Torts Law Negligence

1. DUTY OF CARE
General Test
Keywords

Case

Principe de proximié
Categories – Not Closed
Fabrication de biens avec
Aucun examen
intermédiaire

Donoghue
v.
Stevenson
(1932 – HL)

tendance
Évolution / élargissement
de la portée du devoir

Modern DOC
Considérations de
principe à ces deux
étapes

Anns v.
Merton
London
Borough
(1977 – HL)
Cooper v.
Hobart
(2001 – SCC)

Facts + Analysis
>P drinks beer with decomposed snail, sues manufacturer
> Beginning of modern law of duty
> Neighbour Principle of Duty – Owe duty to neighbours (persons so
closely & directly affected by your action that you ought to reasonably have
them in mind when performing it)
>Mfg of products, no reasonable possibility of intermediate
examination,
knowledge that neg. will result in injury, DOC (despite no direct
connection)
>Expansion from Donoghue
>Two Stage Test
>1. Prima Facie Duty of Care
>Proximity + Reasonable Foreseeability
>2. Policy: Are there any considerations which ought to negative/ reduce/limit
the scope of
duty or the class of persons to whom it is owed or the damages
it gives rise to
P sues D for delay in suspending investment company, causing her to lose
more money than necessary – See Test Below
>Fails at 1b because Registrar had duty to entire market, not just investors

Anns/Cooper Test
1. Preliminary: L’obligation de diligence est-elle alléguée à l'intérieur / analogue à une catégorie établie?

Si oui, obligation de diligence existe. Des considérations stratégiques apparaissent rarement.
2. Stage 1(a): Le préjudice est-il raisonnablement prévisible? (Pour personne en particulier ou catégorie de
personnes)

Consider: Pas la capacité à gérer la situation - que ce soit à travers la jeunesse, l'ivresse, ou de
l'incapacité
3. Stage 1(b): Was there a sufficient relationship of proximity between parties?

Consider: Les attentes, les représentations et l'autonomie; types d'intérêts concernés (physique,
économique, psychologique, etc), la proximité physique, et tout cadre légal ou contractuel (not
exhaustive list)

Stage 2: Policy considerations en négatif / limite la portée de l'obligation de diligence? (Charge de la
preuve sur D) Concerné, avec effet d'imposer l’obligation de diligence

Consider: Autre recours? Spectre de la responsabilité illimitée?

Prévisibilité
Keywords

Case

Tree climbing

Moule v. NB
Elec Power
Comm

Makeshift
Ladder/Platform
Power Lines

Facts + Analysis
Kids climb tree with boards as makeshift ladder; touches electrical
wires; company trimmed branches to height of 13ft
>Unusual circ’s needed to create risk (cross plank, ladder)
>Duty of care exists only wrt conséquences prévisibles

N

1960 - SCC

Tree climbing competition; power lines obscured by branches of
tree; kid climbs, tree sways and touches power lines
>Unlike Moule, only casual attempts to trim branches, also no
Obscured Power Lines
ladder
Untrimmed Tree
Power Comm
>Foreseeable that kids will climb trees
1976 - SCC
>DOC: Must ensure trees near power lines are properly
maintained
Man w/ fireworks in suitcase helped into train by attendants;
Feux d'artifice dans
Plasgraf v.
Suitcase drops; explosion knocks down scales which injure P
Suitcase
Long Island
>Attendants negligent, but not in relation to P
Le demandeur prévisible
RY Co.
> Négligence des résultats de la violation du devoir à
1929 – NY CA
personne en particulier ou une catégorie de personnes, la
création d'une sphère de risque n'est pas assez
Obligation de contrôler le comportement des autres

Parents non responsables des délits par les enfants, à moins omis de surveiller adéquatement
Tree climbing

Duty
?

Amos v. NB
Elec

Y

N



Diligence envers tierce personne: Parent/Child; Employer/Employee; Invitor/Invitee; Police/Guard & Prisoners;
Doctors/Institutionalized Patients; Coaches/Instructors/Supervisors & Students
Responsabilité pour
Doit avoir une connaissance de l'état d'ivresse et de préjudice raisonnablement
intoxication
prévisible
Keywords
Case
Facts + Analysis
Duty
?
Hotel serves past point of intoxication; manager ejects P; P stuck by car
Hotel Bar
while stumbling home on highway in front of hotel
Y
Jordan
>RF: Probable risk to P if ejected to walk down highway outside hotel
House
v.
Invitor/Invitee
>Proximate?: Knowledge of P’s prior drunkenness and current intoxication;
Menow
Served past point
breach of
of intoxication
statutory serving limits + Invitor/Invitee Relationship
1973 - SCC
>DOC: When hotel ejects drunk, has duty to take steps to ensure
they get home safely
P enters tubing competition; given alcohol throughout. Manager tries to
Tubing competition
dissuade P, but does nothing else. P severely injured. Invitor/Invitee
Crocker v.
>D aware of P’s condition - Intoxication is a factor of reasonable
Y
Sundance
Served by bar
foreseeability
Dangerous sport
>DOC: When resort establishes competition in highly dangerous
1988 - SCC
for profit
sport and runs competition for profit, it owes a doc to prevent entry
by intoxicated patrons
Dinner theatre serves P with by 3 sober adults past point of intoxication; P
Dinner theatre
Stewart v.
drives home
Pettie
>Serving past point of intoxication does not in itself pose a
N
Sober companions
foreseeable
risk
Driving intoxicated
1995 - SCC
>Must be something more – some additional risk factor
>P accompanied by sober adults – Not foreseeable that P would drive
Hockey team provided beer at tournament; Player drove while drunk, killing
Hockey team
Calliou
many
N
Estate v.
>No duty – Nothing to indicate team knew, or ought to have known, that
Driving intoxicated
Caillou
driver was drunk
Knowledge
>Facts somewhere in between model of social host and model of
Required
2002 - QB
commercial enterprise
Social hosts do not prevent repeat DUI offender from driving home; driver
hits D
>Social hosts do not owe a duty of care to public users of highway
Social Hosts
Childs v.
>No RF based on facts (no finding Ps knew driver was drunk), but even if RF,
N
Driving intoxicated Desormeau no duty b/c wrong alleged is a failure to act in circumstances where there is
x
no positive duty to act
2006 - SCC
>No positive duty to monitor guest’ drinking or to prevent them from
Social Hosts v.
driving
Commercial Hosts
>No duty of care to members of the public who may be injured by guest
– No proximity
>Social hosts different from commercial hosts:
>Commercial hosts have greater ability to monitor alcohol consumption
>Social hosts not heavily regulated by liquor licences
>Social hosts do not profit from sale of alcohol
Duty to Prevent Crime and Protect Others
Keywords
Serial rapist
Specific MO
known
Police fail to
warn

Case

Facts + Analysis

Jane Doe v.
Metropolitan
Toronto Police
(1998 – ON Gen Div)

P sued police for failing to warn her of serial rapist in neighbourhood
>Police knew narrow and distinct group of potential victims
>DOC: Police have duty to protect public from potential threats
where foreseeable, and where risk to particular group
>May discharge duty by warning, or by other means
>Causation: Modified Objective Test: Put RP in place of P (same
character as P)
>Satisfied that P would have protected herself if warned

Duty
?
Y

Duty to Perform Gratuitous Undertakings
Keywords

Case

Facts + Analysis

Duty
?

