1

Table of Contents Torts: Winter 2013

PROXIMATE CAUSE (REMOTENESS) 3
CHANGING REMOTENESS FROM DIRECT RESULT 4
THE WAGON MOUND (NO. 1) [1961] PC CB P. 364 4
RETREAT FROM WAGON MOUND (NO. 1) TYPE OF DAMAGE 6
HUGHES V. LORD ADVOCATE [1963] HL CB P. 370 6
THE POSSIBILITY OF DAMAGE- (DAMAGE POSSIBLE VS PROBABLE FOR REMOTENESS) 8
THE WAGON MOUND (NO. 2) (1966) PC CB P. 375 8
THIN SKULL 9
SMITH V. LEECH BRAIN & CO. [1962] QB CB P. 389 9
CRUMBLING SKULL LIMIT DAMAGES 10
ATHEY V. LEONATI [1996] SCC CB P. 163 10
PSYCHIATRIC DAMAGE 10
TOO REMOTE IF NOT REASONABLY FORESEEABLE/PSYCHIATRIC DAMAGE 11
MUSTAPHA V. CULLIGAN OF CANADA LTD. [2008] SCC CB P. 395 11
RESCUE 12
DUTY TO RESCUER NEGLIGENCE FORESEEABLY INDUCE ANOTHER TO RISK RESCUE 13
HORSLEY ET AL. V. MACLAREN ET AL. THE OGOPOGO (1972) SCC CB P. 399 13
INTERVENING ACT NEGLIGENT, INTENTIONAL AND CRIMINAL ACTS - REMOTENESS 15
HARRIS V. T.T.C. AND MILLER [1967] SCC CB P. 416 15
DEFENCES 16
CONTRIBUTORY NEGLIGENCE 16
CONTRIBUTORY NEGLIGENCE RIDING HORSE W/OUT ORDINARY CARE OR CAUTION 17
BUTTERFIELD V. FORRESTER (1809) KB CB P. 431 17
PROPER CARE BY D, ILLEGAL CONDUCT BY P DONKEY KILLED BY CART 18
DAVIES V. MANN (1842) EXCHEQUER CB P. 432 18
CONTRIBUTORY NEGLIGENCE ACT (2000) SM P. 8 18
SEAT BELT DEFENCE 18
SEAT-BELT DEFENCE CONTRIBUTORY NEGLIGENCE DUTY OF CARE TO WEAR 19
GALASKE V. ODONNELL (1994) SCC CB P. 443 19
LABBEE V. PETERS (1999) ABCA SM P. 10 20
VOLUNTARY ASSUMPTION OF RISK 20
HAMBLEY V. SHEPLEY (1967) ONT CA CB 21
DEFENCES OF NEGLIGENCE [O: 103-113] 21
SEAT BELT DEFENCE 21
KID NOT WEARING SEATBELT: CONTRIBUTORY NEGLIGENCE (BY CHILD AND BY DRIVER) DOC OWED BY DRIVER 22
GALASKE V. ODONNELL, SCC (1994) 22
INJURY WOULD HAVE OCCURRED ANYWAY / CAUSATION: 22
LABBEE V. PETERS, ABCA (1999) SM: 10 22
APPORTIONMENT CASES: FOWLER (NSCA); CHAE (ABCA); LEGISLATION CAP (NB & NFLD) NOTES 22
VOLUNTARY ASSUMPTION OF RISK (VOLENTI) 23
POLICE BARRICADE:INJURED DURING REG COURSE OF EMPLOY- VOLENTI STAND ALONE DEFENCE OR DOC ISSUE? 23
HAMBLEY V. SHEPLEY, ONCA (1967) 23
TUBING ACCIDENT: 24
CROCKER V. SUNDANCE, SCC (1988) 24
2

ILLEGALITY - EX TURPI CAUSA 25
ROLLING START NO PROFIT FROM PLAINTIFFS ILLEGALITY EX TURPI CAUSA INTEGRITY OF LEGAL SYSTEM AT RISK 25
HALL V. HEBERT, SCC (1993) 25
NO COMPENSATION FOR LOSS OF INCOME WHILE INCARCERATED - 26
BRITISH COLUMBIA V. ZASTOWNY, SCC (2008) 26
NEGLIGENCE: PURE ECONOMIC LOSS 27
NEGLIGENT MISREPRESENTATION 27
TO WHOM AND FOR WHAT LOSS DOES THE DUTY EXTEND? OWE DOC WHEN RELIANCE FOR OTHER PURPOSE? 27
HERCULES MANAGEMENT LTD. V. ERNST & YOUNG, SCC (1997) 27
NEGLIGENT MISREP DUTY OWED? EXPRESS DISCLAIMER WAIVER OF LIABILITY 28
HEDLEY BYRNE & CO. V. HELLER & PARTNERS LTD., HL (1963) 28
REQUIREMENT FOR NM PRECONTRACTUAL NM 29
QUEEN V. COGNOS, SCC (1993) CB: 467 29
NEGLIGENT PERFORMANCE OF SERVICES 30
COURIER DELIVERY FAILURE NO DUTY OWED NO RELIANCE ON COURIER 30
B.D.C. LTD. V. HOFSTRAND FARMS LTD., SCC (1986) CB: 482 30
ROSS V. CAUNTERS [1980 U.K.] NOTE CASE 31
EXCLUSION CLAUSES 31
CROCKER V. SUNDANCE, SCC (1988) (SECTION ON WAIVERS.) SM: 15 31
DYCK V MANITOBA SNOWMOBILE ASSOCIATION (1985) SCC 31
TERCON CONTRACTORS V. BC (2010) CLASS 32
ECONOMIC LOSS CAUSED BY DEFECTIVE PRODUCTS & STRUCTURES 32
RECOVERY OF PURE ECONOMIC LOSS CAUSED BY DEFECTIVE PRODUCTS AND STRUCTURES IMPORTANT 32
WINNIPEG CONDOMINIUMS NO. 26 V. BIRD CONSTRUCTION CO., SCC (1995) CB: 485 32
RIVTOW MARINE V. WASHINGTON IRON WORKS [1973 SCC] NOTE CASE 33
OTHER CATEGORIES 33
OTHER CATEGORIES OF PURE-ECONOMIC LOSS RECOVERY USE ANNS-COOPER TEST. 34
MARTEL V. CANADA, SCC (2000) SM: 22 34
OCCUPIERS LIABILITY 35
HISTORICAL OVERVIEW 35
WALDICK V. MALCOLM, SCC (1991) CB: 615 36
OCCUPIERS' LIABILITY ACT ERROR! BOOKMARK NOT DEFINED.
STRICT LIABILITY [O: 324-336] 36
ORIGIN AND SCOPE 36
ORIGIN AND SCOPE OF STRICT LIABILITY D BRINGS SOMETHING ONTO LAND WHICH UPON ESCAPE CAUSE DAMAGE 36
RYLANDS V. FLETCHER, HL (1868) CB: 529 36
STRICT LIABILITY- NON-NATURAL USE/USER HIGH RISK OF INJURY- UNUSUAL USE 37
RICKARDS V. LOTHIAN, PC (1913) CB: 533 37
STRICT LIABILITY ESCAPE FROM LAND LIKELY TO DO DAMAGE VS. NON-NATURAL USE DANGEROUS THINGS 38
READ V. J. LYONS & CO. LTD., HL (1947) CB: 539 38
RESTATEMENT OF TORTS, SECOND (AMERICAN LAW INSTITUTE) NOTES 38
DEFENCES TO STRICT LIABILITY 38
VICARIOUS LIABILITY [O: 344-357] 39
VICARIOUS LIABILITY WHO IS AN EMPLOYEE - CONTROL OVER ACTIVITIES OF WORKER 40
671122 ONTARIO LTD. V. SAGAZ INDUSTRIES, SCC (2001) CB: 561 40
VICARIOUS LIABILITY EMPLOYERS LIABILITY FOR EMPLOYEES SEXUAL ABUSE OF CHILDREN AT WORK EMPLOYER CREATE RISK? 42
3

BAZLEY V. CURRY, SCC (1999) CB: 564 42
VICARIOUS LIABILITY - 43
JACOBI V. GRIFFITHS, SCC (1999) CB: 569 43
INTENTIONAL TORTS 44
INTENTIONAL INTERFERENCE WITH THE PERSON [O: 238-241] 44
ASSAULT 44
BATTERY 44
NOTES, 1-3, 6, 10 CB: 62-63 44
BATTERY INTENTIONAL TORT NO FORESEEABILITY NECESSARY FOR INTENTIONAL TORT- 44
BETTEL V. YIM, ONT CO CT (1978) CB: 63 44
SEXUAL WRONGDOING 45
M.(K.) V. M.(H.) [1992 SCC] NOTE CASE 45
LAJOIE V. KELLY [1997 MAN. Q.B.] NOTE CASE 45
INTENTIONAL INFLICTION OF MENTAL SUFFERING 45
WILKINSON V. DOWNTON (CB 70) [1897 U.K.Q.B.] 45
FRAME V. SMITH [1987 SCC] NOTES 45
JANVIER V. SWEENY [1919 U.K.] NOTES 46
BIELITSKI V. OBADIAK [1922 SASK. C.A.] NOTES 46
PURDY V. WOZNESENSKY [1937 SASK. C.A.] NOTES 46
CLARK V CANADA, [1994] 3 FC 323 NOTES 46
DEFENCES TO INTENTIONAL TORTS [O: 262-272; 275-276] 46
CONSENT 46
SPORTS 46
THE NATURE OF CONSENT 47
O'BRIEN V. CUNARD SS. CO., MASSACHUSETTS SC (1891) CB: 103 47
WRIGHT V. MCLEAN [1956 B.C.S.C.] NOTE CASE 47
VITIATING CONSENT WHEN POWER IMBALANCE AND EXPLOITATION OCCUR 47
NORBERG V. WYNRIB, SCC (1992) CB: 105 47
MALETTE V. SHULMAN, ONT CA (1990) CB: 117 47
MARSHALL V. CURRY, NSSC (1993) CB: 123 48
NANCY B. V. HOTEL-DIEU DE QUEBEC [1992 QUE.S.C.]; RODRIGUEZ V. B.C. [1993 SCC]; NOTES 48
MURRAY V. MCMURCHY [1949 B.C.S.C.] NOTE CASE 48
SELF-DEFENCE 48
CROCKCROFT V. SMITH, QB (1705) CB: 132 48
EVANS V. BRADBURN [1915 ALTA. C.A.] NOTE CASE 49
GAMBRIELL V. CAPARELLI [1975 ONT.H.C.] NOTE CASE 49
DEFENCE OF PROPERTY 49
GREEN V. GODDARD, QB (1704) CB: 135 49
BIRD V. HOLBROOK, COMMON PLEAS (1828) CB: 136 49
OCCUPIERS LIABILITY ACT, R.S.A. 2000, C. O-4. SM: 26 49


PROXIMATE CAUSE (REMOTENESS)
- Must show that the damage suffered is not too remote. The damage suffered must be proximate to the
act
4

o Whether the cause is proximate to the act
- This essentially limits liability. Its used to prevent the court giving damages for some freak accident,
albeit caused by a negligent act.
- Covers situations where the harm is disproportionately bigger than anticipated
- Duty, standard of care, causation, and remoteness must all be established before the plaintiff
can bring and succeed at their case
- In Re Polemis:
o Individuals were bringing things on and off a ship. And in the course of loading some planks into
the shift, the men carrying the planks negligently dropped them into the hold of the ship. When
they dropped them, it caused a spark, and the spark caused some gases in the hold of the ship
to explode, and significant harm was caused.
o Test: Need to establish that the damage is proximate to the negligent act to show that it is a
direct result of the act.
o The plaintiffs won because they were able to convince the court that the harm directly flowed
out of the negligent act of dropping the planks
o There should be liability for all direct consequences of the act
Changing remoteness from direct result
The Wagon Mound (No. 1) [1961] PC CB p. 364
FACTS
- Owners of the dock seek to recover from the ship owner damage due to the fire caused.
- The appellants carelessly allowed a large amount of oil to spill into the bay/harbour
- Appellants made no attempt to clean up the oil and left
- The respondent became aware of the condition of the water and after discussions with the appellant,
told his employees that they could safely continue their welding because he believed furnace oil was
inflammable.
- A couple of days later a fire was started and spread rapidly and caused damage to the respondents
wharf
- TJ found that the outbreak of the fire was due to the fact that there was a piece of debris floating
underneath the oil that had been set on fire by molten metal falling from the wharf
- Also TJ found that the defendant couldnt have been reasonably expected to know that the oil was
capable of being set afire
- TJ and Appeal court found that the oil spiller was liable, then took it to privy council in England
ISSUE
- Whether the damage caused was proximate enough to find liability on the part of the appellant. or
was it too remote? It was too remote
HOLDING
- Appeal should be allowed in that the damage caused could not have been expected or anticipated
REASONING
- Polemis is no longer acceptable.
- A person must be considered to be responsible for the probable consequences of his act
- Liability for a consequence has been imposed on the ground that it was reasonably foreseeable or
probable
- It is not the hindsight of a god, it is the foresight of the reasonable man which alone can determine
responsibility
- The essential factor in determining liability is whether the damage is of such kind as the reasonable
person should have foreseen
- Court holds that the defendant was liable only for the reasonably foreseeable and probable
consequences of their negligence.
RATIO
- If a reasonable person wouldnt have foreseen the consequences of the negligent act (i.e. the particular
5

type or kind of damage) then the consequences are too remote, and there will be no liability.
- The test for remoteness is the foreseeability of the type (kind) of damage. Damage must be a
foreseeable consequence for liability to be found.

