Philosophy of Law Notes

What is Law?
A set of rules, which are enforceable by agents of the state. These agents of the state
are empowered by the state, and we recognized that we will be governed by these
rules. In this course we will be talking about the common law. Our common law
system started in England in 1066. William the Conquer established a system by
which you can have the kings justice and this would make law consistent
throughout the realm. He promised people justice if they came to the court (the
court was where the king was). People willingly took this on. The King appointed
judges and they dispensed rules, which became the common law. They started to
write down the decisions that they made and they kept the records of these
decisions in 1 place in the 13th C. they used past rulings from other judges to help
make current decisions to remain consistent. We call this judge-made law. The
fantasy around judges is that they arent making up the answer, they are figuring out
the right answer. This system of stare decisis, which means the decision stands.
When you get a decision with a legal principle in it, we say that the decision stands.
It is not the entire case which is binding, just the reason for the decision. Ratio
decendendi (the reason for the decision) is the binding element in a past case.
Obiter dicta (things said by the way) are the elements that help us in the exercise of
truing to determine what is binding and what is not. It is not always obvious to
determine what is the ratio and what is binding in the case. This means that cases
could be decided wrongly. This is a flaw in the common law system. The system is
slow, laborious and sometimes unreliable which are all weaknesses in the common
law system. It is a complicated system, which takes considerable expertise to
maneuver. In Quebec, they have a civil code, so they just have to use 1 document,
which has been complied. Statute laws are enactments created by elected officials.
Statutes are often written to clarify or correct problems, which the common law
cannot deal with. Common law affords a defense and statute law often takes
defenses away. Statute law is out there to create a legal regime that protects or
governs what would otherwise be a common law contractual relation. When the
courts make a decision and interpret a statute, that decision can become binding on
other courts, it becomes part of the body of common law. We have a hierarchical law
structure (with upper and lower courts). We have small claims court, which was
created by regulations that put them in effect (very small courts). Trial courts are
also called the court of original jurisdiction. The plaintiff is the person who is suing,
the person who has to prove his case. The plaintiff sues witnesses to prove their
case. The judge or jury (depending on the case) is the trier of facts. People with no
particular expertise are expected to be able to act on a jury and be able to determine
whether a person giving evidence is lying or telling the truth. The decision at trial
court is not binding on any other court. Above the trial court, there is the Ontario
Court of Appeal (when you want to appeal a decision). Questions of fact or
credibility are not appealable; you can only appeal a ruling based on a mistake or
error of the law. An appellant court only reviews documents; they dont get to see
the witnesses. You can only go to the court of appeal on a question of law. There can
be 3-5 judges in the Ontario Court of Appeal. The decision at the Ontario Court of

Appeal binds the courts below. If one judge doesnt agree, then he is said to have a
dissenting opinion. The dissenting opinion is kept on record because it might come
to a point where the case is revisited and the dissenting opinion is found to be more
accurate or just as accurate than the majority opinion. There are also cases where a
judge agrees with another judge in the outcome but for different reasons (called
concurring opinions). The Supreme Court of Canada is above the Ontario Court of
Appeal. The SCC binds every court below in every province in Canada.
Tort Law
The law of tort is the law of actionable wrongs. By actionable we mean that it is
something that you can sue for. Action in law means a lawsuit. In tort law, we ask if
there is any lawsuit recognizable in the common law. Tort law is the private law of
lawsuits. Public law is when there is an offence against the state, where the state
prosecutes and determines what to prosecute for. Private law is where private
citizens are the litigants (people involved in the court action). There can be
concurrent liability in both criminal and tort law (the same set of circumstances can
generate a criminal case and a tort case). Some words, which mean the same, have
different names in criminal law (assault in criminal law is battery in tort law, theft in
criminal law is called conversion in tort law). In a criminal trial, the state has an
onus of proving its case; the standard of proof is beyond a reasonable doubt. The
standard of proof in a civil case is a balance of probabilities (this is a lower
standard of proof than in criminal court). There are 2 categories of torts: the
intentional tort and the unintentional tort. Intentional torts are the oldest and they
are actionable per se. These include trespassing, unlawful imprisonment and many
others. Harm/injury is not a necessary element of intentional torts. We need to find
blameworthy conduct to attach civil liability to a person. The primary unintentional
tort is negligence. For an unintentional act, the law still has to find blameworthy
conduct to attach liability. We need to find blame to say that you did something
wrong, even in the case of negligence. In negligence, if your behaviour falls below a
reasonable standard of care, then you are negligent.
There are 5 elements to a negligence case/ action that a plaintiff needs to prove.
1. Duty of care
2. Standard of care
3. Breach of standard
4. Causation
5. Damages
If you cannot prove that damages occurred, then you will lose your case. You must
prove harm/injury and that that injury was caused by a person that had a duty to be
careful. There is a different way of looking at tort law in the United States. In the US
there is a loss spreading mentality, when a company loses a case, they just spread
the costs over their product so that in the end, everyone loses. In Canada (and the
UK), there is a loss fixing mentality. By this, the courts try finding out whose fault it
is and they identify the cause and whether or not there is a liability. Weinrib (author
of the article) is a proponent of loss fixing, not loss spreading. He says that loss

spreading takes away the emphasis of figuring out whose fault an action is (the
traditional system).

WEINRIB:
Two conceptions of Tort Law (Negligence Law)
U.S. Loss spreading

U.K. Loss fixing

Loss spreading: U.S. Traynor J. in Escola v Coca Cola Bottling Co.,
- cost of injury etc. overwhelming to , therefore the law should simply make
manufacturer an insurer for consumer,
- cost of injury spread among the public as a cost of doing business
Loss Fixing: U.K. : Stephen J. : task of courts remains that of loss fixing
and not loss spreading
1. insurance should have no impact or relevance in this determination
2. let the legislators do this specifically, tort law is to find whether liability
exists on principle
- loss fixing means finding out whose fault it is fixing the blame
Liability insurance: comes after liability if no blameworthy conduct on part of tort
feasor or defendant, therefore no liability
Damages or loss only comes after Q of liability -- if the availability of insurance
proceedings is a factor in determining liability, this is backwards, i.e. cant decide
is at fault because there is money available to pay
Emphasis on loss spreading takes away traditional emphasis on loss
fixing, and distorts principled basis of negligence law
Liability is a judgment on interaction, not a tax on activity
II of essay:
Features of tort law:
1. doing and suffering are correlative, make sense only in terms of each other
- doing is only significant in terms of suffering and vice versa (this is only
accurate for unintentional torts)

2. justifications for tort law must also be correlative, deterrence is not a

factor, because it effects only the doer; compensation alone leaves out the doer
3. justifications yield a normative structure based on above,
- normative structure (underlying justifications) must be reciprocal
4. duty violated is also a right owed to
5. the enforces a private right only, not a public interest
6. only entitled to remedy that def is obliged to provide, does not include
blending of policy considerations or other outside factors,
- quantifies the harm done by that act to that particular
7. keeps the courts to their proper function, a resolution of a particular dispute,
not a utilitarian justification
The central point from the preceding observations: private tort law is defined by
the relationship between plaintiff and defendant, and an insurance company is
not involved in this relationship, at the stage of determining liability.

Part III: p 1-9

- insurance drains relationship of its immediacy
- jurisprudence takes on instrumental, social policy aspect (this is a bad thing)
- insurance availability becomes a measure of validity of s claim
- loss spreading, deep pockets, etc.
Legislation is different from adjudication
Leg - public policy objectives, specific, spelled out, debated, an expression of the
political will
- responds to and creates new situations
Adj - resolution of particular dispute
- decides cases on existing, previously known, legal principle
In Canada we keep tort law essentially private
Part IV
Legal Realists - they say that judges do what they want to further policy
objectives and pay lip service to principle by looking for cases and
interpretations to rationalize a predetermined outcome.

But - if there are pre-existing principles that determine outcomes that are simply
actualized as positive law, Realists are wrong
- i.e. judges are discovering principle, not making it up, and
- the corrective model is a moral judgment between the parties involved
Positivist: this is a concept known as black letter law
- the positivist says that people have no rights except those that are written by
the entity with authority to write laws
- laws are only what is written, and are exactly as written, whether they are fair or
not
- legal realists say that judges are inventing rules through rationalization
- Wienrib thinks the common law is positivistic in the sense that it relies on and
through application and interpretation helps to establish settled principles of law
that are written in the judgments of the courts
- this is a criticism of the legal realists accusation, and a justification for
maintaining a traditional, U.K. or Canadian style conception of tort law
- Wienrib sees the insurance driven model as consistent with the legal realist
critique of law
- But Weinrib calls traditional tort law positivistic because laws already exist and
are discovered - there is an existing inductive ordering / foundation of reason,
this defeats the idea that judges are just rationalizing pre-determined outcomes
Aristotle saw 2 different approaches to law
Corrective - private law - tort law
Distributive - for the greater good, public, mediated interaction, and utilitarian
Kant: sees private law as based on nature of humans as self-determining,
responsible for their actions
- if people are free willed and self determining, individual responsibility does not
entail instrumental policy objectives
Weinrib suggests that judges in U.S. are trying to help where conservative
legislatures have failed to provide for consumers and / or injured and likely
uninsured parties.
Weinrib suggests that in Canada, legislation is more likely to assist, the courts
should stay out of the public policy justifications.
Questions:
1. You should be able to distinguish between the American approach to tort law
and the Canadian or U.K. approach.
2. What is meant by loss fixing?
3. What is meant by loss spreading?
4. What impact is insurance having on tort law?