P relied on D’s
assurances
Boat insurance
Property damage
Doctor promises to
attend
Improper medical care
Negligent performance
of gratuitous
undertaking
Gate watchman
absent
P hit by train

Thorne v.
Deas
(1809 – NY)
Smith v. Rae
(1919 – Ont.
CA)
Zelenko v.
Gimbel
Bros. Inc
(1936)
Soulsby v.
Toronto
(1907 – HC)

P relied on D’s assurances that he would obtain boat insurance; when
boat wrecked without insurance, P sued D
>One who undertakes to do an act for another w/o reward, is
not liable for omitting to do the act; only liable when attempts
act, and does it negligently (causing positive injury to the P)
D agrees to attend P during confinement; D breaks promise and child
dies
>D not negligent in failing to attend given other responsibilities
>No actual misfeasance
P’s intestate taken ill in D’s store; D rendered improper medical care
>D owed no duty prior to rendering aid
>If D left her alone, beyond doubt someone else would have
summoned help
>D created duty to act by meddling in matters in which he legally had
no concern.
Gates on either side of RR; Watchman opened gates when safe; Driver
relied on this and didn’t check when he found gates open; Hit by train;
No watchman that day
>No duty to keep gates closed when train approaching; D should have
looked
>DOC: If someone undertakes to perform a voluntary act they
are liable if they perform the act improperly, not if they don’t
do it at all or fail to complete it

N

N

Y

N

* See Exceptions on Next Page

Exception: Liable for failing to complete task or otherwise act for plaintiff’s benefit IF:

Lulled P into false sense of security;
-Put P in a more precarious physical position

Denied P other opportunities for aid;
-May apply if D withdraws service customarily provided
Pre-Conception
Wrongs
Keywords

D carelessly causes parent to suffer injury that detrimentally affects subsequently conceived
child
Case
Facts + Analysis
Duty
?
Battery factory
Employees at battery factory exposed to lead levels that posed risk
U.A.W. v.
Foetal health
to foetal health
Y
Johnson
Required documentation
>Employer cannot require all female emps to provide
Controls
Debate
documentation of sterility
>Debate regarding what steps a potential D may take to
1991 - USSC
avoid harm to P’s reproductive system
Acne drugs
Infant P suffered disabilities because mother took prescription acne
Paxton v.
medication prior and during pregnancy. D knew of side effects, but
Failure to warn
Ramji
mother’s husband had vasectomy, so pregnancy not expected
Y
of side-effects
2006 - SCC
>DOC: D owed duty to warn because of known effects of
drugs
>However, b/c of vasectomy and extreme concern over acne, SOC
not breached

Policy issues regarding the scope of a defendant’s potential liability

Naissance illicite et
injustifiée de la vie

Wrongful Birth
Wrongful Life

Keywords

Physician carelessly fails to inform woman that she faces an unusually high risk of giving
birth with a disability, or may negligently perform tests designed to detect foetal
abnormalities

Because of this negligence or failure to inform, woman may continue pregnancy she
otherwise would have terminated

Deprives mother of an opportunity to make an informed decision

Claim brought by parent
Based on principles governing physician’s duty to inform

Claim brought by child

But for defendant’s carelessness, child would not have been born to suffer with disability

Suggests it would be better if child not been born at all

Issues concerning sanctity of life, and quantification of damages remain largely unresolved
Case
Facts + Analysis
Duty
?

Chicken pox during
pregnancy
Failure to warn of risks

Ardnt v.
Smith
(1994 – BC)

Mother contracted chicken pox and not warned of potential harm
to unborn child
>Physician negligent for failing to warn
>Wrongful life claim dropped (Upheld by SCC)
>Causation not proven for wrongful birth claim: could not prove
woman would not have had child

N




Negligence of medical professional, either in preventing pregnancy or improper termination
General claim for emotional harm for having to go through processes they were trying to
avoid (i.e. abortion (sterilization) or 2nd abortion (termination))

More complicated if mother gives birth and then sues, but generally does not hurt claim

Traditionally, damages recoverable for immediate damages of pregnancy and delivery

Healthy child = “blessing”; Birth cannot be treated as legal harm

More recently, more receptive to claims of raising healthy child
Case
Facts + Analysis
Duty
?
Suite v.
>Damages for raising healthy child, but consider emotional benefits
Cooke
and burdens
Y
(1993 – Qc.
SC)
Kealy v.
>Claims for child-rearing form of economic loss
Berezowski
>Only recoverable where primary motive for limiting size of family is
Y
(1996 – ON
financial
GD)
Cattanach v.
D negligently performed sterilization, leading to unplanned pregnancy
Melchoir
>Child welcomed into family, but led to lifestyle changes and required
Y
(2003 – HC
parents to forsake other opportunities
Aus)
>Damages awarded for costs of raising healthy child

Wrongful
Pregnancy

Keywords
Emotional
benefits/burdens
Economic loss
Financial recovery
Sterilization
Lifestyle changes

Pre-Natal Injuries
Keywords

Mother to child
Car accident





May owe duty of care to avoid careless actions that may result in loss upon birth
Unless child born with subsequent injury – no cause of action (even if foetus dies)
Different rule with respect to mother
Case
Facts + Analysis

Dobson v.
Dobson
(1999 – SCC)

Mother negligently causes accident, child born with severe disabilities
>Prima Facie Duty; Policy Considerations negate
>Policy: Extensive/unacceptable intrusion into bodily integrity, privacy,
and autonomy rights of women; Could increase level of external scrutiny;
Certain lifestyle “choices” ex. alcoholism, drug addition, and smoking,
may be beyond control of woman; Damaging consequences for
relationship of mother and child and child and rest of family; No clear
effects of either compensation or deterrence; Everything woman does
could affect child. Would open floodgate.

Nervous Shock – Commonwealth Chronology



Duty
?

N

Sought to create rules to limit liability

1. Shock must result from physical injury/impact (“impact rule”)
D negligently raised gate; D almost hit by train – nervous shock
Victoria Railways v.
>Unaccompanied by physical injury, therefore not considered consequence that would
Coultas
flow from the negligence of the gatekeeper
(1888)
2. Shock must result from a reasonable fear of immediate personal injury to him/herself
Dulieu v. White & Sons
D crashed horse-drawn carriage into public house where P was working
(1901)
3. Shock must result from a reasonable fear of immediate injury either to the plaintiff or the plaintiff’s spouse or children.
Shock must occur because of something the plaintiff sees or realizes from her own unaided senses
P saw runaway truck speeding down a hill towards the place where she had left her
Hambrook v. Stokes
children. She rushed to the scene and was told a girl matching her daughter’s description
Brothers
had been injured. Suffered shock, subsequently gave birth to stillborn child, and died a
(1924)
few months later
4. Plaintiff who is not present at the scene of an accident but attends to it’s “aftermath” might be allowed to recover for
nervous shock

Keywords

Children/Spouse

McLoughlin
v. O’Brian

Immediate
“aftermath”

(1982 – HL)

Overcrowded
Stadium

Alcock v.
Chief
Constable
of South
Yorkshire
Police
(1991 – HL)

Fear for friends
and family

Summary of
English
Position

Case

Facts + Analysis

Duty?

