Preliminary Question: Is This an Existing Category Or Duty Or an Analogous Situation? (Hill)

TortsFall – 12’James Wegener

Negligence

Duty

Preliminary Question: Is this an existing category or duty or an analogous situation? (Hill)

Some Recognized Affirmative Duties (p.8 and 9)

Donaghue is most regularly used unless new duty.

If yes, then Anns Test is not needed. If no, proceed with Anns.

Does the relationship disclose sufficient (a) foreseeability and (b) proximity to establish a prima facie duty of care?

Who counts as neighbor? Donaghue v. Stevenson (p.4)

Who doesn’t? General (p.6), Unborn Children (p.7), Rescuers (p.8)

Consider expectations, reliance, representations, property interest… etc.

This is about specific policy considerations about this relationship

If yes, are there any residual policy considerations which ought to negate or limit that duty of care?

Look at broad societal policy considerations

Other legal obligations, legal system, society generally - Kamloops (p.5)

Many looked at in Hill (p.5)

Breach (Standard of Care)

Watt v. Hertfordshire County Council (p.11): Also consider Social Utility or Value

Menlove/Blythe (p.12): Must use objective test  reasonable objective person

Evidence for or against: Custom and Statutory Standards (p.13)

Higher Standard of Care: Physicians (p.15-16), Lawyers (p.16), Disabled People (p.12)

Lower Standard of Care:Young (p. 14), Mental Physical Disability (p. 15), Disabled People (p.12)

Damage Flowing from the Breach (Causation)

‘But For’ Test(p.17)

If the loss would not have occurred “but for” the act of the defendant, then it is justified for defendant to compensate plaintiff (onus on plaintiff)
This is the general test. The other tests have very limited usages.

Inference or Reverse Onus (p.17)Material Contribution (p.18)

Table of Contents

Duty

General

Donaghue v. Stevenson (1932) UK

Anns v. Merton London Borough Council (1978) UK – footnote 5, 6, 7 p. 290

Hill v. Hamilton-Wentworth Police Services Board (2007) SCC

A Primer on Cooper v. Hobart (2001) SCC

Unforeseeable Plaintiff

Palsgraf v. Long Island Railroad (1928) US - footnote 1 p. 322

Hay (Bourhill) v. Young (1943) UK

Duval v. Seguin (1972) Ont. – footnote 5 p. 323

Dobson v. Dobson (1999) SCC

Horsley v. MacLaren (1972) SCC

Good Samaritan Act RSBC (1996) - handout

Failure to Act – Affirmative Duties

Klar’s Categories of Affirmative Duties p. 334

Jordan House Ltd. v. Menow (1974) SCC

Crocker v. Sundance Northwest Resorts Ltd. (1988) SCC) – footnote 9 p. 339

Stewart v. Pettie (1995) SCC – footnote 10 p. 339

Childs v. Desmormeaux (2006) SCC

Breach (Standard of Care)

Vicarious Liability

Evaniuk v. 79846 Manitoba Inc.

Unreasonable Risk

Bolton v. Stone (1951) UK

Paris v. Stepney County Council (1951) UK – footnote 8 p. 174

Watt v. Hertfordshire County Council (1954) UK – footnote 13 p. 176

The Reasonable Person

Vaughn v. Menlove (1837) UK

Blyth v. Birmingham Water Works (1856) UK

Carroll and Carroll v. Chicken Palace Ltd. (1955) Ont. – footnote 10 p. 183

Haley v. London Electricity Board (1965) UK – footnote 10 p. 183

Dziwenka v. The Queen in Right of Alberta (1972) SCC – class handout

Custom

Waldick v. Malcolm (1991) SCC

Statutory Standards

R. v. Saskatchewan Wheat Pool (1983) SCC

Gorris v. Scott (1874) UK

Ryan v. Victoria (City) (1999) SCC

Particular Cases

Heisler v. Moke (1972) Ont.

Nespolon v. Alford (1998) Ont. CA - Handout

Fiala v. Cechmanek (2001) AB. CA

Wenden v. Trika (1991) AB. CA – footnote 1 p. 215

Challand v. Bell (1959) AB.

Ter Neuzen v. Korn (1995) SCC – footnote 2 p.220

Reibl v. Hughes (1980) SCC

Brenner v. Gregory (1973) Ont.