6

Retreat from Wagon Mound (No. 1) Type of Damage
Hughes v. Lord Advocate [1963] HL CB p. 370
FACTS
- Post Office employees opened a man hole and put a tarp over it as well as four red lamps around it as
warning, the lamps were left burning
- Appellants (children) were investigating the shelter and hole
- Appellant tripped over the lamp which fell in the hole, and explosion followed with high flames
- Appellant fell into the hole and sustained very severe burning injuries
- Trial judge held that respondent was not liable for injuries because although danger to children was
reasonably foreseeable in the circumstances, the particular accident that happened was not reasonably
foreseeable.
ISSUE
- Were the appellants actions foreseeable, so that they could receive damages?
- Whether the employer of these workers is liable to the children for their damage, even though it was
accepted by everyone that the way in which this accident happened was unforeseeable.
- Is the defendant liable for damage where the injury is foreseeable but the type of accident isnt?
HOLDING
- Results were foreseeable, thus the appeal was allowed and workers held liable
REASONING
- Respondent argued that the appellant cannot recover because the damage which he suffered was of a
kind which was not foreseeable
- But, the appellants injuries were mainly caused by burns and it cannot be said that burns were
unforeseeable
- No doubt it was not to be expected that the injuries would be as serious as those which the appellant in
fact sustained. But a defendant is liable although the damage may be a great deal greater in extent
than was foreseeable
- 1. Duty owed by the workman
- 2. The fact that if they had done as they ought to have done there would have been no accident
- 3. The fact that the injuries suffered by the appellant though perhaps different in degree, did not differ in
kind from injuries which might have resulted from an accident of a foreseeable nature
- The accident was caused by a known source of danger, but caused in a way which could not have
been foreseeable, and in the judges mind that affords no defence
- Remember to allege a specific act of negligence (ie. Leaving the area unsupervised)
RATIO
- The mechanics of accident or the precise concatenation of events that led to accident (manner and
extent of damage) dont need to be foreseen only the type of harm.
- If the specific accident is unforeseeable(explosion), but there is a duty, a breach, and the type of injury
(burn) is foreseeable, then the un-foreseeability of the accident wont save the defendant from liability.
NOTES
2. Doughty v Turner Manufacturing Co (1964) asbestos lid exploded when placed in water. P argued that since
splashing should have been foreseen and burning as a result, that the similar type of injury (burning) was
foreseeable and that even though an explosion was unforeseeable, the D should liable per Hughes. However,
court found that duty was only owed not to create risk of foreseeable harm via splashing, and since explosion
was not result of splashing, no duty owed because this damage was not foreseeable.
3. Lauritzen v Barstead (1965) D drove to bar with P, D got drunk so P drove home. D wanted more beer but P
refused, so D grabbed steering wheel causing car to go into ditch. D then tried to drive car.car got stuck in
river. After 36 hours in cold, P was found by farmer. Due to frostbite, parts of Ps feet needed to be amputated.
D held liable: ought to have foreseen the dangerous consequences likely to flow from his negligent act in
grabbing the steering wheel..
4. Oke v. Weide Transport Ltd (1963) driver knocked over post in median. Another driver later attempted to
pass, using the median. The post ripped through the floorboards of the car, impaling the driver. Court held it
was unforeseeable that a driver would use the median (as it was illegal to do so) and further that the post
would rip through a car. Dissent held that the specific damage did not need to be foreseen, just that damage to
7

a motorist was possible.
5. Weiner v Zoratti (1970) driver negligently hit and sheared off a hydrant, water flowing from it flooded
adjacent pharmacy causing damage to stock. Judge held Ps loss was a direct, probable and foreseeable
result of the negligent breaking of the hydrant just as much as if a piece of the broken hydrant had [hit
someone]
6. Tremain v. Pike (1969) farm hand gets rare disease from exposure to rat pee. Judge deems not
foreseeable..just because certain effects from rat infestation (bites) might be foreseeable, doesn't mean ALL
effects are foreseeable..differentiates from leech brain and Bradford based on the fact that in those cases, the
type of damage was foreseeable, it was only the degree of damage that varied from the foreseeable.
7 School Div of Assiniboin South v Hoffer and Greater Winnipeg Gas Co (1970) 14yr old started snowmobile
negligently, causing it to escape his control. It hit an exposed gas pipe, and caused an explosion at an
adjacent school. Although this exact scenario was maybe not foreseeable, one must define broadly the
possible damage that may occur when a snowmobile is let loose, just as when someone fires a rifle blindly
8. R.v. Cote (1974):It is not necessary that one foresee the precise concatenation of events, it is enough to fix
liability if one can foresee in a general way the class or character of injury which occurred
9. Falkenham v Zwicker (1978) car hit farmers fence, causing staples to fall into a pasture field. Farmer looked
for staples but did not get them all. Cows were injured as a result of ingesting staples. Held foreseeable and
driver liable.



8

The possibility of damage- (damage possible vs probable for remoteness)
The Wagon Mound (No. 2) (1966) PC CB p. 375
FACTS
- Same as Wagon Mound #1 except new plaintiff.
- Plaintiff is now the owner of a ship that was at the Wharf at the time of the fire and was damaged
- Highlighted the fact that the outbreak of the fire was consequent on the act of the manager of the
plaintiffs in continuing work
- It was found that the officers of the WM would (1) regard furnace oil as very difficult to ignite on water
not that they would regard this as impossible. (2) that their experience would probably have been that
this had very rarely happened not that they would never have heard of a case where it had happened,
and (3) that they would have regarded it as a possibility but one which could become an actuality only
in very exceptional circumstances
ISSUE
- Was the damage foreseeable? Yes
- Was the risk so small that a reasonable engineer wouldnt have taken precautions against it? No
- Whether a reasonable man having the knowledge and experience to be expected of the chief engineer
of the WM would have known that there was a real risk of the oil on the water catching fire in some
way.
HOLDING
- Respondents are entitled to succeed and receive damages
REASONING
- Here the findings show that some risk of fire would have been present to the mind of a reasonable man
in the shoes of the ships chief engineer
- From Bolton v. Stone: it is justifiable not to take steps to eliminate a real risk if it is small and if the
circumstances are such that a reasonable person, careful of the safety of his neighbour would think it
right to neglect it
- Court reasons that a properly qualified and alert chief engineer would have realized that there was a
real risk here
- If a real risk is one which would occur to the mind of a reasonable man in the position of the defendant
and which he would not brush aside as far-fetched, and it the criterion is to be what the reasonable man
would have done in the circumstances, then surely he would not neglect such a risk if action to
eliminate it presented no difficulty, no disadvantage, and required no expense.
- The most that can be said to justify inaction is that he would have known that this could only happen in
very exceptional circumstances but this does not mean that a reasonable man would dismiss such
risk from his mind and do nothing when it was so easy to prevent it.
RATIO
- If it is clear that the reasonable man would have realized or foreseen and prevented the risk, then it
must follow that the appellants are liable in damages.
- If the risk is foreseeable but remote, and the ability to prevent or minimize the risk is easy and not
costly, the remoteness wont be a defence against liability.
- Reasonable Foresight of Harm = if there is a real risk and a possibility that this event could occur then
that will be sufficient to meet the test.
** This case tells us its reasonable foresight, but on the possibility of harm not probability as in Wagon
Mound No. 1
NOTES
6. Gallant (1983): The test of determining remoteness now is foreseeability of the possibility of the type of
harm that transpires. If a defendant can reasonably foresee the risk that certain consequences may
result, he can be liable for them. If he cannot reasonably foresee the possibility of such matters
occurring, then he is excused from liability for those items
9. Mckenczie et al. v. Hyde et al. (1967)
note: teacher argues that this case should have been approached and analyzed as a duty of care case.
9

Does wagon mound owe duty? Yes, including not releasing oil into the harborsame thing with
Mustafa..teacher says the case would have been better approached as a duty of care case (this case
would be closely analogous to Donoghue v Stevensonexcept for in Donoghue the P was physically
inured..he then goes on to argue that its not that similar to Donoghue..ugg.)

Thin Skull
Smith v. Leech Brain & Co. [1962] QB CB p. 389
FACTS
- Defendants negligence resulted in a piece of molten metal striking and burning the lip of the plaintiffs
husband
- Ultimately the place where the burn had been began to ulcerate and cancer was diagnosed
- The plaintiffs husband eventually died. It was proved that the burn was a cause of the cancer and
death
ISSUE
- Will the defendant be held liable for foreseeable injuries that have unforeseeable damage?
HOLDING
- Yes, defendants are liable and damages are owed
REASONING
- It has always been the law that a tortfeasor takes his victim as he finds him
- The test is not whether these employers could reasonably have foreseen that a burn would cause
cancer and he would die. The question is whether these employers could reasonably foresee the type
of injury he suffered, namely the burn.
- What is the amount of damage suffered as a result of the defendants conduct, depends upon the
characteristics and constitution of the victim
- This case is an exception to Wagon Mound #1
- If its a personal injury and if theres a pre-existing weakness or pre-disposition then the thin-skulled
victim rule apples
- There must be a negligent act that causes some harm, but the consequences of that harm if the
victim is thin-skulled dont have to be foreseeable
RATIO
- Thin skull rule: as long as some physical injury to P foreseeable, the D is liable for all the consequences
of the injury arising from the Ps unique physical or psychological make-up whether or not those
consequences were foreseeable
- If one party injures another and additional unforeseeable injuries stem from the original damage, then
Party A will be liable for all the damage stemming from the original injury
- Tortfeasors must take their victims as they find them (thin skull rule) not a reason for liability, be
careful using this.
NOTES
1. Thin-skulled rule applies equally if there is a pre-existing susceptibility or if the injury renders someone
vulnerable to additional loss
4. Malcolm v. Broadhurst [1970] no difference in principle between an egg-shell skull and an egg-shell
personality
7. Changes in personality are compensable under the thin-skull rule Marconato et al. v. Franklin [1974]
8. Athey v. Leonati [1996]: Crumbling Skull rule recognizes that the pre-existing condition was inherent in the
plaintiffs original position. The defendant is liable for the injuries caused, even if they are extreme, but need
not compensate the plaintiff for any debilitating effects of the pre-existing condition which the plaintiff would
have experienced anyways. The defendant is liable for the additional damage, but not the pre-existing damage
- Consistent with the rule that the plaintiff must be returned to the position he would have been in, with all
of its attendant risks and shortcomings, and not a better position
9. Smith v. Maximovitch (1968): a thin skull is less valuable than a normal one
14. Canadian courts deal with the suicide issue by imposing liability on the defendant if the victim committed
suicide while insane, and if this insanity could be traced directly to the injuries received in the accident
10


Crumbling skull limit damages
Athey v. Leonati [1996] SCC CB p. 163
FACTS
- Appellant suffered back injuries in two successive motor vehicle accidents and soon after experienced
a disc herniation during a mild stretching exercise
- Herniation was caused by a combination of the injuries sustained in the accidents and a pre-existing
disposition
ISSUE
- Was the damage caused by the 2
nd
accidence foreseeable?
HOLDING: plaintiff entitled to recover 100%
REASONING
- Respondents position is that where a loss is created by tortious and non-tortious causes, it is possible
to apportion the loss according to the degree of causation
- The law does not excuse a defendant from liability merely because other causal factors for which he is
not responsible also helped produce the harm
- The herniated disc may not have specifically been foreseen but back injuries in an accident would have
been foreseeable
- Even if the defendants act alone was not enough to create the herniated disc, if its a material
contribution to the herniated disc he is liable.
- Where different tortfeasors have caused different injuries, the court will divide up the damages owed
based on the injuries caused by each defendant
o However, here there is only one injury. Therefore, any defendant found to have negligently
caused or contributed to the injury will be fully liable for it.
- Because the purpose of tort law is to put the plaintiff in the position they were before the event, we
cannot put the plaintiff in a position better than their original one. It is therefore necessary not only to
determine the plaintiffs position after the tort, but also to assess what the original position was
- It is the difference between the original position and the injured position which is the plaintiffs loss
- Crumbling Skull argument fails because there was no way of finding any measurable risk that the disc
herniation would have occurred without the accidence
- Even though there was a pre-existing injury (weak back) it wasnt a pre-existing injury that would have
inevitably resulted in a herniated disc according to the evidence.
o The traffic accidents intervened and thus increased the risk that the herniated disc would have
happened thus he was found to be a thin-skulled victim. And in this case the victim had a
weak back
RATIO
Crumbling Skull Rule: recognizes that the pre-existing condition was inherent in the plaintiffs original
position. The defendant need not put the plaintiff in a position better than his or her original position.
- The defendant is liable for the injuries caused but need not compensate the plaintiff for any debilitating
effects of the pre-existing condition which the plaintiff would have experienced anyway just need to be
put back in position that they would have been in but for the neg.
- Note: thin skull rule deals with issues of liability, crumbling skull rule deals with quantum of damages

Psychiatric Damage
- Damages for psychiatric losses are now covered in specific situations, but there remain many problems
regarding the extent of the duty that is owed
- Concern about the floodgates and possible fake claims impeded development
- In Canada, the main test for establishing a duty is foreseeability of shock
- There must be a recognizable psychiatric illness suffered, not merely an emotional upset
- Serious and prolonged psychological disturbance is required, not ordinary annoyances or upset.
- It has been held that, if false information is negligently communicated, causing psychiatric damages,
that is compensable
11

- Recently scholars have argued more forcefully that recovery ought to be expanded for non-economic
loss in the nature of nervous shock or psychiatric damage
Too remote if not reasonably foreseeable/psychiatric damage
Mustapha v. Culligan of Canada Ltd. [2008] SCC CB p. 395
FACTS
- The appellant was replacing an empty bottle of drinking water with a full one when he saw a dead fly
and part of another dead fly in the unopened replacement bottle
- TJ found that the appellant had developed a major depressive disorder, phobia and anxiety and
awarded him significant damages
o Found that all the elements were there for this loss
- On appeal Ont CA found that the injury was not reasonably foreseeable and therefore did not give rise
to a cause of action. (Test of remoteness comes out of Wagon Mound 1)
ISSUE
- Whether the cause of action has been established
- Was the psychiatric damage claimed by the plaintiff too remote?
- Was this person a thin skull victim?
HOLDING
- SCC dismissed the appeal holding that it was not foreseeable that a person of ordinary fortitude would
suffer injury from seeing flies in a bottle of drinking water he was about to install
REASONING
1. Did the defendant owe the plaintiff a duty of care? (Anns Test)
- Focus first on the relationship between the parties. Has this issue been discussed before? Donoghue v.
Stevenson!
- Whether such a relationship exists depends on foreseeability, moderated by policy concerns
- The relationships between the parties in this case does not belong to a novel category. It has long been
established that the manufacturer of a consumable good owes a duty of care to the ultimate consumer
of that good. Thus, Culligan owed the appellant a duty of care
o A manufacturer of a good owes a duty to the consumer
2. Did the defendants behaviour breach the standard of care and what is the standard?
- Test: Foreseeability of harm rather than foreseeability of the plaintiff themself
- The standard of care was providing un-contaminated, consumable water
- The standard of care was breached, as it is clear that a supplier of bottled water intended for personal
consumption is under a duty to take reasonable care to ensure that the water is not contaminated by
foreign elements
- The behaviour of the defendant fell below a reasonable standard of care
3. Did the plaintiff suffer damage?
- Damage for purposes of this inquiry includes psychological injury
o Psychological injuries have traditionally been less significant than physical damages. Not this
way anymore because of medical improvements
- Psychological disturbance that rises to the level of personal injury must be distinguished from
psychological upset
- It must be serious and prolonged and rise above the ordinary annoyances, anxieties and fears that
people living in society routinely accept
o It cant just be any kind of superficial harm
o Minor psychiatric consequences are found to be unsustainable at law.
- On the findings of the trial judge, supported by medical evidence, the appellant developed a major
depressive disorder with associated phobia and anxiety that had a significant impact on his life and
therefore qualifies as a personal injury at law
4. Were the plaintiffs damage caused by the defendants breach?
- Whether it is too remote to warrant recovery
12

