Torts – Midterm Summary

Types of Defendants in Tort

Joint Tortfeasors

  • Refers to situations where two people may both be held liable for a single tortious act.
  • There are three broad situations in which two people may be considered joint tortfeasors (Koursk):
  • 1. An employee working for an employer.
  • 2. An agent acting on behalf of a principal.
  • 3. Two people acting in concert (such as a joint enterprise), and one of them commits a tort.
  • A number of mitigating factors have been noted, including lack of control, inability to anticipate tortious behaviour, etc. But it is not clear if these are necessary or sufficient conditions. Primarily, it is decided on a case-by-case basis.
  • Cook v. Lewis(SCC 1951): The leading case. The plaintiff was accidentally shot by one or both of his hunting buddies, but couldn’t prove it was either one of them. He tried to argue that they were joint tortfeasors because they were acting ‘in concert’, in that they had agreed to go hunting together and had agreed to split the bag. The court rejected this argument.

Vicarious Liability

  • A subtype of joint liability.
  • Occurs in relationships where we are willing to pin liability on a superior for the tortious acts of a subordinate, even where the superior was uninvolved in and possibly totally unaware of the tortious behaviour.
  • By common law, this typically only applies to employers/employees and principals/agents. Parents have never been found vicariously liable for acts of their children, although there is a BC statute to the effect that where a child damages property, the parent must show that they were blameless (because they were not at fault in their supervision, or that they had trained their child adequately in the task s/he was engaged in.)
  • Rationales:
  • “Enterprise liability”: an employer who enters into an enterprise takes on certain risks. If those risks are realized, there are fair grounds for imposing liability.
  • Impact on an employer is easier to spread out and thus less destructive than by pinning liability on an employee, or by refusing to recognize it.
  • Deterrence factor encouraging employers to hire, train and supervise responsibly.
  • Employers can be held vicariously liable for the actions of their employees, but not independent contractors. The test to distinguish between the two is not clearly developed, but relevant considerations may include:
  • Degree of control of employer over worker
  • Did the worker provide their own equipment?
  • Did the worker hire his or her own helpers?
  • Degree of financial risk taken by the worker. (If you are paid the same amount for failures as successes, this looks more like a salaried employment.)
  • Degree of responsibility for investment and management held by the worker. (Do they have a stake in the company? Do they get bonuses or promotions?)
  • Sagaz(SCC 2001): plaintiff lost money due to defendant’s bribery of a Canadian Tire employee in order to outbid plaintiff for a contract. Judge lays out the rationale for vicarious liability, as well as the rough test for employees vs. Independent contractors.
  • A finding of vicarious liability requires that an employee’s tort be somehow closely related to the operation of the enterprise. (Though it is no longer necessary that the employee be acting in the course of their employment.)
  • The Bazley factors contain considerations for whether an employer should be vicariously liable:
  • 1. Level of opportunity given to employee to abuse their position.
  • Where employee has broad independence of scope, liability is more likely.
  • Where employer has tried to reduce opportunity for abuse, liability is less likely.
  • 2. Extent to which employee’s act furthered employer’s aims.
  • Not relevant in sexual abuse cases.
  • 3. Connection between the wrongful act and the friction, confrontation and intimacy inherent n the job.
  • Friction relates to, for example, enterprises based heavily around competition.
  • Intimacy relates to positions involving trust, and/or where employee must become an integral part of the victim’s life.
  • 4. Extent of the power of the employee over the victim.
  • Total power is more likely to found liability than a system with checks and balances.
  • 5. Vulnerability of the victim.
  • Where the enterprise has taken away other means for the victim to defend themselves, liability is more likely.
  • E.B. v. Order of the Oblates(SCC 2005): Sexual abuse case in an aboriginal residential school. Establishes the idea that the tort must be closely connected to the operation of the enterprise, and references the Bazley factors. Majority reject liability, but the dissent notes a number of factors (the isolation of the school, the strict commands to obey all authority figures) that they feel would sufficiently connect the nature of the enterprise with the tort.