Damage Flowing from the Breach (Causation)

‘But For’ Test

Kauffman v. TTTC (1959) Ont. CA

Reverse Onus and Inference

Snell v. Farrell (1990) SCC

Cook v. Lewis (1951) SCC

Material Contribution

Walker Estate v. York Finch General Hospital (2001) SCC

Resurfice Corp v. Hanke (2007) SCC

Clements v. Clements (SCC) 2012

Market Share

Sindell v. Abbott Laboratories (1980) US

Loss of Chance

Laferiere v. Lawson (1991) SCC

Duty

General

No duty, No Negligence
Traditionally, recognized categories of duties were worked through and this patchwork was expanded through analogy
These cases create a modern approach to duty

Donaghue v. Stevenson (1932) UK

“the categories of negligence are never closed” – need only refer to the standards of a reasonable man to determine whether any particular relationship gives rise to a duty
Plaintiff: consumer of ginger beer with decomposed snail in restaurant
Defendant: manufacturer of ginger beer
“golden rule”: you must not hurt your neighbor
A neighbor is anyone you can reasonably see as being closely and directly affected by your actions
Persons who are so closelyand directly affected by myact that I ought reasonably tohave them in contemplation
Due to the type of bottle, the server or restaurant would not be able to see inside the bottle or inspect the quality
Only the manufacturer could have prevented the damage

Home Office v. Dorset Yacht Co. (1970) UK – footnote 4 p. 289

Re-examined the neighbor principle
Borstal boys are taken on a trip and escape their supervisors one night
They damaged a yacht at a nearby yacht club during the night
Unique Aspects: new instance, human actor intervention (supervisors), public policy
The courts said that foreseeability sets limits for the duty; not a duty to the whole world
The yacht club was nearby and it was foreseeable that the kind of act that caused the harm could happen if the borstal boys escaped, so the supervisors are liable
Public authorities (third party) can be liable in negligence

Anns v. Merton London Borough Council (1978) UK – footnote 5, 6, 7 p. 290

Lays out a two part test
Part 1 is specific, and comes from Donaghue v. Stevenson
Part 2 is broad, and looks at policy considerations
Shortened Anns: (as revised over cases)

If reasonable foreseeability and proximity, then prima facie duty.
Is there any policy considerations which justify reducing prima facie duty?

Kamloops v. Nielsen (1984) SCC – footnote 7 p. 290

Emphasizes role of proximity and policy concerns in determining scope of liability

Is there a sufficiently close relationship between the parties so that, in the reasonable contemplation of the defendant, carelessness on its part might cause damage to the person? If so, go to 2.
Are there any policy considerations which ought to limit the duty?

The scope of the duty
The class of persons to whom it is owed
The damages to which a breach of it may give rise

Hill v. Hamilton-Wentworth Police Services Board (2007) SCC

Courts added an introduction step to Anns Test
Preliminary Question: Is this an existing category or duty or an analogous situation?
If yes, then Anns Test is not needed. If no, then proceed with Anns.
Re-worked Anns Test:

Does the relationship disclose sufficient foreseeability and proximity to establish a prima facie duty of care?

This is about specific policy considerations about this relationship

If yes, are there any residual policy considerations which ought to negate or limit that duty of care?

Look at broad societal policy considerations

Step 1 found a prima facie duty, but Step 2 did not find policy considerations that caused such reasonable negative effects as to negate or limit the duty of the officers

So there was a duty owed, then moved to standard of care issue

A Primer on Cooper v. Hobart (2001) SCC

Gives first introductory step that we see used in Hill
Hill means we no longer have to look here for the step
Apparently a good thing, as this case is really unclear and difficult to work through

Unforeseeable Plaintiff

No duty owed to unforeseeable plaintiff

General

Palsgraf v. Long Island Railroad (1928) US - footnote 1 p. 322

Employee tries to assist a passenger onto a train, as a result, the passenger loses his package of fireworks from his grasp and they go off when they hit the ground
The exploding fireworks knock over a scale which in turn hits a woman (Palsgraf)
Courts found that though the employee owes a duty to the passenger, but they do not owe one to Palsgraf as she was not reasonable foreseeable
Test: whether a reasonable hypothetical observer could have reasonably foreseen the likelihood that anyone placed in the position of the plaintiff would be effected by events in the way the plaintiff was

Hay (Bourhill) v. Young (1943) UK

Plaintiff is a pregnant woman whose child was still born, which she alleges was a consequence of hearing a motorcycle crash
The plaintiff is suing the motorcyclist’s executor
The test was not passed here, it was not reasonably foreseeable that anyone in the position of the plaintiff would be effected the way she was when the accident occurred
If a plaintiff has a cause of action it must be because it is a wrong to herself, not secondary of building off a wrong to another
Duty is not to the world at large