- Apply Wagon Mound 2
o Judges will use possibility when they want to find liability because its an easier test to meet
o Here they are using it not to favour the plaintiff, (para 14) but instead to argue that there is a
probability instead of a possibility
- The principle has been that it is the foresight of the reasonable man which alone can determine
responsibility
- The remoteness inquiry depends not only upon the degree of probability required to meet the
reasonable foreseeability requirement, but also upon whether or not the plaintiff is considered
objectively or subjectively
o What happened to the thin skulled victim?
- In judging whether the personal injury was foreseeable, one looks at a person of ordinary fortitude or
at a particular plaintiff with his or her particular vulnerabilities
o Subjectivity is through the agency of your own being. Not a good thing when were talking about
standard of care. But here were talking about remoteness of harm.
o Decides that you dont look at the particular plaintiff
- White: the law expects reasonable fortitude and robustness of its citizens and will not impose liability for
the exceptional frailty of certain individuals (this case has been substantially discredited)
- Unusual or extreme reactions to events caused by negligence are imaginable but not reasonably
foreseeable
- In this case, the defendant didnt know of the plaintiffs particular sensitivities
- The appellant must show that it was foreseeable that a person of ordinary fortitude would suffer serious
injury from seeing the flies in the bottle of water he was about to install. This he failed to do
RATIO
- If the injury isnt reasonably foreseeable for a person of normal fortitude, then the injury is too remote to
warrant recovery
- In a duty of care analysis concerning nervous shock, damage caused by a breach in the standard of
care must be reasonably foreseeable. The plaintiff must show that her or his mental injury would have
occurred in a person of ordinary, reasonable fortitude.
NOTE
- How do we distinguish the psychological harm a person of ordinary fortitude might suffer and that
suffered by an exceptionally frail person?
Main Point:
- Introduced notion of applying the reasonable foresight test. Adding a subjective, objective element to
the reasonable foresight test
o Dont look at the particular plaintiff
- Can use this case to argue for both sides. This case doesnt overrule Smith & Leach Brain or Wagon
Mound II, but they go against it
Rescue

- Courts now encourage altruistic conduct by protecting rescuers from liability arising from the rescue
attempt
- Videan v. British Transport Commission: if a person by their fault creates a situation of peril, they must
answer for it to any person who attempts to rescue the person who is in danger. They owe a duty to
such a person above all others
- if the rescuer is killed or injured in the attempt, they can recover damages from the one whose fault has
been the cause of it
- persons who, as a consequence of their own negligence, place themselves in positions of peril owe a
duty of care to their rescuers
- liability is also imposed if the person being rescued was already dead
13

Duty to rescuer Negligence foreseeably induce another to risk rescue
Horsley et al. v. MacLaren et al. The Ogopogo (1972) SCC CB p. 399
FACTS
- The defendant, MacLaren, owned a cabin cruiser and was taking some friends on a cruise of Lake
Ontario
- Matthews fell off the boat, not due to the negligence of anyone.
- When Horsley observed the difficulty which was being experienced in the effort to rescue Matthews, he
dived into the water, and died due to the cold weather
- There had been some consumption of beer and champagne, but there was no finding that anyone was
intoxicated as a result
- Trial judge denied Matthews family recovery on the ground that there was no evidence of causal
relation between his death and MacLarens conduct. Horsleys family was successful though
- Ont CA reversed and dismissed the Horsley decision
ISSUE
- Did the defendants negligence so aggravate the plaintiff that the plaintiff was induced into the rescue,
and so the negligence foreseeably caused the plaintiffs death
HOLDING
- No, Confirmed court of appeal decision against Horsley, appeal not allowed
REASONING
- Can see no conceivable basis on which the respondent could have been held responsible for Horsleys
death
- If the respondent is to be held liable to the appellants, such liability must in my view stem from a finding
that the situation of peril brought about by Matthews falling into the water was thereafter, within the next
three or four minutes, so aggravated by the negligence of MacLaren in attempting his rescue as to
induce Horsley to risk his life by diving in after him
- From Videan v. British Transport Commission: 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
- The situation of peril here was not created by any fault on the part of MacLaren
- Any duty owing to Horsley must stem from the fact that a new situation of peril was created by
MacLarens negligence which induced Horsley to act as he did
- Because he screwed up the rescue to Matthews, he created a risk that someone else would jump in the
water to save Matthews. Is this enough to create a duty between McLaren and Horsley? Yes, a
rescuer can owe a duty to a second rescuer.
- Trial judge found that he was negligent in his failure to comply with the man overboard rescue
procedure, and that he was unable to exercise proper judgment in the emergency created because of
his excessive consumption of alcohol
- Ont CA found that there was nothing in the evidence to support the view that MacLaren was incapable
of proper management and control owing to the consumption of alcohol
- SCC finds that there should not be a finding that any fault of the respondents inducted Horsley to risk
his life by diving in as he did
RATIO
- If a rescuer is injured or killed, then they may recover damages only from the person whose fault
caused the damage
An intervening act (novus actus interveniens) may mean damages are too remote and therefore not
compensable.
- Must be within the natural and probable range.
14

DISSENT
- In going to the aid of Matthews, MacLaren came under a duty to carry out the rescue with due care in
the circumstances, and his failure to employ standard rescue procedures foreseeably brought Horsley
into the picture with the ensuing fatal result
- Basis of liability was also founded on a common law duty of care of a private carrier to his passengers
o Having brought his guests into a relationship with him as passengers on his boat, albeit as
social or gratuitous passengers, he was obliged to exercise reasonable care for their safety
- MacLaren, as he admitted, had adopted the wrong procedure of rescuing a passenger who had fallen
overboard. He knew the proper procedure, and had practised it
o It was not the case where MacLaren had failed to execute the required manoeuvre properly, but
rather one where he had not followed the method of rescue which, on the evidence, was the
proper one to employ in an emergency
- Horsleys conduct in the circumstances was within the range of the natural and probable
NOTES
3. Baker v. Hopkins: Although no one owes a duty to anyone else to preserve his own safety, yet, if by his own
carelessness a man puts himself into a position of peril of a kind that invites rescue, he would in law be liable
for any injury caused to someone whom he ought to have foreseen would attempt to come to his aid
6. It would make it more foreseeable and reasonable if the person is alive and seeking rescue. If the person
being rescued in not in any real danger. If you go totally subjective, that undermines the wantonness rule.
Intervening Act: is one that arises after the Ds negligence and either precipitates or worsens the Ps damage.
if intervening act breaks chain of causation, P may not be found liable for additional damage
15

Intervening Act Negligent, Intentional and Criminal Acts remoteness
Harris v. T.T.C. and Miller [1967] SCC CB p. 416
FACTS
- Infant stuck his hand out the window of a TTC bus
- As that bus pulled away from a stop it brushed against a steel pole 5.5 inches away from the curb with
the result of crushing and breaking the infants arm
- TJ found that the negligence of the bus driver was a proximate cause of the collision but that the
appellant was also guilty of negligence in putting his arm out of the window despite there being a bylaw
prohibition against this activity
- TJ divided the fault equally between the parties; Ont CA found that there could be no recovery
ISSUE
- If a person contributes to their injury but the behaviour is foreseeable will the injuring party be saved
from liability?
HOLDING
- No, if the act was foreseeable there still may be liability
REASONING
- Bus driver admits that he was aware of the propensity of children on his bus to put their arms and even
their heads out the window, notwithstanding the warning the Commission had posted
- He could therefore reasonably be expected to foresee that such a thing would happen in the case of
the plaintiff
- Respondent argued that by passing this bylaw and otherwise giving notice to its passenger of the
danger of projecting any portion of their body through any window of the bus, the respondent had fully
discharged its duty of care in relation to the dangers involved in such conduct and that it owed no
further duty to them in this regard
o Respondent argues: even if the bus driver was negligent, the child sticking his arm out the
window was an intervening cause that broke the chain of causation
- But when the respondents negligence was an effective cause of the accidence and its driver should
have foreseen the likelihood of children passengers extending their arms through the window
notwithstanding the warning, different considerations apply and in my opinion it becomes a case where
the damages should be apportioned in proportion to the degree of fault found against the parties
respectively
RATIO
- If party A can foresee that party B will disregard warnings of danger then Party A wont be immune from
liability even if Party B contributes to their own injury
- Merely because the plaintiffs injury was caused or contributed to by the plaintiffs own negligent act, or
the wrongful act of a third party, does not necessarily mean that the defendant is freed from liability.
Where a defendant has a duty to take reasonable care to protect the plaintiff from injury caused either
by the plaintiffs own act or the act of a third person, these acts cannot be considered to be intervening
forces which shield the defendant from liability
- A defendant must be able to argue that an intervening cause was not foreseeable
- There can be an intervening cause as a defence as long as that cause is unforeseeable, the
defendant will succeed. But if that intervening cause is not foreseeable then you will be responsible for
the totality of the event
NOTES:
- Spangolo v Margessons Sports Ltd (1981) car left in parking lot w/ keys in the ignition. It was stolen
and then was in an accident. Sued the parking lot operator. Initially successful at trial but appeal judge
overruled saying it was not foreseeable that 6 days later he would get in an accident. Novus actus
(intervenining act) argument succeeded
- Bradford v. Kanellos [1971] flash fire in restaurant caused by negligence. Fire extinguisher made
hissing sound, which caused a patron to shout that there was a gas leak and there would be an
explosion. The resulting stampede to the exit caused injury to a patron. Even if the person who called
16

out that there was going to be an explosion was negligent, the restaurant was still negligent for letting
grease build up, and a fire was foreseeable from that, and patron hysterics were foreseeable from a
fire. But scc found Intervening act was unforeseeable so plaintiff not liable. Page 99 of Osborne 3
rd
ed.
- Canphoto Ltd. Et al. v. Aetna Roofing (1965) D company left 3 propane tanks in a public laneway over
the weekend. Breached provincial regulation in leaving them that close to a building. During the night,
someone meddled w/ the tanks causing a serious fire. Meddling w/ the tanks did not constitute an
intervening act b/c the intervention was not a fresh, independent cause of the damage. The person
guilty of the original negligence will still be the effective cause if he ought to reasonably have
anticipated such interventions.
- Stansbie v Troman [1948] decorator left house of client unlocked. Thief entered stole goods. Client
refused to pay and sued decorator for cost of goods, decorator sued for payment for services rendered.
Decorators negligence the cause of the theft? Yes decorator owed duty of care to prevent foreseeable
incidence such as theft.
- Various criminal acts by third persons in addition to theft may yield liability against someone who
enabled these acts to occur or who failed to prevent them while owing a duty to do so
o A landlord may be liable for assault on tenant where failure to install proper locks increases the
likelihood of crime (and crime foreseeable)
o Possible to hold a negligent person liable for murder committed by another person: Ahmed v
Stefaniu (2006) a psychiatrist negligently changed the status of mentally ill person from
involuntary to voluntaryallowing him to move out of hospital while still delusionally psychotic
which led to him killing his sister.

Defences

- Once a P has established the 5 elements of negligence (duty, standard, proximate, causal, damage)
they have established a prima facie case for negligence which means that onus is placed on the D to
prove BOP a defence or they will be held liable.
- There are 4 defences to an action in negligence:
o 1) contributory negligence,
o 2) voluntary assumption of risk (volenti non fit injuria),
o 3) illegality (ex turpi causa nonoritur actio) and
o 4) inevitable accident
- Contributory negligence is a partial defence that leads to a reduction in the damages payable by the
defendant
- The other 3 are complete defences to the plaintiffs action
CONTRIBUTORY NEGLIGENCE
- Partial defence:
- The failure of the plaintiff to take reasonable care for their own safety which contributes to the accident
or their loss
o Rule of last clear chance: in cases where the defendant had the last clear opportunity to avoid
the accident, the defendant was considered to be the sole cause of the accident and fully
responsible for the plaintiffs losses
o Eventually apportionment of the loss between the parties was introduced in all provinces by
legislation (contributory negligence act)
o If the negligence of the plaintiff contributed to their loss the court must determine the degree to
which the plaintiff is responsible for that loss and reduce the damages accordingly.
o If a court is not able to determine the respective degrees of fault of the parties, they are deemed
to be equally at fault and the defendant is liable for 50% of the damages
- Contributory Negligence arises in 3 ways:
17

1. The plaintiffs negligence may be a cause of the accident (may contribute to the accident
which caused the injuries)
2. (Where the plaintiffs negligence is not a cause of the accident but) he has put himself in a
position of foreseeable harm from the defendants negligence. (expose themselves to a risk
of being involved in an accident ie. Getting in car w/ drunk driver
3. fail to take the reasonable precautions to minimize injuries should an accident occur ie. No
seatbelt
Contrib neg determined by standard of reasonable person: same as Ds neg. foreseeability of harm,
likelihood of damage, seriousness of threatened harm, utility of Ps conduct ect are all considered.
Percentage is not calculated based on how much of damage each party caused, it is calculated based
on blameworthinessso even though a seatbelt may have resulted in 0 damages, it doesn't mean the
D is 0% liable because D still breached his duty of care.
Contributory Negligence riding horse w/out ordinary care or caution
Butterfield v. Forrester (1809) KB CB p. 431
FACTS
- Defendant left a pole across part of the road
- The plaintiff rode this horse hard on the road, the horse hit the pole, both fell and the plaintiff was
injured
- It was 8pm, but there was enough light out to see the pole from 100 yards away
- P was riding horse violently hard and without ordinary care.
ISSUE
- Did the plaintiffs actions contribute sufficiently to the accident so as to relieve the defendant of liability?
Yes
REASONING
- Had the plaintiff been riding with ordinary care he would have seen and avoided the obstruction
- The plaintiff ended up getting nothing
RATIO
- If the defendant creates an unreasonable risk, but the plaintiff could have avoided the risk by acting
reasonably, then the plaintiff will have contributed to his injuries and the defendant may not be fully
liable
- There must be fault by the defendant, but there also must be no fault of the part of the plaintiff in order
to succeed. (Old CL rule of coming with clean hands in order to succeed any contributory negligence
and your claim failsf)

18

Proper Care by D, Illegal conduct by P donkey killed by cart
Davies v. Mann (1842) Exchequer CB p. 432
FACTS
- The plaintiff negligently left their donkey tied up on the side of the road
- The defendants carriage drove over the donkey, killing it
- It was maybe illegal to tie a donkey that close to the road, maybe negligent to leave it there knowing it
was tied and could not evade oncoming danger
ISSUE
- Did the plaintiffs actions contribute sufficiently to the accident so as to relieve the defendant of liability?
No, theres fault for both parties
REASONING
- If the proximate cause of the injury was attributable to the want of proper conduct on the part of the
driver, then the action was maintainable against the defendant
- Negligence which is to preclude a plaintiff from recovering in an action must be that they could have by
ordinary care avoided the consequences of the defendants negligence.
- The plaintiffs actions were illegal, but damage occurred because of negligent conduct of the carriage.
Had the plaintiff had acted legally he still would have suffered the damage
RATIO
- If a plaintiff who acted illegally would still have suffered loss even if they acted legally, then he wont be
found contributorily negligent
- Adoption of the last clear chance rule: the one who had the last clear chance of avoiding the problem
will be saddled with the liability.
- A party can be partially at fault but still get the compensation.