D carelessly caused accident that killed one of P’s children and seriously
injured other two, as well as her husband. Plaintiff was told of the incident two
hours later, and went to the hospital where she received details of the tragedy
>Liability largely on basis that P’s psychological injury reasonably
foreseeable
>As matter of policy, some boundaries have to be drawn
>Three considerations particularly important
1. Class of persons whose claims should be recognized
2. Proximity of such persons to the accident in time and space
3. Means by which shock is caused
Police negligence resulted in overcrowded soccer stadium; Many crushed to
death; P’s sued for nervous shock after fearing for friends and relatives
>Class of Persons: Justification for claims by those in close family
relationships is the (rebuttable) presumption that the love and affection in
those relationships is such that a defendant ought reasonably to foresee
nervous shock. Relatives/Friends OK, if love and affection for victim
comparable to that of a normal parent, spouse, or child
>Proximity: Post-accident cases not immediate enough, therefore not
proximate enough
>Means: TV not OK, cannot show suffering; Instant broadcast maybe OK in
some cases
>Decision: Only two plaintiffs at the ground. One claims for loss of brothers –
no evidence presented of close and intimate relationship. Other claims for loss
of brother in law – not reasonably foreseeable as a potential sufferer
>DOC: Depends on Three Part Test:
1. Proximity of relationship;
2. Proximity of time and space
3. Hearing or searing event or immediate aftermath with unaided senses

Y

N

Summarized in Mustapha and Page v. Smith (1995 – HL)

Primary
Victim

Secondary
Victim

Nervous Shock

Victoria
Railways,
Dulieu

Hambrook,
McLoughlin,
Alcock



>Psychiatric injury caused out of fear for the safety for oneself
>P need only establish reasonable foreseeability of physical injury
>Foreseeable psychiatric injury not necessary, even where no actual physical harm
>Proximity easily established
>Psychiatric injury caused out of fear for the safety of someone else
>P must show psychiatric injury in person of normal fortitude foreseeable
(White v. CC of SY)
>Three proximity indicators must be satisfied:
1. Close ties of love/affections btw P and victim (“relational proximity”)
2. P must have been present at accident or immediate aftermath
(“locational proximity”)
3. Psychiatric injury caused by direct perception of accident or immediate
aftermath, and not by hearing about it from someone else (“temporal
proximity”)

Recovery never encompassed many day-to-day emotional upsets (ex. anger, disappointment)
or feelings of grief upon death or serious injury of loved one
Case
Facts + Analysis

Keywords
Traditional:
Required Proof

Beaulieu v.
Sutherland

>P required to prove nervous shock has manifested itself in some form of
physical, psychiatric, or psychological disorder
>After Case: Scope of liability developed very slowly after time

(1986 – BCSC)
Nervous Shock – The
Canadian Position

No successful nervous shock claims at court of appeal level; Typically need recognized
illness (see above)

Keywords

Case

Fly in bottle
Normal
fortitude
Rejection of
P/S victim

Factual
Causation
but not
Legal
Causation

Mustapha v.
Culligan
Canada
(2006 – Ont.
CA)

Mustapha v.
Culligan
Canada
(2008 - SCC)

Facts + Analysis
P and wife found dead flies in unopened bottle of water. Incident triggered
nervous shock in form of major depressive disorder. P predisposed to injury.
>Rejects P/S victim distinction; Follows Anns/Kamloops
>Does not give judgement on whether 3 types of proximity integral to Anns
approach
>Facts satisfy relational proximity (obsessed by concern of impact on family),
locational proximity, and temporal proximity
>Policy concern over ambit of liability in cases where harm suffered is
significantly disproportionate to event, or is the function of particular sensibilities
of the P
>Accommodated by normal fortitude test
>DOC: Before a defendant will be held in breach of duty, the plaintiff must show
that psychiatric illness in a person of normal fortitude was reasonably
foreseeable.
>Not novel category – no need to use Anns/Kamloops
>Culligan breached DOC, but too remote
>Owed DOC as manufacturer of consumable good (see Donoghue); SOC
breached
>Actual loss caused by breach, but P failed to establish that reaction
was foreseeable
>“Subjectively and objectively bizarre” reaction that was not
probable
>Obj. test: Not foreseeable that person of normal fortitude would
have acted this way

Duty
?

N

N

Health Professional’s Duty to Inform
Keywords

Case

Material risks
Risks of
particular
concern to
patient

Reibl v.
Hughes
(1980 – SCC)

Modified
Objective Test

Disc surgery
Alternative
means of
treatment
Informed
decision

Manufacturer’s
and Supplier’s
Duty to Warn

Haughian v.
Paine
(1987 – Sask
CA)

Facts + Analysis
>Doctor/care giver must disclose all material risks
>Risks of low probability but serious consequences
>Risks of high probability but relatively minor consequences
>Must disclose all non-material risks that they know/ought to know
would be of particular concern to patient
>Causation: Modified Objective Test
>Put reasonable person in the place of plaintiff, but give it the
knowledge and
characteristics/commitments/schedule of the plaintiff
>Plaintiff must establish that a reasonable person in the plaintiff’s
position would
have refused procedure if properly informed (failure to inform must be
cause of loss)
Plaintiff underwent disc surgery that left him paralyzed
>Doctor failed to advise of alternative means of treatment or consequences
of leaving it untreated, which were at worst continued pain, but might have
improved on its own
>Doctor failed to advise of risk of paralysis – risk was small, but given
availability of non-surgical treatment with lack of risk, high change of
success, and severe consequences of paralysis, disclosure should have been
made
>Must provide sufficient information for patient to make a decision,
including:
>Alternative means of treatment & Consequence of leaving
ailment untreated

Duty
?

Y

Y

General Duty: Duty owed by manufacturer to ultimate customer
Exception: Manufacturer may satisfy informational duty by providing warning to “learned
intermediary”
>Generally applicable where intermediate inspection of product anticipated or where consumer
places primary
reliance on the judgement of a learned intermediary and not the manufacturer
Source of Duty: “Neighbour principle”; Informational imbalance between manufacturers and
consumers
Nature/Scope of Duty: Varies with level of danger entailed by ordinary use; Products that are

Keywords

Breast Implant
Surgery
Failure to warn of
risks
Learned
Intermediary
Buchan
subjective test
for product
liability

ingested or placed in
body have higher standard of care (said to impose significant risk); Duty persists over time
Causation: Plaintiff must show that they would have done something else if given warning;
Subjective Test
Case
Facts + Analysis
Duty
?
P’s breast implant ruptures. Not warned of risks of post-surgical rupturing from
normal activity. Risk not well known among surgeons
>Dow did not adequately warn consumer
>Cannot rely on Learned Intermediary – Did not adequately warn surgeon
>Causation Issues:
Hollis v.
>Would P have consented if properly informed?
Dow
>In cases of product liability, subjective test required (Buchan
Y
Corning
v. Ortho
(1995 –
Pharmaceutical) – Modified objective test inapplicable
SCC)
>Would surgeon have warned plaintiff if properly warned by Dow?
>P not required to prove hypothetical relating to doctor’s conduct
>Policy Issue: With manufacturers, greater chance that value will be
overemphasized and risk underemphasized; desirous to hold to strict
standard of warning (Buchan)
>Sufficient evidence to satisfy Buchan test – Dow breached duty to warn and
caused injury

>Words different than actions
>People tend to be more careful about actions – Potential for damage more apparent with
physical conduct
>Words are more volatile than actions (Hedley Byrne)
>Greater durability and portability
>May cause damage long after/far removed from where/when they were
made
>May repeatedly inflict harm
>Take effect in combination with innumerable facts and other words
>Traditionally, no DOC – HL signalled new approach in Hedley Byrne
>Preferred Approach: Anns/Kamloops
Negligent
Misrepresentat
ion: Pure
Economic Loss

Keywords
Policy

>Queen v. Cognos Required Elements for a Successful Hedley Bryne Claim:
1. Must be a duty based on a “special relationship” between representer and
representee
2. Representation must be untrue, inaccurate, or misleading
3. Representor must have acted negligently in making said representation
4. Representee must have reasonably relied on the misrepresentation
5. Reliance must have been detrimental to the representee (causation)
>”Special Relationship” of proximity arises through reliance by the plaintiff on the
defendant’s words (Hercules)
>Two Criteria:
1. D ought reasonably to have foreseen that P would rely on his/her representation
2. Reliance by the P would, in the particular circumstances of the case, be reasonable
>Gives rise to Prima Facie duty of care
>Indicators of Reasonable Reliance (Hercules):
1. The skill of the advisor
2. The skill of the advisee
3. The nature of the occasion (business/social matter)
4. Whether the advice was solicited
5. Whether the D obtained an indirect financial benefit
6. The nature of the statement (Fact? Opinion? Speculative?)
Case
Facts + Analysis
Duty
?
Ultramares
>Main Policy Concern: Imposition of liability in an indeterminate
Corp v.
amount for an indeterminate time to an indeterminate class
N
Touche

