. Culligan did owe Mustapha a duty of care. Psychiatric harm not addressed at this stage. Not a novel category o Standard of care of manufacturer of consumer good breached. o Causation: Mustapha as a result of Culligan breach in duty of care sustained a recognizable psychiatric injury. Determining cause in fact.  Personal injury at law has to be serious and compensable. Minor and intransient upsets are not included in personal injury.  HERE, Mustapha's illness was severe enough and was caused by Defendant. Was an injury at fact. o Remoteness: it is too remote to warrant recovery? If the o

harm has happened it is possible. But was it probable? Determining cause in law.  Remoteness: degree of probability required to meet reasonable foreseeability requirement. AND whether plaintiff is considered objectively or subjectively. There is a variety of ways individual people respond to stressors. The test is more objective: would a person of "ordinary fortitude" suffer? Unusual or extreme reactions to events caused by negligence are imaginable but not reasonably foreseeable. a. Para 12: reasonable foreseeability: would it occur in the mind of a reasonable person b. Para14/15  Thin skull anaylsis/Eggshell situation is different: breach of duty the damage inflicted proves to be more serious than expected. Once plaintiff establishes foreseeability that the injury would occur in a person of ordinary fortitude THEN you have to take plaintiff as you find them. Get to stage to apply think skull at stage of cause of fact and cause in law. If a plaintiff establishes foreseeability that the mental injury would occur in a person of ordinary fortitude, then the defendant has to take the plaintiff as they find him or her. Vanek: child that drank juice box that had something that made her sick. She recovered but parents suffered psychiatric harm. They sue manufacturer, but they are not successful. Harm not foreseeable. SCC notes this jurisprudence but takes a different path. What is in question here is what is the line for compensability for mental injury. Difference between this in Donoghue, both cases have a breach in duty and standard of care, but here there is not an injury at law.

Saadati v. Moorhead, 2017 SCC 28, [2017] 1 S.C.R. 543.................................................................................................. 7-02 Procedural History Facts

The plaintiff was injured when his tractor-truck was struck by a vehicle driven by the defendant. The plaintiff sued the defendant for negligence, claiming he had suffered mental injury from the accident. o At the trial level, the BC Supreme Court found the accident had indeed caused the plaintiff’s psychological injury, including a personality change and cognitive difficulties. This finding was not based on an identified medical

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cause or expert evidence, but rather on the testimony of the plaintiff’s friends and family. These lay witnesses testified that the plaintiff was a funny, energetic, and charming individual prior to the accident, but had become sullen and prone to mood swings. His close relationships with others had deteriorated. The BC Supreme Court awarded the plaintiff $100,000 in non-pecuniary damages. On appeal, the BC Court of Appeal reversed the trial judge’s decision, finding that the plaintiff’s claim could not succeed, as he had not demonstrated with expert evidence a medically recognized psychiatric or psychological injury.

Issue

Application of common law negligence to mental injury. Does the plaintiff need to suffer from a recognized psychiatric illness?

Decision

NO. The plaintiff does not need to have a recognized psychiatric illness. The Supreme Court of Canada (SCC) restored the trial judge’s decision on the basis that a finding of legally compensable mental injury need not rest, in whole or in part, on the claimant proving a recognized psychiatric injury through expert evidence.

Ratio Reasons

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TORT law does not exist to abolish misguided prejudices, it should not seek to perpetuate them. Duty of care exists at common law to take a duty of care to refrain from causing foreseeable mental injury. The law of negligence accords identical treatment to mental and physical injury. As with physical injury, a plaintiff alleging mental injury still needs satisfy the criteria applicable to any successful action in negligence – i.e. the existence of a duty of care owed by the defendant to the plaintiff, a breach of that duty, and resulting harm to the plaintiff causally connected to the breach. In the case of mental injuries specifically, the plaintiff must also demonstrate that the injury is serious, prolonged, and rises above the ordinary annoyances, anxieties, and fears that come with living in civil society. here, the SCC emphasized that a court adjudicating a claim of mental injury should not be concerned with diagnosis, but rather symptoms and their effects. Not with diagnosis and labels. What level of harm has been proved. There is no necessary relationship between reasonably foreseeable mental injury and a diagnostic classification scheme; rather, the court’s inquiry should be directed to the level of harm that the claimant’s particular symptoms represent, not whether a label could be attached to them. While expert evidence can assist in determining whether or not a mental injury has been shown, such evidence is not necessary, and a court can find mental injury based on other evidence, including the testimony of family and