Contributory Negligence Act (2000) SM p. 8
s.1(1) When two or more people are at fault (including the plaintiff) damage or loss will be assessed in
proportion to the degree in which each person was at fault
s. 1(2) presumes causation is present
s. 2 2 negligent defendants not including the plaintiff
s. 3 nullifies last clear chance rule

Three ways plaintiff can contribute to their own damage:
(1) contribute to their own injuries (Butterfield),
(2) expose themselves to risk of injury (Davies), and
(3) fail to take reasonable precautions to minimize their injuries (seat belt defences)
Seat Belt Defence
- In most provinces, the failure to wear a seat belt was regarded as contributory negligence
- Now the courts routinely make a moderate reduction (5-25%) in damages for the failure to wear an
available seat belt so long as there is proof that the plaintiffs injuries would have been less severe if the
seat belt had been used
- A reduction in an award of damages for contributory negligence is likely to be made when the protective
measures are common practice, common sense, affordable and effective
- But deterrence and fairness suggests that the defendant shouldnt bear the whole loss
19

Seat-belt Defence contributory negligence duty of care to wear
Galaske v. ODonnell (1994) SCC CB p. 443
FACTS
- The plaintiff (a child) and his father were passengers in the defendants truck. The plaintiff was not
wearing a seatbelt.
- An accident occurred through no fault of the defendant, and the plaintiff was injured due to the fact that
he was not wearing a seatbelt
- Plaintiff sued the defendant driver alleging negligence in not ensuring that the plaintiff was wearing a
seatbelt
- TJ and CA dismissed the action
ISSUE
- Does the defendant owe a duty of care to an infant plaintiff with respect to ensuring that the plaintiff was
wearing a seatbelt? YES
HOLDING
- Yes
REASONING
- All occupants of a motor vehicle have a duty to wear their seatbelt.
- Children under 16 do require guidance and direction from parents and older persons. That guidance
and protection must extend to ensuring that those under 16 properly wear their seatbelts.
- One of those people responsible for this duty must always be the driver of the car.
- The driver must take reasonable steps to see that young passengers wear their seatbelts
- The driver of a car is in a position of control (special relationship). Coexistent with the right to drive and
control a car is the responsibility of the driver to take reasonable steps to provide for the safety of
passengers
- This responsibility is also found within the Motor Vehicle Act.
- There may be a joint responsibility or duty of care resting upon both a parent and a third party driver
- The presence of the parent in the car may mean that the responsibility is shared, but it cannot negate
the duty owed by the driver to the passengers under the age of 16.
RATIO
- If infant plaintiff is injured in a motor vehicle accident not caused by the defendant driver, but the
defendant hasnt taken the steps to ensure the plaintiff is wearing a seatbelt, then liability will fall on the
defendant, regardless of whether their parent is in the vehicle
- The plaintiff must show that not wearing a seat belt has a causal connection to the damage though.
- While the presence of child's father in the vehicle meant that the duty of care with respect to child's
wearing a seat-belt might have been shared, it did not negate the duty owed by driver to child. Driver's
duty of care to child existed despite the father's presence.

20

Labbee v. Peters (1999) ABCA SM p. 10
FACTS
- A truck was struck by a car operated by the defendant. The collision caused the truck to veer to the
right and then roll over to the left. The truck came to a rest upside down.
- The plaintiff was not using his seat belt and was thrown out of the truck and died.
- TJ found that the deceaseds disregard for his own safety did not cause or contribute to the
consequences of the defendant drivers negligence, as the harm would have occurred even if the
deceased had been restrained.
ISSUE
- Was Labbee contributorily negligent for failing to wear his seatbelt?
HOLDING
- Appeal dismissed ; no error in TJs judgement
REASONING
- There was undisputed evidence that the actual physical injuries sustained by Labbee were the direct
result of his failure to wear his seatbelt, and that specific injury would not have occurred but for that
failure
- An unreasonable failure by a driver or passenger to wear a seatbelt will be treated as a lack of care for
their own safety and may result in a finding of contributory negligence if there is a causal link between
the failure and the harm or damage sustained
- If Labbee had been belted he would still have been exposed to potentially fatal injuries
- TJ was not convinced on a balance of probabilities that there was a causal link between Labbees
failure to wear his belt and serious injury that would have, in any case, resulted in his death
RATIO
- Causation Test: Failure to use an available seat belt is relevant only if, and to the extent that, the injury
would have been significantly less serious if it had been worn. Accordingly, apportionment may be
applied only to the extent of the injury which could have been avoided.
- If plaintiff acts negligently and is injured but a similar injury would have occurred even without the
negligence, then the plaintiff wont be held contributorily negligent and liable for their damages.

VOLUNTARY ASSUMPTION OF RISK
- Arises where a plaintiff has indicated that they consent to the risk of harm generated by the defendants
negligence
- The defence is limited in scope and difficult to establish
The defendant must prove an express or implied agreement between the parties whereby the plaintiff
has consented to accept both the physical and the legal risk of injury from the defendants negligence.
- The physical risk is the danger of being injured in fact not difficult to establish
- Plaintiff must also agree to accept the legal risk of injury which requires an agreement to abandon their
right to sue the defendant in negligence. very difficult to prove compounded by the artificiality of the
notion of an agreement about legal rights in these situations
- The most common form of express consent is a written waiver or release of liability: usually notice must
be given to the signing party or their attention has to be drawn to the waiver in some way
o Cant be hidden in the fine print. Must understand nature of risk and nature of document.
- Usually voluntary assumption fails and contributory negligence is used as an alternative.
21

Hambley v. Shepley (1967) Ont CA CB
FACTS
- A policeman is trying to recover damages for personal injuries
- He used a police car as a roadblock against the defendant, a motorist who was escaping arrest.
- Defendants car struck the police car before the plaintiff could get out
- TJ dismissed the action on the ground that the policeman was barred under the principles of voluntary
assumption of risk.
ISSUE
- Does the principle of voluntary assumption of risk apply against a person whose injuries occur in the
discharge of him by a public duty?
HOLDING
- Volenti doctrine is inapplicable in this case. Allow the appeal in favour of the police officer
REASONING
- Here the plaintiff knew of the risk of harm to which he might be exposing himself, but he did not accept
that risk so as to absolve the defendant of any duty of care towards him
- The doctrine should have no application to a policeman who is aware of a risk of injury which befalls
him in the discharge the duties of his office
- Principle of Volenti is applied only to plaintiffs that agree to bear the injurious consequences of the
defendants negligent action.
- You cant push this liability on police officers just because they stay employed while knowing the risks
RATIO
- The defence of Volenti cannot succeed unless the evidence permits a genuine inference that the
plaintiff consented not merely to the risk of injury but to the lack of reasonable care which may produce
that risk
- If a person s injured during the regular course of their employment (public duty) then that person wont
be barred from claiming damages on the basis of Volenti

DEFENCES OF NEGLIGENCE [O: 103-113]

SEAT BELT DEFENCE

22

Kid Not Wearing Seatbelt: Contributory Negligence (by child and by driver) DOC owed by
driver
Galaske v. ODonnell, SCC (1994)
RATIO:
If infant P is injured in an MVA not caused by D, but D hasnt taken steps to ensure infant P is wearing
a seat belt, then liability will fall on D
driver has a duty to make sure that all passengers are wearing seatbelts (including the driver himself)
to not wear a seat belt is considered unreasonable behaviour due to the foreseeability of injury (Juan v
Forstad)
FACTS:
P (child) was in Ds car not wearing seat belt
Father (not the driver) of child was also in car did not belt P child either
MVA (no fault of Ds) P injured
D raised the seatbelt defence
ISSUE: Does D owe a duty of care to a child to ensure that he wears a seat belt? YES
ANALYSIS:
Infants under 16 will need guidance in putting on their seat belts
Parents may share joint responsibility with the driver
o Degree of responsibility may be split based on relationship
This is a control issue special relationship
courts are reluctant to award more than 25%
o both the father and driver have a responsibility to make sure that the child is buckled up
standard of care: adults = a simple reminder; child = put the seatbelt on yourself

Injury Would Have Occurred Anyway / Causation:
Labbee v. Peters, ABCA (1999) SM: 10
RATIO: If P acts negligently and is injured, but a similar injury would have occurred despite the negligence,
then P wont be held contributorily liable for his injuries
FACTS: D hit the Ps truck truck went off road P was thrown out (not wearing seat belt) Ps head was
crushed by truck
ISSUE: Did P contribute to his own injuries by not wearing his seat belt? NO
ANALYSIS:
Evidence that Ps injuries would have been the same whether he was wearing his seatbelt or not
Test D must prove: harm suffered by P would have been avoided or less severe if P was wearing seat
belt
o but for test: but for the P not wearing his seat belt, the injury would have been less severe or
avoided
o

Apportionment Cases: Fowler (NSCA); Chae (ABCA); legislation cap (NB & Nfld) Notes
Most common law cases cap on P damages at 25% if P doesnt wear a seatbelt.
Some legislation has a similar cap


23

VOLUNTARY ASSUMPTION OF RISK (VOLENTI)

Police Barricade:injured during reg course of employ- volenti stand alone defence or DOC
issue?
Hambley v. Shepley, ONCA (1967)
RATIO: If a person is injured during the regular course of their employment (public duty), then that person
wont be barred from claiming damages on the basis of voluntary assumption of risk
FACTS:
P was policeman parked car across the road as a barricade
Def driving at high speed on wrong side of road hit Ps car P injured and sues criminal
ISSUE: Can the principle of voluntary assumption of risk be applied against a person who is injured while
discharging their public duty? NO
ANALYSIS:
Principle of voluntary assumption of risk is applied to Ps that agree to bear the injurious consequences
of Ds negligent action
D is arguing that you volunteered to take on a risky job wrong police officer didnt accept the
degree of risk
o There has to be some willingness on the part of the P to be treated in an unreasonable fashion
Requirements for volenti to apply:
o P agreed/consented (expressly or impliedly) to be put at risk for injury on the basis of the Ds
actions
o The P must be shown to have agreed (expressly or impliedly) to relieve the D of the duty of care
NOTES:
Voluntary assumption of risk = complete defense
o Remember: we use volenti as a defence instead of DOC issue because
of Ps onus to provehe talked about this a bunch..look it up or think
about it..see note 6. P455
Contributory negligence = partial defense
Lagasse et al. v Rural Municipality of Ritchot et al. (1973) Ps husband was a tractor-operator, agreed
to plow snow on lake at request of D municipality. Tractor went through the lake, killed Ps husband.
Knowledge of the risk of injury is not enough nor is willingness to take the risk, nothing short of an
agreement to waive any claim for negligence will suffice
o defence of volenti has been severely limited
Sport cases: person who participates in a sporting activity accepts the normal, ordinary and obvious
risks of that sport
o Murphy v Steeplechase Amusement co (1929) (USA case): P injured when thrown on the floor
by amusement park ride. He admits he took a chance going on it. Judge said he accepted the
obvious risks and dangers
Hagerman v City of Niagra falls (1980): hit in the eye by puck at hockey game. two approaches to
consent
o 1) D owed P DOC and it was breached but to deny liability based on volenti
o 2) Deny Ps claim because no DOC was owed due to express/implied agreement to hold D to a
lower standard than normal this case is an example of this approach.

24

Tubing Accident:
Crocker v. Sundance, SCC (1988)
RATIO:
If P waives legal rights without knowing or accepting that he has done so, then rights arent explicitly
waived and P wont have voluntary assumption of risks of the activity
2 approaches:
o duty owed but voluntary assumption of risk (onus on D)
o no duty because P agreed to a lower standard of care than normal (onus on P)
FACTS:
P is drunk joins a tube race waiver signed but not read
ski hill employees notice intoxication, but dont stop him
P participates injured quadriplegic
ISSUE: Did P voluntarily assume the risk by participating in the tube race drunk? NO
o Was duty of care owed to P? YES
ANALYSIS:
Voluntary assumption of risks only applies where both the legal and physical risks are voluntarily
assumed
Awareness of risk not enough, it must be accepted
o P didnt read release on the waiver no meeting of the minds
NOTES:
Very unpopular with judges
o Its like the old contributory negligence effect: it operates as 100% defense theres no dividing
up of damages
o It generally harms the P
o Judges will almost always deny the voluntary assumption of risk


25

ILLEGALITY - EX TURPI CAUSA
Defence of illegality will only be successful when integrity of legal system would be threatened by allowing the
claim. This happens when
1) plaintiff would otherwise make profit from illegal conduct
2) tort action would be used to subvert or negate a criminal penalty
Rolling Start no profit from plaintiffs illegality ex turpi causa integrity of legal system at
risk
Hall v. Hebert, SCC (1993)
RATIO: If P acts illegally and is injured, then P may recover damages to make him whole, but wont be allowed
to profit from the loss
A person cannot recover profit in tort for the consequences of their own illegal or immoral acts
No exemplary damages will be granted
Rather than negating a duty of care (making it so D didt owe DOC to P), ex turpi causa is a narrowly
defined defence that precludes recovery and is only applicable to cases where the plaintiff is
attempting to profit from illegal conduct or evade criminal sanction.
o Compensation for personal injury is not profit for this doctrine and would therefore be
acceptable
o But bank robber cant sue partner in crime for fraud when proceeds of crime arent fairly
distributed, or for (in the case of personal injury) indirect profit like injury caused loss of future
(illegal) income
FACTS:
P and D have been drinking Ds car stalled
D gives it a rolling start with the P at the wheel
P lost control vehicle flipped P sustains head injury. P claims D acted negligently in letting him
drive even though D knew P was drunk
ISSUE: Can P claim damages for loss due to Ds negligence if P acted illegally? YES, only compensatory
damages though, no profit.
ANALYSIS:
Tort is based on compensation for damage, not profit
Future earnings may not be recoverable
A person cant recover in tort for the consequences of their own illegal or immoral acts. This is intended
to protect the integrity of the legal system.
McLaughlin J: Trying to ground it in a flexibility model, to prevent from benefiting financially for illegal
activities. However, this does not necessarily limit you from redress for physical injuries.
DISSENT:
P relied on duty of care argument
o based on Jordan House and Crocker v. Sundance
Sopinka said no commercial or inviter-invitee relationship
o No duty of care established here
NOTES:
Ex turpi causa (no action can arise from a dishonourable act) wont apply in tort
Illegality only works in certain kinds of circumstances
o We want to maintain the integrity of the legal system don't want to introduce inconsistencies
where criminal law takes with the right hand and tort law gives with the left. All elements of law
should work in harmony
Caveats
o Would the damages allow the P to make a profit?
o Would a damage award avoid a penalty prescribed by the criminal law?
Aw with voluntary assumption of risk, a Ps illegal conduct is now likely to be treated as contributory
negligence, because it is more flexible on a case by case basis

26

No Compensation for loss of income while incarcerated -
British Columbia v. Zastowny, SCC (2008)
RATIO: If a person has been lawfully injured, then they may not claim damages for that injury:
o loss of income while lawfully incarcerated is lawful injury
FACTS:
P = inmate sexually assaulted by prison official
P had difficulties later in life, went to jail for the next 13 out of 15 years claimed loss of income when
imprisoned due to damage from sexual assaults (court granted loss of income for when in jail and out,
CA took away damages for loss of income while in jail and only gave him it for when he was out, now at
SCC)
ISSUE:
Can P claim damages for lost income when incarcerated? NO
Is sexual assault and Ps illegal activity sufficiently connected to raise a causal connection? YES
ANALYSIS:
P incarcerated for actions hes personally responsible for
Criminal punishment (jail time) is a lawful injury P cant claim compensation for lawful injury loss of
employment income is natural consequence of imprisonment and is arguably part of the punishment
o it would be inconsistent for the tort law to alter the punishment given by the criminal law.
He did get award for the damages for the sexual assault and the subsequent loss of employment
because of drug abuse linked to trying to cope with the sexual assault
No damages for the loss of employment while behind bars
NOTES:
P awarded aggravated damages for damage due to egregious nature of sexual abuse behind bars
o different than loss of income which was due to the lawful injury of imprisonment