(1931 – NY CA)
Negligent Advice
Reasonable
Reliance

Hedley Byrne
v. Heller
(1963 – HL)

PreContractual
Misrepresentat
ion

Queen v.
Cognos
(1993 – SCC)

Financial
Statements
Auditor Liability
Policy
Considerations

Hercules
Management
v. Ernst &
Young
(1997 – SCC)

New Categories of
Economic Loss
Negotiate in Good
Faith
Renewal of Lease

Y

Y

N
(NBP
)

In recognizing DOC in new situation, courts will use Anns/Cooper test

Martel
Building v.
Canada
(2000 – SCC)

Policy
Considerations

Negligent Supply of Shoddy
Goods or Structures: Pure
Economic Loss

Shoddy exterior

Relying on the negligent misrepresentation of a customer’s bank, plaintiff
extends credit; customer went into liquidation before reimbursing the
plaintiff
>New Approach: DOC can be imposed for negligent advice in certain
situations
>Reasonable reliance emphasized
>D offered P a job. P accepted offer, quit his current job, and moved family
from Calgary to Ottawa. P told in pre-contractual interview that project
would last 2 years, with high chance of further employment, but he was
laid off after 18 months when project downsized
>Application of Hedley Bryne
>Foreseeable that the appellant would rely on the information in the
interview, and this reliance was reasonable. Foreseeable that the appellant
would sustain damages if the representations relied on proved to be false
and negligently made (DOC owed)
>Standard of Care: Reasonable person – Person not required to
guarantee accuracy of statements, but is required to exercise reasonable
care
Respondents prepared financial statements for 2 companies. P’s, who were
shareholders in these companies, claim statements were prepared
negligently, causing them economic loss
>Stage 1 (Proximity): RF – audit reports usually relied on; Reasonable Often produced by professionals whose reputations are at stake
>State 2 (Policy): Imposing broad DOC on auditors will lead to socially
undesirable consequences. Auditors will spend more resources trying to
protect themselves. Auditor’s opportunity costs would increase. Supply of
accounting services would probably be reduced, and due to barriers to
entry, increased costs to clients. Increased litigation.
Specific facts may still justify imposition of duty if: 1) Defendant
knows the identity of either the plaintiff or class of plaintiffs who will rely on
the statement. 2) Losses claimed stem from the particular transaction in
respect of which the statement at issue was made. Scope of liability will
then be sufficiently delimited.
>Prima Facie duty, but negated by policy considerations, which were not
avoided by facts
>In context of auditor’s liabilities cases, even though duty will
often be found to exist, the problem of indeterminate liability will
frequently result in duty being negated

Winnipeg

P leased building to D; During negotiations, D led P to believe it would
renew lease on certain terms, but ultimately did not; Delayed process.
>RF that carelessness during negotiations may cause economic loss to
other negotiating party. Pre-existing lease and communications indicate
proximity
>Policy: (1) No indeterminate liability problem, But: (2) Object of
negotiation works against recovery – zero-sum; no net harm to society; (3)
Could deter socially and economically useful conduct – would force
disclosure of private information and motives; inconsistent with activity of
negotiating; (4) Could interject tort law as after-the-fact insurance; (5)
Would introduce courts to significantly regulatory function to scrutinize precontractual conduct; (6) Needless litigation should be discouraged.
>Prima Facie DOC, but negated by policy considerations

N
(NBP)

>Until recently, P could not recover if he/she could not establish privity of contract
>Can recover if problems caught before actual damage occurs (Rivtow v.
Washington (1974 – SCC)
D contracted to construct building. Subsequent owners sue after exterior
walls fall apart, and inspection reveals structural defects
>Anns/Kamloops - RF to contractors that if their negligence causes
defects, subsequent purchases may suffer injury/property damage. Prima
Facie duty of care
>Policy: (1) Allowing recovery for cost of repair encourages
Y

walls
Policy
Considerations

Condominium
v. Bird
Construction
(1995 – SCC)

Damage to
bridge
“Joint Venture”
Anns/Kamloops
General
Exclusionary
Rule
Categorical
Exceptions to
Exclusionary
Rule

Categories in
Norsk not
closed
General
Exclusionary
Rule



D, as a result of negligently damaging property belonging to a third party, also causes a
pure economic loss to the P with whom the third party had a relationship

Potential for indeterminate liability is particularly pronounced, but courts have recognized
positive policy considerations to support the imposition of such a duty of care
Case
Facts + Analysis
Duty
?
P entered into contract with government for use of a bridge. D carelessly
damaged that bridge, causing plaintiff to sustain considerable economic
losses.
>McLachlin (maj): Rejected traditional exclusionary rule. Anns/Kamloops
applies. Stressed concept of proximity, which encompasses the existence of
a relationship between the parties, physical closeness, assumed/implied
Canadian
obligations, and close causal connection. Duty of care owed to P. Given
Pacific
contractual relationship, they were essentially “joint venture”
Y
Railway v.
>La Forest (diss): General exclusionary rule should apply except when
Norsk Pacific
negated by policy. Duty should be recognized only if: 1) Plaintiff held a
Steamship
possessory or proprietary interest in the damaged property, or 2) Plaintiff
and the owner of the damaged property were parties in joint venture.
(1992 - SCC)
Refused to accept that contract gave rise to joint venture.
>Reasons why exclusionary rule is preferable:
>Puts incentives on parties to act to minimize losses
>Only one party has to purchase insurance; >Will save judicial time
and resources
>Eliminate worry about making defendants overly liable; >Rule is
clean and definite
>Joint Venture: Association of persons, natural or corp., who agree to
engage in some
common undertaking for joint profit without
forming formal legal relationship or corp.
D built rig for BVH, using heat trace system. Did not mention that system
flammable in certain circumstances. Rig caught fire, and was out of service
for months. HO and BV, who held contracts with BVH for use of the rig,
Bow Valley
suffered economic loss.
Husky
>Case does not fall within La Forest categories in Norsk, but categories are
N
(Bermuda) v. not closed. Prima Facie duty of care – D knew of existence of P and other like
Saint John
them; RF
(NBP)
Shipbuilding >Policy: (1) Indeterminate liability – if D owes duty to P, would owe similar
(1997 – SCC)
duty to host of others: “ripple effect” (2) Facts do not support need for
deterrence; (3) If plaintiff’s ability to allocate risk to property owner by
contract is slight, liability may be supported – BV and HO did allocate risk;
cannot be said that they suffered from inequality of bargaining power with
BVH, the company they created.
>Liability for relational economic loss is to be generally excluded,
with above category exceptions.

Relational Economic
Loss
Keywords

responsibility; (2) Degree of danger to persons and other property
important. Distinction between “dangerous” and “shoddy”: at least with
respect to dangerous defects, compelling policy reasons to impose
liability (does not consider “shoddy”); (3) No indeterminate liability –
claimants limited to inhabitants, liability limited to reasonable costs of
repair, time limited to useful like of building; (4) Contractors and builders
are in better position than purchaser to ensure structural integrity.
>DOC: Contractors owe duty to subsequent purchasers of building to
take reasonable care in constructing the building, and to ensure that the
building does not contain defects that pose foreseeable & substantial
danger to health and safety of occupants

2. STANDARD OF CARE
Common Law Standard of Care: The Reasonable Person Test
Keywords

Case

“The Reasonable
Man”

Arland v.
Taylor

MVA

(1995 – ON CA)

Facts + Analysis
>Standard of care is that of a “reasonable and prudent man”
>Reasonable man is a man of normal intelligence who makes prudence his
guide to conduct
>Not proper for trier of fact to consider, after the event, what he/she would

have done in circ’s

Reasonable Person
The Three
Factors

Ryan v.
Victoria
(1999 – SCC)

Factors Considered in
Determining Breach of the
Standard of Care
Keywords
Case
Surgery
Assess
Factors at
Time of
Breach

>Action is negligent if it creates an objectively unreasonable risk of harm
>Standard of care is that of a reasonable person
>What is reasonable depends on the facts of the case, including:
1. Probability of Foreseeable Harm
2. Severity/Gravity of that Harm
3. Burden/Cost Incurred to Prevent the Harm

Roe v.
Minister of
Health
(1954)



Probability of Injury and Potential Severity of Harm must be balanced
against private and social Costs of Avoiding the Risk and Social Utility of
Defendant’s Conduct
Facts + Analysis
Breach?