5. Do you think this might explain the differences in what you have heard about
damages awards in the U.S.? Or perhaps this is what makes the U.S. a litigious
society. Explain.
6. What is meant by the term positivist?
7. Is the common law positivist?
THE CASES:
This is the fun part. You are going to read excerpts from actual cases. They may
seem obscure at first, but you will know enough about law and how judgments
are written, to enable you to know what to look for. Think of it this way: This is
your invitation into the world of secret incantations that would otherwise be
unintelligible. You are soon to be party to the strange and seemingly occult world
of lawyers and judges, and with a bit of effort you too will understand what they
are talking about. Now thats a scary thought.
Some preliminary information about reading cases.
Plaintiff : the injured party, the one doing the suing
Defendant: the party being sued, the wrongdoer, also known in a tort case as
the tortfeasor
Pleadings : Documents setting out the allegations of the parties to a law suit. In
a fairly traditional or historic use of language, the parties make a plea before the
court.
Statement of claim: plaintiffs pleadings, setting out the allegations of wrongful
conduct and including the prayer for relief, i.e. the remedy sought.
Statement of defence: defendants pleadings, setting out why the defendant
claims he did nothing wrong; or the plaintiff cant prove its case; or the conduct
described is not a wrong recognized at law, or something similar.
Appellant: A party appealing a decision. Either the plaintiff or defendant can be
an appellant, it depends on who disagrees with the decision. As the matter goes
up the appellate ladder a plaintiff or defendant can change to an appellant or a
respondent.
Respondent: party who responds to an appeal opposite of the appellant.
When you read a case, if there is no name at the beginning of the segment,
telling us who is writing the reasons, then this part is likely a headnote or
description of what the case is about. This would be written by someone
employed with the reporting service publishing the case. Judges always show
their name, then the initial to indicate their status. For example, Stephens, J.,

means Judge (or Justice) Stephens. There are a couple of cases where the
arguments of the lawyers are actually provided in the case excerpt. This is
extremely rare.
DUTY OF CARE:
What follows is the leading case establishing the legal duty that is owed in a
negligence case. It establishes foreseeability as the test for liability, and this
foreseeability is based on the prescient abilities of the reasonable and prudent
person.
Note how the case uses previous case law to draw out the uniting principle to
form a rule of law.
In Scotland, the trial judge is known as the Lord Ordinary, and the plaintiff is
known as the pursuer.

MAlister (or Donaghue) v Stevenson

NOTE: the plaintiff never led any evidence, the entire case was argued on the
basis that there was no cause of action based on the pleadings the facts were
accepted by the defendant as being true, the defendant argued that they did not
support a cause of action in other words, even if everything the plaintiff says it
true, you cant sue for that in Scotland.
The is the appellant:
Facts: attended caf, friend bought her a ginger beer, drank portion of
beverage, while pouring the rest into her glass, rotten snail fell into the glass
- bottle was opaque
1. she was sick
2. sued manufacturer for failing in its duty to ensure snails didnt get into
beverages, and failed in duty to inspect beverages and in failing caused
the accident
Held: succeeded at trial (Lord Ordinary = trial judge)
1. on appeal - Second division overturned trial decision and dismissed the
action
2. sole Q before the court: do the pleadings disclose a cause of action?
House of Lords: for the
1. does the def owe a duty of care to ?

2. Previous cases decide the particular situation to find a legal duty

3. Need to find general common element in the duty found in previous
particular cases
4. At 1-16: love thy neighbor, at law -- must not injure thy neighbor
5. Who is my neighborpersons so closely affected by my actions
reasonable care, reasonably foresee etc.
1. caution as to extent of duty, proximity, not necessarily in time or
distance, but as such close and direct relationship that a person or
property could be injured
the foreseeable plaintiff - must have them in contemplation when directing mind
to acts or omissions
OUGHT means the same as should this is the objective reasonable
person standard, and not the subjective standard as to what the def
actually thought
NOTE: The objective standard is an extremely important concept to tort law, and
is sharply contrasted with the subjective standard found in questions of intention
and knowledge in the criminal law.
An objective standard of the defendants knowledge of potential harm means a
defendant cannot defend herself merely by claiming she didnt know any better.
What she actually knew about the potential harmful consequences of her actions
is irrelevant. If a reasonable person would have known about the potential for
harm, then the defendant should have known and will be held liable.
1. case establishes, as well as reasonable person test for duty - a
manufacturers liability
2. ultimate consumer is in the contemplation of the manufacturer
Ratio: at 1-18 My Lords
Questions:
1. Of what significance was the fact that the bottle was opaque?
2. Why did the defendant think that there was no law suit for this kind of
situation?
3. What is meant by describing the reasonable person standard as an objective
standard of conduct?
4. Do you see any problems in establishing what a reasonable person might
know?
5. Who at law is my neighbor?
6. Is this decision a departure from tort law as described by Weinrib?

Week Two: DUTY OF CARE CONTINUED

PALSGRAPH V LONG ISLAND R. CO.
If the preceding case was about establishing a relationship, and finding a duty of
care, this case is about refining that duty, and clarifying the principle that a
duty must be owed to the plaintiff in the particular circumstances before
liability will occur. The risk is relational, the plaintiff must be a foreseeable
plaintiff.
Although all of us are entitled to live our lives free from the risk of injury, the law
will only extract compensation for our injury from the defendant where there is
fault. Fault in negligence is failing to recognize a foreseeable harm, there is no
duty if harm is not foreseeable.
This case also clearly establishes the order of the questions for liability in
negligence. We cant simply say that because someone was injured, there must
be liability, reasoning back from damages and causation. This is a great case to
see the stark contrast between the majority and the dissenting opinion. The
majority opinion stays true to negligence principles, insisting on the duty of care
to the particular plaintiff, insisting that without reasonable foreseeability, there is
no duty owed to the plaintiff. The defendant acted reasonably in the
circumstances.
The dissent, however, insists that foreseeability requires an almost prescient
knowledge, that if the defendant isnt something like a fortune teller, he cant be
held liable. He reasons that we all, as potential plaintiffs, possess a basic right to
be free from wrongful injury. I suppose we arguably have a right to be free from
injury, but to use the word wrongful here is putting the cart before the horse. We
are trying, in a negligence analysis, to establish if the conduct was wrong, we
cannot presume it is wrong to establish it so. The dissenting opinion reasons the
conduct is wrong because the injured plaintiff is an innocent person.
The dissenting opinion also holds that any time there is conduct causing
damage, and there was no wrongful act on the part of the injured party, then
because there is injury the defendant must be liable. This is wrong, exactly
wrong. One cannot reason back from the injury and causation alone is also
insufficient.
So, the dissenting judge reasons backwards from harm, and finds liability, or
fixes the blame, on whoever caused it.
Dissenting Justice Andrews rejects foreseeability as the test for a duty of care,
but goes on to say that foreseeability can be used to determine the practical
question of where you stop paying for injury, as the consequences of a single act
are potentially unlimited.