27

NEGLIGENCE: PURE ECONOMIC LOSS
Pure economic loss: a financial loss that is not causally connected to physical injury to the plaintiffs
own person or property
o Must be distinguished from consequential economic loss which is causally connected to
physical damage to Ps person or property
o Pure economic loss usually just involves transfers of wealth from one party to another, with no
net social loss.
Courts hesitant to find liability for it because of possibility of indeterminate
liabilitysimilar to psychological damage (loss of indeterminate time, amount and to
indeterminate class) (ie. What if small neg act takes out electricity for whole city..imagine
the pure economic loss)
o Categories of Pure Economic Loss:
1) negligent misrepresentation
2) negligent performance of a service
3) defective products or structures
4) relational losses
5) public authority liability
Plaintiffs are free to apply anns/cooper test to create new DOC categories
besides these five
o Negligence misrepresentation: can be both negligent disclosure and negligent non-disclosure
(silence) : intentional/fraudulent misrep = tort of deceit, not negligence
NEGLIGENT MISREPRESENTATION

To whom and for what loss does the duty extend? Owe DOC when reliance for other purpose?
Hercules Management Ltd. v. Ernst & Young, SCC (1997)
RATIO:
If advice/representations given are intended for a specific purpose but are used otherwise, then party
giving the advice wont be liable for results if the information is used for a different purpose than
intended
Proximity determined by Anns test: a) should D have reasonably foreseen Ps reliance? And b) was
reliance reasonable? If yes, then special relationship is close enough to warrant a duty
Anns Test for DOC applied: Proximity must be established between the Plaintiff and Defendant where the
defendant might be said to be mindful of the plaintiffs legitimate interests according to 2 criteria: If satisfied,
prima facie DOC exists which can be defeated by stage 2 policy reasons.
(1) The defendant ought reasonably foresee that the plaintiff will rely on his representation.
(2) This reliance is reasonable in the circumstances.
Under the 2
nd
branch of the anns test (policy), to avoid indeterminate liability it must be shown that
(1) The defendant knew the identities of the plaintiffs.
(2) The information/advice was used by the plaintiffs for precisely the purpose or transaction for which
it was prepared.
In this case: concluded that a prima facie duty of care existed under 1
st
branch, but it was negated for
policy reasons under 2
nd
(not used for purposes for which prepared).
Remember. Once it is proved that duty existed. Must prove that P did actually rely on the
representation. (causation)
5 general indicia of reasonable reliance
1. Pecuniary interest
o The D had a direct or indirect financial interest in the transaction in respect of which the
representation was made
2. The expertise and knowledge of the representor
o The D was a professional or someone who possessed special skill, judgement or knowledge
3. The seriousness of the occasion
o The advice or information was provided in the course of the Ds business (professional v casual)
4. The nature of the statement
o Fact vs. opinion/forecast/speculation
5. An initial request for information
28

o The information or advice was given in response to a specific enquiry or request.
FACTS:
P asked D to audit reports
Reports were to be used for administration, but were instead relied on for investment purposes
P sued the D for Negligent Misrepresentation
ISSUE: Does the D owe the P a duty of care if the P uses the information for something other than the
intended purpose? NO
ANALYSIS:
There was reasonable reliance here: D had financial interest in his representation, was a profession,
info was given deliberately at a response to a request
Consider also: a) Does D know identity of P? b) Are Ps losses stemming from particular transaction P
relied on from the D?
Policy factors in play, outweigh duty of care Ps claim denied due to policy (indeterminate liability is
undesirable)
NOTES: liability fell in zone of contract, not zone of tort
6.
NOTE: remember that this case is after cognos and supercedes it
Negligent misrep duty owed? express disclaimer waiver of liability
Hedley Byrne & Co. v. Heller & Partners Ltd., HL (1963)
RATIO:
If a person makes a statement without a) a contract between parties demonstrating an undertaking, or
b) without knowing what the info will be used for, then that person will owe no duty of care to the user of
the information
o Seems like May be duty if knows what it is for and is aware of reasonable reliance by the other
where there is a special relationship.
It must be more than misstatement it has to be negligent misrepresentation and someone must act on
the basis of that information
FACTS:
P contacted bank (D) to ask if a third-party was credit worthy
There was an exclusion clause at the top of the letter from the bank this is what got them out of the
duty
Hedley [the appellants] were advertising agency who had made some advertising work for Easipower.
Later on Hedley became curious about a financial position of Easipower to afford another advertising
which Hedley may give them on credit.
The bank of Easipower [the defendant] gave a report of Easipowers financial position that they have
enough resources for ordinary business proceedings, but stated that the report was given for your
private use and "without responsibility."
Based on the report which was given by the respondents, Hedley added another orders on behalf of
Easipower which it turned out that Easipower could not pay
It meant a loss of 17,000 for Hedley Byrne. Hedley sued the respondents for damages under the tort
of negligence.
ISSUE: Did the D bank owe a duty of care to the P? NO
HELD
A negligent, although honest, misrepresentation, may give rise to an action for damages for financial
loss even if there was no contract between the advisor and the advisee and no fiduciary relationship.
The law will imply a duty of care when the advisee seeks information from an advisor who has special
skill and where the advisee trusts the advisor to exercise due care, and that the advisor knew or ought
to have known that reliance was being placed upon his skill and judgment.
However, in this case there was an express disclaimer of responsibility and there was therefore no
liability. This case established the doctrine of negligent misrepresentation, but in this case the
disclaimer effectively barred the claim.
ANALYSIS:
Liability should be limited for negligent words (vs the negligent acts discussed in Donoghue)
o People often express definite opinions on social or informal occasions, even when they see that
others are likely to be influenced by them - there should be no duty on such occasions (not
acting in a professional or expert capacity)
29

o Negligent words vs negligent acts
Negligent act generally has a limited or knowable potential damage
A bad bottle of wine will effect only those who drink it..ie. 2-3 people
Negligent words or document has potentially unlimited damage
Document could be reproduced and relied on by countless (unforeseeable)
number of people and could cause them a phenomenal amount of damage
o For negligent words or misrepresentation cause of action to succeed then it seems that the
representation must be made expressly or impliedly with the understanding that the speaker has
undertaken some responsibility
o Someone asked a question who is aware that his answer is being relied upon has 3 options
1) not respond
2) respond with caveat or waiver of liability
3) respond with no waiver or caveat
this person should accept some liability
D didnt know purpose behind Ps inquiry
Speaker will owe a duty to a limited class but not every ultimate consumer
Negligent misrepresentation requires an undertaking of responsibility in particular circumstances
NOTES:
Criteria for negligent misrepresentation
o Is the P foreseeable?
o Reliance?
o Assumption of responsibility?
keys to negligent misrepresentation
o special skill of the giver
o knowledge of reliance by the giver
o reasonable reliance by the receiver
o the receiver suffers harm
o the statement must be false or wrong
o the statement must be made carelessly
o what are the circumstances of the statement?
Under what conditions?
What was the setting? Office? Party?
If its a situation similar to a contract, then youre likely to find a duty
the speaker can either
o remain silent
o give an answer with a qualification
o give the advice


Requirement for NM precontractual NM
Queen v. Cognos, SCC (1993) CB: 467
RATIO:
5 requirements for NM (neg misrep):
o 1) Duty based on special relationship
o 2) Representation untrue, misleading, inaccurate
o 3) D acted negligently
o 4) P reliance
Note: reasonable reliance not the key to every negligent misrepresentation case
it will be contextual
o 5) Reliance detrimental (damages resulted)
FACTS:
negligent misrepresentation made during hiring interview of P (represented that there were great
opportunities for the person who was offered and accepted the job)
P acted on the representation accepted the job, but turned out that the job was far less significant and
acceptable than he was led to believe.
He quit. Moved back to Calgary and sued the company
30

ISSUE:
Distinct issues that come up in negligent misrepresentation:
o Does D owe duty of care to anyone?
o To whom does the duty extend and for what loss?
o What duties arise from contract vs tort?
ANALYSIS:
How do you find a special relationship?
o Was reliance reasonable and foreseeable?
o Did D voluntarily assume responsibility for advice?
NOTE:
Special relationship that leads to duty of care owed?
Anns test (Hercules)
o Step 1: foreseeability and proximity = prima facie doc
o Step 2: policy considerations to limit prima facie doc: indeterminate liability is a key concern, but
it may be overcome in certain situations ( D has knowledge of P (or an identifiable class of P)
and document used for the precise purpose for which it was prepared)
Duty when reliance is not reasonable? In the case of fault that contributes to the damage suffered,
reliance that is unreasonable simply goes to reducing damages otherwise recoverable by the
defendant, it does not go to cancelling the prima facie liability of the D
o Remember, reliance is likely necessary for proving causation
Avco Financial Services Realty Ltd v. Norman findings of negligent misrepresentation and contributory
negligence can logically coexist, as the focus of the former is on the reasonableness of the reliance and
its foreseeability on the part of the representor, while the latter is concerned with the injured partys
conduct in all circumstances surrounding the event that occasioned the loss
o Class: must make distinction between the kind of damage that was made initially, and compare
that damage with the particular losses that flow from that negligent misrepresentation. Look
up..no idea what hes going on about.


NEGLIGENT PERFORMANCE OF SERVICES
Courier delivery failure no duty owed no reliance on courier
B.D.C. Ltd. V. Hofstrand Farms Ltd., SCC (1986) CB: 482
RATIO:
If P is at risk due to the conduct of the D, but it is without the Ds knowledge, then D wont be liable for
negligent actions that bring about the risk
FACTS:
D hired by Prov. of BC to deliver package to P D didnt know it was time sensitive (P needed land
grant registration documents delivered on time because a contract he had depended on it)
D delivered it late to Ps detriment.
ISSUE: Will D be held liable for the negligent performance of a service they were hired to do (deliver in timely
way) if they dont know all the details? NO no duty of care owed, therefore not liable for neg performance of
services.
ANALYSIS:
D didnt know of Ps reliance or even the class of persons who the package was going to
o No actual or constructive knowledge by courier that rights of a 3
rd
party could be affected.
P already at risk before D was engaged
P didnt assume risk based on conduct of D
D shouldnt be liable for risky situation P put themselves in they chose not to use post office and to
wait to last minute where any delay would harm them
If P could have been protected by contract, they should have done so
Anns test applied P fails first step wasnt foreseeable
SCC concerned about indeterminate liability
Notes:
Wittingham v Crease & co. (1977) law firm (D) made will. Testator wanted to leave his house to son
(sons knowledge)3
rd
. D had wife sign as witness which made the whole bequest void. Son successfully
31

sued the lawyer.
Ross v Caunters (1980)
o No longer any rule that a solicitor who is neg in his work is only liable in contract. Can also be
liable in neg.
o Basis of liability is likely the hedley byrne principle or donaghue neighbor doc principle
o A solicitor who is instructed by his client to carry out a transaction that will confer a benefit on a
3
rd
party owes a duty of care towards that 3
rd
party in carrying out that transaction, in that the
third party is a person within his direct contemplation as someone who is likely to be so closely
and directly affected by his acts or omissions that he can reasonably foresee that the third party
is likely to be injured by those acts or omissions
o The mere fact that the loss to such a third party caused by the negligence is purely financial,
and is in no way a physical injury to the person or property is no bar to the claim against the
solicitor
o In such circumstances, there are no considerations which suffice to negative or limit the scope
of the solicitors duty to the beneficiary

Ross v. Caunters [1980 U.K.] Note Case
RATIO
Lawyers may be liable to third parties through tort of negligence
o If they are carrying out transaction to benefit a third party, they owe a duty of care to third party
FACTS: Beneficiary to a will lost out due to negligent service of the solicitor in preparing a will

EXCLUSION CLAUSES

Crocker v. Sundance, SCC (1988) (section on waivers.) SM: 15
RATIO: If P waives legal rights but waiver isnt understood or accepted, D may not point to exclusion of liability
clause as a defense no contract
FACTS: P injured in tubing competition
ISSUE: Did D have a positive duty to ensure that P read and understood the waiver? YES
ANALYSIS:
D points to waiver in order to bring a voluntary assumption of risk argument (also to prevent a claim in
contract)
o P thought he was signing an entry form didnt realize what he was signing
There was no attempt made by Sundance to draw his attention to it, therefore he shouldnt be bound by
it
Sundance is the last word by the SCC on volenti
o Volenti and CN often overlap
o While lots of people accept the physical risk of an activity, that doesnt mean theyve waives
their ability to sue
o a passenger who is drunk may have a better ability to sue a sober driver than not

Dyck v Manitoba Snowmobile Association (1985) SCC
RATIO: example of successful waiver and exclusion clause case where the P had read and understood the
rules of waiver
FACTS:
guy got run over by a snowmobile while sober
he had taken part in making the waiver
NOTE: Waiver is express (because its been signed), volenti is not

32

Tercon Contractors v. BC (2010) Class
RATIO: unless an exclusion clause is unconscionable (imbalance of power, which can render a contract void)
or other remedies are still available or there is no overriding public policy, then the exclusion clause applies
FACTS:
Tercon was bidding for a government contract (tender case)
at the last minute, the government awards the contract to someone else without meeting the terms of
being a valid bidder
there was this exclusion clause that allowed the government to do this
NOTE: Waiver is express (because its been signed), volenti is not

ECONOMIC LOSS CAUSED BY DEFECTIVE PRODUCTS &
STRUCTURES

Recovery of pure economic loss caused by defective products and structures IMPORTANT
Winnipeg Condominiums No. 26 v. Bird Construction Co., SCC (1995) CB: 485
RATIO:
D will be liable for the cost of repairing defects due to negligence of construction which cause real and
substantial danger (there exists in tort a duty for contractors to take reasonable care when constructing
permanent buildings)
Exception to Caveat emptor: subsequent purchaser NOT best placed to bear the risk of latent defects
In the case of a building constructor and a 2
nd
+ owner of the building, a duty of care is owed by the
constructor when constructing not to be negligent so as to leave latent defects. The contractor will be
liable for latent defects that are a result of his negligence that cause a real and substantial danger to
the inhabitants of the building.
o contractors (as well as subcontractors, architects, and engineers) who take part in the design
and construction of a building will owe a duty in tort to subsequent purchasers of the building if it
can be shown that it was foreseeable that a failure to take reasonable care in constructing the
building would create defects that pose a substantial danger to the health and safety of the
occupants
o such defects manifest themselves, owner may mitigate by repairing before anyone/thing is
injured and builder liable for costs of making building safe
FACTS:
D built condo later purchased by P
defective work of D caused cladding to dislodge dangerous not merely shoddy
P repaired the damage and sought the cost of the 1.5 mil repairs
ISSUE: Is a contractor liable in tort to a subsequent purchaser (not in contractual privity) for the cost of
repairing defects which pose a risk of real and substantial danger due to negligence of construction? YES
ANALYSIS:
Example of feldhosens fourth category
Distinction can be drawn on a policy level between dangerous defects in buildings and merely shoddy
construction in buildings
Traditionally courts considered repairing defective chattel or building as economic loss on the grounds
that costs do not arise from injury to persons or damage to property apart from the defective chattel or
building itself
o So is there a recognized category of duty of care to protect against economic loss judge
says, for policy reasons - yes
Court requires:
o Sufficiently close relationship (general duty of contractors re: reasonable fitness & habitability)
o Consider what would negate duty, class or damages (warranties & caveat emptor)
o Overlap between tort & contract (general tort duty to build safe building; liability limited to span
of buildings usefulness)
Is there a duty of care between contractor and 2
nd
+ owners? YES
Person who participates in the construction of a large and permanent structure meant to be passed on
to successive owners which, if negligently constructed, has the capacity to cause serious damage to
other persons and property in the community, should be held to a reasonable standard of care.
33