P underwent surgery and suffered paraplegia from contaminated
anaesthetic
>Risk known in 1954, but at time of operation, unknown and not
reasonably foreseeable
>Factors must be assessed at the time of the alleged breach, rather than
in hindsight
>After the fact, it may be obvious that the defendant should have acted
more carefully

N

Probability and Severity of Harm
Keywords

Case

Probability
Cricket Ball

Bolton v. Stone
(1951 – HL)

Severity

Paris v.
Stepney
Borough
Council

One-eyed
Man
Metal Splinter

(1951 – HL)

Cricket Ball

Miller v.
Jackson
(1977 – QB)

Facts + Analysis
P struck by cricket ball while walking on road adjacent to cricket ground
>RF that accident might occur, but likelihood very small
>Ball driven into road only 6 times in 30 years, and road very quiet
>Reasonable men take degree of risk into account
>Must avoid creating risks that are substantial
>Must consider probability of harm and severity of consequences
>Test: Was risk of damage so small that a reasonable man, considering the
matter from the point of view of safety, would have thought it right to
refrain from preventing danger?
One-eyed P not supplied goggles for pounding steel. Blinded by metal
splinter.
>Must take P’s background into account when determining
standard of care
>Severity of harm higher to one-eyed man, therefore standard of care is
higher
>Ordinarily prudent employer would supply goggles to one-eyed
worked in situation
>Risk slight; Harm severe; Simple and inexpensive precaution
>The more likely the harm, and the more grave the harm, the
higher the standard
New subdivision built on edge of cricket ground,; Fewer than 10 times per
year, balls left ground and landed in someone’s backyard; P sued in
negligence
>Risk foreseeable; Methods used to prevent balls leaving grounds are
inadequate
>No obligation on the plaintiffs to have to protect themselves
>D’s will be liable if by a million-to-one chance the cricket ball does go out
of the ground and causes damage, but cricketers not required to leave – No
injunction granted
>Shows balancing of interests of public at large and interests of
private individuals

Breac
h?

N

Y

Y

Cost of Risk Avoidance
Keywords

Case

Facts + Analysis

Breac
h?

Burden/Co
st
Bridge
Planning

Severity
vs. Cost
Medical
Procedure

Vaughn v.
HalifaxDartmouth
Bridge
(1961 –
NSSC)

Law Estate
v. Simice
(1994 –
BCSC)

While bridge being painted, flecks of paint blown onto nearby cars, including that
of P
>Inevitable that paint should fall on cars
>D hired man to wipe off paint flecks, but this was inadequate
>D argued further steps impractical due to high cost, particularly because of large
area
>However, only concerned with one parking lot. D could have posted warning
signs, communicated via press, etc. with little cost due to short painting season
>D must take reasonable measures to prevent or minimize damages.
Where precautions can be taken with minimal expense, the defendant
must take them
P claimed husband died because D doctor failed to provide timely and appropriate
care, including not giving him an expensive CT scan
>Severity of the harm that may occur to a patient who goes undiagnosed is far
greater than the financial harm that will occur to the medicare system if one more
CT scan procedure is performed
>Where life at stake & treatment avail. but expensive, patient should be
given treatment

Y

Y

Social Utility
Keywords

Case

Facts + Analysis

Social Utility
Watt v.
Hertfordshire
County Council

Public Services
Fireman’s Jack

(1954 – CA)

Improper Storage
Police Standard

Priestman v.
Colangelo
(1959 – SCC)

Public Service

P, fireman, responded to call requiring special jack; Truck to carry
jack was unavailable, so Ds put it in the back of another vehicle. P
was injured when jack became dislodged.
>Must balance risk against the measures necessary to
eliminate risk
>Must balance risk against the end to be achieved
>The saving of life or limb justifies taking more risk
>Lower standard of care.
>Performing a service with public value can mitigate
liability
Police fired at car during chase, car killed two bystanders
>Officers had affirmative duty to apprehend suspects and were
justified by the Criminal Code in using as much force as was
necessary to prevent their escape
>Public service mandate – more latitude permitted

Breach
?

N

N

An Economic Analysis of the Standard of Care
Keywords

3 Aspects
“Hand
Formula”

Cost of
accident

Case

United
States v.
Carroll
Towing
(1947)

McCarty v.
Pheasant
Run

Facts + Analysis
>Duty to prevent against injury has three aspects:
1. Probability of accident (P)
2. Gravity of resulting injury (L)
3. Burden of adequate precautions (B)
>Liability depends upon whether B < LP; If Burden > LP, it is too great
>Hand indicated an economic meaning of negligence
>Benefit of Preventing Accident (Cost of the Accident) = PL
>Cost of Preventing Accident = B
>If cost of prevention > benefit, society would be better off to forgo accident prevention,
and there is no
reason to condemn defendant for not taking measures to avert accident
>If benefit > cost, society is better off if accident is avoided, and enterprise is made liable
in the expectation
that self-interest will lead it to adopt the necessary precautions to avoid tort costs
>More difficult to calculate the cost of accidents than the cost of prevention


Sudden physical incapacity still affords defence
Standard of Care Expected of the

Moving away from objective standard
Disabled
Carroll v. Chicken
Blind P went to Chicken Palace for dinner; Did not ask for assistance in navigating restaurant,
Palace Ltd.
fell down stairway;
(1955 – Ont. CA)
>P guilty of contributory negligence

>Physically handicapped held to standard of reasonable person with same handicap
Ryall v. Alsa Road
Construction
(2004 - ABPC)

Blind P went jogging at 6AM and fell into manhole, which was only protected by low fences
>P found to have been acting unreasonably by jogging at that hour with his disability
>D took all reasonable steps to prevent injury to those who could reasonably be expected to
use the sidewalk

Two Approaches:
1. Unfairly prejudicial to accident victims if allowance made for defendant’s mental abnormality
D suffered delusions while driving, sped through intersection, and seriously injured the P
>Tort law is not concerned with punishing tortfeasor; Central concern is
compensation. >Standard applied is that of a reasonable person
>There are exceptions (young and physical disability), but these are matters of policy.
>Mentally disabled should be treated the same way as everyone else

Wenden v. Trikha
(1991 – Alta. QB)

2. Negligence presupposes ability for rational choice, so if mentally disabled individual is such that he/she cannot choose,
he/she is released from liability (Current Test) – Focuses on system of fault
>Follows Buckley and TTC v. Smith Transport Ltd (1946 – Ont. CA) which held that D
is not liable for mental illness if he/she can show on balance of probabilities that
Hutchings v. Nevin
he/she (1) Could not understand and appreciate the duty of care, or (2) Did not
(1992 – Ont. Gen. Div.)
have the ability to discharge that duty (no meaningful control over his/her actions at
the time the relevant conduct fell below objective standard of care)
>Negligent act must be shown to have been the conscious act of the defendant’s
volition
Man experienced sudden, severe manic episode while jogging and caused car accident
Fiala v. Cechmanek
>Tort law should refocus on system of fault. Objective reasonable person test is
(2001 – Alta. CA)
properly relaxed in cases where a defendant’s mental illness prevents him or her from
meeting the normal standard of care. Follows Buckley test given above.
Standard of Care
Expected of Children




Keywor
ds

Case

Highway
Cont.
Neg.