Facts: plaintiff standing on the platform at Rockaway Beach, two men ran to
catch moving train, defs employees pulled and pushed second man to help him
onto train, he dropped his package, package exploded, some scales fell down,
landing on the plaintiff and injuring her:
Held: at trial for the , and on appeal (state level) for def
On appeal, case dismissed
1. no duty of care owed between defs employee and
2. p 1-19, not a wrong in relation to - nothing in situation gave notice
that package was perilous
3. may be a wrong in relation to package guy, but not the , 30 feet away
4. negligence once established extends to all damages caused, negligence
is not established in this case
5. act did not pose foreseeable danger to any person (* consider, if
contents of package were known, employee would not push person advert to potential harm)
6. since harm was not foreseeable, def owed no duty to
7. p 1-21, risk reasonably to be perceived defines the duty to be obeyed
8. p 1-21 the question of liability is always anterior to the question of
the measure of the consequences that go with liability , no tort
liability, no measure of damages
9. this second statement at p 121 establishes the order in which the
elements of a negligence action must be addressed, the first being the
Duty of Care
Dissent:
1. feels that act was a wrong to the world at large, def accepts all
consequences
2. reasons back, if there is damage caused, obviously did something wrong
3. objects to proximate cause limitation, objects to foreseeability test
4. one should not have to foresee exact nature of mishap or those to be
affected, it is enough that they are affected
5. sees proximate cause as a limitation of practical utility, cant make the def
pay for everything that happens
- foreseeability applies here at this point, to determine the extent or scope
of how far

Bourhill v Young

This case further refines the notion of foreseeability. Now we are discussing
whether the kind of injury is foreseeable. The plaintiff in this case is a bystander,
her injury caused simply by seeing the incident.
Facts: a woman 8 months pregnant, standing 45 from collision, motorcyclist
was killed in collision, suffered nervous shock as witness to the collision, baby
was still-born, sued negligent motorcyclist.
Held: for the def, def owed no duty of care to , *def was negligent, but not in
relation to
- nervous shock suffered by the plaintiff is not a foreseeable injury
1. must be negligent to this
2. * p 1-28, if the wrong is established, the wrongdoer must take the victim as
he finds him - thin-skulled rule, only applies after liability is established,
3. p 1-28, Q of liability is anterior to Q of measure of the consequences
This case qualifies the notion of foreseeability to say the kind of harm must be
foreseeable. This plaintiff sues for nervous shock, the court finds that nervous
shock is not a foreseeable injury.
If the injury is not foreseeable, there is no duty of care to this plaintiff.
The thin-skulled plaintiff rule:
The reference to the thin-skulled plaintiff rule tells us that until liability can be
established, through a duty of care owed, the rule will not apply.
The thin-skulled plaintiff rule takes away an argument that a lack of foreseeability
might otherwise give a defendant.
Consider this example. A defendant strikes a person who is, unknown to the
defendant, a hemophiliac, also referred to as a bleeder. An otherwise minor blow
to someone without this disease can have catastrophic consequences for the
hemophiliac. The injured hemophiliac might sue the defendant for her injuries.
The defendant might defend on the basis that he had no knowledge of the
plaintiffs condition. He could argue that he should only have to pay for an injury
that would be sustained by a normal person, because the extent of injury was not
foreseeable.
The thin-skulled plaintiff rule precludes this defence. The rule is that the
tortfeasor takes his victim as he finds her, and is responsible for all the injury
caused by his wrongful conduct.
But recall from the Bourhill v Young case, the rule only applies after you find a
duty of care, and a breach of that duty. You are only liable for wrongful conduct,

and if the conduct is wrongful, the rule says you pay for the full extent of the
injury. If the conduct itself is not wrongful, no amount of harm is going to make it
so.
We could again look at our hemophiliac example. If the contact was a typical pat
on the back friendly gesture, then injury is not foreseeable. Accordingly, there
will be no liability. If the contact was a punch, or a slap, where some degree of
injury is foreseeable, then there will be liability, for the full extent of damage.
In Bourhill v Young, the court held that harm to a by-stander, caused by merely
witnessing the collision, is not foreseeable. Accordingly, no duty of care, and no
liability, to this plaintiff.
VICARIOUS LIABILITY:
1.
2.
3.
4.

through actions of another

does not require any fault on part of party vicariously liable
most often seen in employer employee situation,
employers are vicariously liable for damages caused by employees, acting
during and within the scope of their employment

OAKE v. WEIDE TRANSPORT

Facts:
Plaintiff (deceased) driving on a gravel shoulder / median, trying to pass a slowmoving truck, at the end of median, was impaled by sign post sticking up out of
the ground. The defendant Carra had been driving a truck in the other direction
and knocked the sign down. killed when he was impaled, estate sued driver
and company (vicarious liability), sued defendants for negligence for leaving
the sign in such a manner as to cause the death of the .
Held: at trial for the , def Carra was negligent in not removing or reporting
the damaged sign
On appeal Man. C.A.: for the defs; the was not a foreseeable , as the
accident was not foreseeable in the circumstances
1. no negligence when def hit signpost
2. surrounding signage, and layout of the road indicated that ordinary
reasonable driver would not be driving where the was driving, i.e.
on the gravel median that was almost at an end, highway went from
divided to undivided at end of median
3. as used road in an unusual manner, kind of accident that occurred
was not foreseeable
4. at p 1-32, damages and injuries not foreseeable and too remote

5. freak accident -- could not reasonably have foreseen would attempt to

pass at gravel divider
Dissent: not necessary to foresee precise nature of accident in order to
find liability
1. when def cleaned up debris and asked attendant about reporting,
indicates he did foresee potential danger
- may also consider the second argument advanced by the defendant - if he was
not negligent in knocking the sign down, he was not negligent in leaving it as it
was, - he was in the position of any bystander - there is no legal duty to warn
generally
- the dissent rejects this argument

MOULE v NEW BRUNSWICK ELECTRIC POWER

COMMISSION
Rule in Rylands v Fletcher
There is a brief mention of this rule in this case, and it is a rule that would find
liability if there was injury, no matter how careful the defendant was in its
conduct. The court did not use this rule, and instead resolved the case on
negligence principles.
Strict Liability (in the civil sense)
- generally referred to as the rule in Rylands v Fletcher, Ryland filled a reservoir,
filled up his neighbor Fletcher's coal mine with water, "anyone who accumulates
something non-natural on his land...is liable"
- no matter how careful you are to avoid injuring others, if you do the above, you
are liable
- eg: transporting hazardous waste- products liability cases
Facts:
Defendant power company had high voltage wires on towers, cleared tree limbs
at 32 distance from wires. There was a maple tree 5 from wire at bottom, 32
from wires at top, branches near wires were trimmed off on wire side, at wires to
40, but not on the other side. Branches on other side from 25 to 40. Wires were
336 from the ground. Spruce tree near by, branches trimmed to height of 13,
someone put steps on tree, climbable. There was a platform on the Spruce tree
leading to maple tree, and more straps to allow climbing of maple tree. There
was a crotch in the tree at height of the wires. At trial, court held that the had
climbed the trees, and fallen and thereby come in contact with the wires.

The s lawyer argued that had reached out and touched the tree, therefore
the tree was too close to the wires, and was a foreseeable accident, i.e. boys
climb trees, trees were close enough to wires to be touched - court held boy
could not reach wires, touched them when he fell
Held: at trial, for , trees are alluring to boys, foreseeable they would nail cleats
to trees, foreseeable child would slip and fall, even though not probable,
reasonable and prudent person would foresee danger and remove tree
altogether
On appeal: judgment reversed,
On appeal SCC: facts disclose so fortuitous (unexpected) a sequence of
events, the injury and fall were not foreseeable
This is not a foreseeable , def precautions were sufficient to avoid
foreseeable accidents
Duty of Care
Amos vs. New Brunswick Power Commission
What happened in this case, it is against the NB power commission. Kids are
climbing poplar trees and they were close to the power lines. The tree bent over and
came in contact with the power lines. The kids hair was actually on fire and a guy
chopped the tree down. At trail, the plaintiff was successful because the accident
was foreseeable and the defendant had a duty of care to the plaintiff, but the case
was appealed. The NB court of appeal overturned the decision of the trail judge and
found in favor of the defendant in this case. The trail judge made his decision
because the NB power commission didnt trim the trees like in the previous case.
They overturned the decision because they felt that they were bound by the decision
in rule, but when you look at the similarities, they are a lot fewer than the
differences. The defendant in the previous case took care of the trees and trimmed
them, so the ruling from that case was taken over to this case. In the Moule case the
incident was also unlikely and in this case, the accident was actually somewhat
likely. The SCC didnt see the similarities and noticed that the defendant took no
care to trim the trees like the NB power commission did in the previous case. The
injury in this case was foreseeable and the defendant did not take the
necessary precautions towards the potential situation; therefore the
defendant is liable and the plaintiff won.
Standard of Care
A duty is a fairly easy threshold to meet and you have to worry about if you might
injure someone if you do something. A standard of care is, is it just foreseeability
alone, or is there something else to turn our minds to?
Bolton and Others vs. Stone
In the cricket club, someone hits a ball over the fence and it actually hits someone in
the head. This person who was hit in the head sues the cricket club. This was an