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friends. Does not mean that expert evidence would not help, just not required. It remains open to the defendant, in rebutting a claim, to call expert evidence establishing that the accident cannot have caused any mental injury, or at least any mental injury known to psychiatry. NOTE: here Court brings back in duty of care in addition to remoteness for this mental injury case. This is post Mustapha. Liability for mental injury must be confined to claims that satisfy the proximity analysis in the duty of care framework focusing on the relationship btw the parties AND satisfying the remoteness part (para 34)

REMOTENESS OF DAMAGES At this stage, duty of care and standard of care breach have been answered in the affirmative. What damages or injuries apply LEGAL ISSUE. STEPS: Foreseeability Test – currently used  Definition: In remoteness test, foreseeability happens only if p proves that the KIND of damage suffered by him was foreseeable by D, or reasonably foreseeable (is there a sufficient link between the cause and the effect)  Step 1: o Test: whether the damage is of such a kind that the D and/or a reasonable person could have/should have foreseen (Wagon Mound 1)  Step 2: How to establish reasonable foreseeability  Can focus from D’s view and the reasonable person o A) D knew of possible damage o B) D thought It might happen o C) we can expect D to know (Wagon Mound 1)  Step 3: Rules to take into consideration when analyzing foreseeability: o A) if the result is different KIND than what was expected  See Hughes v. Lord Advocate o B) If the P had some vulnerability before incident, Thin Skull  See Smith v. Leech Brain, and Marconato v. Franklin o C) SERIOUS Incident but is such a LOW possibility of happening  See Wagon Mound (#2), Assiniboine, and Mustapha (SCC) o D) Other tortfeasors that get involved, Intervening Causes  See Bradford v. Kanellos, and Price v. Milawski

Directness versus Foreseeability: The Directness Test Q: if you pass this directness test, then you don't need reasonable foreseeability?? - this gets rebutted. Directness as test for remoteness: "Plaintiff's loss would not be too remote to be recoverable if it was a direct result of the defendant's carelessness. For the purpose of that test, directness was defined in terms of a close temporal and spatial connection between the defendant's breach and the plaintiff's loss." Damage of some kind would have been anticipated and the reasonable person would have avoided it. Re Polemis and Furness, Withy & CO [1921], Directness Test, Damage of some kind (not the kind that happened) would have been anticipated and the reasonable person would have avoided it.  Established the Directness test as test for remoteness.  Defendant's servants drop a plank into the hold of the plaintiff's ship which contained cargo of benzene. Planks hit something that ignited benzene. Ship exploded  Court found that the sequence of events was not foreseeable BUT they found that there was still liability on the basis that there was a direct connection between the defendant's breach and the plaintiff's loss. - Damage of some kind would have been anticipated and the reasonable person would have avoided it. Reasonable Foreseeability The Wagon Mound (No. 1), [1961] A.C. 388 (P.C), Privy Council decision. Reverses Directness test for remoteness. Adoption of reasonable foreseeability instead. Procedural History Facts

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Issue

Crew members working on a ship negligently failed to turn off a tap, which led to oil being leaked into Sydney Harbour The oil drifted to below dock where some workmen were welding on the wharf A fire was caused by a spark from the welding which igniting some debris which in turn lit the oil floating on water Significant damage was caused to the wharf Wharf owner sues ships charterers for damages. Trial judge: furnace oil is made to burn, but defendant did not know and could not reasonably be expected to know that if you spread furnace oil on water it could still be set alight. Also oil released into water damaged spill way of dock on its own. Not part of fire. --> Is this direct harm enough of a hook to hang all the damages on?

Decision

Court says polemis test of directness to determine remoteness, should not be followed. In favour of defendant.

Ratio

Reverses Directness test for remoteness. Adoption of reasonable foreseeability instead.