Joyal v.
Barsby
(1965 – Man CA)

Standard of Care
Expected of
Professionals
Keywords
Doctors
Breast
Reduction
Negligent
Operation





Case
White v.
Turner
(1981 –
HC)

Child involved in adult activity, such as driving, snowmobiling, golfing, or hunting, is
required to meet the standard of care expected of a reasonable adult (Fiala v.
Cechmanek)
Children excused if incapable of acting negligently
Facts + Analysis
Breach?
>P, 6, took her two younger brothers to cross a highway. Temporarily froze
when truck sounded horn. After truck passed, ran out onto highway and into
the rear door of a car
>Where age doesn’t make cont. negligence absurd, for the jury to decide
whether the infant exercised the care to be expected from a child of the
age, intelligence, and experience
>Children not incapable of cont. neg., but standard of care expected from
them is lower
>P acted as was expected of a reasonable child, therefore not negligent

N

Volunteers (non-profs) in care situations not expected to meet professional standard
Individuals may be held to professional standard if they implicitly or explicitly suggest
that they have the skills and training of a professional
Negligence in professional judged by the standard of care of his profession
Facts + Analysis
Breac
h?
>P suffered post-op complications and scarring from breast reduction surgery
performed by D
>A mere error in judgement or a poor result by a professional is not by itself
negligence. Plastic surgery has its own standards. If the work of a surgeon falls
Y
below the accepted practices of his colleagues (below the standard of a
reasonable surgeon) he will be held liable for damage.



Can raise custom as indicator of SOC, but onus is on P to prove that on a balance of
probabilities

Court is not obliged to respect customs – not all customs are desirable as standards of care

Custom in the Medical Field: In the medical field, acting according to ‘standard practice’
will often act to shield a defendant from liability
Case
Facts + Analysis
Breac
h?
P contracted HIV during artificial insemination. D was responsible for screening
donors, and used standard medical practices
>Specialist must demonstrate the conduct of an average specialist in his field
who possesses a reasonable level of knowledge, competence, and skill
N
Ter
>When
doctor
acts
in
accordance
with
recognized
and
respectable
practice,
Neuzen v.
he/she will generally not be found to be negligent
Korn
>Conduct of physicians must be judged in light of knowledge at time of alleged
(1955 –
negligence
SCC)
>Practice itself can be found negligent if it fails to adopt obvious and
reasonable precautions that are readily apparent to the ordinary trier of fact

Standard of Care:
Custom

Keywords

Artificial
Insemination
HIV contraction

Degrees of Negligence

Common law generally recognizes one standard of care – reasonable person

Courts recognize sudden peril doctrine, under which conduct that normally would be considered careless is
exempted from liability if, in the context of an emergency, it was reasonable

Occasionally, statutes restrict scope of liability to injuries inflicted as a result of “gross negligence”

Gross negligence falls between ordinary tort negligence and criminal negligence

Liability of medical professionals who provide medical assistance during emergencies: A person who
voluntarily provides medical service is not liable unless the damages were caused by gross negligence

Statutes tend to be restricted to two types:
1. Statutes covering liability for municipalities
2. Statutes covering “good Samaritan" situations
Difference Between Standard of Care Foreseeability and Remoteness Foreseeability

Standard of Care: Focused on a range of possible things

Does activity pose a real and substantial risk such that something might happen?

Ex. Bolton v. Stone: Cricket balls may injure individuals, cars, etc.

Remoteness: Focuses on the type of damage that actually occurred

3. CAUSATION






Plaintiff need not prove that the defendant’s negligence was the sole, immediate, distinct, or even most
important cause – must just establish that defendant’s negligence was a cause
Divisible Loss: Attributable to the conduct of a single tortfeasor;
Indivisible Loss: Attributable to the conduct of more than one tortfeasor
Proportionate Cause: P would recover based g a probability that the D was a cause

If 30% chance that D’s negligence was a cause, P would recover 30% of his/her loss
Loss of Chance: D’s negligence denies P a possibility of avoiding a loss

Typically recovery denied because P cannot prove on a BOP that D’s negligence was a cause of his/her
loss

Ex. Doctor negligently delays treatment causing death; If timely, deceased would have had 25% chance
of life

But-For Test
Keywords
Fall down escalator
Wood vs. rubber
handrails




Standard Test of factual causation
If P’s injury would not have occurred but for the D’s negligent act, then the act is a cause of
injury
Case
Facts + Analysis
Cause?
Kauffman v.
Toronto Transit
Commission
(1959 – Ont CA;
Aff’d 1960 – SCC)

Escalator with new hand-rail design put into subway station. Two
youths on escalator get into fight and fall backwards, causing P to
fall. P argues standard hand-rails could have prevented injuries
>No evidence that youths grasped hand-rail before or during fall
>No evidence that plaintiff would not have fallen if the rails had
been of standard design.
>Not possible to say injuries would not have occurred but-for the
hand-rail.

N

Doctor ignores call
Arsenic Poisoning

Barnett v.
Chelsea &
Kensington
Hospital
Management
(1959 – SCC)

P goes to hospital w/ vomiting, and D dismisses them, stays
home. One dies of arsenic poisoning 5 hrs later
>D breached standard of care by dismissing P without first
examining him. >Timeline crucial. Given procedural delays, P’s
chances of survival even with treatment would not have been
good
>For D to be liable, P must show on the balance of
probabilities that the injury would not have resulted but
for the defendant’s negligence

N

Exception: Multiple Negligent Defendants Rule
Keywords
2 Negligent
Hunters

Case

Facts + Analysis

Cook v. Lewis
(1951 – SCC)

Independent
Sufficient
Exception: Learned
Intermediary Rule
Keywords

Case

Breast Implant

Hollis v. Dow
Corporation
(1995 – SCC)

Manufacturer/Doc
tor

Plaintiff shot in the face by one of two negligent hunters who fired at the
same time. P could not prove on the balance of probabilities who had shot
him
>If P could prove the 2 D’s were negligent, one had to have caused the loss
>If it is impossible to prove which one, burden of causation shifts to D
>Each will be negligent unless they can prove otherwise on balance of
probs



Manufacturers of products not directly available to public, such as prescription
drugs, may discharge duty to inform by disclosing info to a learned
intermediary
Facts + Analysis
Caus
e?
>Dow negligently failed to inform the plaintiff’s surgeon of risk
>Court ruled that Dow could not use intermediary rule to shield itself from
Y
claims arising from its own negligence
>If Dow successful, would eliminate all causes of action for P
>”But For” satisfied simply if D fails to inform intermediary

Aside (Not Causation):
Concurrent Liability Arise frequently in this area as careless statements often made in the context of contractual
relationships
>Party may sue in either or both, subject to any limit the parties themselves have
Contract vs.
BG Checo Int’l v.
placed on that right by their contract
Tort
BC Hydro &
>To preclude a tort action, contractual provision must clearly indicate the intention
Power
of the parties, and be valid
(1993 – SCC)
Exception: Informed Consent
Keywords
Medical Procedures
Failure to Warn
Obj/Subj Test
Medical Procedures
Failure to Warn
Obj/Subj Test

Case
Reibl v.
Hughes
(1980 – SCC)
Ardnt v.
Smith

Facts + Analysis
>Healthcare professionals have a duty to put patients in a position to
make informed decisions about whether the consent to proposed
treatment
>Objective/Subjective test of causation: Would reasonable person in
the P’s position have consented if adequately informed?
>Majority defended objective/subjective approach on the basis that a
purely subjective test would require the court to hypothesize about how
the patient would have reacted if properly informed

(1997 – SCC)
Recent Attempts to Modify the But-For Test
>Can only be applied if two conditions are met (Hanke v. Resurfice Corp (2007 – SCC))
1. P must establish that it is impossible to prove causation using but-for test and that this
Material
impossibility results from factors beyond the P’s control
Contribution
2. P must establish that the D breached the standard of care and that his or her injuries
fell within the ambit of risk created by the D’s breach
Keywords
Case
Facts + Analysis
Caus
e?