unlikely event but the plaintiff sues. The defendant wins at trial and on appeal, the
plaintiff wins. The House of Lords say that anything is foreseeable, but how likely is
it? Maybe we must consider how likely is the event to happen when we are
determining liability. The street is a quiet one and it is also very unlikely that the
ball goes over the fence (6 times in 30 years). It is clear that it is not that likely that it
is going to hit someone if a ball goes over the fence. The question is: Are we liable to
avoid our conduct with the potential to injure someone else or is it to avoid conflict
only when that injury is likely? We will also ask: how likely is it that someone will be
injured and what is the likelihood that it will be a serious injury? If a risk is remote,
it is reasonable to run that risk. The risk was so unlikely that a reasonable man
would have refrained to taking steps to worry about it. The likelihood of the injury is
low and the likely of severity of the injury is also low.
The 4-factor test that courts will apply is:
1. How likely is it that someone will be injured?
2. What is the likelihood that it will be a serious injury?
3. What is the cost of avoiding the injury?
4. What is the social utility of the conduct of that issue?
Paris vs. Stepney Borough Council
A guy working in a factory who only has 1 eye caught a chip of something in his good
eye because his employer didnt give him glasses. He wins on trial but the
defendants win on appeal. His employer knew that he only had 1 good eye so his
likeness of severe injury is much higher because he only had 1 good eye. This made
an obligation on the employer to give him safety glasses.
Causation
We have to establish all these things to win. Causation can become complicated
because you need to prove that the actions caused the result.
McGhee vs. Nat. Coal Board
The defendant worked empting pipe kilns. They changed his job to emptying brick
kilns, which was a lot dustier and a lot hotter. He noticed an abrasion on his skin
after working in the brick kiln. It turned out to be dermatitis and he got it from
work. He sued because the only known way to prevent dermatitis is to shower. He
rode his bike to and from work and there were no showers in work. Causation is the
issue in this case and expert witnesses were brought to trail who said that
dermatitis is caused by abrasions on the outside layers of the skin. The underlying
layer of skin is vulnerable to injury. Medical science cannot determine the exact
nature of the injury but they know that you can prevent it by washing. They also
agreed that the longer the exposure to dust, the greater the risk of dermatitis. The
plaintiff must show that the defendant caused or materially contributed (multiple
tort feasers) to the injury. In order to say that it materially contributed to the injury,
we need to know the causation. In Bonnington Castings, the plaintiffs injuries were
caused by dust coming from 2 sources and inhaled onto his lungs. Both sources

materially contributed to his injury and caused his injury. In the current case we
dont have that. In this case, we have a material increase in risk, not in material
contribution. We dont know what really causes dermatitis. The injuries could have
been caused by: 1. An accumulation of minor abrasions or 2. A single abrasion that
spread to others. We have to take a broader view of causation. He says that if the
plaintiff proves what the defendant did and that it materially increased the risk to
injury and the injury takes place, then that is good enough to cause causation
(according to Lord Reid). Lord Wilberforce (concurring opinion) says that the
defendant should have known to provide showers to prevent this risk. He says that
washing after work is standard in this industry and showers should have been
provided. He says that it is foreseeable for injury if showers are not provided. The
injury here is the cause of the accumulation of exposure and not washing. All the
experts could show is the accumulation of risk. When you have an increase in risk
of injury and the injury occurs then the onus falls on the defendant to disprove
causation. He doesnt place the onus on the plaintiff if both those elements
took place.
Causation- you did something and that caused an injury
Materially contributed- we have more than 1 thing that caused injury
Increased risk to injury- it is a lot more likely that you will be injured so causation is
not our primary worry.
Remoteness of Loss/Damages
Lauritzen vs. Barstead; Wananesa Mutual Insurance
The plaintiff was a carpenter and he asked his foreman on a highway for a ride home
to call his wife. His foreman and the rest of the guys in the car are drinking in bars
along the way and the defendant (foreman) came out of the beer parlor with 2 cases
of beer. He made the plaintiff drive home because the foreman is too drunk. Before
reaching the turnoff, the defendant wanted the plaintiff to turn in for more beer and
the plaintiff refused. The defendant then hit the plaintiff and knocked off his glasses
and then grabbed the steering wheel and the car slipped off the road. The weather is
very poor (Alberta in December). They ended up in a deep ditch and then decided to
wait until the daytime to figure it out. The defendant then drove the car into the
riverbed. The car was stuck for a long time and then the defendant walked to a farm
and eventually got to hospital. He has a lot of frostbite and lost significant parts of
both his hands. The defendant was negligent in drinking and driving, in grabbing the
steering wheel and in driving the car further into the riverbed. The defendant
argued that novus actus intervineus occurred (a new intervening act) that
interrupted the chain of causation. The intervening event being argued was that the
plaintiff let the defendant have the keys when he knew that he was drunk, which
landed them into the riverbed. He also argued that the defendant landed them in the
ditch and that is was partially his fault. The court said that the defendant was
reasonable in all his actions to survive the events that were risking his life thanks to
the defendant. The carpenter could not be compensated for his wife leaving him
because he was crippled by the defendants actions because it was not foreseeable.

Damages
Andrews vs. Grand & Toy is the definitive case in damages on how to calculate
damages in tort law. Whenever you see the word damages, it means money, not an
injury or damaged property. There are different kinds of damages, most are
considered to be compensatory, which is just compensation for loss (wages,
property, etc.). Punitive damages are for punishments. You can be punished
monetarily but the purpose of the damages is to punish. These are often directed
towards corporations because corporations cannot go to jail. There are also nominal
damages, which are trivial damages, which are very small. Those are when you win
your case but there is no harm or injury proven so the court gives you a little bit of
money. You cannot have nominal damages in a negligence case because you need to
prove harm/injury in a negligence case. Only in an intentional tort case can nominal
damages be rewarded, never in unintentional or negligence cases. Another type of
punitive damages is exemplary damages, which try to make an example of the
person.
General Damages
In tort law we have general damages, as distinguished from special damages. Special
damages are something that is easily and precisely quantified. General damages are
not easily quantified and there are 2 types of general damages. Pecuniary losses are
monetary losses that are hard to quantify such as long-term care and lost wages for
the future. The other type of general damages losses are non-pecuniary losses. They
are losses that are not money, but are still losses. These are generally pain and
suffering. This makes it very hard for the court to determine how much your pain
and suffering is worth.
The purpose of compensatory damages in tort law is to put the plaintiff in the
same position that he or she would have been in had the tort not occurred.
Andrews vs. Grand and Toy
This case tells the courts how to deal with damages that are problems. The court
assesses damages and has to look into the future. There is no ability in the court for
it to revisit the case every once in a while to reevaluate the money your given. The
court has to make predictions of what is going to happen in the future and make a
single monetary payment at the time of the case. The big money is a judgment is the
cost of future care from injuries. Before this case, it was not unusual for a wrongful
death suit in Canada to be resolved for $10,000. In this case, a truck hit Andrews and
we are looking at a vicarious liability case. There is a decision by the trial judge and
the insurance company appeals to the Albert Court of Appeal and they make all sorts
of changes to the damages. He lost the function of both his legs and his trunk; he was
almost fully disabled. He still has normal mental functions and is learning how to
drive. He is also living on his own. He would have been able to live independently if
the accident never happened. He will need someone around for 24 hours a day for
him to live in a home of his own. The trial judge thought that it was okay but the
Alberta Court of Appeal reduced the damages substantially. They said that living

alone would be a luxury and a privilege. The SCC thinks that it is not extravagant to
expect him to live on his own. The Alberta Court of Appeal says that normal people
who have an injury like this to live with their family for the rest of their life. The ACA
said that they knew that the plaintiff would be better off to live on his own, but it
would be vastly too expensive. They also said that if you give him all this money, he
could just go to the casino and blow it all away. They also ask: what if he goes to
hospital for the rest of his life, then the money given to him wouldnt help him live
on his own. There is a reference in this case to insurance availability. The courts
reference to insurance availability is not appropriate here because you shouldnt be
talking about insurance. The Alberta Court of Appeal also just randomly chose
$1000 to be the home care. They also reduced the amount by contingencies at trial
from 20% to 30% of the total damages. Since we dont know what is going to
happen with care improving and other things getting cheaper, so you maybe might
not need as much money. The court gave Andrews a lump sum that should last him
for 45 years (his estimated life span). It is very difficult to compensate for nonpecuniary damages such as pain and suffering and other damages. What do you do
to compensate for this? It becomes a policy and philosophical exercise. There are 3
ways to approach this. 1. The Conceptual Approach different injuries are worth
different amounts. 2. The Personal Approach the loss of a limb to one person
could be much greater than the loss to another person, such as someone who needs
a hand to do his or her job. 3. The Functional Approach (used in this case) This
approach recognizes from the outset that you cannot really compensate someone
for the loss of something, but money will provide some kind of reasonable amount
of solace. The SCC said that there should be a cap for the money to be provided
based on different damages.
Matthews v McLaren, Horsely v McLaren
This is an example of a hard case.
The Rules of Rescuing
1. You have no legal duty to rescue- unless the law recognizes or imposes some
special relationship (such as your child drowning).
2. If you start to rescue somebody you have no duty to complete the rescue as long
as you dont make his or her situation any worse- unless you make the situation
worse for the person, then you have a liability.
3. If you start and you attempt is negligent then the would be rescuer may be liable
if the negligent causes/ worsens the situation of peril
4. Rescuee owes duty of care to would-be rescuer- unless rescue attempt is
obviously futile and reckless.
This case is a companion case because it involves 2 peoples deaths, and the facts of
the case are identical. McLaren had a boat and he and his guests were going back to
the yacht club after consuming a little bit of alcohol. Matthews fell off the boat into
the water. Nobody knows why he fell off but it isnt so important in this case. The
water was pretty damn cold; it was 39 degrees. The defendant stopped the boat
when he realized that Matthews fell off and he backed the boat up to get back to