Farrugia v. Great Western Ry. (1947) UK - footnote 3 p. 323

The defendant loaded a trick so high that when passing under a bridge a container was knocked off and fell onto the plaintiff
The defendant argued that the plaintiff was trying to jump on the truck as a trespasser when he was hit, so was not reasonably foreseeable
The court found that he was reasonable foreseeable, as the defendant owed a duty to anyone that happened to be in the neighborhood at the crucial moment
It is reasonably foreseeable that a container falling off the truck could hit anyone in the immediate neighborhood and injure them

Unborn Children

Duval v. Seguin (1972) Ont. – footnote 5 p. 323

Injury sustained to child while in womb, in the car accident
Reasonably foreseeable that a pregnant woman could be a driver
The born child is reasonably foreseeable
That such damage could occur due to a negligent motorist is foreseeable
The damage is “suffered” when child becomes living person

Dobson v. Dobson (1999) SCC

Mother was driving car negligently and got in an accident causing harm to unborn child
Majority: for public policy reasons a pregnant woman owes no duty of care to her unborn child
Maternal Immunity—motherimmune from common law actions in tort by her child forinjuries suffered by the child on or after birth.
Intrusive effects on right to privacy, bodily integrity, and autonomous decision making
The resolution of these privacy rights is an issue for the legislature, not the courts
Also does not meet primary purposes of tort law, compensation and deterrence
Majority cited the negative effects of inter‐family litigation, but they were really only suing so that they could get money from insurance company
Dissent: references Duval, there is a duty to born child
Dissent: also this concerns driving negligently, and no one has freedom to drive negligently

Rescue and Rescuers

In general, there is no duty to rescue
At common law, once a rescue is undertaken there is a duty to undertake the rescue non-negligently; rescuee is a foreseeable plaintiff

Horsley v. MacLaren (1972) SCC

At common law, a private carrier owes a duty to his passengers
Here a passenger slips and falls overboard (no negligence) and MacLaren attempts to rescue
MacLaren’s rescue attempts to maneuver the boat are ineffective; & passenger is unresponsive
Horsley dives into water to attempt rescue and he too becomes unresponsive; both men die
Does MacLaren owe a duty to the rescuer?
Denning in Videan (1963): “If the rescuer is killed or injured in the attempt, he can recover damages from the one whose fault has been the cause of it” – creation of peril
If MacLaren caused passenger to fall in, then he would be liable to passenger and any rescuer
If MacLaren was negligent in his rescue attempts, then this invites other rescuers and there would be liability to any subsequent rescuers
Majority: found that none of these situations applied, there was no duty owed to Horsley
The rescue attempt failed, but it was not sufficiently inept given the agony of the moment
Dissent: MacLaren owed a duty as a private carrier and he did perform the rescue negligently, so he did owe a duty to both the passenger and Horsley for both reasons

Saccone v. Fandrakis (2002) Can. – footnote 5 p. 408

Is there a duty owed to a rescuer of property?
“to acknowledge a duty of care… to persons who seek to protect their economic interests when there is no risk of further harm to person or property goes beyond the rational of the rescue cases… [and] would be an unwarranted extension of the law”

Ogwo v. Taylor (1987) UK – footnote 12 p. 410

Professional rescuers are foreseeable, but are held to a higher standard of care
Fireman have a duty to use best endeavors to extinguish fires
If a professional rescuer is negligent in his rescue and damages occur as a result, then he would be contributory negligent

Good Samaritan Act RSBC (1996) - handout

Meant to promote rescuers
There is no liability for emergency aid, unless gross negligence, for a person who arrives at the immediate scene of an act or emergency
Not unlike how the majority ruled in Horsley v. MacLaren

Failure to Act – Affirmative Duties

General

When there is an affirmative duty, there is liability for the failure to do something

Klar’s Categories of Affirmative Duties p. 334

Relationships of economic benefit

Selling a product or a service

Relationships of control or supervision

Teacher-student, parent-child, lifeguard-swimmer

Creators of dangerous situations

Causing potentially harmful situations

Reliance Relationships

Doctor-patient, rescuer

Statutory Duties

Teachers, doctors

“Nonfeasance” and “Misfeasance”

Jordan House Ltd. v. Menow (1974) SCC

Does a tavern owe a duty to an intoxicated person?
It is a situation of economic benefit , creation of danger, control and supervision
There is no existing duty or analogous situation (preliminary question), so proceed with Anns