HIV tainted blood
Negligent Donor
Screening
Multiple
Independent
Causes

Materially Increased Risk
Keywords

Case

Fails to Provide
Showers

McGhee v.
National
Coal Board

Burden Shifts to
D
Eye Operation

(1972 - HL)

Doctor
Negligence vs.
Natural Causes

P received HIV-tainted blood, argued hospital D did not screen donors with
up to date pamphlets – donor would have eliminated himself with
information
>But-for test unworkable in cases of multiple independent causes
>In cases of negligent donor screening, may be difficult/impossible to
prove hypothetically what donor would have done if properly screened
>Proper test for causation is whether the D’s negligence
“materially contributed” to the occurrence of the injury (outside
de minimis range)

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

Snell v.
Farrell
(1990 - SCC)

Modern
Approach
Reversing
Burden

Y

>Using but-for test, increased risk must be such as to make it more probable than not
that the D’s negligent act was a cause of the P’s loss
Facts + Analysis
Caus
e?
D hires P for sweaty job, but does not provide showers. P bikes home, and
develops dermatitis
>Impossible to tell whether showers would have prevented injury (but for
Y
fails)
>If D’s negligence materially increases risk of P’s injury, burden
shifts to D to disprove causation on a balance of probabilities
Doctor ignores bleeding in P’s eye during surgery and continues. P later went
blind. Blindness either caused by continued operation or occurred naturally.
>Modern Test: Burden of proof should lie with party who has the ability to
prove the point; Use common sense approach; Since D has more
knowledge, very little evidence will be needed to justify an inference of
causation, which D can refute
>Reversing burden may be justified where injury clearly not caused by
neutral conduct (ex. in Cook). It is quite different to compensate a P by
reversing the burden of proof for an injury that may be due to factors
unconnected to the D and not the fault of anyone

Y

After Causation Has Been Established
Devaluing the Plaintiff’s Loss
Keywords

Fall From Bridge
Electrocuted
Before Fall

Case

Facts + Analysis

Dillon v. Twin
State Gas and
Elec. Co.
(1932)

Child P played on bridge with exposed power lines. P lost balance, and
instinctively grabbed the power line to stop himself from falling. He was
electrocuted to death
>P’s probable future after accident affects liability and damages
>If the fall that P tried to prevent would probably have killed him, D would not be
liable, except for suffering of family members sustained by shock
>P’s life would have had no earning capacity or value
>If the fall would have caused serious injury, loss of life resulting from
electrocution would be measured by its value in such injured condition
>D only liable for electrocution, not fall
> Whether or not P would have recovered from fall are issues of fact ,which must
be found from evidence

Multiple Causes

Independent Tortfeasors: D only liable for injuries he/she causes or contributes to bringing about

Joint Tortfeasors: D liable for torts committed by his/her fellow tortfeasors, even if he/she did not cause or
contribute to P’s loss

Cook v. Lewis (1951 – SCC) recognized three situations:
1. Agent committing a tort while acting on his or her principal’s behalf
2. Employee committing tort while acting on his or her employee’s behalf
3. Two or more individuals agreeing to act in concert to bring about a common end which is illegal,
inherently dangerous, or one in which negligence can be anticipated

Divisible Injury: P has separate cause of action against each tortfeasor

Indivisible Injury: Two Categories:

Independent Insufficient Causes – But-For Test; Either party can be held fully liable

Independent Sufficient Causes – Material Contribution Test

Independent Insufficient
Causes
Keywords

Case

One NonCulpable,
One-Culpable

Athey v.
Leonati
(1996 - SCC)

Three
Possibilities
Crumbling
Skull

Roof Damage
Rot from
Leakage

Nowlan v.
Brunswick
Construction
(1972 – NBCA,
aff’d 1975 SCC)



Each factor individually necessary, but no factor is individually sufficient to have
caused the loss

Use But-For Test
Facts + Analysis
Caus
e?
P, with pre-existing back condition, suffered neck and back injuries in traffic
accident that D negligently caused. P later sustained herniated disc during
exercise program
>Exercise program not cause, but effect
>Three Possibilities
1. If both accident and back condition necessary, causation is proven,
Y
since herniation would not have occurred but for accident. D fully
liable.
2. If herniation would have occurred at same time w/o accident, no
causation
3. If independently sufficient, unclear which is cause. Judge must
determine whether D’s negligence materially contributed to the
injury
>Damages only awarded to extent that D worsened P’s condition
>CS: Need not compensate for damages P would have experienced
anyways
D neg. in constructing P’s house, which suffered rot due to leakage. D argued
damage would not have occurred but for the architect’s poor design which
did not provide for ventilation
Y
>Structural design and workmanship both contributing causes
>If design had provided ventilation, no rot even if leakage from poor
construction
>If design was poor, no rot if roof constructed properly
>Either party causing or contributing to damage liable for the whole
damage caused

Independent Sufficient Causes

Keywords

Case

Music with Organs
Refreshment
Stands

Lambton v. Mellish
(1894)

Successive Causes of Parallel
Injury
Keywords
Case
Non-Culpable
Injury
Inability to Work
Heart Attack

Penner v.
Mitchell
(1978 - CA)



Under But-for test, each tortfeasor would be absolved of liability,
because the plaintiff would have suffered the same loss regardless of
any individual tortfeasor’s negligence



Use Material Contribution Test
Facts + Analysis

Two D’s compete for customers at refreshment stands. Both play
music from organs, but Mellish’s was smaller than other D; P sued
for nuisance
>Each D held sufficient to have created nuisance
>Even if neither sufficient, combination of music creates nuisance
>Both contributed to it and are liable for the noise as a whole

Deals with extent of original tortfeasor’s liability when the P suffers an
independent successive parallel injury prior to the trial on the first injury
Facts + Analysis
P lost 13 months of work following accident caused by D. During that
time, P suffered independent heart condition that would have left her
unable to work for 3 months, even if accident had not occurred; D claims
he should not be liable for 3 months of wages
>Future contingencies favourable to the D should only be
considered in non-culpable circumstances (otherwise would lead to
overcompensation)
>Original tortfeasors can only take into account a successive culpable
parallel injury if it reduces the P’s disability or shortens the length of
time that he/she will suffer it

4. REMOTENESS OF DAMAGES

Caus
e?
Y

Caus
e?

N



Usually Wagon Mound #1 applied, but sometimes #2
The Directness Test

Keywords

Case

Facts + Analysis

Dropped Plank
Ship Explosion

Re Polemis and
Furness, Withy &
Co.

D’s servants carelessly dropped a plank into the hold of the plaintiff’s
ship, which caused a spark, and ignited a cargo of benzene. The
explosion destroyed the ship
>P’s loss not too remote if direct result of the D’s carelessness
>Must be a close temporal & spatial connection between D’s breach
and P’s loss

(1921 - KB)

Remot
e?

N

The Foreseeability Test
Keywords

Case

Oil into
Harbour

The Wagon Mound
#1: Overseas
Tankship v. Morts
Dock
(1961 - PC)

Wharf
Explodes

Facts + Analysis
D’s carelessly allowed oil to spill into harbour; floated underneath P’s
wharf. P undergoing welding; molten metal fell and the oil ignited,
damaging P’s property.
>P’s loss direct result of D’s negligence, but D did not and could not
reasonably be expected to have known that the oil was capable of
igniting when spread on water. >Re Polemis should no longer be
regarded as good law – P held liable, but not RF
>Foreseeability becomes the effective test; Objective test –
reasonable man.