Matthews. As they were reaching to get him, the boat drifted away. As it drifted
away, Horsely jumped into the water to help Matthews. Matthews vanishes under
the water and Mrs. Jones jumped into the water to get Horsely out. Jones then grabs
the steering wheel and turns the boat around to get them. Horsely died of cardiac
arrest from the temperature of the water and they never found Matthews. Horsely
had no previous heart condition before this episode. This is important to show that
it is this event that caused the heart attack to happen and that it would not have
likely happened otherwise. Since Matthews body was never recovered, cause of
death was never determined. Therefore you can't prove causation because he could
have already been dead before he hit the water. At trial, the judge found that the
defendant in the case was negligent when he attempted the rescue because the bow
on method is the recommended rescue method, not the backing up method. Since
he didnt use the right technique, it was a negligent rescue attempt. Experts said that
he should have known to use the bow on method. During the rescue attempt,
McLaren created a situation of peril for any other people who would have attempted
rescue, he induced others to rescue Matthews. They said that the wrongful conduct
caused Horsely to jump into the water and subsequently die. The trial judge thought
that Horselys conduct was completely reasonable in the case. It was irrelevant that
ultimately he used the right rescue method to eventually get Horselys body.
At appeal, justice Schroder said that there is no negligence in Matthews original
difficulty. An improper rescue method was used and that caused a delay in the
rescue. This delay created a situation of peril and should have foreseen that the
delay in the rescue would have caused others to jump into the water. The issue of
duty arises. Is there a duty to rescue? Yes, because he is the master of the vessel and
in common law, you are responsible to care for the passengers on his ship. He has a
duty under common law to rescue Matthews. It is a duty to take reasonable steps to
rescue a passenger in the situation. Was he negligent when he tried to affect that
rescue? The experts say that the bow on way is the only proper way to do a rescue
but Schroder says that since everyone is panicking, backing up is a reasonable way
to act in the panic of the situation. This is too high a test because you are imposing
perfection on this rescue attempt. His conduct was a reasonable response in the
circumstances because this was an emergency. The trial judge said that once he
undertook the responsibility, he could not carry out his responsibility negligently.
Schroder says that what he did was reasonable. He says that it was an error in
judgment, not negligence. He also said that it was not foreseeable that the
rescue attempt would cause others to jump into the water. Justice Jessup
concurs in the result but has different reasons. Jessup says that there is a duty on
McLaren to effect a rescue, which is different than attempting a rescue. Effecting a
rescue is completing the rescue properly, not just trying. He says that negligence in
the discharge of the duty to affect the rescue would result to a liability being owed to
anyone involved in the rescue. You are no longer a bystander. He says that the
defendants negligence did prolong the situation of peril and he should have
foreseen that his conduct would have caused other people to attempt a rescue,
except in the case of Horsely in particular because McLaren told Horsely to go below
and stay back. That is what saves McLaren in this case because he told Horsely to go

below and therefore it was not foreseeable for him to think that Horsely would
attempt a rescue.
It is now appealed to the SCC and Justice Ritchie says that there is a duty to rescue as
a master of a vessel. There is no breach to Matthews but there is a liability due to
Horsely due to defendants negligence of conduct. He says that duty is to take all
reasonable steps. If Matthews was conscious he would have been able to help
himself when the boat backed up, so backing up would have been alright. He says
that there was no evidence that Matthews life could have been saved and the
evidence of alcohol was dismissed. He agrees with Schroder and says that you
cannot expect prefect rescue. The appeal was dismissed with costs. Justice Laskin
(dissent) says that there is a duty to properly rescue, a duty owed to passengers by
the master of a vessel and also if a situation of peril arises when caused by the
defendants negligence. The defendant did not put Matthews in a situation of peril,
but he did put Horsely in a situation of peril. Laskin thinks that a duty was owed
and Horselys attempt was not wanton of reckless. He agrees with Jessup and the
trial judge and he rejected Jessups position of Horsely having to go below. In the
end, the SCC decided that McLaren is not liable.
Reibl vd. Hughes
NOTE:
Now here is an odd case. The court must consider whether a doctor is required to
inform the patient of the nature and the risks of a surgical procedure as part of his
treatment of the patient. It is not a case about a negligent surgical procedure.
You will note that the trial court gave judgment for the plaintiff both in negligence
and in battery. You will recall battery is an intentional tort, defined as the
intentional application of force on the person of another, without that persons
consent.
The Court of Appeal disagreed with battery as a cause of action in these
circumstances, I disagree with that but who am I?
Another difficult problem for the court is that the plaintiff is suing on the basis that
he would not have had the surgery if he really knew the risks. Hindsight is 20 / 20
they say, every plaintiff would make this claim, once they knew the operation didnt
turn out they way they had hoped. So look for the way the court recognizes,
articulates, and ultimately deals with this problem.
It is also worth noting what the Supreme Court has to say about expert evidence. An
expert is supposed to give her evidence in hypothetical terms, it is the only opinion
evidence that is allowed in a trial, and the expert is not to decide the facts. The
expert provides an opinion that will inform and educate the trier of fact, be it
judge or jury, and the trier of fact will decide the facts. Letting the expert give
evidence about the particular takes away the job of the trier of fact, and this is
against our legal tradition.

REIBL v HUGHES - PHYSICIANS DUTY TO DISCLOSE RISK

Facts:

Plaintiff had an operation, removal of occlusion of carotid artery - during or

right after operation, had massive stroke, paralysis over right side of body,
impotent
formally consented, but alleged did not know risks of surgery
Held: at trial, for the , def did not properly explain risks, duty to disclose,
would have refused surgery with knowledge of the risk,
liability in negligence for negligently informing
liability in battery - intentional application of force without (informed)
consent

The risk is the important thing because no doctor can predict what can happen so it
is not the result but the risk of the result. It negates consent if you dont have proper
information. Lack of knowledge will negate consent. That is why this is a battery
case. In battery you dont have to show harm, the issue is if you knew everything
that you know now, and then at least you would have been able to make an
informed decision.
@ 1st appeal:
In the trial a new trial was ordered on liability and damages
The case was restricted to negligence only, dismissed battery (reject vitiated
consent as non consent)
both sides appealed - appealed whole case; def accepted damages award,
appealed decision re: new trial, asked for dismissal on issue of liability
SCC:
refer to Hopp v Lepp, in which the doctors duty to disclose to patient was
described, 1-97
The doctor must answer questions, and without being asked, disclose nature of
operation; gravity of operation; material risks, special or unusual ones to you in
particular. It includes serious risks even if remote.
The trial judge did find a full duty to warn of particular risks of that procedure. The
factors that need to be considered are: is it an emergency requiring immediate
treatment, the patients emotional and intellectual ability to understand, the gravity
of known risks and the likelihood of the risk and severity of the risk. The jury found
it hard to rely on the experts advice because experts are only supposed to give their
evidence in the hypothetical. The experts are allowed to give testimony of opinion.
The jury had to decide after hearing the evidence what the facts were. The court of
appeal had concerns about the trail and the experts brought statistical information
that were complicated for the jury to understand. That was one of the objections at
the Ontario Court of Appeal. The trail judge said that if the patient knew of the risks,

he would have refused the operation. He found that there is a duty for the doctor
to advise the patient of a risk of death or danger.
There is a contest between an objective and a subjective opinion. If it was purely a
subjective test, then when we ask the patient if he would have had the operation if
he knew what he knows now he would have definitely said that he wouldnt have
had the operation. The real question should be: would an ordinary reasonable
person with this knowledge of the risks of the operation have had the operation?
That is the objective test. The courts think that if it was purely a subjective test, then
they would never figure it out because the patient would for sure say he wouldnt
have the surgery. The court is going to use an objective test with some subjective
characteristics. The fact that if the plaintiff knew of the risks of the operation, he
would have definitely waited 18 moths to have the operation because he would have
then got his full pension. There is important information that the patient did not
know about. The subjective aspect is also still important. The doctor didnt tell him
that 8 out of 60 patients have died. He didnt tell him that it wouldnt fix his
headaches and he didnt tell him that there was no immediate need for the
operation. The immediate risk was greater from the surgery than it would have
been to forgo the surgery.
Under the heading of causation, would a reasonable person in the plaintiffs
circumstances have forgone the surgery having been given all the proper
information? The answer is yes.
Crocker vs. Sundance Northwest Resorts Ltd
This case covers a duty of warn and contributory negligence.
NOTE:
Here is a classic case that raises the hackles of the arm chair critic. A guy gets drunk
and hurls himself down a ski hill on an inner tube, and successfully sues the ski hill
for his devastating and entirely predictable injury. At what point, we might ask, do
people become responsible for their own actions?
In fact, the plaintiff will be allotted some responsibility, the court finds that his own
negligence contributed to his injury.
Contributory negligence: under the Contributory Negligence Act the court is obliged
to apportion the degree of responsibility between a plaintiff and a defendant, where
appropriate. If a person does not wear a seatbelt, that may be negligent conduct that
contributed to their injury.
The legislation was required because historically, if a defendant raised the issue of
contributory negligence on the part of the plaintiff, courts often did not want to try
to apportion the damages between plaintiff and defendant, and often gave the
plaintiff nothing at all.
Facts:
Crocker had a membership at the defendants ski hill. The defendant had advertised
the tube race. They go down the hill on an inner tube and he sues the ski hill for his
devastating and entirely predictable injury. Him and his friend drink before they get

