Christie_Law_140_ ... - LSS | Cans DB

THE LAW OF NEGLIGENCE - Chapter 9 P usually has the burden of proving the first 5 elements, while D has
burden of proving the 6th Duty of Care - was the D under any legal obligation to exercise care with
respect to the P's interests in the type of case under consideration?
(nature and scope of DC)
The Standard of Care and its Breach - reasonable person, not perfection,
based on SC at the time
Causation - will not be held liable unless the careless conduct was a
cause of P's loss
Remoteness of Damages - determine whether the relationship between the
breach and the injury is too tenuous or remote to warrant recovery
(liability limited to those losses that were foreseeable consequences of
the D's negligent act) - conduct must be "proximate cause" of the loss
Actual Loss - must establish he or she suffered legally-recognized
injuries and losses - different from intentional torts
Defenses - P's damages may be reduced or eliminated on account of his or
her own conduct or other considerations (contributory negligence, voluntary
assumption of risk, etc.)
Example of court working through these elements: Dunsmore v Deshield:
Hardex glasses break during touch football game, not Hardex lenses,
optometrist did not test them THE DUTY OF CARE - Chapter 10 Was the D under any legal obligation to exercise care with respect to the
P's interests in the type of case under consideration? DC PROCESS
is the alleged DC within an established category or analogous to an
established category? If so, generally not necessary to apply Anns/Cooper
analysis. Proximity is established and overriding policy considerations
will rarely arise. Thus, a DC exists. Categories where DC has already been established: (or an analogous one) in
Cooper
where someone causes harm to person or property (306)
cases of nervous shock - messy (implying nervous shock manifested
physically) (Mustaphe)
negligent misrepresentation
misfeasance
duty to warn of danger
public authority to private citizens (Kamloops)
relational economic loss if the case alleges a novel DC, was the harm reasonably foreseeable? P's
loss was a reasonably foreseeable consequence of D's conduct - not in terms
of exactly what happened
even if the harm was foreseeable, was there a sufficient relationship of
proximity between the parties to make it just and fair to impose a DC on
the D? (consider policy reasons) - ought reasonably to have had this group
in contemplation, no DC to the whole world - "look at expectations,
representations, reliance, and the property or other interests involved -
these factors allow us to evaluate the closeness of the relationship
between P and D and to determine whether it is just and fair having regard
to that relationship to impose a DC in law upon D" (306 Cooper v Hobart -
mortgage broker should have shut down Enron sooner - no DC to investors) -
not physical proximity
if there was foreseeable harm and a sufficient relationship of proximity, a
prima facie DC exists. Then, according to Childs, the evidentiary burden
shifts to the D to raise any residual policy considerations that might
negative or limit the scope of the DC - is it "fair and reasonable" for the
court to impose a DC in light of the applicable policy considerations? Donoghue v Stevenson [1932]: Snail in gingerbeer - Creates DC test drawing
from rule: "The rule that you are to love your neighbour becomes in law,
you must not injure your neighbour; and the lawyer's question, Who is my
neighbour? receives a restricted reply." 1. reasonable foreseeability; 2.
proximity
"You must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbor" (narrowly
defined) "persons who are so closely and directly affected by my act that I
ought reasonably to have them in contemplation as being so affected when I
am directing my mind to the acts or omissions which are called into
question."
Anns/Kamloops structuring Donoghue) Stage 1: reasonably foreseeable harm
and proximity; Stage 2:
Canadian courts endorsed this test in Kamloops v Nielsen (1984) & Canadian
National Railway Co.
Then Cooper v Hobart, 2001 (while UK overturned Anns in Murphy v Brentwood
District Council)
More Examples:
Odhavji Estate v Woodhouse (2003) (SCC), 311
Facts: man seemed to be leaving the scene of a crime (robbery) - while
running away police shoot and kill him. SIU (Special Investigative Unit) -
independent civilian body steps in to investigate whether police did what
they were supposed to do. Closest party they sue is the actual officers
involved, then police chief (meant to ensure officers comply with
policies), then police board, then Province - proximity and policy
considerations
Dobson v. Dobson (1999) (SCC), 392-394
Facts: Pregnant mother has accident, guardian of unborn child sues mother
for insurance purposes. Insurance company arguing that unborn child should
not be able to sue mother. Policy considerations negated the prima facie
duty - takes a toll on woman's autonomy (rights based argument),
appropriate SC fraught with problems, certain lifestyle choices such as
alcoholism/drug addiction may be beyond control of pregnant woman (no
deterrent value)
Childs v Desormeaux [2006]
Facts: BYOB party, D left drunk driving and hit a child, social party
"once the P establishes a prima facie duty of care, the evidentiary burden
of showing countervailing policy considerations shifts to the D, following
the general rule that the party asserting a point should be required to
establish it." (McLachlin) Application of the DC Test
Foreseeable Risk of Injury
2 questions: At the time of the alleged tort, was it reasonably
foreseeable to a person in the D's position that carelessness on his or her
part could create: (i) a risk of injury, (ii) to the P (someone like the
P)?