Remot
e?

Y

Modifications to the Foreseeability Test
The Kind of Injury
Keywords

Case

Paraffin
Lamp
Open
Manhole

Hughes v.
Lord
Advocate
(1963 - HL)

Rats
Bites vs.
Urine

Tremain v.
Pike
(1969)

Courts can use whatever generality they see fit to reach the decision they want (more
detail, less liability)
Facts + Analysis
Remot
e?
D’s left paraffin lamp and manhole unattended. A boy knocked the lamp into
the manhole, causing an explosion. The boy fell into the manhole and was
burned
N
>Expansion of Wagon Mound #1: Type of injury, not just any injury, must
be foreseeable
>Explosion was unforeseeable, but injuries from burns were foreseeable, as
there was more than one way such burns could occur
>P is liable for accidents caused by a known source of danger, but
caused in a way which could not be foreseen
D did not control rat population on his farm; Farmhand got disease from rat
urine
Y
>While it was foreseeable that the boy could have been injured by rat bites, it
was not foreseeable that he could be injured by rat urine
The Thin-Skulled Plaintiff Rule

Keywords

Case

Burn on Lip
Triggers
Cancer

Smith v.
Leech Brain
(1962 – QB)

Minor
Injury/Major
Change

Morconato v.
Franklin
(1974 - BCSC)

Facts + Analysis
P’s husband was operating a crane while galvanizing articles when his lip
was burned. The burn promoted cancer in tissues that already had a premalignant condition. He later died from the cancer
>Test is not whether cancer was foreseeable, but whether burn was
foreseeable
>Cancer developed from the burn
>Tortfeasor takes his victims as he/she finds them
P suffered minor injuries in car accident caused by D. Following the
accident, she developed unexpected pain and experienced a major
personality change due to her pre-existing personality traits
>Though she had predisposition, no indication change would have
materialized naturally
>D could foresee probability of physical injury, and must take victim as she
finds her
>D must pay for all the consequences of her negligence, even

Remote
?

N

N

though unusual
>If it was reasonably foreseeable that D’s carelessness would
cause some injury of a particular type, then P can recover in full
even if, because of a special vulnerability, he/she suffered to a
greater extent than could have been reasonably foreseen
>If injury not foreseeable, P cannot recover even if, because of a peculiar
vulnerability, he or she actually suffered a great deal
The Possibility of Injury
Keywords

Possibility
vs.
Probability

Automatic
Toboggan
School
Explosion

Case

The Wagon
Mound #2:
Overseas
Tankship v.
Miller
Steamship
(1967 – PC)

Assinboine
South School
Division, No.3,
Greater
Winnipeg Gas
(1971 – Man CA;
aff’d 1973 – SCC)

Facts + Analysis

Remot
e?

Above
>PC finds that, contrary to Wagon Mound #1, the ship’s engineer ought to
have known it was possible to ignite the oil
>Possibility of ignition very rare, but reasonable man would not dismiss
such risk when it was so easy to prevent it
>Follows Bolton v. Stone: For D to be liable, possibilities of damage
must be significant enough that a reasonable man would guard
against them
>For foreseeability, rather than requiring that the type of injury be
probable, the injury only needs to be possible as long as there is a “real
risk”
>Risk that would occur to RP and not be brushed off as far-fetched
>Deals with degrees of foreseeability – Not dealt with in WM #1 b/c the
finding was that the fire was not reasonable at all
Auto toboggan negligently operated, runs into exposed gas pipe; Gas
leaked into the school’s boiler room, causing an explosion
>The extent of the damage and its manner of incidence need not
be foreseeable if physical damage of the kind which in fact ensues
is foreseeable
>Damage by fire and explosion was not RF, but physical damage to the
pipe was
>Possible for large vehicle, at impact, to create fire and explosion (WM#2)
>Gas company guilty of contributory negligence

N

N

Old Maxim: “Novus Actus Intervenes” –If a fresh, independent cause of action
arises, it will break
the chain of causation
>Does not apply if D under obligation to guard against very thing that
happened (Hewson)
Intervening Causes

Three Types of Intervening Forces (Old Approach):
1. Naturally Occurring/Non-Culpable Acts – Do not break chain of
causation
2. Negligent Intervening Acts – Break the chain of causation
3. Deliberately Wrongful/Illegal Acts
>Break the chain unless original tortfeasor has duty to
prevent the act
Within the Scope of the Risk Test (Somewhat Replaced Above Categorical
Approach):
>Some ask whether the loss was within the scope of risk created by original
tortfeasor
>More consistent with the purpose of remoteness
>Others ask whether the intervening act was within the scope of risk

Keywords

Case

>If intervening act neg., arguable that it is not RF (can’t anticipate that another will
act negligently)
Facts + Analysis
Remot
e?

1.Fire in
Restaurant

Bradford v.
Kanellos

2. Someone
yells “Gas!”

(1973 – SCC)

Negligent IA

1. Wrong X-rays
2. Neglect to
Get New Ones
Negligent IA
(Medical)

1.Leave Tractor
Unlocked
2. Someone
Sets in Motion
Illegal Acts

Second
Accident

Gross Neg.

Statutory
Regime?

Price v.
Milowski
(1977 – ON CA)

Hewson v.
Red Deer
(1976 – Alta
TD)

Wieland v.
Cyril Lord
Carpets
(1969)
Kolesar v.
Jeffries
(1976 – aff’d
SCC)

D negligently causes fire in restaurant, which is put out by auto
extinguisher, causing a hissing noise. Someone yells “gas,” causes panic,
and P is injured as people run from restaurant.
>Injuries resulted from the hysterical conduct of a customer in response
to the proper functioning of safety equipment; not a consequence that can
fairly be regarded as within the risk created by the D’s negligence; Not
reasonably foreseeable
>Approach: Look at original wrongdoer, and ask if RP ought to have
been able to
reasonably anticipate the interventions claimed to be new cause of
damage
P broke right ankle while playing soccer. Dr. Murray (D1) negligently xrayed foot, not ankle. P later sees second doctor who relied on D1’s x-rays
and also did not treat ankle as a break. By the time break was discovered
by third doctor, P suffered permanent disabilities
>Initial tortfeasor held liable if subsequent injury is within scope
of consequences of his own neg – if resulting injury was
foreseeable as a result of his own neg
>It was RF that D1’s x-rays might be relied on by others, even if negligent
to do so
>D2’s act compounded effects of D1’s negligence – not two separate
negligent acts.
>Case uses language of Wagon Mound #2 for intervening error: So long
as RP in position of original D could have reasonably anticipated that
subsequent conduct was possible, he/she will be potentially liable
>Christie concerned about holding initial tortfeasor liable for future
damages by subsequent negligent actors on this “possibility” basis
D negligently leaves keys inside tractor. Someone came and set tractor in
motion down roadway, and tractor crashed into P’s house
>Tractor was left in an open field to which many had access
>It was reasonably foreseeable that any of those people might become
aware tractor was being left, and be tempted to put it in motion
>Elementary precautions could have been taken but were not

Y

N

N

D’s negligence caused injury to P’s neck that required her to wear a collar. Collar
prohibited normal movement of her head. She fell down some steps, sustaining
further injury.
>Difficulties in seeing were within the risk created by the original negligence
>WM #1 does not call for foreseeability of precise events that transpire
>Not necessary to show each possible consequence within foreseeable scope of
original injury
>Gross negligence automatically not foreseeable
>May anticipate original amount of stupidity but not gross stupidity

>If hypothetical mentions statutory regime: In policy section, bring up fact that statutory regime
exists, but mention that there is not enough information to know whether or not that regime
sufficiently covers the problem, or whether it is an efficient way of solving the problem