to the event and when they get there they are required to sign a waiver. He is well
hammered by the time they get to the contest and they win their 1st heat. He
staggered up the hill and it was obvious that he was drunk. A guy at the top of the
hill said not to go because he was drunk but he said that hes fine. He goes down and
breaks his neck and becomes a quadriplegic. He sues for: Failure to warn of
dangers on the hill (it was a mogul hill), failure to warn of the dangers of tube
racing and failure to stop him from competing when he was drunk. The
defendant says that there are no unusual dangers on the hill because you know what
youre getting into. There are no dangers in tube racing that are required to warn
you about because you should have known that it was dangerous. They argued that
his own negligence caused his own risk. They also said that he voluntarily assumed
a risk (volenti non fit injuria). They relied on the exclusion clause on the waiver.
Held for the plaintiff because the defendant could not rely on the exclusion clause.
The defendant had a duty to ensure that the premises were safe. The premises were
safe but the plaintiffs use of the premises was not safe. There is a duty to warn that
tubing is not particularly safe. The dangers of tube racing are not as obvious as
expected; therefore the company had the duty to warn. The duty arises by the
contract and the duty also arises because the ski resort was an occupier of the land.
They also had a duty to save the person from his own carelessness (preventing a
drunk man from racing). They should have called the police to resolve the issue,
Sundance didnt do anything to stop him from racing. The cost of avoidance was
small compared to the likely severity of the injury. Therefore, the defendant was
negligent. There was no voluntary assumption of risk on the part of the defendant.
The plaintiff said that he did not read the exclusion clause on the ski ticket, but it
doesnt matter because the ski-pass is about skiing, not tubing. The waiver does not
bind him because if a person is going to rely on the term of a contract, then the other
party has to explicitly draw his attention to the specific dangers of the activity.
Therefore, there is no voluntary assumption of risk. He was found to be
contributory negligent and they apportioned the damages.
Norsk vs. CN PureEconomic Loss
NOTE:
You are in the theatre, watching a movie. A car slides off of the road outside and
knocks a hydro pole over. The lights go out, and you cant watch the rest of the
movie. You cant really sue the theatre owner for a refund, but what about the driver
of the car? You are out the price of a ticket. We accept that the owner of the hydro
pole can sue the driver, but what about all the other people that have lost some
money because of the accident?
One can easily imagine that allowing everyone affected to sue would be
overwhelming, logistically and financially. That vision of limitless claims produced a
general rule: you cant sue in tort if your only loss is purely economic. You had
to suffer either harm to your person, or your property to sue for negligence. And for
property, you had to be the owner of the property to sue. In Hedley Byrne, the

plaintiff sued for economic loss on something that the other party had said
(detrimental reliance/negligent misrepresentation). You can't recover for pure
economic loss but can also now sue for detrimental reliance after Hedley Byrne.
In the Norsk case, the plaintiff, CNR, is not the owner of the bridge, the bridge
belongs to Public Works Canada, so the plaintiff is suing the defendant for its
damaging of someone elses property. Norsk runs their boat into the bridge and
damages it. CN is going to lose money because they can no longer use that bridge for
a little while when it is being fixed. It is not their bridge, so Norsk says that CN can't
sue them because their loss is purely economic. At trail, the judge allows the case.
The judge said that the old rule about economic loss in Canada is gone, but now
there is no rule left so they will just look at some factors: 1. Is the damage
foreseeable? 2. What is the proximity between the conduct and the injury? 3. Is
there knowledge of the person who will suffer loss?
Norsk appealed and the plaintiff won again. The defendant appealed again and the
case went to the SCC. In the past the law restricted the recovery to the person whose
property or person had been damaged, to avoid unlimited liability. The SCC wanted
to consider the following elements: 1) should be limits on liability 2) limits to be
clear 3) should include legal, economic policy, individual fairness
They come to the conclusion that no single simple rule is available. They then look
to the different jurisdictions.
UK
They followed the old rule, then to Hedley Byrne v Heller - reliance on statement
good enough to create relationship; extended to all negligence cases where shown
1) foreseeability and proximity between and def; and 2) no reason to limit
liability; ** but in UK, reverted to former rule, couldnt get a single simple rule, back
to physical injury and reliance
US
They were worried about floodgates, strict application, limited to particular class of
cases
1) In cases where economic loss is closely related to physical damage
2) In pollution cases fisherman were rewarded because of pollution which led to
their economic loss
3) In products liability cases, where the defective product creates unreasonable risk
of harm to people and the harm materializes.
Civil Law jurisdictions: Quebec/ France (codified)
In Quebec there is no distinction between physical and pure economic loss. You
need only show, fault, damage, direct and immediate causal connection. The
example is a bus company, which recovered damages from a driver who had an
accident and congested traffic; farmer recovered from someone who knocked over
hydro pole - caused power failure

Canada
do not obey the old rule
In Rivtow Marine: the court allowed damages for loss of use of crane (dissent would
allow damages for to repair crane - even though didnt own crane)
City of Kamloops v. Nielsen, - city official negligently inspected construction, house
worth less money, required repair in order to find liability 1) is there a duty
relationship sufficient to support recovery; 2) is there any practical rule to extend
for recovery?
We need a rule to allow recovery where appropriate, but limit frivolous cases.
Doctrinal Considerations:
1-123 - law resides not in set of a priori principles, but in decisions of the courts
task of doctrine is to identify the factors common to decisions, to find emerging
principles - single simple rule not available
a priori prior to experience, on principle only
We cannot obsess on doctrine and say that it is only on a set of principles. We need
to take the real world into account.
The 2 opposing views here are doctrinal and incremental. If you stick with the old
rules, then you can have an unfair result. The law has to change with new times and
new situations. We say that uncertainty is inherent in the common law. Uncertainty
is the price we pay for flexibility. We are going to use a proximity rule. There are 3
kinds of proximity between the act and the injury, which are physical proximity,
circumstantial proximity (employer vs. employee) and causal proximity. The court
says that pure economic loss is prima facie recoverable where there is a negligent
act and a foreseeable loss and a sufficient proximity between the action and the loss.
Note that the court does take notice on some of the arguments made by the
defendant that were purely economic arguments.
The Economic Theory arguments: to support limiting recovery
Insurance argument - in better position to assess risk, - but -1) reduced recovery
takes away incentive to take care = more accidents = more insurance cost; 2) with
increased risk, neither party could afford the insurance
Loss spreading argument - loss should be spread on everyone because it is
cheaper that way. The court asked: why should be the insurer? Just another
variation of 1), so - find there will be more accidents, and some victims will
experience larger losses than others,, and where only one victim, no loss spreading
argument is availablle
Contractual allocation of risk - CN would contract with PWC to absorb cost of
problems -yeah right - argument is to retain old rule, parties will be smarter when
they contract for use - build in indemnity - PWC would never go for this, plus puts
the onus of the victim to insure against tortfeasor
Boarelli v. Flannigan

NOTE:
The principle of compensation in tort law: to use money to put the plaintiff in the
same position he would have been had the tort not occurred. When you calculate the
compensatory damages, you use all the numbers at your disposal. The plaintiff may
have lost his ability to work and sues for lost wages. The defendant notes that while
he was sitting around the plaintiff was collecting welfare. That amount should be
subtracted from the claim for wages; after all, the plaintiff was receiving some
money. And what if the plaintiff has a plan at work, or the neighborhood takes up a
collection? Although it sounds reasonable to subtract these amounts from the
plaintiffs damages award, still it seems that a welfare scheme actually assists the
defendant wrongdoer by reducing his liability.
Incidentally, this case is from 1968. The plaintiff was receiving $280.00 (approx.)
per month from General Welfare. A nice one bedroom apartment cost about $75.00
per month. Today a singe person on welfare receives, at most, $512.00 per month.
An apartment cannot likely be had for this amount of money. Welfare recipients in
Ontario, and I suspect other jurisdictions, are starving. If you can actually survive on
this amount of money, welfare officials may start to reduce your amount of
entitlement because it is presumed you have undisclosed or hidden income.
Facts:
- injured - sued def successfully
- received welfare payments after injury and before trial
- at trial, judgment ordered damages calculated by subtracting amount of welfare
payments
- welfare payments called collateral benefits : a benefit received not directly
related to or as a result of the injury or loss
- after trial, lawyer sought to lead fresh evidence that had made an assignment
to City of Toronto to repay welfare benefits from judgment
- new evidence adduced
- all parties conceded if this was known then judgment would not have been
reduced
- judgment said, however, if no assignment, had to be deducted
The courts said that it is not fair for the wrongdoer to enjoy the benefits from the
plaintiffs welfare.
Ont Court of Appeal
Held:
- previous cases - Redpath, p 1-136
- startling to subscribers to realize distress funds were to the benefit of the
negligent railway company
- welfare was not designed to be for the benefit of wrong doers
- no difference between welfare and charity, i.e. public or private benevolence
- let legislation resolve the problem