There is a prima facie duty
They then looked at step 2,
residual policy considerations
Courts stated there was an affirmative
duty to do something for Menow
Dissent: only duty to not overserve

Dunn v. Dominion Atlantic Ry. Co. (1920) SCC – In Jordan House p. 337

Looks at the right to removal of a disorderly passenger
It was found a duty was owed to the person
Courts stated that:cannot eject a passenger in such circumstances that, as a direct consequence, expose the passenger to danger or losing his life or serious injury

Crocker v. Sundance Northwest Resorts Ltd. (1988) SCC) – footnote 9 p. 339

Plaintiff seriously injured himself during tubing contest; was intoxicated
Like Jordan House: creation of danger, control over situation, economic benefit, knowledge of intoxication and increased risk, provided liquor to person and measure available to avoid risk
Duty of care owed to an intoxicated person when the host is a promoter of risky activity

Stewart v. Pettie (1995) SCC – footnote 10 p. 339

Does a commercial host (restaurant) have a duty to third parties if their patron becomes intoxicated?
Here, Pettie drove and got in a car accident with Stewart
The restaurant served him past the point of intoxication
Yes, they have a duty to take positive steps
It is reasonably foreseeable that an intoxicated patron could leave and endanger other drivers if they got in a car and drove
However, as the intoxicated person was in a group with non-intoxicated people, it was reasonable to assume that one of the sober individuals would drive, so the drunk driving accident was not reasonably foreseeable

Childs v. Desmormeaux (2006) SCC

Does a social host have a duty to third parties if their guest becomes intoxicated?
No the social host was not liable
Differences from commercial host: no economic benefit, less control over situation, not institutionalized and no statutory duty, was not providing alcohol to guests, no training or special knowledge for monitoring intoxication
This is a novel duty, so Anns Test was run
It raises issues with foreseeability, and how it differs, and there are also policy considerations

Three new factors for proximity

Creation and control of risk
Concern for autonomy
Reasonable reliance

Breach (Standard of Care)

Vicarious Liability

Evaniuk v. 79846 Manitoba Inc.

Not sure if this is the right place for this, but it needed to go somewhere
For vicarious liability you need:

Employee-employer relationship
Tort committed in the course and scope of employment

Unreasonable Risk

Bolton v. Stone (1951) UK

It is not the case the a person must not carry out or permit operations which may cause damage
Rather, a person is only bound to take into account the probability of such damage and determine the risk in regards to the safety of others, and then act accordingly
Here the act was foreseeable, but the risk was quite minimal
A reasonable person does not create unreasonable risk
Must look at:
Foreseeability of Risk
Probability or likelihood of Risk
Seriousness of the risk (gravity)
Prevention costs (not always applicable)

Paris v. Stepney County Council (1951) UK – footnote 8 p. 174

One eyed mechanic loses sight in good eye due to workplace accident
The likelihood of damage is the same as a two eyed employee
The seriousness is greatly increased, as now he is completely blind
Though usual practice was not to supply goggles, this was an unusual circumstance
Must consider the relevant circumstances
A reasonable employer would have provided goggles, they did not, so they are liable

Watt v. Hertfordshire County Council (1954) UK – footnote 13 p. 176

A heavy jack is used at a fire station and during transportation it falls on a worker
One must balance the risk against the measures necessary to eliminate the risk
Here the emergency was great, so the risk was deemed reasonable
They needed to hurry to rescue a person, and this created the risk
The saving of a life or limb justifies taking considerable risk – social utility

The Reasonable Person

Vaughn v. Menlove (1837) UK

Defendant warned plaintiff about hayrick’s combustibility; nothing done and does combust
Fire spreads to defendant’s property
Requires an objective approach
The objective reasonable man standard must be used

Blyth v. Birmingham Water Works (1856) UK

A reasonable person acts within the reasonable circumstances
Do not have to take precautions against unreasonable risk.
Here, the “water authority” behaved as a reasonable “water authority” would
It was not reasonable for them to foresee a severe frost with no prior occurrence of one

Prasad v. Frandsen (1985) BC. – footnote 8 p. 183

Does the reasonable person ever have an obligation to make inquiries?
Yes. But must look at circumstances
Here the foreigner was injured for not wearing a seatbelt and was found contributory negligent as she did not inquire into the usage of seatbelts or the law

Disabled People

Carroll and Carroll v. Chicken Palace Ltd. (1955) Ont. – footnote 10 p. 183