Application of Anns Test
Sufficiently close relationship- Foreseeability of damage to future occupants of building + proximity
prima facie duty of care
o Foreseeable that negligence by contractor will injure (hard to find mistake) lack of privity of
contract does not make injury any less foreseeable
No compelling policy reasons to negate care,
o no indeterminacy concerns
class restricted to future inhabitants of building
only applicable to where there is a real and substantial danger
money payable is to cover repairs to dangerous aspects of building put it to non-
dangerous state, not to repair quality or style-just safety
over time it will be harder to prove defect is a result of constructors negligence
o Policy reasons to negate either a. scope of duty b. class of persons to whom it is owed or c.
damages to which a breach of it may give rise?
o actually compel duty
(1) protective measures, (deterrence of poor construction-degree of danger considered
here)
(2) available it of 3
rd
party liability insurance for builders
(3) purchasers have difficulties in detecting latent defects constructors wont be liable
for every damage- just ones that pose risk of real and substantial danger: remember:
onus on P to prove this
(4) preventative function by encouraging socially responsible behavior

Rivtow Marine v. Washington Iron Works [1973 SCC] Note Case
RATIO:
SCC reluctant to grant damages due to contractual allocation of risk
Reasoning similar to Winnipeg Condo: applying liability keeps manufacturers in check.
FACTS:
P had a defective (dangerous) crane (bought from D) defective chattel
Crane had to be removed from operation during peak period
P claimed for lost profits and cost of repair
ANALYSIS: Court denied claim for repair costs and ordinary lost profits allowed claim for lost profits due to
service in peak period (breach of duty to warn)
NOTES: Opposite ruling from Winnipeg Condos where there was foreseeability and proximity sufficient to
establish a duty of care

OTHER CATEGORIES

34

Other categories of pure-economic loss recovery use anns-cooper test.
Martel v. Canada, SCC (2000) SM: 22
RATIO:
There is no implied duty of care in pre-contractual negotiations
Pure economic loss can be recovered in 5 circumstances:
Independent liability of statutory authorities
1. Independent liability of statutory public authorities
2. Negligent misrepresentation: Hercules Managements Ltd. v. Ernst & Young
3. Negligent performance of service: B.D.C. Ltd. v. Hofstrand Farms Ltd., [1986] 1 S.C.R. 228
4. Negligent supply of shoddy goods or structures: Winnipeg Condominium
5. Relational economic loss
a. *None of these have application in this caseit's a unique class
FACTS:
The Department of Public Works leased the building under a 10-year lease to expire on August 31,
1993 and had a renewal option. The Department was in charge of contracting space for various
governmental agencies
Prior to the lease expiration, Martel CEO, Mr. McMurray, met with Mr. Sguin from the Department
(Mar 1991), expressing the desire of Martel to negotiate a renewal of the lease. The Department did not
follow up after the meeting.
Mr. Martel made 2 attempts to contact the Department, finally reaching them to arrange a meeting for
Apr. 15, 1992. There were different versions regarding what transpired but the trial judge accepted Mr.
McMurrays version.
The Department maintained it informed Martel that it would proceed with the tender
(bidding) process to contract space for the governmental agencies unless Martel made a
very attractive offer
Mr. McMurray maintained that although he understood tendering to be a possibility, he
was told the meeting would be the start of negotiations for a renewal of the lease with
Martel.
On Oct. 14, 1992, Mr. McMurray heard the tendering for space was to begin and contacted Mr. Sguin.
The parties met on Oct. 27 whereupon Mr. McMurray came to understand that if he met a $220/m2
rental rate, the Department would renew the lease with Martel.
Two days later, Mr. McMurray confirmed that he could meet this rental rate but couldnt immediately
provide the final retrofit (renovation) plans
The Department thus said they would have to proceed with tendering
Martel lost the bid on the rental space although its bid was the lowest.

ISSUE:
Should duty of care be extended to negotiations to prevent negligent negotiations?
Should pure economic loss be extended to negotiations?
ANALYSIS:
Concerns w/ pure economic loss awards:
Pure economic loss less compelling than bodily loss
Indeterminate liability
Commercial context anticipates risk
Encourages inappropriate lawsuits
Recovery for pure economic loss presumptively excluded, w/ a few exceptions.
Joint venture clarified: joint business w/ common goals and methods
Anns approach to establishing whether there is a duty of care :
Must pose the Question in this way: Was there a sufficiently close relationship between Martel
and the Department so that, in the reasonable contemplation of the Department, carelessness
on its part might cause damage to a party such as Martel with whom it negotiated?
Duty of care requires a certain degree of proximity. Proximity is established by taking into
account a number of factors ie the relationship between the parties
Here the previous lease between the two parties and the communication between them
indicates proximity- not all contractual relationships are proximate; there must be mutual
contracting intent
35

The second step of Anns is whether there are any policy considerations that limit a. the scope of
the prima facie duty of care, b. the class of persons to which it is owed or c. the damages with
respect to which a breach may arise here there are
Even in the absence of any potential for indeterminate liability, there are a number of ancillary
policy considerations that necessitate limiting the extension of the tort of negligence to
commercial negotiations
Five illustrations of ancillary policy considerations weighing against applying tort law here :
1. The very objective of the negotiation works against recovery negotiation is based on actors
trying to achieve the most advantageous financial bargain and has been described as a zero-
sum game; the economic losses that should be protected are those that cause harm on a large
scale whereas here the harm is limited to one party
2. It would defeat the essence of negotiation and hobble the marketplace to extend a duty of
care to the conduct of negotiations, and to label a partys failure to disclose its bottom line, its
motives or its final position as negligent.
3. To impose a duty of care here could lead to tort law being used as an after-the-fact insurance
for failed negotiations
4. Extending tort law to the minutiae of commercial negotiations would place undue scrutiny
upon commercial parties, with courts acting as regulators.
5. It would encourage the multiplicity of needless lawsuits.

Holding : The appeal should be allowed.
NOTES:
Anns test does not apply to contractual economic loss cases operates on presumption against recovery
New categories can be found using the Anns framework.
6. Parties negotiating in their own interests. SCC doesnt want to regulate this level of contract.
Too specific.

OCCUPIERS LIABILITY

HISTORICAL OVERVIEW
- Developed along with the social change when society moved away from its laissez faire ways,

Old Common Law
- Who was an occupier?
o Key was control as opposed to ownership, control over who entered power to make changes,
how the property was used (static feature)
o The greater control of the property, the greater the duty of care
Based on foreseeability
Injury from: Static condition of property vs activity performed on property, or fixed
structures vs movable structures
- What Types of Users are There?: duty owed by occupier depended on what type of user/visitor
o Trespassers (no permission from occupier to be on property)
No duty of care towards them
Duty of common humanity a duty not to create a danger to foreseeable trespassers
Standard of care is not to set a trap, higher if trespassers are foreseeably
children
o Licensees: enter with permission of the occupier but who is not there for any business purpose
Duty on occupier to protect from any dangers that occupier had any knowledge
o Invitees: lawful visitor, from whose visit the occupier stands to derive some economic advantage
Duty on occupier if of benefit, or providing benefit
Duty to take reasonable care to prevent injuries from unusual dangers occupier knew or
ought to have known about
o Contractual: person who has contracted and paid for right to enter the premises
Dealt with through contract law implied warranty the premise is safe for the purpose
they will be there fore
36

NOTES
Occupier owes contractual entrant the highest duty of care, a trespasser the lowest
Historically, occupiers liability only applied to the static condition of the property, not activities that took
place on the property
Occupiers liability is about people getting hurt through negligent acts or situations in houses or on land
or in places which are controlled by somebody else
Common law has been replaced by the Occupiers Liability Act
o Occupiers liability act: sets out the DOC owed by occupiers of premises to persons who come
onto those premises and specifies certain exception to the prescribed duty of care.
Child trespassers are more protected than adult trespassers

Waldick v. Malcolm, SCC (1991) CB: 615
RATIO: If a visitor is injured on the property of an occupier, then occupier will be liable under the occupiers
liability unless a defense can be raised.
FACTS: P visited Ds home P slipped and fell on walkway covered with ice cracked skull
ISSUE:
Could the owners of the house be liable (rented the house to the Malcolms): NO they werent in
control of the property
If the statute applies (which it does) whether the Malcolms were negligent to sand the drive way? YES
Did P voluntarily assume the risk of walking on the walkway? NO
Are Ds liable for the damage suffered by P? YES
ANALYSIS:
(Ontario act)an occupier of premises owes a duty to take such care as in all the circumstances of the
case is reasonable to see that persons entering on the premises, and the property brought on the
premises by those persons are reasonably safe while there.
For voluntary assumption of risk to apply (s.4(1) of the ON OL Act), it would require the Ps consent to
the risk here, there was no consent essentially requires waiver of legal rights.here there was none.
There was a breach of duty of care under the act
Custom is not a defence

STRICT LIABILITY [O: 324-336]

ORIGIN AND SCOPE

Origin and scope of strict liability D brings something onto land which upon escape cause
damage
Rylands v. Fletcher, HL (1868) CB: 529
RATIO:
escaping substances doctrine: Under strict liability, if a person brings something onto their land for
their own purposes and that thing is likely to do mischief upon escape, and that thing escapes, then
that person will be liable for the damage caused by its escape regardless of due diligence on the part
of the landowner
o escape and property damage need to be proved??
a. If the law is due diligence, the owner wont be liable unless theres proof of
negligence.
b. Under absolute liability the D will be prima facie liable but may shift liability if he can
prove the damage was the result of Ps actions look up.
FACTS: D built reservoir on his land; it overflowed and damaged mining operation on Ps land.
ISSUE:
If a person brings something onto their land, will they be held liable for any damage that thing causes?
YES (context) is it an absolute duty to keep it on their land and in control? Or one which simply
requires reasonable efforts in the execution of the duty? Absolute duty
ANALYSIS: The key question under strict liability: should we shift the loss off P and back to D?
In this case, the reservoir was constructed by expert engineers, and was not found to have been built
37

negligently. Despite this lack of negligence, the D was found to be absolutely liable.
Non-natural use of land vs natural use
Notes:
Rylands v Fletcher: difference between judges is the second judge adds in non-natural activity


Strict liability- non-natural use/user high risk of injury- unusual use
Rickards v. Lothian, PC (1913) CB: 533
RATIO:
Retreat from Rylands
Introduction of concept of special/non-natural use which brings with it heightened danger.
c. Two ways of defining non-natural use:
i. use that involves higher than normal risks of injury
ii. use thats out of the ordinary, unusual
If property is being used in an ordinary way, damage to neighbouring property wont attract liability
Occupant is bound by reasonable care, but not for accidents or wrongful acts of third parties
FACTS:
P & D are occupiers in a building
water basin in Ds premises over-flowed water entered Ps premises and caused water damage.
No negligence found by D
ISSUE:
Could D have foreseen the damage and prevented it? MAYBE
Will D be held strictly liable for damage? NO
ANALYSIS:
Its not every use to which land is put that brings into play principle of strict liability. It must be some
special use bringing with it increased danger to others, and must not merely be the ordinary use of the
land or such a use as is proper for the general benefit of the community
Prima facie a person occupying land has an absolute right not to have his premises invaded by
injurious matter, such as large quantities of water which his neighbours keep upon his land
o Exception: where a person is using his land in an ordinary way and damage happens to the
adjoining property without any negligence on his part, no liability attaches to him
It is almost necessary to install bathtubs in homes, and with these fixtures comes some risk of flooding
is always attached, it is unfair to impose absolute liability here.
NOTES:
Tock v St. Johns Metro Area Building [1989] storm sewer became blocked and during heavy
rainstorm it overflowed into Ps basement SCC rejected strict liability argument: strict liability would
only attach in respect of a non-natural use of land. It must be some special use bringing with it
increased danger to others (must not be merely ordinary use of land or such a use as is proper for the
general benefit of the community)
o Planning committees today pretty explicitly say what the expected/natural use of the land is
meant to be.
o strict liability rule: cannot be invoked where the municipality, acting under the warrant of statute
and pursuant to a planning decision taken in good faith, constructs and operates a sewer and
storm drain system in a given locality
Danku v Town of Fort Frances: private trailor park found strict liable for broken sewer (private vs public)
Mihalchuk v Ratke (1966) p sued d because ds herbicide killed ps crops when the herbicide drifted - d
held strictly liable because aerial spraying was an unusual operation (normally use a trailer)
Gersten v Municipality of Metropolitan Toronto et al. (1974): organic landfill produced methane which
then caused an explosion in the ps garage causing damage. gas was a dangerous substance that
escaped ds land, which gave rise to prima facie strict liability
o However, if the source of mischief is an accepted incident of some ordinary purpose to which
the land is reasonably applied, the prima facie rule of absolute liability for consequences of its
escape must give way.
38

o Judge found landfill was selfish, self-serving, not for public benefit, and policy reasons
supported finding that it was a non-natural use of the land.
o

Strict liability Escape from land likely to do damage vs. non-natural use dangerous things
Read v. J . Lyons & Co. Ltd., HL (1947) CB: 539
RATIO:
If there is no escape from Ds land, or the land isnt being used for a non-natural use, then D wont be
held liable under strict liability
Test for strict liability: escape + non-natural use of land
FACTS:
P employed in an explosive factory during her work an explosion injured P
sued based on Ds knowledge that manufacturing explosives was dangerous
ISSUE: Is this a case where strict liability applies? NO
ANALYSIS:
Strict liability test based on: 1) escape, and 2) non-natural use of the land
o Court holds that both conditions must be met, and in this case escape not met.
Not conclusive on whether claims for personal injuries can be made in strict liability cases
o Question goes to damages, not liability.
Escape means escape from property which occupiers had control of to a place where they did not have
control
NOTE: can defendant raise claim of remoteness in response to strict liability claim? We don't know yet..
maybe suggest it as an option on test, but its not settled in Canadian law. (Was damage foreseeable or was it
too remote?)

Restatement of Torts, Second (American Law Institute) Notes
Factors to be considered when determining if something is abnormally dangerous
o whether the activity involves a high degree of risk of harm to the person, land or chattels of
others;
o whether the gravity of the harm which may result from it is likely to be great;
o whether the risk cannot be eliminated by the exercise of reasonable care;
o whether the activity is not a matter of common usage;
o whether the activity is inappropriate to the place where it is carried on; and
o the value of the activity to the community.
Linden J. says that this American view may be more appropriate for application in Canada.