- Analogous to tax argument: defendants complain that single payment for loss of
wages is not taxed, and wages received would be taxed
- court says: too bad, let the legislation take care of it
- none of the defendants business
- wrongdoer not to enjoy the benefit
- same as employment benefits, paid for them in his wage / benefit package, def
doesnt benefit from s wages
- payments ex gratia; out of charity
- same as above
Dobson vs. Dobson
Facts
A woman is driving her car when she is pregnant and was in a car accident. Her
child was born on the day of the accident prematurely and he suffered injuries
before he was born. He later on sues his mother for negligent driving.
The child is a minor so it might be the case that if she was successfully sued, then
she would get the money from insurance. This is an anomaly in the case. She is going
to admit negligence in the case and the money will go to her to look after her child. It
is counter-intuitive to us. At trial, her son wins because (1) there is nothing in
common law baring the suing of your own parents and (2) although a fetus is not a
legal person, once that child is born alive, the child can sue 3rd parties for injuries
that were sustained in utero. These are the 2 principles that lead to the conclusion in
the trial courts.
At the court of appeal, they recognized the 2 principles from trial, and also saw a
difference between the actions brought by a fetus and by a born alive child. They
worried about this lawsuit because it could lead to the mothers being sued for so
many different things that affected their children in utero (smoking, drinking). They
didnt want to impose standards on the mothers lifestyle down the road. They
resolved the case on a narrow issue of liability to the born alive child for negligent
driving. The court thought that they could restrict the narrow issue, because they
will allow for the suing of a born alive child for negligent driving. It is a very narrow
issue that might be taken out of context down the road.
They look at some other cases:
Duval foreseeable plaintiff unborn child, once born - legal relationship
crystallizes, and claim for damages can be made
Montreal Tramways - foetus is injured, once born, deemed to be have been born at
the time of the accident
SCC
Justice Cory gives us an analysis of what the problem is in this case. He follows
Kamloops vs. Neilson. A) Duty of care/proximity, B) are there any policy
reasons for limiting the scope of recovery. The duty of care is obvious. Cory

says that it is a case of autonomy and privacy. He says that the fetus is part of
the mother and gives the analogy that between the mother and 3rd party, the
liability wont work. The mother is actually suing herself because only after
birth does a fetus have a separate personality. An argument against it is that
the child is deprived of compensation because it has a mother. The other
problem is that the mother is potentially subject to tort liability through
every waking moment. The most mundane decision could have severe
consequences. They cited the Winnipeg case where a woman was going to be
put away because she was pregnant and a glue-sniffer. It was too much of an
intrusion on the fundamental rights of the person.
1: duty of care intrudes on fundamental rights no longer an autonomous decision
maker
2. cant define a standard of care for a pregnant woman
3. life-style choices like drug addiction may be beyond womans choice, - no
deterrent value (secondary purpose of tort law)
4. attracts too severe a level of external scrutiny
argued - Winnipeg is different, was a foetus, this one is alive, but Corey J. says same policy issues arise in both cases
In the UK, they see the problem the same way that Cory sees it but there is tort
immunity, except in the narrow case of negligent friving, as long as there is
compulsory automobile insurance by statute.
In the US, there is no consensus on how to deal with the problem.
- Stallman v Youngquist denied the claim, noted that 3rd parties are liable, in such
a case, interests of mother and child are one and the same, dont have the policy
issues and problems of child suing mother
- excessive scrutiny of all decisions a mother makes
- Bonte in US - same as trial judge in Dobson - but Corey disagrees for policy reasons
Corey : 3rd parties can continue their lives as before with recognition of a prenatal
tort mothers cannot, implications are too huge.
Consequences of recognizing the Tort
- mother would be liable in situations where a third party would not, every decision
is called into question, every decision about her doing anything
- restriction of activities
- this should only be undertaken by the legislature not the courts
- emotional trauma to be sued by your child
- real issue is lack of financial support for injured children, the way to do this is
through better health care, not tort liability
Problems with Standard of Conduct
-No such standard exists, there is no such thing as a clearly defined reasonable
pregnant woman standard

- suggested by intervenor that standard would not make the mother an insurer of
the child, only for reasonable standard of activity
- Corey - unworkable, too strict, no smoking and drinking, etc.,, takes away
autonomy
Lifestyle choices particular to parenthood Fleming on Torts
- this is unworkable, anything can be related as particular to parenthood, driving
sure is
general duty of care- rejected by Corey - the litigants before the courts are the
issue - ** this is wrong, we always judge them on a hypothetical reasonable person
standard, and reasonable foreseeability
Motor Vehicle exception
- this has to be done by statute, if the court does it, the reasoning can always be
expanded to generate more claims
Insurance dependant rationale
- there is insurance available the availability of insurance is antithetical to tort law
principle, compensation and liability cannot be based on either available insurance
proceeds or the defendants ability to pay
- even though the insurance would help the mother and child and family, judicial
decisions cannot take this into account
Summary on page 13:
McLachlin concurring, but for different reasons
- unacceptable interference with liberty and equality
- liberty, the woman would lose the freedom to make her own choices
- all other Canadians can decide what to eat or drink, except a pregnant woman
Dissenting Opinion:
Major
two objections raised in majority
1: trial judge wrong to compare mothers duty to that of a 3rd party
- mother and child are not 2 separate entities
2. policy implications are too substantial, freedom, autonomy, etc
foetus has no cause of action - so this is not an issue

- the case is about a born alive child, which has a cause of action, all this talk about
fetuses is just bunk
- duty of care is owed to born alive child issue becomes one of causation
- duty of care is obvious - this was conceded by the majority
- so the issue is policy considerations
- in this case the womans perspective must compete with her born-alive childs
interest
- the mother owes duty of care to all users and passengers on the road, likewise a
duty to her child if she knows she is pregnant
- her obligation to drive safely does not restrict her freedom, she has no right to
drive dangerously because of her liability to 3rd parties
- this is surely not an imposition on her right to freedom of choice
- mother owes d of c to 3rd parties, and owes d of c to her child
- disagrees that actual parties before the court are the issue, negligence law based
on the reasonable person- her conduct was below that of a reasonable person
- if freedom of action is not in issue, then there is no compelling reason to deny
compensation to child
- bare assertion of a policy interest is not enough to deny compensation
- equal acknowledgment of the rights of the child
- the removal of the plaintiffs right to sue in tort for negligence lies within the
exclusive purview of the legislature

In the US, when you pay interest on a mortgage, you can deduct that from taxes. It
sounds like a good idea because you get to pay fewer taxes. This legislation benefits
the banks. The government passes legislation without really thinking it through
because it has now put them all in a terrible position. James doesnt like Mitt
Romney! This tax thing is a really bad idea because money is taken away from those
who can't give money up.

JORDAN HOUSE v. MENOW AND HONSBERGER

NOTE:
They are running a tavern inn in this case.

Occupier's Libility:
An occupier is an occupier of land, and includes a person who owns or leases
land. An occupier owes a duty of care to anyone who enters his or her land.
Occupiers liability, together with the law of negligence, is an expanding area of
law. It would be hard to deny the impact of the availability of insurance proceeds
on this area of law. This is not to say that courts are finding defendants liable
because they are insured, but there is no doubt that injured plaintiffs are far more
likely to sue when they know there is a deep pocket to pay their claims.
Homeowners are usually insured, many residential tenants are insured, most
business occupiers as tenants or owners of land are insured. In reality, in a
typical slip-and-fall case at the mall, a plaintiff could be suing the store
proprietor, the entity holding the commercial lease, the actual land owner, and
potentially the municipality, to name but a few.
This area of law applies to taverns, hotels, and even private parties.
At common law, there are three categories of persons entering lands not their
own, and the occupier owes varying duties of care to each one. The categories
are: Trespasser, Licensee, Invitee.
1. trespassers - lowest duty owed to avoid deliberate injury,
- an exception - persons with swimming pools, small children are trespassers,
still have duty to protect them, - under statute
- trespassers assume all risks, occupier has no duty to warn except of "traps" or
devices, eg. beware of dog
- if occupier knows of trespassers use, and acquiesces, implies consent = duty to
warn of any dangers
2. licensees - with express or implied consent of the owner, usually for own
benefit
- duty to to protect licensee from concealed dangers occupier knows about
3. invitees - highest duty, invited onto lands, usually for benefit of the owner
- customers of stores, theatres etc., invitation to enter
* Occupier's Liability Act R.S.O. 1990, abolished the distinction between
invitees and licensees, the same duty is owed to both.
Now the Act sets out obligations and liabilities of occupiers and persons entering
the lands.
- duty to take reasonable care to ensure safety of persons
- note the obligations to trespassers

Section 3 of the Act also incorporates the defence of what has traditionally been
referred to as:
Volenti Non Fit Injuria: The voluntary assumption of risk.