Reasons

In most cases the result does not turn on remoteness. SO the directness test does not affect most cases. A person should be considered liable for their actions when the harm is reasonably foreseeable because that is when they could have done something about it. If not reasonably foreseeable, even if it was direct (as it was here), they could not have changed their actions to avoid the consequences. Striking down directness test: does not seem consistent with ideas of justice that negligence which results in some trivial foreseeable damage the actor should be liable for all consequences regardless of how unforeseeable they were as long as they were seen as direct – nonsense test. Step 1: essential factor in determining liability is whether the damage is of such a kind that the reasonable man should have foreseen • A) knew - no • B) thought it could’ve happened - no • C) we can expect him to know - oil is obviously going to burn. But the d did not know, and could not reasonably be expected to know that it was capable of being on fire when on water

The Kind of Injury Hughes v. Lord Advocate, [1963] A.C. 837 (H.L) , manhole left open and unattended with flammable lamps around it, young boy falls in. IF the type of damage was foreseeable, then the extent of the damage does not have to be foreseeable. Facts

Workers engaged in repairs and left open manhole unattended. They put a tent over it. And flammable lamps around it. Plaintiff, young boy, saw this lamp and took one and goes down into manhole to explore. He drops the lamp by accident, it causes an explosion, boy falls further into the hole and is badly burned. Some of the oil in the lamp fell.

Issue

Was this accident foreseeable?

Decision

Plaintiff wins. Yes.

Ratio Reasons

Court applies interpretive techniques for reasonable foreseeability to find in favour of the plaintiff.

You just need to establish that the plaintiff would suffer some kinds of harm. You don't need to go further to foresee the exact manner of the accident. Appellants injuries were caused by burns. Cannot say injury by burns was unforeseeable. If the (1) accident was foreseeable with (2) a type of damage is foreseeable (burns) then the defendant is liable, even if (3) the extent of the damage was NOT foreseeable. P 643, Note 2:  Impact on the test in Hughes: How you identify the risk that is argued to be either reasonably foreseeable or not. Doughty v. Turner [1964]: Type of Damage was not foreseeable. o Chemical reaction when asbestos cover fell into molten liquid. Caused PLaintiff injury o court held for defendant because the injury was caused by a chemical reaction is not foreseeable (the type of damage was not foreseeable). Jolley v Sutton London BC, Injury was foreseeable. Children mimicking adult behaviour o Decrepit boat located on property that local council owned. They said they would remove the boat for safety reasons o 14 year old boys found boat and wanted to repair it so they could use it (to find pirates). In process of 'repairs' boy falls and now is paraplegic. Boy sues. Trial judge finds for boy (with contributory negligence on part of boy). o Appeal: Court finds that injury was a different type and kind of anything Council might have foreseen. It was foreseeable that boys might be injured, but not by engaging in 'adult activity' of repairing boat o House of Lords: relative risk is collapse of propped up boat. Reasonable risk for children: play can take the form of mimicking adult behaviour. Finds for plaintiff. The Thin-Skulled Plaintiff Rule  If it is reasonably foreseeable that the defendant's carelessness would cause some injury of a particular type, then the plaintiff can recover in full even if, because of a special vulnerability, he or she suffered to a greater extent than could have been reasonably foreseen. (p647) o NOTE: If it was NOT reasonably foreseeable that the defendants carelessness would cause any injury of a particular type, then the plaintiff cannot recover even if , because of a peculiar vulnerability, he or she actually suffered a great deal. Smith v. Leech Brain & Co., [1962] 2 Q.B. 405, UK, Cancer developed on spot that was burned at work. Injury exacerbated his pre-cancerous cells. Thin Skull.

Procedural History Facts

Claim by widow of man that died of cancer. Man was a galvanizer (job was to coat (iron or steel) with rust-resistant zinc.) He had a burn to lip at work when he was hit by piece of molten metallic zinc. He was treated for it and recovered. Then he developed cancer right at that spot. Doctor's determined that the injury exacerbated the condition-his cells were in a pre-cancerous state. Burn led to growth of cancerous tissues. He got treatment, but ended up dying of cancer in 1953.

Issue

Are defendants liable for this?

Decision

For plaintiff.

Ratio

Defendant will be liable for P's injuries as long as the initial injuries were a kind that were reasonably foreseeable, then you don't have to foresee the extent.

Reasons

Thin Skull rule (Dulieu v. White & Sons (1901)): take victim as you find them. Court says the test is not could defendant have foreseen that the burn would cause cancer and that Smith would die. The real test is if the defendants could have foreseen the TYPE of injury which he suffered (the burn). And Yes they could have foreseen he might have gotten burned as a galvanizer. The amount of damage Mr. Smith suffered because of the injury--the cancer--depends on the constitution of the victim (thin skull: take victim as you find them). That part does not affect defendant liability. Court says in Wagon 1 did not alter what has always been a law in this country which is the thin skull rule. Wagon mound 1 is dealing with something different.

Q: this seems similar to Mustapha (2008) except that it's a physical injury. Why is it different? Is it because Mustapha did not suffer a...