DEFENCES TO STRICT LIABILITY

Defences CB: 545-549
Onus of proof for each of these rests on the defendants
This list of defences is not exhaustive and additional defences may be found by courts
Remember: that common law contributory neg is that when P is contributorily neg, the entire claim fails
(they become 100% liable) wheras prov. Legislation makes it an issue of apportionment of fault.
Some might argue that defences against strict liability shouldn't exist or should be applied very narrowly
as they undermine the whole point of strict liability which was legislatures way of saying that there
should be no excuse for these actions.
1. Consent of the Plaintiff
When consent is expressly given there is rarely any problem with it
May be express or implied consent i.e. Knew about water sprinklers didn't say no
Where there is no benefit to the P, however, the court is less likely to imply consent
o Even if there is some benefit, the P is still entitled to the benefit of strict liability if the P doesnt
consent
Knowledge may be sufficient
More likely that explicit waiver of rights will be required to demonstrate consent.
2. Default of the P
39

Akin to the defence of contributory negligence, supportable on the same grounds
CNA not likely to apply (fault required)
D could argue for CN at common law (even if statute law doesnt apply)
P will point to Bow Valley where SCC brought common law in line w/ statutory law. (pg. 435 nt 2)
3. Act of God
This term is meant to encompass not every storm or rainfall but only the extraordinary phenomena of
nature which cannot be reasonably foreseen
o Courts interpret strictly: is scope limited to when no human foresight can provide against and of
which human prudence is not bound to recognize the possibility
Vis Major (irresistible force) falls under this heading too sometimes used to describe military actions
4. Deliberate Act of Third Person
If a D can prove that the escape in question was caused by a third persons conscious act of volition,
the D will be exempted from strict liability
3
rd
party must have done the act which causes the escape and thus the damage deliberately
The courts are rather unwilling to utilize this defence except in very clear cases, for to do so would
impair the efficacy of strict liability (in strict liability, uncontrollable or unforeseeable actions shouldnt
matter)
Corresponds to intervening acts in negligence
Uncontrollable or unforeseeable actions (ask,did D have enough control to prevent if he foresaw any
possibility?)
5. Legislative Authority
Where an activity is authorized by legislation, no strict liability is imposed unless the D is found to have
been negligent.
The courts have resisted the invasion of the defence of legislative authority interpreted
narrowly/strictly
Courts have also limited legislative authority by restricting the notion of implied authority- courts will
imply a legislative intention to authorize certain harm only where the damage is a necessary or
inevitable result of the authorized act
Justice Major wrote: The D must negative that there are alternate methods of carrying out the work
[authorized by statute]. (548) this must be the only way to do what is authorized and therefore,
damage caused by doing it is defended against strict liability charge
Strict liability is a common law offence, not a statutory offence
similar to argument from victoria (city) v Ryan of statutory compliance therefore standard of care
upheld.

VICARIOUS LIABILITY [O: 344-357]
vicarious liability is one of the most important applications of strict liability in tort. Vicarious liability is not
a tort in itself
Respondeat superior strict liability of master for torts committed by servant
Liability of the wrongdoer does not disappear
The reason why vicarious liability is used is because its the better alternative: other party is solvent,
can better spread the loss, deeper pockets
o The Employer Employee is the most common relationship
Employees dont usually have a lot of money
Why do the courts want to find liability on part of the employers?
o They have power to select, train and supervise
o They can minimize risk of harm of people dealing with employees
o They have control
o The employer takes the profits
o Vicarious liability can have a deterrent value.
o encourages employers to take the necessary steps to minimize risk to the public which can be
achieved through their power and control over their employees
Business of making a wage not profits
Principal agent can be a vicarious liability relationship
o Lawyers are often hired to be agents
40

Some of the relationships thats dont attract vicarious liability: independent contractor, parent-child
EMPLOYEE VS. CONTRACTOR
Organizational test: what is the degree to which the employee has been integrated into the employers
enterprise? Is there a sense of loyalty, knowledge about company culture? Does the person supply
their own equipment?

INDEPENDENT CONTRACTORS EMPLOYEES
There is an arrangement between employer and
contractor to complete a task
Does the contractor have their own equipment?
ie: plumber ( Ill get there when I can)
Direct control over the employee
o how, when and where do you
work?

PARTNERSHIPS
Law partnerships partners are liable for you (form of vicarious liability)

VOLUNTEERS
Volunteers can be employees even if they arent getting paid because the critical factor is control
Whoever put them in that position has to take responsibility for the risk of harm

Vicarious liability who is an employee - control over activities of worker
671122 Ontario Ltd. v. Sagaz Industries, SCC (2001) CB: 561
RATIO: .
Vicarious liability when:
o 1) tortious conduct
o 2) committed by employee
o 3) in course of employment
Current accepted principles for employer/ employee vicarious liability
Factors to consider when determining if its an employee:
o control; if employer has no control, policy justifications for vicarious don't exist
o does the worker provide their own equipment;
o do they employ their own helpers;
o whats the degree of financial risk taken by the worker; whats the degree of responsibility for
investment and management held by the worker;
o can the worker profit from their opportunity?
Essentially: is the person engaged to perform services performing them as a person in
business on his own account?
Policy considerations underlying vicarious liability for employers:
o employer should be vicariously liable because (1) he controls the activities of the worker; (2) he
is in a position to reduce the risk of loss; (3) he benefits from the activities of the worker; (4) the
true cost of a product or service ought to be borne by the enterprise offering it
Remedy for P (deep pockets employer); enterprise liability; tortfeasor liability
undiminished
Deterrence of future harm (employer in best position to reduce accidents, intentional
wrongs)
Loss spreading
FACTS:
AIM, contractor for D, bribed head of Canadian Tire
P lost Canadian Tire contract and suffered substantial loss
#ont exclusive car seat cover provider to Canadian tire, until consultant of sagaz (their competitor)
bribed Canadian tire and replaced #ont.
So is sagaz vicariously liable for tort committed by their contractor/consultant?
ISSUE:
Is AIM an employee or an independent contractor? Independent Contractor
Is D vicariously liable for tortious conduct of an independent contractor hired as a consultant? NO
ANALYSIS:
AIM controlled how the negotiations were done.
41

Consultant was not an employee of sagaz, just an independent contractor
Based on policy considerations, the relationship between an employer and independent contractor
does not typically give rise to a claim in vicarious liability
Vicarious liability is different than most tort law which aims to make wrong doer suffer damages for his
actions, vicarious liability there is no personal wrongdoing that needs to be proved to make the
employer strictly liable.
Enterprise liability policy justification: the employer puts in the community an enterprise which
carries with it certain risks if risks materialize it is fair that the organization that creates the enterprise
and thus the risks should bear the loss
Vicarious liability does not diminish the personal liability of the direct tortfeasor!
Deterrence of future harm: employers often in best position to reduce accidence and intentional
wrongs by efficient organization and supervision
Loss spreading: Employer often in best position to spread the losses through mechanisms like
insurance and higher prices

42

Vicarious Liability employers liability for employees sexual abuse of children at work employer
create risk?
Bazley v. Curry, SCC (1999) CB: 564
RATIO:
Test
o McLachlin changes the 2
nd
stage of the Salmond test (the mode of authorized activity)
1Is there a precedent? Yes follow it
2If not, then look at the policy reasons for vicarious liability
If the employers enterprise creates a risk, and that risk is significantly increased by assigning duties to
an employee, then the employer may be held vicariously liable for tortuous activities committed by their
employees while they are acting in their position of employment.
In order for there to be vicarious liability, a material increase in the risk is required as a consequence of
the employers enterprise and the duties entrusted to the employee
o Considerations re connection between employers creation of risk and tort complained of:
(a) opportunity enterprise afforded the employee to abuse power
(b) extent to which the wrongful act may have furthered the employers aims
(c) the extent to which the wrongful act was related to friction, confrontation or intimacy
inherent in the employers enterprise
(d) the extent of power conferred on the employee in relation to the victim
(e) the vulnerability of potential victims to wrongful exercise of the employees power
Test: Whether the employees wrongful act was so closely connected to the employment relationship
that the imposition of vicarious liability is justified in policy and principle: policy considerations of fair
recovery and deterrence engaged?
Salmond test: (1) employee acts authorized by the employer; OR (2) unauthorized acts so connected
with authorized acts that they may be regarded as modes of doing an authorized act

FACTS:
P child in care of D D took advantage of his position and abused P
D employed by Childrens Foundation that operates residential care facilities for troubled children
D later found to be a pedophile; but when the records were checked he was clean- Pedophile
criminally charged, later he died. Now victim sues the employer
ISSUE:
When will an employer be vicariously liable for the wrongs committed by an employee?
ANALYSIS:
Salmond test: (1) employee acts authorized by the employer; OR (2) unauthorized acts so connected
with authorized acts that they may be regarded as modes of doing an authorized act

Enterprise liability, courts should be guided by these principles:
o Should liability lie against the employer?
o Is the wrongful act sufficiently related to conduct authorized by the employer to justify the
imposition of vicarious liability?
o Is there a sufficient connection between the employers creation/enhancement of the risk and
the wrong complained of?
Material increase in the risk as a consequence of the employers enterprise.
If theres sexual abuse: focus on the enterprise and the empowerment of the employee that increases
the risk of sexual assault
NOTES:
No special exemptions for non-profit organizations that act as employers
Note this case is concurrent w/ Jacobi

43

Vicarious Liability -
J acobi v. Griffiths, SCC (1999) CB: 569
RATIO:
If the tortious actions of the employee dont stem naturally from their employment, then the employer, if
they have acted responsibly, wont be held liable for the actions of that employee.
FACTS:
Ps teen members of Boys & Girls Club
D = Director of the Club
D knew Ps at the club enticed them to activities outside of Club and abused them
ISSUE: Did Gs activities stem from a mode of employment sanctioned by the Club? NO
ANALYSIS:
Subversion of public nature of Club activities
o Chain of events that led to abuse wasnt natural outgrowth of employment activities
Court considered:
o Employment didnt have intimacy considered under Bazley
o No requirement for D to be alone with Ps off premises and after hours
o Ps mother was intervening authority
NOTES: According to prof, better to ask is there an enterprise? Did you create risk? Is the person an
employee? then scope is irrelevant in this consideration.


44

INTENTIONAL TORTS
Purpose of intentional torts is to protect your dignity you get to claim extra damages on the basis of
harm
o Its not triggered by harm like negligence is

Intentional Interference with the Person [O: 238-241]

ASSAULT
Acts intending to cause harmful or offensive contact, or create an apprehension of that contact where
another person is put in apprehension of that intent
If there is no intention, then actor not liable (Except maybe in negligence)

Battery vs assault:
o Assault: causing apprehension of harm
o Battery: causing harm

BATTERY
The intentional unwanted touching of another person
harm does not have to result

Restatement of Torts: BATTERY
o An actor is subject to liability to another for battery if
(a) the acts intending to cause a harmful or offensive contact with the person of the
other or a third person, or an imminent apprehension of such contact, AND
(b) a harmful contact with the person of the other directly or indirectly results

Notes, 1-3, 6, 10 CB: 62-63
Stewart v Stonehouse: D grabbed P by the nose = battery; no injury sustained, but got damages
damaged his dignity, not his physical person
Collins v Wilcock: the fundamental principle is that every persons body is inviolate
Morgan v Loyacomo: D forcibly took package from under Ps arm battery
o It is not necessary to touch the Ps body anything connected with the body is sufficient

Battery intentional tort no foreseeability necessary for intentional tort-
Bettel v. Yim, Ont Co Ct (1978) CB: 63
RATIO:
If a tort was committed intentionally, then the tortfeasor will be liable for all consequences stemming
from that tort, regardless of if they are foreseen or not.
Liable for the natural and direct consequences of battery actions, whether those consequences are
intentional or not.
FACTS:
P threw match into Ds store; D grabbed P, shook him trying to get a confession, accidentally hit P in
the nose
ISSUE:
Will a D be held liable for the unintentional consequences of an intentional tort? YES
ANALYSIS:
No liability for accident, but foreseeability doesnt apply in intentional torts.
NOTES:
Rejection of analogies between intentional torts and negligence.
Recall when pleading, we can consider this one whole action, or claim as an intentional tort and
negligence if thats better for your client.


45


SEXUAL WRONGDOING

M.(K.) v. M.(H.) [1992 SCC] Note Case
RATIO:
Discoverability principle: limitation period doesnt begin running until the harm suffered is discovered
or ought to reasonably have been discovered.
ISSUE:
When should the limitation period start for sexual wrongdoing cases?
NOTES:
B.C. Limitation Act disregards limitation periods for sexual misconduct cases
o Be aware that different jurisdictions will treat this issue differently


Lajoie v. Kelly [1997 Man. Q.B.] Note Case
RATIO: Court held sexual harassment was a tort.
FACTS: P claims D manager made sexual advances that caused her to leave her job.
NOTES: Categories of intentional torts arent closed

INTENTIONAL INFLICTION OF MENTAL SUFFERING
Intentional Infliction of Mental Suffering: Requires intention to cause the mental suffering
Deliberate behaviour was so outrageous that you should have known or ought to have known that
distress would occur (it doesnt have to be long lasting, or even result)
If your victim is hypersensitive, you take your victim as you find them its not on the basis of the
reasonable person

Wilkinson v. Downton (CB 70) [1897 U.K.Q.B.]
RATIO:
If someone willfully does an act calculated to cause harm, and harm was produced, and the act is not
too remote, then the suffering party should be awarded damages
If D acts in order to inflict the consequence of mental suffering on P, then D will be liable for any
resulting consequences.
d. It is no answer in law to say that more harm was done than was anticipated
The intentional action could be an act or words
FACTS: D told P her husband was injured as a practical joke; P suffered nervous shock
ISSUE: Should D be held liable for an act designed to inflict mental distress on P? YES
ANALYSIS:
The act and the consequences are sufficiently close and connected to not attract limits through
remoteness
The court is concerned w/ deterring acts which involve a willful wrong
Remoteness may be available to Ds
NOTES:
Today, this claim would likely fall under negligence.
Another example where remoteness to limit liability isnt allowed

Frame v. Smith [1987 SCC] Notes
RATIO:
Canada requires physical or psycho-pathological injury before liability will be imposed on D
a visible or provable illness is required.