Independent Tortfeasors

  • AKA “Several Concurrent Tortfeasors”
  • Similar to joint tortfeasors, but where the wrong is not brought about by a single act, but rather by the combined impact of several independent wrongful acts. (The various independent tortfeasors need not be working in concert.)
  • For example, where a back injury is the cumulative effect of two cars hitting the victim.
  • Joint and severable liability: any of the independent tortfeasors can be sued for 100% of the damages. It is at the plaintiff’s discretion whether to sue one, some or all of them. The parties who were sued can then themselves sue the remaining tortfeasors to recover the damages resulting from their proportion of the fault.
  • Exception: contributory negligence. Where the plaintiff did not show the standard of care that a reasonable person would show for their own safety, and are thus held partially responsible, they can only recover from a given defendant for the extent that that defendant was liable. For example, where damages are $100.00, if A was 70% responsible, plaintiff could recover $70.00 from them.

The Tort of Negligence

The Anns Test

  • The basic formula for negligence. Involves two steps:
  • 1. Is there a sufficiently close relationship between the parties that in the reasonable contemplation of one, carelessness might cause damage to the other?
  • 2. If yes, are there policy considerations that ought to negate or limit:
  • A. The scope of the duty?
  • B. The class of persons to whom it is owed?
  • C. The damages to which it may give rise?

Modern History

  • Palsgraf (New York CA 1928): Explosive package falls off a train, knocking over scales which injure Ms. Palsgraf. An early case in which Cardozo J. articulates the idea of an ‘orbit of danger’ as perceived by the ‘eye of ordinary vigilance.’ You owe a duty to someone not to perform an action where the reasonably vigilant person would perceive the danger to them and cite it as a reason not to proceed with your action.
  • Donoghue v.Stevenson(House of Lords 1932): The seminal case involving a snail in ginger beer. Articulates the ‘neighbour principle’: where it is reasonably foreseeable that a person will be injured by your act, that person is your neighbour, and you owe them a duty to take reasonable care to avoid acts/omissions that a reasonably vigilant person would not take. It was decided that the manufacturer owed a duty to the consumer where there was no reasonable opportunity to inspect the product before use.
  • Dorset Yacht(House of Lords 1970): Owing to inattentiveness of officers, prisoners escaped onto an island, stole a boat and ran it into another boat. Lord Reid applies Donoghue v. Stevenson, and also notes that it should presumptively apply unless there is a reason not to apply it. (Such as pure economic loss, failure to come to someone’s rescue, or areas where the law has traditionally refused to recognize a duty.) Lord Reid rejects all the crown’s arguments for why the neighbour principle shouldn’t apply, and applies it.
  • Kamloops (City) v. Nielsen (SCC 1984): A pure economic loss case, in which the city failed to enforce a stop work order, and a buyer ended up buying the resulting house whose foundations were unstable. Adopts into Canada the two-stage reworking of the neighbour principle from Anns v. Merton.
  • Cooper v. Hobart(SCC 2001): Registrar of mortgage brokers did not deter investors from a company under investigation. It is decided at both stages of the Anns test that he owed no duty. This case refines the Anns test by introducing the idea of ‘proximity’ into the second step, i.e. are two people in the kind of relationship where the law ought to recognize a duty? Relevant factors can include expectations of the parties, representations made, and reliance.
  • Odhavji(SCC 2003):Psychological harm case. Plaintiffs’ child shot by police. Officers did not cooperate with investigation. Plaintiffs sued Chief of Police for failing to ensure his officers fulfilled their duties, as he was statutorily required to do. Iaccobucci J. reinforces notion of ‘proximity’, applies Anns test. Stage one: harm was foreseeable. (Or at least, defendant has not established that it was ‘plain and obvious’ that it was not foreseeable.) Stage two: It is ‘just and fair’ to recognize a relationship, due to reasonable expectations, close causal connection between act and alleged harm, and consistency between expectation and statutory duty. Rejects policy considerations that liability would interfere with investigative independence (rejected because of consistency with statutory duty), and the existence of other avenues of remedy (rejected because police complaints procedures don’t provide the same kind of resolution.)