Moule v NB Elec. Power Comm (1960) (SCC) Ritchie J.: facts do not support
the finding of a risk, given that the young A had to first climb one tree,
then cross over to other, and then climb higher than any witness admitted
anyone else had ever gone, before his actions led to injury as a result of
the power lines
Amos v NB Elec. Power Comm (1976) (SCC) Spence J.: Unlike in Moule, here
"... the boy, by climbing what seemed to be a normal poplar tree, caused
the tree to bend so that it contacted high tension wires which it should
not even have been near ... the accident in the present case ... was almost
inevitable"
Foreseeable Plaintiff
Palsgraf v Long Island Ry.(US case picked up in Canada) Don't owe a duty to
the world.
Facts: fireworks in package go off at train station, scales fall on woman
- One only owes a duty of care to kinds of people who might be said to have
been reasonably foreseeable as put in risk of harm by a party's possibly
negligent dangerous activity Different manifestations of Reasonable Foreseeability:
"The proximity upon which a Donoghue type duty rests depends upon proof
that the D and P are so placed in relation to each other that it is
reasonably foreseeable as a possibility that careless conduct of any kind
on the part of the former may result in damage of some kind to the person
or property of the latter...The breach question requires proof that it was
reasonable foreseeable as a possibility that the kind of carelessness
charged against the D might cause damage of some kind to the P's person or
property...The remoteness test is only passed if the P proves that the kind
of damage suffered by him was foreseeable as a possible outcome of the kind
of carelessness charged against the D." (319 from Australian case, 1983) SPECIAL DUTIES OF CARE (AA) - Chapter 11 As a general rule, the courts have been willing to impose liability for
losses caused by misfeasance (an act, positive acts) but not by nonfeasance
(failures to act, omissions) - strong presumption against duties on those
who might be able to intervene - exceptions increased The Duty to Control the Conduct of Others (342)
(a) LIABILITY FOR THE INTOXICATED
Jordan House v. Menow (1973)(SCC) (discussed in context of Crocker v.
Sundance (1988) (SCC), pp 343-344:
Facts: Menow known as a "bad drunk", has too much to drink, kick him out
of hotel pub, in rural area, dropped off in isolated area, hit by car.
Sues drinking establishment. Sets new precedent.
In the right kind of circumstances, there is a relationship established
that is enough to create a DC. Conclusion: proper to find hotel under
duty
factors that influence finding of relationship:
Invitor-invitee (Menow as patron) (commercial enterprise - come in and do
business)
Hotel was aware of his intox condition
Hotel fed the intoxication
Hotel did so in violation of liquor licence/legislation
Common thread in drinking establishment cases: "... under a duty not to
place another person in a position where it is foreseeable that that person
could suffer injury"
commercial enterprising drinking establishments are included in the DC
categories (must also be the right kind of factual matrix - i.e. knowledge
of what is going on)
Crocker v Sundance (1988) (SCC): signed waiver for tubing competition, 2
days later very intoxicated, injured, DC not to place person in position
where foreseeable they could suffer injury, no preventative measures taken,
voluntary assumption of risk does not apply because clouded by alcohol, did
not read release
The CL duty to control the conduct of the intoxicated person was broadened
in a series of cases
Note 5 (pg 347): But this trend somewhat checked by Stewart v Pettie,
[1995] 1 SCR 131
Facts: 4 adults at dinner theatre, one served many drinks and he drives
drunk - SCC held that serving patrons past the point of intoxication did
not, in itself, pose a foreseeable risk. Rather, the court held that there
had to b