46

J anvier v. Sweeny [1919 U.K.] Notes
FACTS: D called P claiming to be police was a P.I. trying to get some letters from P
ANALYSIS:
Wilkinson analysis applied
P successful (awarded damages) D intentionally caused physical injury and P had shock


Bielitski v. Obadiak [1922 Sask. C.A.] Notes
RATIO: If someone doesnt actually communicate the rumor to the other party, but the idea of the rumor
eventually gets to the other party and the other party suffers harm, then the harmed party should get damages
FACTS:
Defendant spread a rumor through four other people before it reached the Plaintiff
P believed son to be dead violent shock and mental anguish
ISSUE:
Did the defendant willfully spread a false report? YES
If so, did his act cause and was it intended to cause the plaintiffs physical suffering? YES
ANALYSIS:
Any reasonable man would know that the natural and probable consequence of spreading such a report would
be that it would be carried to the plaintiff and would, in all probability, cause her not only mental anguish, but
physical pain

Purdy v. Woznesensky [1937 Sask. C.A.] Notes
RATIO: If the Defendant does a wrongful act that is closely connected to the Plaintiff and the Plaintiff sustains
nervous shock which causes some physical injury, then the Plaintiff should be awarded damages
FACTS:
Defendant struck the plaintiffs husband at a dance husband was rendered unconscious
P taken to hospital for treatment for 4 weeks, cried hysterically, couldnt attend trial
ANALYSIS: Shock suffered was by a wife due to her anxiety for the safety of her husband
Clark v Canada, [1994] 3 FC 323 Notes
RATIO: If the Defendants actions are extreme, and were calculated to produce an effect, and substantial harm
by the Plaintiff is sustained, then the Plaintiff is owed damages
FACTS: RCMP harassment from fellow officers over 4 year period asthma, stress, crying, no sleep, didnt
eat

Defences to Intentional Torts [O: 262-272; 275-276]
If the P has been negligent, thats not to be used as a defence
o i.e. student falls asleep on the couch, library closes, thats false imprisonment cant use the
students negligence as a defence
CONSENT
Sports
theres 2 different approaches to determine
o MB: starting point, all touching in a contact sport is a battery
Defence: if the touching occurs within the rules of the game, its not a battery, then its
only a battery if theres intent to injure
o BC: negligence analysis
What would a reasonable person do in those circumstances?
The cheque may have been reasonable according to the rules, but how it
occurred was not
o BC would find liability, MB would not
o Argue both in AB (if the MB approach fails, then in the alternative, the BC approach)


47

The nature of consent
O'Brien v. Cunard SS. Co., Massachusetts SC (1891) CB: 103
RATIO:
If a person acts in such a way as to indicate consent and doesnt express that they dont consent, then
they will be found to have consented to the action
2 kinds of consent: 1) actual (implicit/ explicit); 2) constructed
e. This case could be argued both ways either type of consent.
FACTS:
D (doctor) vaccinated the P while P was onboard the ship
P said she had been vaccinated before, but the D vaccinated her again anyway
ISSUE:
Did the D commit a battery on the P? NO
ANALYSIS:
The behavior of the Plaintff indicated consent which justified the Ds actions, regardless of the Ps
unexpressed feelings
NOTE: it is now clear that the defendant who relies on defence of consent bears the onus of proving it.

Wright v. McLean [1956 B.C.S.C.] Note Case
FACTS: boys throwing mud balls at each other P hit in the face
ISSUE: did the boy implicitly consent to the risk? YES

Vitiating consent when power imbalance and exploitation occur
Norberg v. Wynrib, SCC (1992) CB: 105
RATIO:
If A is in a position of power over B and they exploit that position, then any consent given by B will be
vitiated
Silence (failure to consent) is not an indication of consent
FACTS:
P was addicted to painkillers D took advantage of his position as a doctor
Got the P to perform sexual acts in exchange for pills
ISSUE:
Can the defence of consent be raised in circumstances where it was given by an individual who was
chemically dependant on the person providing her with drugs? NO
HOLDING: no consent
ANALYSIS:
Consent, express or implied, is a defence to battery
In cases where theres an imbalance of power, the idea of consent should be modified
o Power imbalance: when there is 1) inequality and 2) exploitation.
The law will protect people from being taken advantage of by those in positions of power


Malette v. Shulman, Ont CA (1990) CB: 117
RATIO:
If an unconscious patient has made arrangements for his/her care in emergency situations and those
instructions are known to the practitioner, then those instructions must be honoured (no matter when
they were made)
FACTS: P was a JW and carried a no treatment card Dr. was aware of this, but treated the P anyway
ISSUE:
Was the D (doctor) entitled, due to the emergency circumstances, to disregard the card and act
according to his best medical judgment? NO
ANALYSIS:
Battery applies to medical care, but emergency situations are exceptional
Doctors are privileged in emergency situations w/ implied consent
o Requirements for emergency privilege: 1) patient is unconscious; 2) time is of the essence; 3)
probability that patient would consent if he/she could.
48

Doctors are not free to disregard patients advance instructions
NOTES: An example of courts weighing competing values

Marshall v. Curry, NSSC (1993) CB: 123
RATIO:
A Doctor who, while performing surgery, finds additional items that need treatment, doesnt have the
authority to give consent on behalf of the patient UNLESS its an emergency
FACTS:
P had a hernia
D (doctor) performed surgery to treat the hernia
During surgery, cancer was found in left testicle and testicle was removed
No consent sought from P
ISSUE: Was D entitled, in the situation, to remove the testicle without obtaining the consent of the patient first?
YES
ANALYSIS:
ordinarily, consent should be obtained
consent may be express or implied
o consent may be implied from preceding conversation or circumstances
o
Nancy B. v. Hotel-Dieu de Quebec [1992 Que.S.C.]; Rodriguez v. B.C. [1993 SCC]; Notes
FACTS
Nancy B: was on a respirator, wished to discontinue course of treatment so that she could die
Rodriguez: wished for an assisted suicide so she could die.
HOLDING
Nancy B: court held that termination of treatment was acceptable, even if it resulted in patients death
Rodriguez: court held that assisting a patient to die was illegal

Murray v. McMurchy [1949 B.C.S.C.] Note Case
RATIO
Possibility of future hazard isnt sufficient for the justification of an emergency situation and to conduct
a medical procedure
An operation that is necessary involves urgency and immediate danger
FACTS
During caesarian operation, tumors discovered in uterus
o fallopian tubes tied to prevent hazard of second pregnancy
o
SELF-DEFENCE
Crockcroft v. Smith, QB (1705) CB: 132
RATIO: Self-defence must be reasonable and proportional to the attack.
FACTS: D bit off part of Ps finger during a scuffle
ISSUE: is self-defence a valid defence? YES

49

Evans v. Bradburn [1915 Alta. C.A.] Note Case
RATIO:
Provocation short of assault or threats doesnt justify an assault that claims to be in self-defence.
Two lines of cases for how provocation affects Ps damages: 1) limits punitive damages; 2) limits all
damages
Provocation (motive): motive is not relevant to the commission of a tort (however, it is relevant to the
assessment of damages)
f. You cannot use provocation to say that the tort never happened

Gambriell v. Caparelli [1975 Ont.H.C.] Note Case
RATIO: Defence of a 3
rd
person is a valid defence
FACTS: Mother believed P was choking her son; hit P w/ rake in the shoulder

DEFENCE OF PROPERTY
Green v. Goddard, QB (1704) CB: 135
RATIO: Owner must ask person to depart first; forceful entry can be met with force

Bird v. Holbrook, Common Pleas (1828) CB: 136
RATIO: An owner who sets a trap without giving notice is guilty of an inhumane act and is liable for the harm
caused to an unsuspecting victim
FACTS: D set gun to prevent intruders from entering property went off and hit innocent P in the knee

Occupiers Liability Act, R.S.A. 2000, c. O-4. SM: 26
NOTES
Definitions: you can be an occupier w/o being an owner or possessor; you just need responsibility and
control over the premises
s.6: Act applies to activities on the premises
s.6.1: some people will be considered prima facie trespassers unless they meet the standards of this
section
s.7: equivalent to s.4(1) of Ontario Act; defence of voluntary assumption of risk
s.8: liability under the Act can be modified reasonable steps to give notice required
s.12: no duty of care to trespassers unless occupier creates unusual risk
s.13: child not defined
s.14: liability for personal property separate from liability for bodily harm (under Ontario Act theyre
covered together)
s.15(1): specifically includes Contributory Negligence Act

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Alberta, enacts as follows:

Definitions
1 In this Act,
(a) "common duty of care" means the duty of care of an occupier of premises to visitors
provided for in section 5;
(b) "entrant as of right" means a person who is empowered or permitted by law to enter premises
without the permission of the occupier of those premises;
(c) "occupier" means
(i) a person who is in physical possession of premises, or
(ii) a person who has responsibility for, and control over, the condition of premises, the
activities conducted on those premises and the persons allowed to enter those
premises,
and for the purposes of this Act, there may be more than one occupier of the same premises;
(d) "premises" includes
(i) staging, scaffolding and similar structures erected on land whether affixed to the land
or not,
50

(ii) poles, standards, pylons and wires used for the purpose of transmission of electric
power or communications or transportation of passengers, whether or not they are used
in conjunction with the supporting land,
(iii) railway locomotives and railway cars,
(iv) ships, and
(v) trailers used for, or designed for use as, residences, shelters or offices,
but does not include aircraft, motor vehicles or other vehicles or vessels except those
mentioned in subclauses (iii) and (iv) or any portable derrick or other equipment or movable
things except those mentioned in subclauses (i) and (v);
(e) "visitor" means
(i) an entrant as of right,
(ii) a person who is lawfully present on premises by virtue of an express or implied term of a
contract,
(iii) any other person whose presence on premises is lawful, or
(iv) a person whose presence on premises becomes unlawful after the person's entry on
those premises and who is taking reasonable steps to leave those premises.

Note: unlike the old common law, all of these people are lumped under one category (instead of
contractor, licensee, etc.)
Application of Act

Effective date
**2 This Act applies only in cases where the cause of action arose after January 1, 1974. (alters the common
law)

Liability of employer
3 This Act does not apply to or affect the liability of an employer in respect of the employer's duties to
employees.
Act inapplicable to highways or private streets
4(1) This Act does not apply to highways, other than leased road allowances,
(a) where a Minister of the Crown in right of Alberta has the administration of, or the management,
direction and control of, the highway,
(b) where the Crown in right of Canada has the administration and control of the highway, or
(c) where a municipal corporation or Metis settlement has the management, direction and control of
the highway.
(2) This Act does not apply to private streets as defined in section 78 of the Law of Property Act.

Liability of Occupier to Visitors

Duty of care to visitors
5 An occupier of premises owes a duty to every visitor on the occupier's premises to take such care
as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe
(this is the standard) in using the premises for the purposes for which the visitor is invited or
permitted by the occupier to be there or is permitted by law to be there.

When common duty of care applies
6 The common duty of care applies in relation to
(a) the condition of the premises,
(b) activities on the premises, and
(c) the conduct of third parties on the premises.

Recreational users
6.1(1) The liability of an occupier to a person who uses the premises described in subsection (2) or a portion
of them for a recreational purpose shall be determined as if the person was a trespasser unless the
occupier
(a) receives payment for the entry or activity of the person, other than a benefit or payment
received from a government or government agency or non-profit recreation club or association,
or
51

(b) is providing the person with living accommodation on the premises.
(2) Subsection (1) applies to the following:
(a) rural premises that are
(i) used for agricultural purposes including land under cultivation,
(ii) vacant or undeveloped premises, and
(iii) forested or wilderness premises;
(b) golf courses when not open for playing;
(c) utility rights-of-way excluding structures located on them;
(d) recreational trails reasonably marked as such.

Risks willingly accepted
7 An occupier is not under an obligation to discharge the common duty of care to a visitor in
respect of risks willingly accepted by the visitor. (this sounds like volenti)

Variation of duty of care
8(1) The liability of an occupier under this Act in respect of a visitor may be extended, restricted, modified or
excluded by express agreement or express notice but no restriction, modification or exclusion of that
liability is effective unless reasonable steps were taken to bring it to the attention of the visitor.
(2) This section does not apply with respect to a visitor who is an entrant as of right.

Effect of warning
9 A warning, without more, shall not be treated as absolving an occupier from discharging the
common duty of care to the occupier's visitor unless in all the circumstances the warning is
enough to enable the visitor to be reasonably safe.

Contract not to affect strangers
10 When an occupier of premises is bound by a contract to permit strangers to the contract to enter or use
the premises, the liability of the occupier under this Act to a stranger to the contract may not be enlarged,
restricted or excluded by that contract.



Liability of independent contractor
11(1) An occupier is not liable under this Act when the damage is due to the negligence of an independent
contractor engaged by the occupier if
(a) the occupier exercised reasonable care in the selection and supervision of the independent
contractor, and
(b) it was reasonable in all the circumstances that the work that the independent contractor was
engaged to do should have been undertaken.
(2) Subsection (1) does not operate to abrogate or restrict the liability of an occupier for the negligence of
the occupier's independent contractor imposed by any other Act.

Liability of Occupier to Trespassers

Liability of agricultural disposition holder
11.1 The liability of a holder of an agricultural disposition issued under the Public Lands Act in respect of a
person who, under section 62.1 of the Public Lands Act and the applicable regulations, enters and uses
the land that is subject to the agricultural disposition shall be determined as if the person entering the
land were a trespasser.

Trespassers
12(1) Subject to subsection (2) and to section 13, an occupier does not owe a duty of care to a
trespasser on the occupier's premises.
(2) An occupier is liable to a trespasser for damages for death of or injury to the trespasser that
results from the occupier's willful or reckless conduct.

(You dont owe a duty of care, but you cant be reckless or willful in your conduct its basically a low
standard of care)
52


Child trespassers
13(1) When an occupier knows or has reason to know
(a) that a child trespasser is on the occupier's premises, and
(b) that the condition of, or activities on, the premises create a danger of death or serious bodily
harm to that child,
the occupier owes a duty to that child to take such care as in all the circumstances of the case is
reasonable to see that the child will be reasonably safe from that danger.
(2) In determining whether the duty of care under subsection (1) has been discharged, consideration shall
be given to
(a) the age of the child,
(b) the ability of the child to appreciate the danger, and
(c) the burden on the occupier of eliminating the danger or protecting the child from the danger as
compared to the risk of the danger to the child.
(3) For the purposes of subsection (1), the occupier has reason to know that a child trespasser is on the
occupier's premises if the occupier has knowledge of facts from which a reasonable person would infer
that a child is present or that the presence of a child is so probable that the occupier should conduct
himself or herself on the assumption that a child is present.

General

Liability re personal property
14(1) Subject to subsections (2) to (4), the liability of an occupier under this Act to a visitor or trespasser
extends to destruction or loss of, or damage to, property brought on to the occupier's premises by the
visitor or trespasser, as the case may be, whether or not it is owned by the visitor or trespasser or by
any other person.
(2) An occupier is not liable under this Act in respect of a loss of or damage to property of any person
resulting by reason of the act of a third party.
(3) When a person in an action under this Act claims damages in respect of the destruction or loss of, or
damage to, property of which the person is the owner and that was brought on to the occupier's
premises by some other person either as a visitor or trespasser on those premises, the occupier is
entitled to raise any defence to the claim that the occupier would be entitled to raise if the claimant were
the visitor or trespasser, as the case may be.
(4) This Act does not apply to or affect any liability of an occupier of premises in respect of personal
property arising by virtue of
(a) a contract of carriage,
(b) a bailment, or
(c) the Innkeepers Act.

Application of other Acts
15(1) When the occupier does not discharge the common duty of care to a visitor and the visitor suffers
damage partly as a result of the fault of the occupier and partly as a result of the visitor's own fault, the
Contributory Negligence Act applies.
(2) When an occupier is liable under section 12(2) or 13, and the trespasser or child trespasser, as the
case may be, suffers damage partly as a result of the fault of the occupier and partly as a result of the
trespasser's or child trespasser's own fault, the Contributory Negligence Act applies.
(3) When in an action brought under this Act 2 or more occupiers of the same premises are each found to
be at fault, the Tort-feasors Act applies.

Crown bound
16 The Crown in right of Alberta is bound by this Act.