Nonfeasance

  • Refers to a failure to assist someone in peril.

Nine Scenarios

  • 1. Ignoring a person in peril
  • Law has denied liability in these cases, so long as the person is a ‘stranger’. (I.e., someone you do not already owe a duty to by virtue of your relationship.)
  • Concerns of personal autonomy, risk to rescuers, forcing people into situations they may not be trained for.
  • 2. Discovering a danger and failing to warn others
  • Law does not recognize a duty here, so long as the other parties are ‘strangers’.
  • 3. Inducing reliance
  • For example, telling someone that if they do something, you’ll help them out if they get into trouble, and then you don’t.
  • By giving the person cause to believe they can rely on you, you make it less likely that the law will regard you as ‘strangers’.
  • 4. Regularly providing warnings in the past
  • For example, on your own initiative you always put up a sign when the bridge is out. Then one day, you decide not to and someone assumes the bridge is fine and hurts themselves.
  • The law has said that you may be exposing yourself to liability where you create such expectations.
  • 5. Deterring good Samaritans
  • For example, by telling other would-be helpers that you will help the person, but you don’t.
  • Law says you may be liable because, even though there was no reliance on the part of the victim, you have taken away an opportunity for them to receive a benefit.
  • Zalenko v. Gimbell Bros.: a woman collapsed in a store. Owner said they’d take care of it, then locked them in a closed. Store was held liable.
  • 6. Creating a hazard through no fault of your own
  • You slip on a puddle and spill your coffee. It wasn’t your fault, so are you responsible for cleaning the coffee up so no-one slips on it?
  • Liability has been found in such cases. The judicial reasoning is tenuous, but centers around a ‘sense of causal responsibility’, wherein even if you’re not at fault for creating the hazard, because you are the causal agent, if you have an opportunity to negate the danger you must take advantage of it. (Oke: Car hit a post, bending it down; a later driver was impaled on it.)
  • 7. Control of dangerous facilities
  • For example, granting access to such facilities to people who are visibly incapable of protecting themselves from the danger.
  • Liability would probably be recognized here.
  • 8. Assisting people to become incapacitated, who subsequently hurt themselves.
  • Licensed establishments which provide the means of becoming incapacitated may sometimes be held liable. (Crocker v. Sundance; Jordan House)
  • 9. Assisting people to become incapacitated, who subsequently hurt others.
  • Liability may exist, depending on the nature of the relationship. (Stewart v. Pettie; Childs v. Desormeaux)