This defence to a negligence claim is comprised of two elements:

a) the plaintiff knew about the risks on the land or associated with the activity,
and
b) the plaintiff voluntarily assumed the risks
This was one of the defences in Crocker v Sundance, unsuccessful in that case.
Here is a link to the web site for the Ontario Government, this one is a direct link
to the Occupiers Liability Act.
http://www.e-laws.gov.on.ca/DBLaws/Statutes/English/90o02_e.htm
Pay attention to the reference to statute in this case. The defendant tavern will try
to argue that a liquor licensing statute prescribes the only liability that can exist,
the judgment refers to this statute but argues it is qualified by the common law. I
dont find any reference to occupiers liability legislation, but there is a reference
to the common law. This should help to clarify the simple point: the relationship
between statute law and the common law in Ontario is not clear. Statutes are
created ad hoc, as situations arise, and they help to patch up or reform what are
perceived problems in the common law as it exists. Sometimes statutes will
expressly state that they are abolishing a common law rule. For example, the
Tenant Protection Act abolishes a residential landlords common law right to
confiscate property for rent owing. But the vast majority of statutes co-exist with
the common law, and this case is a fine example of the extra work generated for
lawyers and judges to sort it all out.
The Case:
Facts: M attended at bar (def) on regular basis, hotel knew he was a drunk, told
staff not to serve if on his own
1. M came to bar with employer, had a few drinks
2. Employer left, M stayed behind, drinking
3. Alone but not drunk at 7:00 P.M., drunk by 10:00 P.M., bar staff told him to
leave
4. He left to walk home on the highway, was hit by a car, (staggering down
the middle of the road)
5. Sued the hotel in negligence for tossing him and letting him walk home
alone when he was drunk

Held:
At trial:
1. 2 grounds for finding a duty: 1) under Liquor License Act, there is a duty
not to serve person intoxicated
2. 2) under same Act, you are allowed to throw them out, but to do so not in
such a way as to subject them to danger
3. Act supported proposition of common law duty not ton injure them while
you are throwing them out, evidence of a breach of standard of care
4. Even though entitled to throw him out, right qualified by a common law
duty to make sure you dont harm him doing so this is because the
plaintiff is an invitee, tavern invitor common law of occupiers liability
applies
Held on appeal:
- again, for , breach of common law duty of care, the common law duty of care
was the one imposed by the common law in relation to an occupiers liability
Def argued:
1. Section .67 of the Act sets out exclusive and is the only place in the act
that describes liability
2. other party giving ride was a new fact that removed from scope of their
obligation
3. the second argument is a Novus Actus Intervieniens defense
4. court rejected these arguments
Supreme Court of Canada
1. Act evidence of common law duty of care owed, Liquor License Act does
not describe a statutory right to sue, (if it did, this would be limiting)
2. Common law duty arises from foreseeable risk of harm, and risk
unreasonable to harm
3. Foreseeable risk - guy was drunk, def knew about propensity to drink,
knew where he lived, knew drunk on that occasion, hotel on a highway,
knew took highway to get home = foreseeable risk
4. Reasonable to run the risk: look at Bolton & Stone: not reasonable
because:
5. A) likelihood of injury high
6. B) cost or burden of avoidance is low when compared to potential
severity of injury
7. Could have called a cab, the police, someone to give him a ride, gave him
a room for the night, lots of opportunity. The cost of avoidance was pretty
low and the likeliness of injury and extent of injury was high.

There was no Voluntary Assumption of Risk because he was too drunk to be

aware of the risk, and he lacked the legal capacity to agree to it
He was Contributory Negligence : all three defendants equally responsible for the
injury
Nespolon v Alford
The defendant, Snyder, is 14 years old at the incident. Him and his 2 friends go to
the house of Albert to drink underage. Snyder drank 2 liters of wine. They went to a
dance after and Snyder was really drunk. His friends left him in someone elses car
that they knew. It is Alfords car (defendant). Alford could see that this guy was
drunk and they took him to drive him home. They didnt know where he lived so
they went to Burger King. A police officer saw Snyder being drunk and said that if
they dont take him home, that theyll go to jail. They set out to take him home and
on the way to his house he told them to let him out because he knew the people who
lived in a house along the way. Snyder gets out of the car and staggers off down a
couple of lawns and back onto the road. They turn around and another car comes
along. The other car slows down to ask him if he is okay. Snyder is on the road on his
knees facing Nespolons car and he doesnt even see Snyder and he ran over him and
killed him. Nespolon feels terrible and he never returned to work and got very
depressed. He was overwhelmed with guilt and he was diagnosed with PTSD. Taking
a step back we have to remind ourselves that Nespolon is suing because he killed a
person. It is an unusual case. The court found that Nespolon was not found negligent
in his driving because it was too dark and he wasnt wearing bright clothing. The
trial also said that the guy who gave him the wine was not negligent because there
were too many intervening acts in-between. They found that a duty of care was
owed by Alfred and Bedard. They ought to have known that Snyder would have hurt
himself and brought others into a situation of peril. Snyders liability was based on
the fact that he should have known that he could create a situation of peril if he got
that drunk. Nespolons PTSD was forseeable and is therefore compensable. An
ordinary and reasonable 16 year old should know that seeing a person who you just
killed could cause nervous shock. The difference between this case and the other
case with the motorcycle accident where the woman gets nervous shock is that in
this case, Nespolon was the instrument of death and is more intimately involved in
the situation. At trail the entire test was met, but the court of appeal doesnt agree
with the trial decision.
The court of appeal (SCC) says that Alfred and Bedard acted reasonably in the
situation because they figured that he knows the people who lived there. They
couldnt reasonably foresee that dropping Snyder off at the roadside could cause
PTSD to the plaintiff. She says that there is no causal connection between dropping
Snyder off and the injuries caused to the plaintiff. Their behaviour was reasonable
because he said the he knew the family. All you need to do is act reasonably in the
circumstances. They didnt have any reasonable alternative. She says that it was not
foreseeable to them that someone on a clear night would not notice a person on the
road. She says that there is no liability for dropping him off. The court says that the

law only compensates the injuries that are caused by someone elses conduct,
liability for nervous shock is rare and a relationship must exist for one to be found
negligent for this. She is concerned that liability will be expanded to an everlasting
group of plaintiffs by recognizing nervous shock. Nervous shock is not
foreseeable and not caused by their actions. That is the majority opinion. The
dissenting opinion is Justice Brooke, who says that once the police confronted them,
Alfred and Bedard accepted a duty not to abandon him at the side of the road. They
were responsible enough to take the car to a dance. The police officer thought that
Alfred and Bedard were adults and the affects of alcohol were obvious. They
understood their responsibility to Snyder. They could have walked him up to the
house or taken him directly to his house. The alternatives were not outrageous and
they knew that Snyders intoxication could lead to a situation of danger. Nervous
shock is not foreseeable Nespolon was directly involved in the accident and was not
a bystander. There is no reason in this case to differentiate between physical and
mental injuries in this case. Snyders own intoxication is negligent.
Mustapha v Culligan
Mustapha orders water from culligan and he finds 2 dead flies in the water. He
thinks that he was drinking contaminated water his whole life. He sends it back to
culligan and became obsessed with the event and the revolting implications of the
water. He developed a depressive disorder and anxiety. The trial judge found that
seeing the flies caused an anxiety disorder and awarded his with damages.
We can wonder if that is a reasonable response to the fly in the water. They refer to
Donaghue vs. Stevenson. The duty of care is easy to establish. The standard of care
was below the norm when culligan allowed the flies to get in. Next comes did the
plaintiff suffer damage/injury? Nervous shock is injury, but being upset is not an
injury recognized by law. It has to be substantial. On the findings of the trial judge,
Mustapha developed a major depressive disorder, which had a serious impact on his
life. He established that he sustained injury/damages. The causation and
remoteness asks whether the harm is too unrelated to the wrongful conduct to hold
the defendant liable? Any harm is actually possible and we know this, but it doesnt
provide a meaningful standard. It was not foreseeable that a person would have this
reaction. It is not caused in law, it may be caused in fact, but not law. It is too remote.
The trial judge got it wrong because he was too subjective on the characteristics of
this particular plaintiff. He should have thought on terms of a reasonably normal
person. You have to establish duty of care by foreseeability.
PRACTICE QUESTIONS
1. C
2. D
3. A
3. A
4. A
5. A

6. D
7. C
8. C
9. B
10. F