Cases on Misfeasance/Nonfeasance

  • Jordan House
  • Bar throws drunken patron onto street, knowing he has to walk home along a busy highway. He is hit by a car.
  • Laskin cites a number of factors in deciding to hold establishment liable. He doesn’t indicate which are necessary, but taken together they are sufficient:
  • Invitor-Invitee (i.e. commercial) relationship.
  • Bar was aware of plaintiff’s intoxicated condition, and fed it contrary to statute.
  • Bar employees had knowledge about plaintiff’s propensity to drink.
  • Imposing a duty would not create an unreasonable burden, because the bar could meet the duty by, for example, calling a cab or giving the plaintiff a room.
  • Crocker v. Sundance (SCC 1988)
  • Crocker participates in a dangerous tubing event while visibly drunk, and breaks his neck. Sundance Resorts cautioned him not to participate, but took no other steps. Crocker had signed a waiver previously, but it wasn’t clear that he understood that’s what it was.
  • Court applies Jordan House and notes a number of relevant factors here, in deciding that Sundance cannot treat Crocker as a ‘stranger’:
  • Event is inherently dangerous
  • Invitor-invitee (i.e. commercial) relationship, because the event was being used to promote the resort.
  • Sundance is in charge of and ‘controls’ the event.
  • Sundance provided the liquor to Crocker, and knew of his inebriated and injured condition, and that these factors increased the risk of further injury. Therefore, a duty of care existed.
  • A mere verbal warning was not sufficient to discharge the duty of care; disqualifying him from the competition would have. (The fact that the person lacks capacity heightens the duty of care and makes it less likely that they will understand a mere verbal warning.)
  • Waiver didn’t count, because Sundance didn’t make sure Crocker knew what he was signing.
  • Stewart v. Pettie (SCC 1995)
  • Bar continues to feed Pettie’s inebriated condition, and has tracked the amount he has been drinking. Pettie gets into a car, but instead of hurting himself, hurts someone else.
  • Court holds that if we hold an establishment liable for harm a drunken patron causes to themselves, then logically we can hold them responsible for harm a drunken patron causes to someone else.
  • However, in this case it is not imputed that the bar ought to have known Pettie might be driving , because he was in a group with sober individuals.
  • Court notes that the mere statutory breach of continuing to serve an intoxicated patron is not enough by itself to ground liability.
  • Court also notes that intentionally structuring your establishment so that it was impossible to track how much your patrons were drinking would not constitute an excuse.
  • Childs v. Desormeaux(SCC 2006)
  • Known drinker leaves a BYOB social party, not visibly drunk. Drives off, hurts someone else.
  • Court notes important differences between social and commercial hosts:
  • Less capacity to monitor drinking.
  • Public has different expectations of commercial hosts due to strict gov’t regulation.
  • Commercial relationships create a financial incentive to keep plying guests with alcohol.
  • Foreseeability: Court does not recognize liability because guest was not visibly inebriated, host ought not have known that he was inebriated. (It is not clear what would have happened if he was visibly inebriated.)
  • Proximity: Court notes three situations that suggest a finding of proximity:
  • 1. Intentionally inviting someone to a risk you control
  • 2. Paternalistic relationships of supervision (such as teacher/student) where one party is vulnerable.
  • 3. A public function or commercial enterprise.
  • Court also invokes the idea of ‘reasonable reliance’ of the parties, and finds that the driving public does not rely on social hosts as it does on commercial hosts.

Nonfeasance: Manufacturer’s Duty to Warn

  • A manufacturer has a duty to warn consumers about dangers inherent to the use of the product about which it has knowledge or ought to have knowledge.
  • This is a continuing duty. Where a danger is discovered after the product is sold, an additional warning must be ‘reasonably communicated’ which ‘clearly describes any specific dangers that arise from ordinary use.’ (Rivtow Marine, as cited in Hollis.)
  • Theory: Manufacturers have an ‘informational imbalance’ and thus create a ‘relationship of reliance’ by marketing a product. The duty to warn corrects the imbalance and allows consumers to make informed decisions. The consumer is not a ‘stranger’ because the manufacturer is in a position to profit from them.
  • Scope of the duty: varies with level of danger and also with the level of competence that may be expected of the consumer. Thus, the more hazardous or complex the danger, the greater the requirement for a detailed and precise warning.
  • Learned Intermediaries: manufacturers can discharge their duty by warning the intermediary under circumstances where an intermediate inspection is anticipated, or primary reliance is placed on the judgment of a learned intermediary, such as:
  • Product is technical in nature
  • Product is intended to be used under the supervision of experts
  • Consumer will not realistically receive a direct warning from the manufacturer
  • Note: It is not clear how this applies to the continuing duty to warn.
  • Lastoplex: Engineer uses product, but forgets to turn off pilot light. Fumes ignite and blow the house up. Lastoplex was held liable because the warning on their label should have been more specific. (This case was referenced in Hollis.)
  • Hollis v. Dow Corning Corp (SCC 1995):Manufacturer had evidence of a flaw in their breast implants which could cause them to rupture even due to normal use. This was not known initially but became increasingly evident later on. They did not warn customers, and Hollis’ implant ruptured during a baking course, requiring much surgery. Liability was found.

Nonfeasance: Doctor’s Duty to Warn